Mandrel Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1967

165 N.L.R.B. 785 (N.L.R.B. 1967)

MANDREL INDUSTRIES, INC.
Mandrel Industries , Inc. and District 37,
International Association of Machinists and
Aerospace Workers, AFL-CIO. Case
23-CA-2562.
June 22,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On April20^ 1967, Trial Examiner Lloyd
Buchanan issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged and
recommending that the complaint herein be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Respondent
filed a brief in support of the Trial Examiner's
Decision and a reply brief to the General Counsel's
exceptions and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.1
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
The General Counsel's exceptions to the Trial Examiner's
Decision are in large part directed to the credibility resolutions of
the Tnal Examiner. We will not, however, overturn a Trial
Examiner's resolution of credibility issues unless the party
excepting to such finding demonstrates by a clear preponderance
of the relevant evidence that they are incorrect Standard Dry
Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
The General Counsel, in our opinion, has not satisfied that burden
here
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner: The complaint
herein (issued January 27, 1967; charge filed
November 21, 1966), as amended, alleges that the
Company has violated Section 8(a)(3) of the National Labor
Relations Act, as amended, 73 Stat. 519, by discharging
Russell D. Buchner and Larry Brown on or about
September 27, 1966, and Frank P. Holmes on or about
September 30, 1966, and failing to reinstate them, because
785
of their union or other concerted activities; and Section
8(a)(1) of the Act by said alleged acts and by threatening
and interrogating employees in connection with union
activities. Admitting the allegation that the employees
were discharged, the answer as amended denies that the
discharges were effected because of concerted activities.
A hearing was held before me at Houston, Texas, on
February 28, 1967. Pursuant to leave granted to all parties,
briefs have been filed by the General Counsel and the
Company.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
1. THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as a
Michigan corporation and the nature and extent of its
business are admitted; I find and conclude accordingly
and also that it is engaged in commerce within the
meaning of the Act. I also find and conclude that, as
admitted, the Union is a labor organization within the
meaning of the Act.
II. THE ALLEGED VIOLATIONS OF SECTION 8(a)(1) AND (3)
At the close of the General Counsel's case, the evidence
concerning the alleged discriminatees' union activities
was admittedly thin. Buchner, a sheet metal mechanic,
had testified that: Immediately after the end of his own
day shift on September 26, the day before his discharge,
he had received some union cards from a night-shift
welder, Everett, who was passing them out; he signed one
at his car in the parking lot, and mailed it from home that
evening; and the next day Wilson, a machine shop boy,
asked him for some cards and he got them from
Kronenberger, a day-shift welder, at the locker which the
latter shared with Everett.
Unlike the other two alleged discriminatees, Brown,
another sheet metal mechanic, had worked for the
Company a long time, having been hired in 1961. He
testified that he signed a card and "gave a few out,"
getting them he thought from Everett, not from
Kronenberger, and on the day of his discharge. When it
was pointed out to him that this would have been at the
end of his shift and after he had been discharged, he
concluded that he had gotten them from Kronenberger or
from someone else in the welding shop; he did not
remember from whom, but he got the cards. He was not
pressed concerning the persons to whom he allegedly
distributed cards.
Holmes' concerted activities consisted of the following:
He saw Everett distributing cards on September 26; he
then saw cards "just sitting around" in a locker, helped
himself to one, took it home, signed it, but did not send it
in; he lost it ! If he signed another card and turned it in, it
was quite as privately done. We shall return to his further
testimony concerning union cards.
The testimony suggests that Everett was the leader in
such union activities as occurred, and was known as such
to the Company on September 27. Whatever became of
him, he was not discharged on that day, nor apparently at
any time, because of union activities.
165 NLRB No. 115
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beyond this, it has not been shown that the Company
knew or suspected that the alleged discriminatees had
engaged in protected concerted activities. The General
Counsel left us with the possibility of an inference under
the cases based on the timing of the discharges and
alleged reference to, questioning concerning, and threat
with respect to union activities.
We come now to the testimony concerning the alleged
interference and concerning the discharges and the reason
therefor. Shortly before quitting time on September 27,
Buchner and Brown went into Foreman Malone's office
and asked (Buchner was spokesman throughout) whether
it was true that they were being checked out of the tool
crib and were being discharged. Malone replied in the
affirmative and told them that it was because of their
excessive talking. Buchner questioned this and claimed
that they were being discharged for union activities, and
he allegedly also referred to union cards which Malone had
earlier removed' from the welder's locker after
Kronenberger had told him about them and asked him to
pick them up. In this testimony Buchner was too obviously
attempting to connect the discharges with some element of
union activity. There is absolutely no connection between
the cards in Kronenberger's locker and Malone's removal
of them, on one hand, and Buchner or Brown on the other.
