McNeill Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 29, 1975

216 N.L.R.B. 343 (N.L.R.B. 1975)

MCNEILL INDUSTRIES, INC. 343
McNeill Industries, Inc. and Dillard R. Grooms. Case
I 1-CA-5775
January 29, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On October 31, 1974, Administrative Law Judge
Leonard M. Wagman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions.
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 has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.2
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 Respondent , McNeill Industries,
Inc., High Shoals , North Carolina, its officers,
agents, successors , and assigns , shall take the action
set forth in the said recommended Order.
i 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.
2 Respondent's request for oral argument is hereby denied, as the record
and the briefs adequately present the issues and positions of the parties.
DECISION
STATEMENT OF THE CASE
LEONARD M . WAGMAN, Administrative Law Judge:
Upon a charge filed on June 10, 1974, by Dillard R.
Grooms and duly served on Respondent , McNeill Indus-
tries, Inc., the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 11,
issued a complaint on June 30, • 1974, alleging that
Respondent had violated Section 8 (axl) of the Act by
threatening Grooms with reprisals and discharging him
"because he engaged in concerted activities with other
employees for the purpose of collective bargaining and
other mutual aid and protection ." Respondent 's answer
denies the alleged violations . A hearing was held before me
on September 12, 1974. All parties were represented by
counsel and were afforded full opportunity to participate
in the hearing.
Upon the entire record in this case , including my
observation of the demeanor of the witnesses , and upon
consideration of the briefs filed by the parties, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is a North Carolina corporation engaged in
the manufacture of synthetic yarns for the carpet and
hosiery industry at its High Shoals, North Carolina, plant.
During the past 12-month period, Respondent received
goods and materials valued in excess of $50,000 directly
from outside of North Carolina. During the same period
Respondent sold and shipped goods valued in excess of
$50,000 directly to points outside of North Carolina.
Upon the foregoing admitted facts, I find that Respond-
ent is , and at all times material herein has been, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The major issues presented in this case are whether
Respondent violated Section 8(a)(1) of the Act by
threatening employee Dillard R. Grooms with loss of
employment or other reprisals on March 8 , 1974, because
Grooms was circulating a petition protesting a change in
working hours, and by discharging Grooms on that date
because he defied that threat and insisted upon circulating
the petition.
B. The Facts
At 8 a .m. on March 8, 1974, Dillard R. Grooms reported
for work at Respondent 's High Shoals plant' where he was
employed in the nylon filament department , under Super-
visor Gerald Thompson. Grooms brought a petition with
him that morning with which he hoped to persuade
Respondent to rescind its recent change in working hours.
The petition read:
We the undersigned do hereby petition McNeill
Industries to return to the shift changes for which we
were hired (6-2- & 10) or as a compromise (7-3-11). A
shift for the working person , not just for some damn
supervisors , too lazy to get up before the middle of the
day.
I The employees at Respondent's High Shoals plant are not represented
216 NLRB No. 69
by a labor organization.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Between 8 and 8:20 a.m., that same morning , Grooms
asked Frances Bailey, also a nylon filament department
employee, to sign his petition. When she refused, he replied
with an obscenity and turned away. Frances Bailey became
incensed over Grooms' language and promptly reported it
both to her husband Don, who was also employed in the
same department, and on the same shift as Grooms, and to
Supervisor Gerald Thompson.
During the same 20-minute period, Grooms observed
quality control employee Pinkie Gafney as she walked
through his department and unsuccessfully solicited her
signature on the petition. Grooms accused Gafney of being
"chicken" and also called her a "coward." Gafney
immediately reported this encounter to Supervisor Thomp-
son.
At approximately 8:20 a.m., Grooms handed the petition
to fellow employee Beverly "Pud" Jones, and asked him to
sign it and pass it on. At 8:30 a.m., Supervisor Thompson
directed Grooms to report to his office.2
The conflicts in testimony regarding the conversations
immediately preceding and related to Grooms' discharge
raise material issues of credibility. Grooms' version of his
ensuing exchanges with his superiors is as follows:
Thompson told Grooms that he, Grooms, " was going to
get into trouble circulating a petition like that." After
Grooms parried this and Thompson's further effort to
persuade him to withdraw the petition, Grooms returned to
his machine.
Approximately 5 minutes after he returned to work,
Grooms was directed to return to Thompson's office.
There, Grooms encountered Thompson and Plant Manag-
er Howard Chapman. Thompson renewed his efforts to
dissuade Grooms from circulating the petition. Both
Thompson and Chapman told Grooms that Respondent
could not pay him for circulating the petition when he
"was supposed to be running [his machine ]." Grooms
denied that he had neglected his work. He also denied their
allegation that he was engaged in union organizing activity,
adding that his sole objective was to confront "Mr.
