McVean Steel

National Labor Relations Board - Board Decisions

Jul 12, 1977

230 N.L.R.B. 793 (N.L.R.B. 1977)

McVEAN STEEL
McVean Steel and David E. Hood. Case 16-CA-6724
July 12, 1977
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND
WALTHER
On May 19, 1977, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of the 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,' 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, McVean Steel,
Forth Worth, Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
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
carefull) examined the record and find no basis for reversing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any employee for testifying in an
NLRB proceeding or for supporting Teamsters
Local 47, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any employee in the
exercise of their rights guaranteed them under
Section 7 of the Act.
WE WILL offer David Hood immediate and full
reinstatement to his former job or, if his job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges, and make him whole for any
loss of pay or other benefits suffered as a result of
our discrimination against him.
MCVEAN STEEL
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This
case was heard at Fort Worth, Texas, on February 7, 1977.
The charge was filed on August 6, 1976,1 and the complaint
was issued on September 14.
On July 29, the Company docked the pay of truckdriver
David Hood, the Charging Party, 4 hours for taking
excessive time on a run the day before. The next afternoon,
about 4 hours after Hood testified on behalf of Teamsters
Local 47 at an NLRB representation hearing involving the
Company's employees, the Company discharged him for
the same offense. The primary issue is whether the
Company, the Respondent, unlawfully discharged Hood
because of his union support and testimony, in violation of
Section 8(aX3), (4), and (1) of the National Labor
Relations Act, as amended.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Company, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a Texas corporation, is engaged in
custom steel fabricating at its plant in Fort Worth, Texas,
where it annually ships products valued in excess of
$50,000 directly to customers located outside the State. The
Company admits, and I find, that it is an employer engaged
in commerce with the meaning of Section 2(6) and (7) of
the Act, and that the Union, Teamsters Local 47, is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Docking of Hood's Pay
The Union was engaged in an organizing campaign at
the Company's plant. Truckdriver Hood attended one
union meeting and signed an authorization card, but there
I All dates are in 1976 unless otherwise stated.
230 NLRB No. 122
793
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no evidence that the Company was aware of his union
support until Friday morning, July 30, when Plant
Manager James Latham saw him sitting in the Board
hearing room with a union representative, waiting to testify
on behalf of the Union in Case 16-RC-7251.
Hood had a good driving record since he became a
truckdriver in 1963, and had been repeatedly compliment-
ed for his good work while driving for the Company for
over a year. When not on a long-haul run, he assisted the
inexperienced plant superintendent, David Fussell, in
getting the local trucks loaded out properly.
On Wednesday, July 28, Hood was dispatched to haul a
load of steel first to Waxahachie (southeast of Fort Worth),
and then back through Fort Worth to Wichita Falls (about
110 miles northwest of Fort Worth). After being delayed in
unloading at Waxahachie, he left there about 10:30 or 11
a.m. and arrived in Wichita Falls about 2:30 p.m., without
stopping for either coffee or lunch. He left Wichita Falls
about 3 p.m., and stopped to eat at a truckstop in
Springtown (about 45 minutes from Fort Worth), arriving
there about 4:45 p.m. After eating, he "shot the bull" with
two drivers with whom he had previously worked, and did
not leave Springtown until about 8 p.m. Upon arriving in
Fort Worth about 8:45 p.m., he first had the truck filled
with diesel fuel at a filling station (as he had done
previously), and returned to the plant about 9:45 p.m.,
punching the timeclock and going home about 10 p.m.
About 9:30 the next morning, Plant Superintendent
Fussell questioned Hood about why it took him so long to
make the trip to Wichita Falls. Hood gave various excuses
but, as elicited by the company counsel on cross-examina-
tion, admitted to Fussell "that I just goofed around too
long there at Springtown." Following this discussion, and a
second telephone call to the Wichita Falls customer
(confirming Hood's statement that he left there a little
before 3 p.m.), it is undisputed that Fussell said (as Hood
credibly testified), "I am going to have to dock you . . . I
want to end this right now. I don't want to have to be
called on the carpet before [Plant Manager] Latham to
explain why you took four hours longer than you were
supposed to on this trip." Hood agreed, and Fussell
changed Hood's timecard, docking him 4 hours. Fussell
asked if Hood was going to quit, stating that "He just
didn't want me to quit because . . . I was a good driver
. . . and he wanted me to help him get the local trucks
loaded." Hood answered no, "I am not going to let four
hours make me quit."
