Jackson Tile Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 16, 1962

137 N.L.R.B. 1293 (N.L.R.B. 1962)

JACKSON TILE MANUFACTURING COMPANY 1293
12. BE COURTEOUS-Tip your hat to a lady ALWAYS. Thank your customer
WITHOUT FAIL and INVITE him to come again.
13. TAKE PRIDE in the appearance of your station and in each other as a team.
DON'T let a single man hurt the team.
14. NO LOITERING permitted at any time . NO EXCEPTIONS.
15. Do not approach a car with a cigarette , pipe or cigar.
16. Don' t make a FOOL of YOURSELF by giving out any private Company in-
formation.
.Jackson Tile Manufacturing Company and Local No. 401 , United
Glass and Ceramic Workers of North America, AFL-CIO.
Case No. 15-CA-2003. July 16, 1962
DECISION AND ORDER
On April 30,1962, Trial Examiner Lloyd R. Fraker issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its en-
tirety, as set forth in the Intermediate Report attached hereto. There-
after the Charging Party filed exceptions to the Intermediate Report,
together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
[The Board dismissed the complaint.]
1 While the matter is not free from doubt and the circumstantial evidence presented in
support of the complaint, as indicated by the Trial Examiner, does raise a strong suspicion
as to Respondent 's motive in the discharge , we are constrained to conclude that a pre-
ponderance of the credited evidence falls short of establishing the violation. We there-
fore find that the General Counsel has failed in his burden of proof and for this reason
alone adopt the Trial Examiner ' s recommendation that the complaint be dismissed. The
Charging Party requested the Board to overrule the Trial Examiner's credibility findings.
It is established Board policy not to overrule such resolutions except where a clear pre-
ponderance of all the relevant evidence convinces us that the Trial Examiner's findings
are incorrect. No such conclusion is warranted in this case. See Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd . 188 F. 2d 362 (C.A. 3).
INTERMEDIATE REPORT AND RECOMMENDED ORDER
1. STATEMENT OF THE CASE
A. The unfair labor practice charge and the complaint
The charge in this case was filed October 16, 1961 , by Local No. 401, United Glass
.and Ceramic Workers of North America, AFL-CIO, herein called the Union,
. against Jackson Tile Manufacturing Company, herein called the Respondent.
137 NLRB No. 140.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The hearing and the briefs
This case was heard by me at Jackson, Mississippi, on March 19, 20, and 21, 1962.
The General Counsel and the Respondent were represented by counsel and partici-
pated fully in the hearing. After the close of the hearing the General Counsel and
the Respondent submitted briefs, in support of their respective positions, which have.
been duly considered by me in arriving at my findings and conclusions herein.
II. THE PLEADINGS
A. The complaint
1. Jurisdiction of the Board
Since the parties stipulated at the hearing that the Respondent is a Mississippi
corporation engaged in the manufacture of ceramic tile and, during the representative
1-year period ended December 31, 1961, had an outflow of its products in interstate
commerce, of a value in excess of $50,000, which it sold and shipped, from Jackson,
Mississippi, to points outside of that State and is and has been at all times material
to the issues herein, engaged in "commerce" as defined in Section 2(6) of the Act,'
all as alleged in the complaint, I shall base my recommendation as to assertion by
the Board, of its jurisdiction in this case on those stipulated facts. Since the allega-
tions of the complaint and the stipulated facts as to the Respondent's indirect outflow
do not indicate that the purchasers of the Respondent's products who are located
in Mississippi, each has an annual direct outflow of goods in interstate commerce of
a value in excess of $50,000, I shall disregard those allegations of the complaint.
2. The status of the Union
The General Counsel alleged in the complaint that the Union is, and has been at
all times material herein, a labor organization within the meaning of Section 2(5)
of the Act.
3. The alleged supervisors involved
In paragraphs numbered 7, 8, and 9 of the complaint, respectively, the General
Counsel alleged certain conduct of the Respondent by its supervisors and agents,
Walter G. Martin, Wilbur Chase, and Peter Robbins.
4. The alleged violations of Section 8(a)(3) and (1)
In paragraphs numbered 5 and 6 of the complaint the General Counsel alleged
that on or about May 23, 1961, the Respondent "terminated" its employee, Dennis D.
Cowart, and thereafter failed and refused to reinstate him all because of his "mem-
bership in and activities on behalf of the Union, and to discourage union and other
concerted activities of its employees."
5. The alleged independent violations of Section &(a) (1)
In paragraphs numbered 7(a) and (b) of the complaint the General Counsel
alleged that, on or about June 6, 1961, the Respondent "interrogated an employee
concerning their own Union activities and desires and that of other employees"
[emphasis supplied], and threatened an employee with discharge for supporting the-
Union.