McNeill" with the petition. Following this exchange,
Chapman instructed Thompson to initiate Grooms' dis-
charge papers and Grooms was discharged later that
morning.
In their testimony, Thompson and Chapman denied
even mentioning the word "petition" to Grooms in their
respective conversations with him. Thompson also denied
warning Grooms about circulating the petition. Thompson
testified that he told Grooms about the complaints he had
received regarding Grooms' "foul language" to the
employees because they had refused to sign his petition;
that he warned Grooms that Respondent would not
countenance such conduct, and that Grooms insisted "that
it was right and that he would do it, what he was doing,
whether [Thompson] liked it or not." At this, according to
Thompson, he suggested that Grooms talk to Plant
Manager Chapman.
Thompson's and Chapman's testimony is that when
Chapman confronted Grooms, he warned Grooms against
2 My findings of fact to this point are based on a composite of the
testimony of witnesses Grooms, Frances and Don Bailey , and Gafney.
3 On direct examination , Thompson testified that he wrote this
the use of "abusive language" toward other employees.
Thompson and Chapman also testified that Grooms again
insisted that "he would continue to do what he had been
doing whether [Chapman] liked it or not." According to
Thompson, he "told Dillard that if he would not interfere
with other employees, and would quit using abusive
language he could go back on the job." Chapman also
testified that he reminded Grooms of Respondent's
grievance procedure and urged him to use it. According to
Chapman, after he offered Grooms an opportunity to
return to work, and Grooms insisted upon continuing "to
do just what he was doing," he, Chapman, ordered
Thompson to discharge Grooms.
In resolving the credibility issues growing out of the
recited testimony in favor of Grooms, I have considered
two documents received in evidence at the hearing, both of
which were written by Thompson. The first, Respondent's
employee termination record prepared for Grooms by
Gerald Thompson on March 8 recites the following as the
"Cause of Termination": "Employee was causing problems
in Department due to Company change in shift hours. He
insisted on soliciting petition on Company hours and
taking it to Company President."
On the same day, Thompson wrote the following
additional statement on the reverse side of the termination
record:
This employee, Dillard Grooms was creating dissension
on the job. Several employee complained to me about
him going into their work area with a petition referring
to shift hours. These people would not sign the petition
and were angry about being called yellow-bellies,
chicken and other insulting things.
After hearing these complaints I asked Dillard to come
to the office with me. I explained our grievance
procedure to him and told him it really did work and if
necessary I would go all the way to the top with him on
any grievance. I explained to him that it was a violation
of company policy for him to leave his work area and
go to•the work area of others and interfere with them
and that I had had these complaints from many other
employee and that I could not allow him to do such
and that he must stay with his job.
I told him to go back to his job and use our grievance
procedure, and he refused to do this. He stated to me
he was going to go ahead with the petition whether I
liked it or not. When he refused to stay in his work
area, I terminated him .3
There is a significant variance between Thompson's and
Chapman's testimony and Thompson's written accounts.
These documents, drawn up before the filing of the unfair
labor practice charge in this case, are much concerned with
Grooms' petition, its contents, and his expressed intention
to seek out Respondent's president, Alan McNeill. The
verbal abuse and harassment of two employees-which
Thompson and Chapman testified were the major topics of
additional report "Because [he) wanted to get all the fact [sic J in the case
that [hel possibly could for Personnel."
MCNEILL INDUSTRIES, INC. 345
their March 8 encounter with Grooms-were given little
attention . This contrast between their testimony and
Thompson's March 8 reports, their uneasiness while
testifying about their remarks to Grooms on March 8 and
their evasive answers about the petition, Grooms' right to
circulate it, and its contents , convince me that as witnesses
Thompson and Chapman were much more concerned with
exculpating Respondent than with baring the facts.
Further, Thompson's written reports largely corroborate
Grooms' testimony regarding Respondent's response to his
petition on the morning of March 8. Finally, Grooms
impressed me as the more straightforward of the three
witnesses.
C. Analysis and Conclusions
Section 7 of the Act provides in pertinent part:
"Employees shall have the right . . . to engage in .. .
concerted activities for the purpose of . . . mutual aid or
protection ...." Here, Grooms' attempt to enlist the
support and assistance of his fellow employees for the
purpose of correcting what he thought to be an inconsider-
ate change in working hours was "as much 'concerted
activity' as is ordinary group activity." Owens-Corning
Fiberglas Corporation v. N.LR.B., 407 F.2d 1357, 1365
(C.A. 4, 1969), enfg. 172 NLRB 148 (1968). Accord: Hugh
H. Wilson Corporation, 171 NLRB 1040, 1046 (1968), enfd.
414 F.2d 1345, 1347 (C.A. 3, 1969), cert. denied 397 U.S.
935 (1970).
