Kent Corp.

National Labor Relations Board - Board Decisions

Apr 22, 1977

229 N.L.R.B. 214 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kent Corporation and International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmith,
Forgers and Helpers and John W. Sailors and
Thomas E. Roberts. Cases 10-CA-10091, 10-CA-
10272, 10-CA-10099, and 10-CA-10179
April 22, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On October 15, 1976, Administrative Law Judge
Ralph Winkler issued the attached Supplemental
Decision in this proceeding.l Thereafter, Respondent
filed exceptions and a supporting brief, and motions
for oral argument, for reconsideration or to reopen
the record, or, in the alternative, an application to
take depositions. The General Counsel filed a
response in opposition to various of Respondent's
motions. 2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,3 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Kent Corpora-
tion, Pinson Valley, Jefferson County, Alabama, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I The Board's Decision and Order is reported at 212 NLRB 595 (1974).
This Decision was enforced in part and remanded to the Board for further
hearing. 530 F.2d 610(C.A. 5, 1976).
2 Respondent's motion for oral argument is denied as the record,
exceptions, and briefs adequately present the issues and positions of the
parties. Respondent's motions for reconsideration. for reopening the record,
or for the taking of depositions are also denied as the issues raised therein
are, as the Administrative Law Judge found, not properly litigable at this
time.
3 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
SUPPLEMENTAL DECISION
RALPH WINKLER, Administrative Law Judge: On April 8,
1976, the United States Court of Appeals for the Fifth
Circuit issued its Opinion on enforcement proceedings (530
F.2d 610 (1976)) arising out of a Decision and Order of the
Board (212 NLRB 595, 1974). Holding that "the record
fully supports the Board's finding that Kent [Respondent]
'engaged in a massive assault on the rights of employees
under the Act,' " the court sustained Board conclusions
that Respondent had violated Section 8(aX 1), (2), (3), and
(4) of the Act. In affirming Board findings that Respondent
had unlawfullly discharged Roy Glass and 14 other
employees, the court noted that Respondent questioned
only 7 of these dischargees in the enforcement proceedings;
Glass' discharge was not among the 7. The court enforced
the Board's Order that Respondent reinstate and make
whole 14 of the employees, but as to Glass' the court
stated as follows (530 F.2d at 612:
The Board ordered back pay for Roy Glass. There
was testimony by former employee Ralph Wilson that
Glass had suggested to him that he make bomb threat
calls to the plant. Wilson acknowledged having made
such a call, and it is stated that he pleaded guilty to a
felony for having done so. The ALJ did not make a
credibility determination rejecting Wilson's testimony
but rather stated his understanding that Wilson's
testimony had been offered for a different issue than
Glass' eligibility for back pay, that Glass' eligibility for
back pay had not been made an issue by Kent, and that
the Board had not recalled Glass as a witness to
respond to Wilson's testimony. We agree with Kent
that the evidence concerning the bomb threat is
relevant to Glass' right to back pay. However, the
precise positions of the parties are hazy. We are unsure
whether the Board claims that Glass' entitlement to
back pay has been adjudicated adversely to Kent or
that it has not been adjudicated and remains to be
determined in a compliance proceeding. We are also
unsure whether Kent claims that we are required to
decide on this record that Glass is not entitled to back
pay and that the back pay issue is then foreclosed, or
only that the issue remains open, to be later determined
with consideration given to the Wilson testimony. We,
therefore, hold that the issue of back pay for Glass
remains open to be determined in such procedural
context as is appropriate, upon consideration of the
Respondent had reinstated Glass in August 1973.
229 NLRB No. 29
214
KENT CORPORATION
Wilson testimony and such other evidence as the
company and the Board wish to adduce.
On June 15, 1976, the Board directed that the record be
reopened pursuant to the court's remand concerning Glass'
entitlement to backpay, and a further hearing was held in
Birmingham, Alabama, on August 25, 1976.2 Respondent
has filed a brief and the General Counsel has submitted a
letter memorandum in connection with the remanded
matter.