In paragraph numbered 8 thereof the General Counsel alleged that, during the
month of June 1961, the Respondent interrogated an employee as to his and other
employees' union membership, activities, and desires.
In paragraph numbered 9 thereof the General Counsel alleged that, during the
month of September 1961, the Respondent "prohibited an employee from collecting
union dues from other employees at the Respondent's plant during the employees'
lunch period."
B. The Respondent's answer
The first five paragraphs of the Respondent's answer herein do not comply with
Section 102.20 of the Board's Rules and Regulations, Series 8, as amended, since the
Respondent therein "neither admits nor denies" any of the allegations of the complaint
except that it is a Mississippi corporation engaged in the manufacture of ceramic.
I The National Labor Relations Act, as amended.
JACKSON TILE MANUFACTURING COMPANY 1295
tile. Since "good cause to the contrary" was not shown all of the allegations of the
complaint as to the filing and service of the charge, as to the facts and figures on which
the Board's jurisdiction herein is predicated and as to the Union's status as a labor
organization are "deemed to be admitted to be true" and the stipulations, hereinafter
discussed, with respect to those allegations of the complaint actually add nothing to
the pleadings herein.
In the succeeding six paragraphs of its answer the Respondent denies specifically
all of the unfair labor practices alleged in the complaint.
C. The stipulations of the parties
During the course of the hearing the parties stipulated, on the record, that during
the year ended December 31, 1961, which is a representative period, the Respondent
"sold and shipped ceramic tile valued in excess of $50,000 to customers in the State
of Mississippi who, during the same period sold and shipped products valued in excess
of $50,000 to points outside of the State of Mississippi," that during the same period
the Respondent "sold and shipped goods valued in excess of $50,000 from its Jackson,
Mississippi plant to points outside the State of Mississippi," and that it is "and has at
all times material herein been an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act."
The parties also stipulated in the same manner, that the Union is a labor organiza-
tion as defined in Section 2(5) of the Act and that Martin, Chase, and Robbins,
among others, is each a supervisor as defined in Section 2(11) of the Act.
III. THE ISSUES TO BE RESOLVED
As I view this case, the issues to be resolved are
A. Was Cowart discharged by the Respondent on or about May 23, 1961, and
thereafter denied reinstatement by it, because of his membership in and activities
on behalf of the Union and to discourage "union and other concerted activities of
its employees?"
B. Did Martin, on or about June 6, 1961, interrogate an employee as to his own
and as to the "Union activities and desires" of other employees?
C. Did Martin, on or about June 6, 1961, threaten an employee with discharge
"for supporting the Union?"
D. Did Chase, during the month of June 1961, interrogate an employee as to his
and "other employees' union membership, activities, and desires?"
E. Did Robbins, during the month of September 1961, "prohibit an employee from
collecting union dues from other employees" under such conditions as to constitute
a violation of Section 8(a) (1) of the Act?
IV. BACKGROUND
As requested by the General Counsel, at the hearing, I am taking official notice of
the decisions of the Board and of the United States Court of Appeals for the Fifth
Circuit in two previous cases in which the Respondent was found to have violated
Section 8(a)(1) and (3) of the Act. (Jackson Tile Manufacturing Company, 122
NLRB 764 and 124 NLRB 218, enfd. 272 F. 2d 181 (C.A. 5) and 282 F. 2d 90
(C.A. 5), respectively.) Those cases arose out of violations of the Act which took
place in 1956 and 1957 and neither of them is related directly to issues in the case
here under consideration. As requested, I am considering them only as background
to show the Respondent's labor relations history and as bearing on the issues of its
animus, in this case, against the Union or any labor organization which may repre-
sent or seek to represent its employees.
From reading the decisions in those cases it seems clear to me that as late as
July 18, 1957, the Respondent was continuing a campaign of discriminative dis-
charges of employees to defeat efforts to organize its plant and in so doing was mo-
tivated by animus, i.e ., ill will, against labor organizations in general.
There is very little evidence in the record in this case to indicate that the Re-
spondent continues to be motivated by union animus in its relationship with its em-
ployees and the Union. On the other hand the only evidence to the contrary is the
execution by the Respondent and the Union of a collective-bargaining agreement ef-
fective for the period from March 14, 1961, to November 15, 1962. Under these
conditions I have considered the evidence as to the violations alleged in this case
most carefully in an effort to determine whether or not any of the conduct involved
may be attributable to such ill will. My conclusions in that regard will appear later
in this report.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE EVIDENCE IN SUPPORT OF THE ALLEGED INDEPENDENT VIOLATIONS OF SECTION
8 (a) (1) OF THE ACT AND CONCLUSIONS THEREFROM
A. The incidents alleged in paragraph numbered 7 of the complaint
In support of the allegation that, on or about June 6, 1961, Foreman Martin in-
terrogated an employee as to "their" own and other employees ' union activities and
desires and threatened an employee with discharge for supporting the Union, the
General Counsel adduced the uncorroborated testimony of employee Grant Wixson.
