Phillips Fibers Corp

National Labor Relations Board - Board Decisions

Apr 20, 1992

307 N.L.R.B. 145 (N.L.R.B. 1992)

145
307 NLRB No. 19
PHILLIPS FIBERS CORP.
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
1 The complaint in Case 11–CA–13922 issued on August 31. An
order consolidating cases and a consolidated complaint (the com-
plaint) issued on November 30. I held a hearing in the matter in
Seneca, South Carolina, on December 13 and 14, 1990, and Feb-
ruary 4, 5, and 6, 1991.
2 Here, and throughout this decision, I am simply going to relate
what I believe occurred, based on my credibility resolutions and my
reading of the documentary evidence. I am not going to discuss the
testimony of individual witnesses (with minor exception). As my fact
findings will indicate, I generally found the testimony of Phillips’
supervisors considerably more credible than the testimony of the em-
ployees who considered themselves discriminatorily treated.
Phillips Fibers Corporation and Oil, Chemical and
Atomic Workers International Union, AFL–
CIO. Cases 11–CA–13922 and 11–CA–14105
April 20, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 31, 1991, Administrative Law Judge
Stephen J. Gross issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings, and con-
clusions and to adopt the judge’s recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Phillips Fibers Corpora-
tion, Seneca, South Carolina, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Rosetta B. Lane, Esq., for the General Counsel.
Leonard J. Spooner, Esq. (Thompson, Mann & Hutson), of
Greenville, South Carolina, for the Respondent.
Judith Helton, of Knoxville, Tennessee, for the Charging
Party.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The Re-
spondent, Phillips Fibers Corporation (Phillips), operates a
factory in Seneca, South Carolina. The General Counsel
claims that during the period July 2 through September 19,
1990, Phillips, at that factory: (1) promulgated and main-
tained rules restricting employee activity because of the
union activities of some of the employees; (2)
discriminatorily enforced a no-solicitation, no-distribution
rule; and (3) fired two employees because of their union ac-
tivities. (All events to which this decision refers occurred in
1990 unless otherwise specified.) Phillips denies that it vio-
lated the National Labor Relations Act (the Act) in any re-
spect.
My conclusion is that Phillips did violate Section 8(a)(1)
of the Act by applying one of its rules in discriminatory
fashion; but that otherwise Phillips did not violate the Act.
Jurisdictional Matters
The Charging Party, Oil, Chemical and Atomic Workers
International Union, AFL–CIO (the Union) filed its charge in
Case 11–CA–13922 on July 13. It filed its charge in Case
11–CA–14105 on October 29 and then amended it on No-
vember 15.1
According to the complaint, during the past 12 months,
which period is claimed to be representative of all times ma-
terial, Phillips received at its Seneca, South Carolina facility
products valued in excess of $50,000 directly from points
outside the State of South Carolina; and Phillips shipped
from its Seneca, South Carolina facility products valued in
excess of $50,000 directly to points outside the State of
South Carolina.
Accordingly, the General Counsel alleges that Phillips is
now and has been at all times material an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act. No evidence was adduced in support of these allega-
tions. But Phillips admits the complaint’s allegations in these
respects.
The General Counsel also alleges that the Union is a labor
organization within the meaning of Section 2(5) of the Act,
and I find that the Union is in fact a labor organization.
Foreman Covington’s Statements on July 22
The General Counsel claims that Phillips violated the Act
on five different occasions. I am going to discuss the five
in chronological order.
The first acts by Phillips said to have violated the Act oc-
curred on July 2. The complaint alleges that on that date
Phillips, by Supervisor Joyce Covington, ‘‘promulgated and
maintained a rule restricting its employees from leaving their
work area because of their union activities.’’
Phillips’ Seneca factory makes nonwoven fabric. We are
primarily concerned with one part of that factory—the ‘‘re-
work’’ department. In size it is about 300 feet by 450 feet.
It is filled, more or less, with machinery, some of which is
highly automated, so that there are only 16 or 17 employees
per shift in the rework department.