That afternoon, Fussell again asked Hood if he was
going to quit, and Hood told him no. Hood asked about his
vacation and Fussell said he would check on it. Fussell
later reported back that Hood had been employed there
over a year and was entitled to a vacation. In this
conversation, Hood asked if he could be off the next
morning, Friday, July 30, on some "personal" business.
Fussell approved.
About 4:30 p.m., after Hood punched out, Fussell said
that Plant Manager Latham "wanted to see both of us in
his office." They went to Latham's office where Latham
asked why it took Hood so long on that trip to Wichita
Falls. As Hood credibly testified, "I told him that me and
David [Fussell] already had gone through all that. And he
docked me four hours for it and it was supposed to have
been over and done with." Latham responded, "Well OK,
is it going to happen again?" Hood assured him that it
would not. Latham asked if it ever happened in the past,
and Hood answered no. Latham stated, "Well I am going
to have to pull all those back trips and check them and see
if you have been taking too long on them." Hood said that
was fine with him. Fussell joked that Hood "just wanted to
stop and get him a quickie and they both laughed," but "I
didn't say anything because I didn't appreciate the joke. It
wasn't true and I didn't say nothin'." As Hood was leaving
the office, Fussell mentioned that Hood wanted Friday
morning off. Latham asked why, and Hood said for
"personal" reasons. Latham asked what kind of "personal"
reasons, and Hood said, "Well, I have things to do and I
have to take my wife to this probation hearing." (There was
an upcoming probation hearing, but Hood planned to
attend the NLRB hearing the next morning.)
Plant Superintendent Fussell was not called to contradict
any of Hood's testimony. Plant Manager Latham testified
that he could not recall specifically everything that was
said in his and Fussell's conference with Hood that
Thursday afternoon. He testified that he did recall asking
Hood why he arrived so late the previous day, if it had
happened previously, and if he intended to do it again, and
telling Hood, "I am going to have to check into it further."
However, he claimed, contrary to Hood's testimony, that
Hood acknowledged that "it was a good piece." (Hood
appeared to have a better recollection of the conversation,
and I credit his version of what was said.)
Thus, when Hood left the plant on Thursday afternoon,
he had been docked 4 hours for taking excessive time the
day before on the Wichita Falls run, and the matter was
settled, except that Plant Manager Latham indicated that
he planned to check on Hood's previous trips.
B. Hood's Discharge
On Friday morning, July 30, Plant Manager Latham
entered the NLRB hearing room with Company Attorney
Joseph Parker and saw Hood sitting there with the union
representative-indicating Hood's obvious support of the
Union in the representation proceeding. Latham called his
counsel into an outer office and told him that "Hood had
said he needed to be off because his wife had a ...
probation hearing." And he was surprised that Hood was
in the hearing room. Latham then represented to his
counsel (contrary to fact, as found below) that "the day
before, the Company had decided to terminate Mr. Hood
for falsifying his timecard."
Hood testified as a witness for the Union. About 3:45
that afternoon, when Hood went to Plant Manager
Latham's office for his paycheck, Latham said, "I will have
to get it" (although he already had the paycheck in his
desk). A few minutes later, Latham returned with Verble
Thompson, who is vice president of Miley Trailer Co., Inc.
(the parent company), and who has an office in a separate
building nearby. Thompson said (as Hood credibly
testified), "Dave, we are going to have to terminate you
because you took too long on that trip." Hood protested,
"Now wait a minute. I have already talked this over with
David Fussell, I have talked it over with Latham and I
794
McVEAN STEEL
thought it was all over with, forgotten." Thompson
responded, "I am sorry, we are going to have to terminate
you."
Thompson accompanied Hood to the truck to get his
personal belongings, and all the way out of the plant to his
car. (Although Hood was entitled to vacation pay, the
Company refused to pay it.)
C. Contentions and Concluding Findings
The General Counsel contends that the decision to
discharge Hood was made on Friday, July 30, in retaliation
for his union support and testimony at the NLRB hearing.
The Company contends that the decision to discharge him,
"because Mr. Hood had falsified a timecard on July 28,"
was made on Thursday evening "without knowledge of Mr.