The bomb threats
Glass' discharge on April 17, 1973, is discussed at 212
NLRB 595, 604-606. Respondent recalled Glass on or
about August 13, 1973, and Glass voluntarily left Respon-
dent's employ in March 1974.
Ralph Wilson was in Respondent's employ from 1971
until Respondent discharged him in March 1973 for
reasons unrelated to union activities.
Wilson was a Respondent witness at the original hearing
on October 3, 1973. Wilson testified at that time that
shortly before his discharge in March 1973 he had a
conversation with Roy Glass and another employee,
Richard Holly (or Holland). According to Wilson's
testimony, "we [Wilson, Glass, and Holly] was over there
working, you know. And they got to talking and said we
ought to call down here and make a bomb threat, you
know, just as a joke. And after I left them up there, I got to
drinking one day and called back up there and made a
bomb threat." Wilson went on to testify that he called the
plant about a week after his discharge, that one of the plant
secretaries answered the phone on this occasion, and that
"I just told her there was a bomb planted in there." Wilson
testified that he was alone when he made this call and that
he made the call from a pay station phone booth and not
from a house. Wilson testified that he and Glass thereafter
talked at Wilson's house about calling in another bomb
threat and that he (Wilson) made a second telephone call
to the plant a few days later, this time speaking to
Executive Vice President Turner Duke. Wilson testified
that he told Duke "there was a bomb in there, I think I
did." Wilson also testified that he had been "drinking" that
day and "can't remember exactly what I said to him
[Duke]." Wilson further testified that, when making the
calls, he did not identify himself either to the secretary or to
Mr. Duke.
Respondent instituted criminal charges against Wilson
respecting the bomb threats. (Respondent states in its brief
that one of its employees had recognized Wilson's voice
during one of Wilson's telephone calls.) Wilson pleaded
guilty to the charges on April 27, 1973, and was given a
year's probation.
Now to take up the evidence received at the reopened
hearing. The parties stipulated that Respondent had made
an exhaustive, but futile, search for Wilson and was unable
to produce him as a witness at the reopened hearing. The
General Counsel also stated that he had been informed
that Richard Holly (Holland) was in the Navy and out of
the United States and was also unavailable to testify; Vice
2 Respondent's motion, dated September 24. 1976, to correct transcnpt is
hereby granted.
President Duke testified that he too had been unable to
contact Holly.
Duke testified that Wilson came to his office on August
8, 1973, to request a recommendation from Duke for a job
with another named employer and that he and Wilson
discussed the bomb threat matter during their conversa-
tion. Duke testified that he made no threats or promises to
Wilson on this occasion. Duke testified that on the basis of
what Wilson purportedly told Duke concerning the bomb
matter, Respondent president's administrative assistant
drafted a statement for Wilson's signature and that Wilson
thereupon executed the sworn statement on August 8,
1973, in the presence of a notary public in Respondent's
employ. This statement reads, in relevant part, as follows:
Mr. Duke asked me about my phone call in which
I threatened that a bomb was placed in The Kent
Corporation. I explained that Roy Glass and Richard
Holland put me up to making the bomb threat and I
had been drinking in the day I made it. I made the call
from Harvey Wilson, Jr., (my brother) phone at Route
one, Pinson, phone number, 681-7004. My brother was
aware of the call and told me and the other (Roy Glass
and Richard Holland) that we would get into trouble.
As a matter of fact, three weeks before, the three of us
(me, Glass and Holland) discussed making a bomb
threat while the Boilermakers campaign was under way
and we were working. This bomb threat was Roy Glass
idea.
Stating that he gave Wilson the job recommendation
requested by Wilson, Duke testified that he advised the
other employer that Wilson was a "good worker" who had
worked "regularly" for Respondent; Duke further testified
that he did not say anything to the other employer about
Wilson's bomb threat.