The largest, and most important, equipment in the rework
area are two ‘‘Fare’’ machines (pronounced ‘‘fah ray’’). The
Fare machines are huge, automated, machines that run con-
stantly, 24 hours per day (except for breakdowns). It is the
task of the Fare machines’ operators, two per machine, to
constantly monitor the machines’ operations and to instantly
remedy the various minor glitches that arise from time to
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The record contains no evidence about work rules in factories
other than Phillips’ Seneca plant. My statements about other facili-
ties are based on my experience in such matters. I note that even
were I not aware of the similarity between Phillips’ rules and those
in other factories, I would reach the same outcome here.
4 I specifically find that an alleged incident in the plant’s parking
lot, in which Covington supposedly walked past a group of employ-
ees shouting ‘‘union, union,’’ never occurred.
5 The record includes certain employee personnel records for 1988,
1989, and 1990. Those records show that in 1990 Phillips’ super-
visors substantially increased the number of entries (records of
verbal discipline) they made in those personnel records about em-
ployees leaving their work areas. But more than half of the 1990 en-
tries were made before any union organizing began. The General
Counsel claims, nonetheless, that three prounion employees were un-
fairly treated in that respect by Covington after the union organizing
began, and that this is evidence of antiunion behavior on Phillips’
part. But my reading of the employee records in question shows
there to be nothing suspicious about Covington’s actions.
time. Any operator’s failure to do that can result in signifi-
cant costs for Phillips.
As in most factories, the employees in Phillips’ plant are
not free to wander about at their whim. They are expected
to remain attentive to their tasks except when they are on
their alotted breaks (at which time their ‘‘break reliefs’’—
other employees that Phillips designates for that role—fill in
for them). There are two exceptions. Employees may briefly
leave their machines without specific supervisory permission
(1) to go to the bathroom or (2) to get coffee or a cold drink.
(For Fare operators, one of the other three operators monitors
the absent operator’s area of responsibility for those minutes
he or she is away.)
As is also true in most factories, for obvious reasons em-
ployees on their breaks are not supposed to enter into con-
versations with employees who are at work.3
And again as is true in most factories, from time to time
supervisors crack down on rule violations, such as the rule
regarding leaving one’s work station, then let things slide,
then once again crack down.
In 1990 Joyce Covington was the daytime foreman in the
rework department. Michael Hughes, a ‘‘shift supervisor,’’
was her immediate supervisor. Both Covington and Hughes
are ‘‘supervisors’’ within the meaning of the Act. (Hughes’
responsibilities included both the rework department and the
‘‘Duon’’ department—that is, the two manufacturing depart-
ments in the factory.) On or shortly before July 2 the person
in charge of the plant’s supply room complained to Cov-
ington that one of the rework employees had been visiting
a supply room employee when the latter employee was not
on his break. Covington told Hughes about the complaint.
About the same time the plant’s maintenance foreman com-
plained to Hughes that some of the rework and Duon em-
ployees ‘‘were spending too much time’’ in the maintenance
department.
Hughes’ response was to tell Covington and the Duon
foreman ‘‘to go to each individual employee and tell them
where our problem was and that we needed to put a stop to
it’’ (in Hughes’ words).
Covington did just that. On July 2 she spoke individually
to each of the 17 or so employees she supervised. She told
them that they were to take their breaks in the designated
break areas, not in other work areas; and that they were to
go directly to and return directly from the break areas with-
out visiting employees in other areas.
Five or six of the rework employees had held their first
union organizational meeting less than 2 weeks earlier, on
June 20. Not surprisingly, they immediately jumped to the
conclusion that Covington’s one-on-one talks were aimed at
impairing unionization efforts (even though Covington re-
marks to the employees in no way had suggested that her
concern had anything to do with any union). The General
Counsel here makes that same contention.
I conclude that the General Counsel has failed to show
that to be so.