If, as the General Counsel urges, Respondent discharged
Dillard R. Grooms because he was engaged in such
activity, Respondent violated Section 8(aXI) of the Act.
For that section makes it an unfair labor practice for an
employer "to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed" in Section 7 of the
Act.
The facts supporting the General Counsel's contention
are to say the least persuasive. Thompson's warning that
Grooms' insistence upon circulating his petition would
result in trouble for Grooms was not only, as I find, a
threat violative of Section 8(axl), but also strong evidence
of hostility toward the petition. Further evidence of animus
toward Grooms' petition is provided by the timing of
Respondent's decision to discharge him. Plant Manager
Chapman's direction that Grooms be discharged came but
20 minutes after circulation of the petition began, about 10
minutes after Thompson's threat, and immediately after
Grooms reaffirmed his intentions to continue circulating
his petition. Finally, strong evidence of unlawful motive is
provided by the admissions written by Supervisor Thomp-
son on Grooms' termination record form.
In its brief (p. 1), Respondent claims that Grooms was
discharged because of the disturbance he caused in
soliciting employee support for his petition, and "using
profanity . . . which added to the disturbance" and that
therefore his discharge was lawful. However, this defense is
cast in doubt by the shifting and inconsistent reasons
previously offered by Respondent in explanation of
Grooms' discharge. Thus, according to Thompson on
March 8, he filled out two termination reports regarding
Grooms' discharge. The first, not available at the hearing,
listed "profane language to other employees . . . dissen-
sion in the department, or words to that effect," and
"causing problems in the department." Upon further
examination , Thompson testified that the first termination
record covering Grooms' discharge gave as reasons "foul
language to others; or profane language to other employ-
ees, and causing dissention on the job and that he was not
pleased with the Company." The front side of the surviving
termination record, gave as the cause of the termination:
"Employee was causing problems in Department due to
Company change in shift hours. He insisted on soliciting
petition on Company hours and taking it to Company
President."
On the reverse side of this same termination record, also
prepared on March 8, Thompson reported that Grooms
,.was creating dissension on the job," violating Respond-
ent's policy by going into employee work areas, insulting
employees who refused to sign his petition, and failing to
use Respondent's grievance procedure. Thompson's March
8 report finally declares that when Grooms "stated he was
going to go ahead with the petition, whether [Thompson]
liked it or not (sic) when [Grooms] refused to stay in his
work area, [Thompson] terminated him." When Respond-
ent's counsel asked Supervisor Thompson why he had
written the additional statement, Thompson answered:
"Because I wanted to get all the fact [sic] in the case that I
possibly could for Personnel." However, on cross-examina-
tion, Thompson admitted that the statement on the front
side of the record termination "gives the cause of
termination."
In a separation notice prepared by Respondent on
March 8 for the North Carolina Employment Security
Commission, the reason for Grooms' discharge is given as
follows:
EMP. causing problems in dept due to company
change in shift hrs., suggested soliciting petition on hrs.
and taking it to comp. president.
Finally, a report to the commission submitted by Respond-
ent in June 1974 contained the following explanation of
Grooms' discharge:
This employment ended because ... employee was
interfering with other employees on their jobs. This is a
violation of company policy. He was asked to stop and
return to his job by dept. head, [sic] he refused. He was
then discharged.
This kaleidoscope of explanations and the unfounded
reference to Grooms "going into employee work areas"
strongly suggest that Respondent has attempted to camou-
flage an unlawful discharge.
A further infirmity in Respondent's defense is its
unconvincing excuse that its omission of any reference to
profanity in the "Cause of Termination" section of the
second termination record and in its March 8 separation
notice to the State were acts of benevolence toward
Grooms. According to the testimony of Personnel Manag-
er Barbara McDonald and Timothy Helms, the then
industrial relations director at the High Shoals plant,
Thompson was instructed to redraft his termination record
without reference to profanity as a cause of discharge
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because such a disclosure would endanger Grooms'
eligibility for state unemployment benefits. However, I fmd
this explanation unacceptable in light of Respondent's
declaration in the March 8 separation notice filed with the
State showing that Grooms was: "Discharged for miscon-
duct (connected with his work)." Surely this declaration
would not advance his cause before the North Carolina
Employment Security Commission any more than a
reference to profanity would. Nor was Respondent's
explanation in its June 1974 report to the State likely to
help Grooms. For there again, Respondent asserted that
Grooms was discharged for misconduct at work. Finally,
Respondent has not provided any regulation, decision, or
precedent to show any ground for its asserted belief that
the State would view alleged profane language as worse
than a general allegation of misconduct in considering
Grooms' claim for unemployment benefits.
