Poinsett Lumber and Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1197 (N.L.R.B. 1964)

POINSETT LUMBER' AND MANUFACTURING COMPANY 1197
Employees may communicate directly with the Board 's Regional Office; Transit
Building, Fourth and Vine Streets, Cincinnati, Ohio, Telephone No. 381-1420, if
they have any question concerning - this notice or compliance with its provisions.
Poinsett Lumber and Manufacturing Company and Lee Bowman
and International Union of Electrical , Radio and Machine
Workers, AFL-CIO. Cases Nos. 11-CA-2087 and 11-CA-2099.
June 30, 1964 '
DECISION AND ORDER
On February 28, 1964, Trial Examiner C. W. Whittemore issued
his Decision in the above-entitled proceeding, finding that the Re-
'spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Decision:
Thereafter, the Respondent filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of theAct, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Jenkins].
After careful examination of the record, we find 'no merit in the
Respondent's contention that the Trial Examiner was biased and
prejudiced. Accordingly, the Respondent's request for oral argument,
which is grounded solely on the alleged bias and prejudice of the
Trial Examiner, is-hereby denied.
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 Decision,
the exceptions and brief, and the entire record in this case, and finds
merit in the Respondent's exceptions.
The Trial Examiner found that the Respondent violated Section
:8(a) (1) by discharging a supervisor, Bowman, for refusal to engage
in conduct violative of Section 8 (a) (1). He also found that Re-
spondent violated Section 8(a) (3) by discharging employees Looney,
Burriss, Campbell, and Patterson, and by transferring Fulghum and
Deanhardt. The Trial Examiner included in his Recommended
Order a provision that Respondent cease and desist from interrogat-
ing its employees. Although he made no specific 8 (a) (1) finding,
-this recommendation is apparently based on alleged interrogation of
Burris by Supervisor Brissey, while the two were drinking together
-in a bar.
The testimony of Respondent's former supervisor, Bowman, is the
key to the case. The Trial Examiner credited Bowman's testimony
147 NLRB No. 153.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Plant Superintendent McConnell said information on employees'
union activity was, needed "to weed these fellows out." He also
credited Bowman's testimony that McConnell told him that he was
being discharged because he had not given management a "feed back"
on the union campaign. The 8(a) (3) findings rest in large part on
establishing Respondent's plan to "weed out" union adherents.
In Standard. Dry Wall Products,_Lnc.,l the Board said, "It is our
policy to attach great weight to a Trial Examiner's credibility find-
ings insofar as they are based on demeanor. Hence we do not overrule
a Trial Examiner's resolutions as to credibility except where the clear
preponderance of all the relevant evidence convinces us that the Trial
Examiner's resolution was incorrect."
This policy is grounded in the fact that, unlike the Board, the Trial
Examiner, by virtue of his direct observation of witnesses at the hear-
ing, has the opportunity to observe and evaluate factors of appear-
ance and demeanor of witnesses. However, as we-also stated in Stand-
ard Dry Wall Products, Inc., in contested cases, "The Act commits to
the Board itself, not to the Board's Trial -Examiner, the power and
responsibility of determining the facts as revealed by a preponderance
of the evidence," and the Board is not bound by the Trial Examiner's
findings of facts, but bases its findings upon a de novo review of the
entire record. Therefore, insofar as credibility findings are based
upon factors other than demeanor, in consonance with the policy set
forth in Standard Dry Wall Products, Inc., the Board will proceed
with an independent evaluation.
In his Decision, the Trial Examiner has recited objective reasons to
support his resolution of the conflicting versions of testimony, which
in the circumstances herein greatly diminish the importance of the
demeanor factor. Upon a review of the record, we are unable to ac-
cept the credibility findings of the Trial Examiner. For the reasons
set forth hereinafter, we are persuaded that a'clear preponderance of
the evidence is against the Trial Examiner's resolutions, and'that the.
General Counsel has not sustained his burden of proof.