First, there has been no showing that as of July 2 anyone
in management was aware of any unionization effort.4
Second, even if the General Counsel had proven that, as
of July 2, management was aware of the unionization effort,
I would still conclude that the General Counsel’s allegation
about the discriminatory promulgation of a rule on July 2
was incorrect. Hughes and Covington responded in a com-
monplace way to a commonplace problem. Moreover Cov-
ington was evenhanded in the way she spoke to employees
about the matter and the way she thereafter enforced the
rule.5
Phillips’ Discharges of Peggy Smith and Stan D. Smith
During the relevant time period four Smiths worked in the
rework department: Karen, Peggy, Stan D., and Stan P. Our
concern in this part of the decision is with Stan D. and
Peggy Smith. (Actually, as of July 1990 Peggy’s last name
was Cobb, not Smith. But prior to the hearing she married
Stan D.) Phillips fired Peggy and Stan on July 3. The ques-
tion is whether Phillips fired them because of their union ac-
tivities.
July 3, start to finish, was a really lousy day for Peggy.
Things began to go sour in the morning. Peggy was about
to complete her divorce from her husband. In the meantime
she had entered into a relationship with Stan D. She and Stan
wanted to take a short vacation together, one that required
them to be away from the plant for 2 working days. But
Phillips’ policy is to limit vacations so that no more than
three employees in the combined rework-Duon areas are on
vacation at the same time, and so that no more than two re-
work employees are on vacation at the same time. (Phillips
grants exceptions to this policy, but only rarely.)
The vacation listing showed that two employees, Dale
Cain and Mickey Owens, would be on vacation on the days
that Peggy and Stan wanted for their vacation. One of those
employees, Owens, was in the rework department. (That
meant that either Peggy or Stan could take a vacation then,
but not both of them. And, of course, the point was for
Peggy and Stan to take the vacation together.) But Covington
(the rework foreman) told Peggy and Stan that their vacation
remained a possibility. Cain (the nonrework employee), Cov-
ington said, had advised that he was thinking about not tak-
ing those days off after all.
Covington’s holding out the possibility of a holiday was
a mistake. Owens, after all, was in the rework department,
he definitely was going to be off on the days in question,
and Phillips did have a policy of only allowing two rework
employees off at a time.
147PHILLIPS FIBERS CORP.
6 When witnesses called by the General Counsel were asked to
give examples of cursing in the plant, they mentioned the following:
‘‘How’s this damn thing running today?’’ ‘‘Where the hell have you
been?’’ ‘‘Hang the damn thing up.’’ And, ‘‘I’ll write your ass up.’’
Shortly after Peggy and Stan talked to Covington about
their vacation desires, Covington learned that Cain was not
going to be going on vacation. Covington spoke to Hughes
(her immediate superior) about Peggy and Stan, mentioning
that Cain had changed his plans and was not going to be off;
thus only Owens would be away. Hughes responded that that
did not matter; since Owens was going to be off, Peggy and
Stan could not both take a vacation then.
In the meantime, Peggy left for a hearing in her divorce
case. The hearing, which only took an hour or two, did not
go well for her. She returned to the plant devastated.
Things for Peggy then got even worse. The hearing had
resulted in the divorce being made final. That meant a
change in her status, which in turn required that Peggy make
changes in things like the insurance coverage provided by
Phillips. One of the Company’s administrative employees
told Peggy that the Company needed information that Peggy
had to call her ex-husband to get. She did call him to get
the information. As one might guess, the conversation was
a difficult one. Peggy got even more distraught.
Peggy’s telephone conversation with her ex-husband ended
not long before 7 p.m. (Phillips’ employees work 12-hour
shifts, 8 a.m. to 8 p.m.) At or about 7, perhaps 6:45, Cov-
ington began distributing paychecks. She walked over to the
Fare area. Peggy, Stan, and several other employees were
there.
When Covington turned to Peggy, Peggy asked about her
vacation request. Predictably, things did not go smoothly.
Covington said that Peggy and Stan could not both be off
on the days that the two of them had requested. Peggy re-
sponded angrily, saying something on the order of ‘‘why the
hell not? Dale Cain isn’t going on vacation.’’ Covington re-
plied that Hughes had told Covington that he would not
allow three rework employees to be off at the same time.