Thompson's threat and his admissions on the reverse
side of the second termination report that he attempted to
persuade Grooms to drop the petition and use Respond-
ent's grievance procedure provide further ground for
rejecting Respondent's excuse for omitting references to
profanity in its existing documentation of Grooms'
discharge. Indeed, the more likely explanation arising out
of the facts here is that Grooms' use of profanity played no
part in Respondent's decision to discharge him.
Finally, analysis of Respondent's claim that Grooms'
solicitation created a disturbance on March 8 reveals
further ground for accepting General Counsel's contention.
As of March 8, Respondent did not have a no-solicitation
rule. Further, the uncontradicted and credited testimony of
employees Dillard R. Grooms, Frances Bailey, and Helen
Grooms shows that, as a matter of practice, Respondent
has permitted employees to interrupt their work to conduct
plantwide solicitation for a variety of other purposes,
including the community chest and the sale of bedroom
slippers. On occasion, members of Respondent's manage-
ment have responded favorably or otherwise encouraged
such solicitation. In contrast, however, Respondent was
much disturbed by Dillard R. Grooms' March 8 solicita-
tion effort, which at the time of his discharge had gone on
for less than an hour of worktime, had only involved four
other employees, three of whom were employed in his
department, and had not interrupted production.
This disparate and harsh response to Grooms' brief
solicitation, coupled with the admissions in Respondent's
documentation of Grooms' discharge, strongly suggest that
the content of the petition rather than Grooms' conduct
provoked Respondent. In sum, I find from the foregoing
that Respondent discharged Grooms because he insisted
upon circulating among his fellow employees a petition
seeking return to their former work schedule. Accordingly,
I also find that by this discharge Respondent violated
Section 8(a)(l) of the Act.
CONCLUSIONS OF LAW
1. Respondent, McNeill Industries, Inc., is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By threatening Dillard R. Grooms with reprisal
because he was engaged in concerted activity protected by
Section 7 of the Act, Respondent violated Section 8(a)(1)
of the Act.
3. By discharging Dillard R. Grooms on March 8, 1974,
because he was engaged in concerted activity protected by
Section 7 of the Act, Respondent violated Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices burdening and obstructing commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it be
ordered to cease and desist from such conduct and to take
affirmative action to effectuate the policies of the Act.
I shall recommend that Dillard R. Grooms be reinstated
to his former job or, if that job no longer exists, to a
substantially equivalent job, and that he be trade whole for
any loss of pay he may have suffered by reason of the
discrimination against him by the payment to him of a sum
of money equal to that which he would have earned but for
the discrimination, in accordance with the principles
enunciated by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this proceeding
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER4
Respondent, McNeill Industries, Inc., its officers, agents,
successors, and assigns, shall:
1. Ce4se and desist from:
(a) Threatening employees with reprisals because they
are engaged in, or have engaged in, activity protected by
Section 7 of the Act.
(b) Discharging or otherwise discriminating against any
employee in regard to hire tenure of employment or any
term or condition of employment for engaging in any
activity protected by Section 7 of the Act.
(c) In any like or related manner interfering with or
coercing employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer Dillard R. Grooms full reinstatement to his
former job or, if such former job no longer exists, reinstate
him to a substantially equivalent job, without prejudice to
his seniority and other rights and privileges, and make him
whole for any earnings he may have lost as a result of his
discharge in the manner set forth above in the section of
this Decision entitled "The Remedy."
4 In the event no exceptions are filed as provided by Sec. 102 .46 of the 102 .48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings , the Board's findings , conclusions, and Order , and all objections thereto shall
conclusions , and recommended Order herein shall, as provi4ed in Sec . be deemed Waived for all purposes.
MCNEILL INDUSTRIES , INC. 347
(c) Post at its High Shoals, North Carolina, plant, the
attached notice marked "Appendix." 5 Copies of said
notice on forms provided by the Regional Director for
Region 11 , shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof in conspicuous
places, including all places where notices to employees are
customarily posted, and be maintained by it for 60
consecutive days. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
S In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence , an Administrative Law Judge of the
National Labor Relations Board has found that we
violated the National Labor Relations Act, and has
ordered us to post this notice and to keep our word about
what we say in this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT threaten employees with discharge or
other reprisals for exercising any of these rights.
WE WILL NOT discharge our employees because they
have exercised one or more of these rights.
WE WILL offer to reinstate Dillard R. Grooms to his
former job or, if that job no longer exists to a
substantially equivalent job and we will make him
whole for any earnings lost because we discharged him.
MCNEILL INDUSTRIES, INC.