In defense of those allegations of the complaint the Respondent adduced the testi-
mony of Foreman Martin who denied that he had any such conversation with
Wixson. I credit Martin's denial because Wixon's testimony was, in some respects,
unbelievable , and his demeanor as a witness leads me to the conclusion that he is an
irresponsible individual. He appeared to have difficulty in understanding the purport
of questions propounded to him and his testimony that Martin threatened to shoot
him and was serious in making such threat is , to me, unbelievable . I am not con-
demning Wixson and I do not think that he was prevaricating consciously; however,
I cannot and do not credit him. Therefore I shall recommend that paragraph num-
bered 7 of the complaint be dismissed.
B. The incident alleged in paragraph numbered 8 of the complaint
In support of the allegation that in the month of June 1961 Foreman Chase in-
terrogated an employee as to his and other employees' union membership, activities,
and desires, the General Counsel adduced the testimony of employee John J. Sharp
to the effect that the last of June or the first of July 1961 Chase asked him if he had
joined the Union, told him he had heard that Sharp and another employee by the
name of Culpepper had joined the Union, and that he, Chase, just wanted to make
sure. Although Chase denied that he had had any such conversation with Sharp,
I credit Sharp for the following reasons: He testified in a straightforward manner,
his demeanor as a witness was convincing , his testimony was not shaken on cross-
examination, and the Respondent's history of violations of the Act, discussed in para-
graph IV of this report, lends credence to his testimony. On the other hand Chase's
testimony that he could not remember if he had discussed the Union with Sharp, in
the face of his testimony that he had been repeatedly cautioned by the personnel
manager and the plant manager not to question employees about the Union, is not
convincing. I find, therefore, that on the occasion in question, Chase did interrogate
Sharp as to his and employee Culpepper's membership in the Union. Since, how-
ever, I am finding against the General Counsel on all of the other unfair labor prac-
tice allegations of the complaint , I shall recommend that paragraph numbered 8
thereof also be dismissed under the Board's doctrine of isolation. (Lily-Tulip Cup
Corporation, 113 NLRB 1267.)
C. The incident alleged in paragraph numbered 9 of the complaint
In support of the allegation that, in the month of September 1961, Foreman Rob-
bins prohibited an employee from collecting union dues during the employees' lunch
period, the General Counsel adduced the testimony of employees Wixson (referred
to in section V, A, above), Martha Bruce, and Barbara Boone. Mrs. Bruce did not
hear any of the conversation between Robbins and Wixson on the occasion in ques-
tion and Mrs. Boone only heard Robbins tell Wixson "that he [Wixson] wouldn't
be caught behind the presses any more." Robbins did not testify. Even according
to Wixson's testimony, Robbins did not say anything to him about the collection of
dues and he did not tell Robbins what he was doing behind the presses on the occa-
sion in question. Wixson did testify that Robbins only "prohibited" him from going
behind the presses. There was testimony that when the presses were in operation
it was dangerous to be in back of them. Although they are not in operation during
the employees' one-half hour lunch period, on the occasion under discussion, the
end of the lunch period must have been approaching since admittedly the three dues
collectors involved in the incident had already had their lunches in another part of
the plant.
This incident was the subject matter of a grievance processed by the Union with
the Respondent and thereafter Wixson's foreman, Nedreburg, told him, "You are
restricted from the press room during work hours." (Emphasis supplied.) Under
the conditions discussed above I cannot find any violation of the Act involved in this
incident and shall therefore recommend that paragraph numbered 9 of the complaint
also be dismissed.
JACKSON TILE MANUFACTURING COMPANY 1297
VI. THE EVIDENCE IN SUPPORT OF THE ALLEGED VIOLATIONS OF SECTION 8(a) (3)
AND (1) IN THE DISCHARGE OF COWART AND CONCLUSIONS THEREFROM
In paragraphs numbered 5 and 6 of the complaint the General Counsel alleged
that Cowart was discharged on or about May 23, 1961, and thereafter denied rein-
statement , all because of his membership in and activities in behalf of the Union, for
the purpose of discouraging concerted activities by the Respondent's employees.