Peggy launched into a tirade, using the word ‘‘damn,’’ and
accusing Covington of picking on Stan and her. Stan, mean-
while, also said something to Covington indicating that he
considered Covington to be being unfair. In the course of
saying so, Stan used the word ‘‘shit.’’
Covington asked Peggy and Stan to accompany her to the
‘‘shift office’’—an office used by several low level super-
visors, including Covington and Hughes—so that Peggy and
Stan could talk to Hughes. Peggy said that they would not,
that she did not want to talk to ‘‘no God damn Mike
Hughes.’’
Covington turned and headed for the shift office. As she
did, Peggy turned to another employee and loudly referred
to Covington as ‘‘that bitch.’’ Covington overheard the re-
mark. She was already upset by the outburst from two em-
ployees with whom she considered herself to be on good
terms. Covington got more upset.
At this point it is worth discussing the kinds of cursing
generally heard at Phillips’ Seneca plant. ‘‘Damn’’ is consid-
ered ‘‘foul language’’ (as one employee witness put it).
‘‘Hell’’ and ‘‘shit’’ are deemed significant expletives.6 ‘‘God
damn’’ and ‘‘bitch’’ are heard relatively rarely, particularly
face-to-face with a supervisor.
In the office Covington reported to Hughes that Peggy had
again requested vacation time, that Covington had said no,
and that Peggy and Stan had become loud and abusive and
had used profanity. When she told Peggy and Stan to go to
the office, Covington continued, they refused. Covington spe-
cifically told Hughes that Peggy had said that she did not
want to talk to ‘‘damn Mike Hughes.’’ Hughes told Cov-
ington to return to Peggy and Stan and to order them to go
to the shift office. If they refused, Hughes said, Covington
should order them to punch out and leave the plant. As he
said that, Hughes took out of a drawer a manual that de-
scribed Phillips’ vacation policy.
Covington returned to the Fare area, walked over to Peggy
and Stan, and told them that Hughes had said that they
should go to the office so that he and they could discuss the
vacation that Peggy and Stan wanted. If they did not do that,
Covington continued, Peggy and Stan had to punch out and
go home. (What Covington meant was that the two employ-
ees had to talk to Hughes; if they would not obey that order,
they would not be permitted to remain in the plant. While
her words arguably could be construed as giving the employ-
ees the choice of two different courses of action, it is clear
that both Peggy and Stan understood perfectly well what
Covington meant.)
Peggy again said that she did not want to talk to ‘‘no God
damn Mike Hughes.’’ Either Peggy or Stan said that they
wanted to talk to Bud Chittenden or Archie Barron.
(Chittenden is the plant’s operations superintendent. Barron
is the administrative services superintendent.) Covington said
they could not, that they had to talk to Hughes.
At that point Peggy and Stan began to gather up their per-
sonal things. Peggy shouted some words that included: ‘‘I’m
for the union.’’ (Peggy probably said something like, ‘‘why
are you doing this? Because I’m for the union?’’—with the
emphasis on ‘‘I’m for the union.’’ In any case, Covington
heard only, ‘‘I’m for the union.’’) Covington yelled back, ‘‘I
don’t give a damn.’’
Stan then yelled to a fellow employee, ‘‘you can have all
this damn shit,’’ referring to the items in his locker. And he
and Peggy left the plant.
Covington returned to the shift office and told Hughes
what had just happened. (As Covington related Peggy’s last
words to Hughes, Peggy had shouted, ‘‘don’t you know I’m
for the union, don’t you know I’ve signed a union card.’’)
Hughes, in turn, called Administrative Services Super-
intendent Archie Barron (at Barron’s home) and described
the incident to him.
In the days that followed, Barron, sometimes accompanied
by another senior plant official, interviewed Peggy, Stan,
Covington, Hughes, and the three employees who were with-
in earshot of the exchanges between Covington, Peggy, and
Stan. One of the employees, Gary Kokay, told Barron that
he supported having a union in the plant and that charges
would be filed against Phillips.