Hood's alleged union activities on behalf of the Teamsters
Union or Mr. Hood's prospective status as a witness in the
representation hearing on behalf of the Teamsters Union."
As found above, Plant Manager Lat"am represented to
his counsel on Friday morning, after observing Hood
sitting with the union representative in the NLRB hearing
room before Hood testified as a union witness, that the
Company had already decided to terminate Hood for
falsifying his timecard on Wednesday. The key question is
whether this representation to the counsel was true or
fabricated.
Verble Thompson (the Miley Trailer Co. vice president
who is directly responsible for the operation of the
Company, a wholly owned subsidiary), claimed that he had
met with Plant Manager Latham on Thursday evening and
had then decided to terminate Hood "On presentation of
facts relative to a trip that Mr. Hood made in which
ultimately a payroll record was falsified." Yet, he knew
nothing about Hood's employment record, how long Hood
had been employed, or even that Hood's pay had been
docked 4 hours. When asked if Latham had the authority
to hire and fire, Thompson answered, "Yes, very definite-
ly." Latham also claimed that he talked with Thompson
that evening, when Thompson "told me that we were going
to terminate Mr. Hood for falsification of his payroll
records" and that he would personally discharge Hood.
It is undisputed that Hood was a good employee, whom
Plant Superintendent Fussell wanted to keep. After
docking Hood 4 hours for the one offense (of spending
excessive time on the Wichita Falls run), Fussell repeatedly
sought assurances from Hood that he would not quit his
job. Hood was the Company's only long-haul driver, and
there had been no problem in the past with his taking
excessive delivery time. When Hood assured Plant Manag-
er Latham late Thursday afternoon that it would not
happen again, Latham indicated no dissatisfaction with the
docking of pay as a remedy, except that Latham said he
wanted "to pull all those back trips and check them."
There is no claim that Latham checked the prior logs and
timecards or found any earlier offenses, and there is no
explanation why, under these circumstances, he would
consult with the parent company official about the matter.
He had full authority to act himself, and gave no indication
to Hood that any further action would be taken except for
checking the records. Neither was there any explanation
for the parent company official personally discharging
Hood.
After weighing all the evidence and considering all the
circumstances, and having closely observed the demeanor
of the witnesses on the stand, I find that the claim by
Latham and Thompson that they had a Thursday-evening
conversation about Hood to be a fabrication. (Neither of
them impresses me as being a trustworthy witness.) I find
that, when Latham learned on Friday morning that Hood
was supporting the Union's efforts to organize the plant,
and was testifying as a union witness at the NLRB hearing,
he falsely reported to his counsel that the Company had
already decided to discharge Hood. I infer that the parent
company official thereafter decided to do the discharging
himself in order to ensure concealment of the discriminato-
ry motivation, and that he personally ushered Hood out of
the plant-thereby, as the General Counsel argues, "per-
forming an excellent visual performance for any other
employee who might be inclined to support the Union."
Accordingly, I find that the Company discriminatorily
discharged David Hood because of his union support and
his testimony at the NLRB representation hearing, in
violation of Section 8(a)(3), (4), and (1) of the Act. (I note
that the General Counsel points out that the Company
terminated the other union witness at the July 30 hearing
about 2 weeks later. However, that termination is not
alleged to be unlawful and I do not rely on it.)
CONCLUSIONS OF LAW
By discharging David Hood on July 30, 1976, because of
his support of the Union and his testimony as a union
witness at an NLRB representation hearing, the Company
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3), (4), and (1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I find it necessary to order
the Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having discriminatorily discharged an
employee, I find it necessary to order it to offer him full
reinstatement, with backpay computed on a quarterly
basis, plus interest at 6 percent per annum in accordance
with F. W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from
date of discharge to date of proper offer of reinstatement.
Inasmuch as Respondent's unlawful conduct goes to the
very heart of the Act, I find it necessary to issue a broad
order, requiring the Respondent to cease and desist from
infringing upon employee rights in any other manner.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
795
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 2
The Respondent, McVean Steel, Fort Worth, Texas, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for testifying in an N.L.R.B. proceeding or for
supporting Teamsters Local 47 or any other union.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer David Hood immediate and full reinstatement
to his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay or other benefits in the manner
set forth in the Remedy section.
2 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.
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.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its plant in Fort Worth, Texas, copies of the
attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
for by it 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
3 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."
796