The testimony on this phase of the case is conflicting and raises serious credibility
issues. In resolving those issues I have considered the demeanor of the witnesses,
their respective interests in the outcome of this litigation, the plausibility of each
of the witnesses' testimony within itself, the probabilities inherent in their testimony
in connection with the whole picture presented by all of the evidence, and, of
course, the ,Respondent's history of previous violations of the Act.
Certain facts incident to this phase of the case are either admitted or are not in
dispute. At the time of his discharge Cowart had been employed by the Respondent
as a "kiln burner" for a number of years, during the whole period of such employ-
ment none of his supervisors had reprimanded him or complained about his attitude
or work performance prior to his discharge on May 23, 1961. One of his duties as a
"kiln burner" was to grease the wheels of the kiln cars. For an indefinite period of
at least months before the discharge the Respondent, after a changeover to a dif-
ferent type of grease, had required all kiln car wheels to be greased before they
entered the kiln. At all times material to the issues herein Cowart was fully aware
of such requirement. Failure to grease the wheels before the cars entered the kiln
was liable to result in serious financial loss to the Respondent. At all times material
to the issues herein the Respondent's work rules provided for disciplinary action
against employees, including discharge in proper cases, for willful and intentional
refusal to follow instructions or to perform work assigned. At all times material
to the issues herein Cowart was both a member of and an officer of the Union
and those facts were well known to the Respondent.
In this setting the Respondent contends that it discharged Cowart for failure to
grease the wheels of two kiln cars, on the day of the discharge, before he pushed
them into the kiln, and because upon inquiry from his foreman, George Williams,
he stated falsely that he had greased them before they were pushed into the kiln.
Under the conditions recited above if Cowart failed to grease the wheels on the
cars in question before pushing them into the kiln, it seems to me that such failure
must be a willful and intentional refusal to follow instructions. That is not, how-
ever, the real issue involved since the General Counsel here charges the Respondent
with a discriminative discharge of Cowart because of his membership and activities
in behalf of the Union and for the purpose of discouraging " union and other con-
certed activities of its employees." The burden of proof is on the General Counsel
to establish the illegal character of the discharge by a preponderance of the credible
evidence. If he has failed to do so and regardless of any other considerations the
allegations of the complaint as to Cowart's discharge must be dismissed.
Cowart testified that he greased the wheels on the two cars in question before they
entered the kiln. All parties admit that said cars were pulled out of the kiln, due
to a break in the pusher chain, shortly after they entered the kiln and before they
had been subjected to any great degree of heat. Thereafter the wheels were pulled
off of both of said cars and they were inspected for grease, in Cowart's behalf, by
employees Wixson, Gaughf, Ivy, and Lee, by employees McGee, Thornton, and
Young in connection with their work and by Supervisors Williams, Hawk, Newman,
and Knowlton in behalf of the Respondent.
Wixson testified that he inspected all eight of the wheels and procured a ridge of
black grease on his finger about one-half an inch deep out of two of the wheels
which he had inspected not only visually but also by running his finger around inside
thereof. He was corroborated as to the inspection by employee Gaughf and as to
the amount of grease so procured by him, by employees Gaughf, Boone, and Bruce.
Both he and Gaughf testified that in their opinion the wheels were greased ade-
quately. Wixson also testified, however, that the grease which he fingered out of the
wheels appeared to be old grease and that he found no evidence of fresh grease.
Although there is a contrariety of testimony as to who pulled the two cars in
question out of the kiln and Cowart testified that he pulled them both out without
help by using the "hand winch," I do not find it necessary to determine this issue
since in my judgment the overwhelming weight of the credible testimony indicates
that the wheels had not been freshly greased before they were pushed into the kiln
by him.
649856-63-vol. 137-83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Thornton who testified that he hand winched one of the cars out of the
kiln, also testified that they had reddish looking grease in them which looked like
"heavy liquid glue."
Employee Young, one of the maintenance employees who worked on .the repair
of the pusher chain, ;testified that he and someone else whom he could not identify,
pulled at least one of the cars out of the kiln, that it was unusually hard to pull out,
that he looked at two of the wheels after they had been removed from the cars,
that if there was any grease in them he could not see it, that he did not notice any
grease on the axles, and, on cross-examination, that the axles and the inside of the
wheels were dry.
Employee Ivy, a kiln burner, testified that he inspected the wheels after they had
been pulled off of the cars because Cowart asked him to check them, which is directly
contrary to Cowart's testimony that he asked only Gaughf directly and Wixson
through Gaughf, to check the wheels. Ivy appeared to have been confused as to
which car wheels he inspected because he described them as wheels from glaze kiln
cars and all of the other witnesses testified that the wheels had been removed from
only one such car. Actually the two cars in dispute were bisque kiln cars and the
wheels were removed from only one glaze kiln car, after Williams had instructed
Cowan to grease its wheels so that a comparison of freshly greased wheels could be
made with the wheels which had already been removed from the two bisque kiln cars.