Barron concluded that Peggy’s and Stan’s insubordination,
exacerbated by what he considered the abusive and profane
language they directed at Covington, warranted their dis-
charge. Accordingly, on July 10 Barron again met with
Peggy and Stan and told them that they were being fired. In
telling them the reasons for their discharges, Barron used the
words of the plant’s ‘‘Rules for Personal Conduct.’’ Thus, he
told them that they were being fired for: (1) insubordination;
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The rules state, inter alia:
While the following list is not all inclusive, some of the viola-
tions which can result in disciplinary action, including discharge,
are:
. . . .
5. Conduct which violates common decency or morality.
. . . .
10. Insubordination; refusal to obey orders; failure to observe
established procedures.
(2) refusal to obey orders; and (3) conduct violating decency
and morality.7
When Phillips discharges an employee, the employee’s
first-line supervisor is asked for a recommendation about
whether Phillips should consider the employee eligible for
rehire in the future. The supervisor’s recommendation is
noted in the employee’s personnel record. Peggy’s and Stan’s
records show that Covington recommended that Peggy and
Stan be eligible for rehire.
Several related matters merit consideration in relation to
Phillips’ discharge of Peggy and Stan.
One has to do with Peggy’s and Stan’s records at Phillips.
Neither was a model employee. But both were good workers
who had been with Phillips for a long time. Peggy had
worked for Phillips since 1976, Stan since 1979.
Another has to do with Phillips’ disciplinary practices.
Phillips uses a progressive disciplinary system (reprimand,
warnings of various sorts, and discharge). Discharges for a
single offense are relatively rare and generally are the result
of exceedingly serious violations of plant rules, violations
more serious than those committed by Peggy and Stan.
Third, when Phillips fired Peggy and Stan, its officials
knew that there was some union activity in the plant and that
Peggy, and probably Stan, were involved in that activity.
That is because Peggy and Kokay had by then announced to
Phillips supervisors that they were supporters of a union (as
described above). And, as will be discussed below, on July
6 a supervisor had found a copy of the Union’s constitution
and a petition in the plant.
For all that, my conclusion is that the protected activities
of Peggy and Stan had nothing to do with Phillips’ decision
to fire the two employees. First, the record here fails to es-
tablish union animus on Phillips’ part. Second, Peggy and
Stan refused Covington’s order that they go to the shift of-
fice; then, several minutes later, they again refused the same
kind of order. Peggy, moreover, couched her refusals in lan-
guage that, by the standards of the plant, was utterly out of
line.
Stan’s language was considerably milder than Peggy’s. But
Peggy and Stan obviously were acting as a couple in their
responses to Covington. As a result it would have been inap-
propriate, or at least awkward, for Phillips to have fired
Peggy and not Stan.
There is one last matter to consider regarding Phillips’ dis-
charge of Peggy and Stan. Plant policy is to allow—even en-
courage—any employee to meet with any supervisor. In the
midst of the confrontation Covington-Peggy-Stan confronta-
tion, the two employees asked to see supervisors Barron and
Chittenden. Covington told them they could not, that they
had to meet with Hughes. I do not consider anything strange
about Covington’s refusal to honor the employees’ request.
To begin with, Covington knew that Barron and Chittenden
almost always leave the plant long before 7 p.m. (when the
altercation occurred). Secondly, Phillips’ policy does not
mean that an employee is permitted to refuse an order to
meet with a specified supervisor. I am clear that had Peggy
and Stan complied with either of Covington’s orders that
they meet with Hughes: (1) they would not have been fired;
and (2) they thereafter could have met with any supervisor
they chose about their vacation desires or about any other
subject.
Confiscation of Personal Property Relating to
Union Activities
The General Counsel alleges that, on July 6, Phillips
discriminatorily enforced a no-solicitation, no-distribution
rule by confiscating certain personal property of employee
Gary Kokay, which property related to union activities.