Buchner now declared that he wanted to speak with
Knight, the department manager, who was paged and
joined them in Malone's office. Asked the reason for the
discharges, Knight replied, as Buchner testified, that they
were made on Malone's recommendation and because of
excessive talking. Whether or not Buchner again claimed
that they were prompted by union activities, it being
denied that he said that to Knight, is of slight moment.
As independent interference and to support the claim of
discrimination, Knight is alleged to have said at this point
that he did not need union help, there would never be a
union in the plant as long as he was there, and he would
fire anyone who tried to get a union in; and to have
unlawfully interrogated Buchner by asking, when the
latter said that he had the wrong man, who the right man
was. I credit Knight's denials and his further denial that he
told them to return in 30 days if they had learned their
lesson. Having observed Knight, and bearing in mind that
Buchner and Brown had previously been told by Malone
that they were discharged and that this had already been
confirmed by Knight, I have no hesitancy in adopting the
latter's expression that he would "hardly" have spoken as
now claimed, however convenient such interference and
admissions of discriminatory purpose (even if misdirected)
might be to the General Counsel. I find and conclude that
Knight did not threaten or interrogate as alleged.
Returning to Holmes, a welder, he saw Buchner and
Brown distributing union cards at plant exits on
September 28. He talked with Brown about 30 minutes
and, after deciding that it would be better to talk down the
road, they talked at the parking lot, where Holmes
received about 50 cards. He testified that he distributed
six or eight and placed the remainder in a bag on his layout
desk and then in his locked box overnight; during
lunchtime on the 30th a new boy asked for an envelope for
his union card (we don't even know whether Holmes had
given him the card or had otherwise used any of the
contents of the bag); and he went to get one, and spilled
about 10 cards and envelopes on the floor. This occurred
near the desk of the lead foreman, a rank-and-file
employee, "and everybody was standing there." Although
Holmes "started to look to see if anybody was looking," as
he testified he apparently had before he dropped the
cards, there is no evidence that any supervisor observed
this.
Before quitting time on September 30, Malone called
Holmes into his office and told him that he was being
discharged because of excessive absenteeism and
tardiness, and repeated the reason when Holmes asked
whether that was the real reason or whether it was
because of union activities.
The Company's case did not bolster the General
Counsel's with respect to evidence of either union activity
by these three or company knowledge thereof. Any
suspicion or possible interference based on timing of the
discharges was dispelled by evidence that production at
the plant had been and was falling off and that
employment was being cut down overall in the
department, even while there were hirings in some
categories. Under such conditions, the explanation that
the Company discharges marginal employees who might
otherwise be kept on is quite reasonable and credible.
Nor has there been any great problem in resolving
whatever credibility issues were presented by the charges
of excessive talking by Buchner and Brown, and
absenteeism by Holmes. The first two, interfering with the
work of others and in violation of safety rules, talked to
each other and to other employees. It does not appear that
any of the others so engaged spent as much time talking.
Both Brown and Buchner had been warned, and the latter
had been rehired after quitting, with a limiting notation
which Malone connected with the reason now given for his
discharge, and long before the commencement of union
activities. Malone had spoken several times to Brown and
many times to Buchner about walking around and talking
to each other and to other employees; he did this several
times after Knight called his attention to it; he had given
them a "final warning" during the preceding week and,
when on September 27 they talked more than ever before,
he obtained Knight's concurrence that they be discharged.
Buchner told us variously that he had not been talking
too much and had not talked with Brown on September 27;
then that he did talk with Brown during working hours that
day and that he "talked to about everybody in the shop
during the course of the day."
Holmes' attendance record was negatively second to
that of one other employee, who had been discharged a
few months before. It was very poor and Malone had
spoken to him about it several times, the last in August.
On the morning of September 30, when Malone checked
the timecards for the day before, he noted that Holmes had
again been late on the 29th. He spoke to Knight, who
concurred that Holmes be discharged. I do not credit
Holmes' testimony that he had been in a car wreck and
therefore delayed earlier that week and that, without
reprimanding him, Malone and Knight had merely told him
to be careful. He did not recall that he had been late 1 hour
on the 29th although this appears on the Company's
record, or that he was late any other day in September
although the record shows three latenesses in addition to
one half-day absence because of illness. This was of a
I This is not claimed to have been violative
MANDREL INDUSTRIES, INC. 787
piece with Holmes' attempt in a statement to the Union to RECOMMENDED ORDER
embellish his position ; despite striking details, he reversed
himself in a subsequent statement. Upon the basis of the foregoing findings of fact and
I find and conclude that these discharges were for cause conclusion of law, and upon the entire record in the case, I
and not discriminatory . recommend that the complaint be dismissed in its entirety.