Ivy also testified that all eight of the wheels which he inspected had enough grease
in the bearings to prevent any injury to the wheels, in his opinion.
Employee McGee, a kiln department repairman, who pulled the wheels off of all
three of the cars, testified that he inspected all eight of the wheels which he had pulled
off of the two bisque kiln cars, that there was no evidence of fresh grease on either
the wheels or the axles and that he got only a black smudge on his finger in inspecting
them.
Supervisors Williams, Knowlton, Hawk, and Newman all testified that they in-
spected the wheels in question and that they bore no evidence of having been freshly
greased.
Williams also testified that he had Cowart grease the wheels of a glaze kiln car so
that they could be compared with the wheels from the two bisque kiln cars, that a
comparison of the freshly greased glaze kiln car wheels with those of the bisque kiln
cars clearly indicated that the greasing equipment was in order, and that the bisque
kiln car wheels had not been greased before Cowart pushed them into the kiln.
Other than the suspicion raised by the Respondent's previous violations of the Act
and the fact that Cowart had been active in the Union, was an officer thereof, and
had recently processed two grievances with the Respondent, there is nothing in the
record in this case to indicate that his discharge was illegally motivated. Based on
all of the elements discussed in the second paragraph of section VI of this report, I
have resolved the credibility issues as to Respondent's motivation for and its purpose
in discharging Cowart in favor of the Respondent and against the General Counsel.
Certainly ,I cannot find that the General Counsel has discharged the burden of proof
as to the illegality of the discharge. Whether or not Cowart greased the wheels of the
cars before he pushed them into the kiln, I am convinced that Foreman Williams,
after a careful investigation, discharged him because he, Williams, was sure that the
wheels had not been greased and not because of his membership in the Union and
activity in its behalf nor for the purpose of discouraging concerted activity by the
Respondent's employees. I shall therefore recommend that paragraphs numbered
5 and 6 of the complaint also be dismissed.
Since I am recommending that all of the unfair labor practices allegations of the
complaint be dismissed, I shall recommend that the complaint be dismissed in its
entirety.
in arriving at the findings and conclusions on which my recommendations herein
are based, I have carefully considered all of the evidence adduced at the hearing and
have based said findings and conclusions on the entire record in this case.
VII. FINDINGS OF FACT
A. The business of the Respondent
Since the parties have so stipulated I find that the Respondent is a Mississippi cor-
poration sand an employer as defined in Section 2(2) of the Act, engaged in the manu-
facture of ceramic tile at its plant in Jackson, Mississippi, that during the year ended
December 31, 1961, it sold and shipped products of a value in excess of $50,000, from
its said plant, to points outside of the State of Mississippi, that at all times material to
the issues herein it has been engaged in commerce as defined in Section 2(6) of the
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1299
Act, and that it will effectuate the policies and purposes of the Act to assert juris-
diction in this case.
B. The labor organization involved
As stipulated by the parties I find that the Union is a labor organization as de-
fined in Section ,2 (5) of the Act.
CONCLUSIONS OF LAW
On the basis of the findings of fact and conclusions therefrom recited in para-
graphs V, VI, and VII of this report, I concluded that the Respondent did not violate
Section 8 (a)(3) and ( 1) of the Act in discharging Dennis D. Cowart , as alleged in
the complaint herein , and has not otherwise violated Section 8(a)(1) of the Act, as
also alleged in said complaint , to an extent sufficient to justify the issuance of a
remedial order in this case.
RECOMMENDED ORDER
I therefore recommend that the complaint herein be dismissed in its entirety.
Building and Construction Trades Council of the Metropolitan
District ; International Hod Carriers , Building and Common
Laborers Union of America , AFL-CIO, Local Union No. 22;
and United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States
and Canada , AFL-CIO, Local Union No. 12 and Boston Gas
Company. Case No. 1-CC-304. July 16, 1962
DECISION AND ORDER
On March 12, 1962, Trial Examiner James V. Constantine issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report and briefs in support of their exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Rodgers and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommended Order
of the Trial Examiner.'
'The Board majority does not deem it necessary to decide here whether Boston Gas
Company or Phoenix Urban Corporation was the primary employer Accordingly, we do
not adopt the Trial Examiner 's finding that Boston Gas Company was the primary em-
ployer and that the sole dispute was with that company It is sufficient for the purposes
of this case to find that the Respondents' object was unlawful in that it sought to compel
137 NLRB No. 139.