Much of the time the Fare operators in Phillips’ plant do
nothing but monitor the machines’ operations. That can get
boring. The operators accordingly like to read magazines and
newspapers, do puzzles, and the like. But Phillips, under-
standably, considers that it is inappropriate for employees to
read anything but work-related materials while they are sup-
posed to be working. And the employees all know that that
is Phillips’ policy.
Still, the work does get boring. The result is that many
employees try to sneak in some reading while they are on
the job. And whenever a supervisor sees that, the employee
is ordered to stop. That circumstance has been going on for
years.
Phillips does permit employees to bring reading material
to the plant, to keep it in their lockers or even in work areas
if it remains out-of-sight, and to read it, in nonwork areas,
during their breaks.
There are tables near the Fare machines. Phillips put them
there for working purposes; for example, for the limited pa-
perwork that the Fare operators have to do and as a place
to change knife blades for the cutters that the Fare operators
use from time to time. Phillips allows employees to keep
some personal objects on the tables, such as purses, lunch
bags, and coats. In keeping with the policy I have just de-
scribed, however, Phillips forbids employees to keep reading
materials on those tables—except, of course, reading mate-
rials pertaining to the employees’ work.
On July 6 Kokay, who is a Fare operator, put a copy of
the Union’s constitution on one of the tables next to the Fare
machines. Tucked inside the constitution was a petition that
had some signatures on it. Kokay’s name was not on the ma-
terials. Kokay then left the immediate area to do some repair
work. While he was doing that work Hughes (the shift super-
visor) came by and noticed the constitution on the table.
(Hughes did recognize it to be a union constitution.) Phillips’
usual policy is for all dealings directly between management
and an employee to be handled by the employee’s foreman.
So Hughes informed Covington about the union constitution
on the table and told her to ‘‘take care of it.’’
Covington proceeded to the table, saw the constitution,
saw no employee in the immediate area, picked up the con-
stitution (and the petition that was in it), and brought it to
the shift office.
As stated earlier, when a Phillips’ supervisor sees personal
reading materials in an employee’s possession while the em-
ployee is at work, the supervisor orders the employee to put
the material away. And when a supervisor sees such material
149PHILLIPS FIBERS CORP.
8 That is all the record tells us about this Strobeck speech.
in a working area and it is not apparent to whom the material
belongs, the supervisor takes the material to the shift office.
Up to this point, therefore, Covington’s behavior had unques-
tionably been precisely what it would have been had the con-
stitution instead been People magazine or an Avon catalog.
That is to say, up to this point Phillips had not acted at all
discriminatorily in respect to Kokay’s union constitution and
petition.
The real issue, as I see it, is whether Phillips, at this junc-
ture, began to treat the union constitution and materials dif-
ferently from the way it would have dealt with other kinds
of reading materials it obtained under similar circumstances;
and, if Phillips did, whether the difference was of such a na-
ture that Phillips should be found to have violated the Act.
There are two factual subissues in this respect. The first
is, what does Phillips usually do when a supervisor picks up
reading materials? The second is, what did Phillips do in the
case at hand? The evidence is scanty in respect to both
subissues.
As far as what happened here, all that the record tells us
with any certainty is that Covington gave the union constitu-
tion and petition to Hughes. Hughes, in turn, gave them to
his supervisor.
In the meantime—about an hour after Covington picked
up the constitution and petition—Kokay paged Covington.
When she answered the page he said something like, ‘‘I be-
lieve that you took something of mine by accident.’’ Cov-
ington replied that she didn’t take it by accident, that it ‘‘was
laying out open in the work area on work time,’’ and that
the materials had been ‘‘disposed of.’’
About a month later Phillips’ plant manager, George
Strobeck, gave a speech to employees about the unionization
effort. In the course of that speech he read from one of the
Union’s petitions, saying ‘‘this is one of the petitions that the
union people are trying to get you to sign.’’8 Kokay, who
was one of the employees to whom the Strobeck was talking,
concluded that the petition that Strobeck was displaying was
the one that Covington had taken on July 6.
Phillips did not introduce any evidence about whether or
not Kokay’s assumption was accurate.