Duke testified that the occasion of Wilson's visit to his
office on August 8, 1973, was the first he learned of Glass'
purported complicity in the bomb threat and that he
communicated this information to Respondent President
Oztekin. Respondent did not institute criminal action
against Glass; it meanwhile recalled Glass on August 13,
1973, and continued to employ Glass until Glass voluntari-
ly left in March 1974.
Glass denied having suggested or participated in the
Wilson bomb threat to Respondent, or having ever
discussed such matter with Wilson. He also denied
knowing Wilson's brother, Harvey, or having ever been in
Harvey Wilson's house. (Harvey Wilson was not called to
testify.) Glass testified that Wilson did once mention a
bomb in a conversation with him and Holly. According to
Glass, this occurred at work long before the Union's
organizing campaign on an occasion when Wilson told
Glass and Holly that he (Wilson) was thinking of telling his
supervisor he was sick so that he might have the day off to
go fishing, and Wilson asked Glass to join him. Glass said
he couldn't, whereupon Wilson mentioned an incident in
public school many years ago when a student wanting to go
215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fishing had called in a bomb threat to the school with the
hope that the students would be excused from classes.
In my original decision in this matter I observed that
Wilson "was pitiable, as to both appearance and testimo-
ny" (212 NLRB at 606). I felt compassion for him because
he was, in my opinion, a "beaten" individual, and I could
not and cannot accord credence to his testimony on any
disputed matter. This judgment was based on demeanor
observations as well as on the testimony he gave, including
consideration of the leading nature of questions propound-
ed to him on direct examination. His affidavit, or what he
purportedly told Duke, cannot have greater acceptability.
It would serve no useful purpose to speculate whether
Wilson had sought to ingratiate himself with Duke by
implicating Glass in the bomb threat or whether Wilson
thought his "affidavit" might be a quid pro quo for the job
reference. Nor do I consider it necessary to discuss
variances between Wilson's affidavit and his testimony.
Glass, on the other hand, was found to be a "wholly
trustworthy" witness in the original proceeding (212 NLRB
at 604), and my opinion of his trustworthiness is un-
changed. I am fully satisfied and conclude that Glass was
in no way involved and had nothing to do with any bomb
threat to Respondent by Wilson, and I shall recommend
that the Board reaffirm its backpay order as to Glass.
Respondent's "managerial" contention
An additional item remains. This concerns Respondent's
efforts at the reopened hearing to challenge and litigate
Glass' "employee" status at the time of his discharge.
Citing N.L.R.B. v. Bell Aerospace Company, Division of
Textron Inc., 416 U.S. 267 (1974), and Curtis Industries,
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
Division of Curtis Noll Corporation, 218 NLRB 1447 (1975),
Respondent thus now contends that Glass was a "manage-
rial" employee and not within the Act's protection.
Respondent thereby seeks, in effect, to reopen and
overturn Board and court determinations as to the merits
of Glass' discharge. Respondent had not raised such
"managerial" issue in the original hearing before me in this
case, in its exceptions to the Board, or in enforcement
proceedings in the court of appeals.
The court's remand, as appears above, was limited to
ascertaining Glass' involvement in the Wilson bomb threat
and then to determining Glass' entitlement to backpay
should he be found to have been involved. I rejected
Respondent's efforts to litigate the "managerial" issue, as
being outside the scope of the court's remand and thus
beyond the Board's and my authority in the premises.
Moreover, and as an independent consideration, citation of
authority is hardly necessary in the circumstances of this
case to hold that the time for initially asserting and then
preserving a "managerial" contention has long since
passed. For the same reasons I now also deny a motion
dated September 27, 1976, in which Respondent seeks to
reopen the record in continued pursuit of its "managerial"
contention.
Upon the foregoing, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 3
It is ordered that Respondent make whole Roy Glass as
originally directed by the Board in this matter (212 NLRB
595, 596, 613).
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
216