As to what Phillips usually does with reading material
taken from employees, one employee testified that he thought
that the supervisors ‘‘throw it in the trash can.’’ Shift Super-
visor Hughes testified:
Generally . . . if we know who the material belongs
to, we will handle it as a verbal reprimand, have them
put it away, take care of it themselves. If they don’t
want to do that, we will do it for them. We will take
it and dispose of it. If we don’t know who it belongs
to and it is just laying out, we will take it up and dis-
pose of it.
To me, what that adds up to is this: If Kokay’s constitu-
tion and petition had instead been a magazine, say, Cov-
ington would have either thrown it away or, when Kokay
asked for its return, would have given it back to him with
the admonition that he should not have such material in a
working area and that he must immediately put it away. Phil-
lips did not follow that procedure in respect to the union
constitution and petition. (That is the case whether or not one
assumes that the petition that Strobeck read from was the one
that Covington took from Kokay.) I have no doubt that the
reason that Phillips treated those materials differently was
because they were union-related.
I conclude that, while the issue is a close one, Phillips’
treatment of Kokay’s union constitution and petition after
they were taken from him amounts to a violation of Section
8(a)(1).
Phillips’ behavior hardly can be classified as heinous. Still,
union organizing materials are central to the concerted activ-
ity that Section 7 protects. Employer actions directed at such
materials thus all too easily may interfere with, restrain, or
coerce employees in the exercise of their Section 7 rights.
Accordingly, if an employer acts in some way toward to
such materials, that action must closely follow the procedures
the employer would follow regarding other kinds of written
material belonging to employees. Phillips here easily could
have done that; most obviously by returning the materials to
Kokay. Yet Phillips inexplicably failed to do so.
I have considered whether this violation of the Act proves
union animus on Phillips’ part. I have concluded that it does
not. What the violation does show is that: (1) Phillips’ be-
havior was thoughtless; and (2) Phillips’ management found
a union constitution and a union petition to be considerably
more interesting than the materials employees usually bring
in—newspapers, cosmetics, catalogs, and the like. And that,
it seems to me, is all that the violation shows.
Stan P. Smith’s July 7 Conversation With Covington
Employee Stan P. Smith spent a busy day on July 7 taking
notes, notwithstanding the fact that his job does not include
any paperwork. (The employee who was involved in the July
3 altercation with Covington was Stan D. Smith. Employee
Stan P. Smith is a different person. The two Stan Smiths are
not related.) Stan P. Smith’s foreman, Covington, appro-
priately told Smith to stop doing that on company time.
In any case, the General Counsel does not contend that
that conversation violated the Act. Rather, the claim is that
on July 7 Covington told Smith that he was not permitted
to bring any reading material to the plant. Smith did so tes-
tify. And had Covington said that, that would have plainly
been out of line with Phillips’ past policy regarding reading
material. (As touched on earlier, Phillips’ employees are per-
mitted to bring reading material to the plant. The only re-
striction is that they may neither read while working nor
have the material in sight in working areas.)
But Smith was the only witness to testify about that inci-
dent. And I found Smith not to be credible as a witness. (I
rarely discredit all of a witness’s testimony. Even with wit-
nesses I have doubts about, I generally find some of the wit-
ness’ testimony to be credible, some to be otherwise. But in
Smith’s case, I am unwilling to credit any of his testimony.)
I accordingly find that the record fails to sustain the alle-
gation concerning Covington’s July 7 statement to Smith,
and I will therefore recommend that this allegation be dis-
missed.
The Rule Against Making Telephone Calls
The allegation is that in mid-July Covington promulgated
a rule requiring the employees whom she supervised to ob-
tain her approval before they used the telephone during
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 If this 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.’’
working time, and that she did so because of the union orga-
nizing efforts of some of the employees.
Everyone agrees that the employees could use the tele-
phone as much as they liked when they were on their breaks.
And it is clear that in mid-July Covington told some
prounion employees to stop using the telephone when they
were supposed to be working, unless they got her prior ap-
proval. (Covington asked employees Gloria Cleveland and
Gary Kokay to ‘‘do me a favor’’ and do their telephoning
on their breaktimes rather than during their worktimes.) Ad-
ditionally, at a regular monthly meeting of rework employ-
ees, in either July or August, Covington told the employees
that they were only to use the telephone on breaks unless it
was an emergency situation. (Covington at no time used the
word ‘‘union’’ or in any other way alluded to protected em-
ployee activities either in her remarks to Cleveland and
Kokay or at the meeting with employees.)
The question is whether Covington made those remarks
because of the employees’ protected activity.
I find that she did not, that her statements about telephone
use had nothing whatever to do with any protected activity.
To begin with, I find that at all relevant times it was Phil-
lips’ policy that employees were not to leave their work sta-
tions to make personal telephone calls except with the spe-
cific permission of their foreman, and that all Phillips em-
ployees knew that to be the case. I further find that, year-
in-year-out, Phillips’ foremen occasionally discussed that pol-
icy with employees in their regular monthly meetings. I fur-
ther find that while Phillips’ foremen did not always enforce
the telephone policy rigorously, they did crack down when-
ever they believed that employees were abusing that leni-
ency. Lastly, I find that in mid-July Covington did notice
that the number of telephone calls being made by employees
during work time was increasing, and that it was this in-
creased use of the telephone during work time that led to
Covington’s remarks.
I will thus recommend that this allegation of the complaint
be dismissed.
Covington’s Remarks to Stan P. Smith in Mid-August
Stan P. Smith testified that on August 19 Covington told
him that he was not to stop and visit other employees on his
way to break areas. The General Counsel alleges that Cov-
ington made that remark because of Smith’s union activities.
Covington testified that no such incident occurred. I credit
Covington and will recommend dismissal of this allegation.
Covington’s Remarks to Stan P. Smith in September
The Fare machinery is many yards long. At one place all
the machinery is far enough above the floor that it is possible
to walk under it, albeit stooped. There is some danger in-
volved, and Phillips’ policy is that no one is supposed to do
that. Accordingly, Phillips has roped the area off. Nonethe-
less employees, and supervisors, sometimes do walk under
the Fare machinery as a shortcut. Mostly, however, everyone
follows established routes.
Sometime in September Stan P. Smith, as he was going
on his break, walked under the Fare machinery (even though
that was not a shortcut to the break area), then stopped and
visited for several minutes with two Fare operators, both of
whom were supposed to be at work. Covington saw all this,
waited until Smith was alone, then talked to him about his
behavior. Covington told Smith that when he went on his
breaks he should proceed directly to the break area (i.e., not
under the Fare machinery), and that he was not to visit Fare
operators while they were supposed to be working.
The General Counsel contends that Covington would not
have spoken those words to Smith but for Smith’s union ac-
tivities. But my conclusion is that Covington’s utterance was
a routine one, one predicated entirely on considerations of
plant efficiency and safety and with no connection to Smith’s
union activities or with any other protected activities. Ac-
cordingly, once again, I shall recommend dismissal of the al-
legation.
CONCLUSIONS OF LAW
1. Phillips is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Phillips violated Section 8(a)(1) of the Act by treating
materials relating to a union organizing effort taken from em-
ployee Gary Kokay differently from the way Phillips would
have dealt with materials unrelated to union organizing.
4. The evidence fails to show that Phillips otherwise vio-
lated the Act in any respect.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Phillips Fibers Corporation, Seneca,
South Carolina, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Treating materials relating to a union organizing effort
taken from employees differently from the way the Respond-
ent deals with materials unrelated to union organizing.
(b) In any like or related manner interfering with, restrain-
ing or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in Seneca, South Carolina, copies of
the attached notice marked ‘‘Appendix.’’10 Copies of the no-
tice, on forms provided by the Regional Director for Region
11, after being signed by the Respondent’s representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
151PHILLIPS FIBERS CORP.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT treat union organizing materials taken from
employees differently from the way we treat materials unre-
lated to union organizing.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
PHILLIPS FIBERS CORPORATION