At the outset we set forth the reasons which compel us to reject the-
Trial Examiner's crediting of Bowman's testimony.
In crediting Bowman's testimony that Superintendent McConnell
told Bowman at the time of his discharge that Bowman was being
fired for failure to give management a "feed back" on the union cam-
paign, the Trial Examiner does not discuss uncontradicted testimony
which strongly suggests that the "feed back" statement was not made.
by McConnell, but was interpolated by Bowman after the event..
Thus, 3 days after being fired, Bowman discussed his discharge with
Respondent General Manager Mohney, but did not mention to him
that failure to feed back information was the reason given by-
191 NLRB 544.
POINSETT LUMBER AND MANUFACTURING COMPANY 1199
McConnell About 3 days after this interview, Bowman wrote a letter
to the office of Respondent's parent corporation stating, "On Friday,
January 4, 1963, I was discharged by Mr Foster McConnell and the
only reason he could give me was that I would not fit into his (Foster
McConnell's) organization" And when he made a claim for un-
employment compensation (which was rejected on January 18, 1963),
Bowman gave as a reason , "The statement that Mr McConnell gave
me that he was having a change in personnel, and that there was no
place in his organization for me " Ten days after his unemployment
compensation claim was rejected, Bowman filed his charge with the
Board In March, on an appeal from the unemployment compensa-
tion denial, Bowman raised, for the first time publicly, the claim that
McConnell had made the "feed back" statement at the time of his dis-
charge When asked at the hearing herein if failure to provide a
"feed back" was the only reason Bowman claimed he was discharged
for, Bowman answered "This is the only conclusion I could arrive at "
In crediting Bowman, the Trial Examiner stresses the fact that
Superintendent McConnell did not deny having told Bowman that he
was being discharged for failure to "feed back" on the union cam-
paign, nor did he deny having told Bowman that information was
needed to weed out union adherents The record, however, indicates
that McConnell did in fact deny having made these statements 2
We consider next the finding that Bowman was discharged in viola-
tion of 8 (a) (1)
The Trial Examiner gives as a reason for rejecting management's
"contention that Bowman was unsatisfactory as a supervisor because
employees complained about him" the fact that "no employee was
2 In crediting Bowman on another point ( orders allegedly given him to transfer Welborn,
presumably a union supporter in order to make him quit ) the Trial Examiner relied on
the fact that neither of the supervisors involved Jordan and McAlister specifically denied
Bowman s account of the incident but merely made general denials "that they had asked
Bowman 'to transfer union supporters from regular work with a view to inducing them to
quit'" However according to the record Jordan testified as follows
Q Now on or about November 22 1962 did you Doys Jordan and Bobby McAlister
ask Bowman to transfer union supporters from their regular work to induce them to
quit'
A No sir
Q Do you know who was or was not a union supporter9
A No
Q Did you ask them to do that to Mr Welborn'
A No sir
And according to the record McAlister testified as follows
Q Mr McAlister did you ever ask Mr Bowman on or about November 22nd to trans
fer union supporters from regular work with the view to inducing them to quito
A No sir I did not
Q Did you ask him to transfer any particular employee9
A No sir
Q For that reason?
A No sir
Q Did you ask him to transfer a man by the name of Mr Cleo Welborn for that
reason'+
A No sir, I didn't
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brought forward by the Respondent to corroborate McConnell or any
other supervisor as to such complaints." We attach no weight to this
since on cross-examination Bowman admitted that three employees
complained to management that Bowman ill-treated them and 're-
quested removal from his supervision, and that one other requested a
transfer for reasons not specified.
In further support of his conclusion that management's claimed dis-
satisfaction with Bowman as a supervisor was a pretext, the Trial
Examiner relies on the fact that McConnell testified that he had "per-
sonally received" only two complaints about Bowman and that these
were in June and July (the discharge being the first week of Janu-
ary). The record, however, contains testimony by McConnell that
about a month prior to Bowman's discharge, he received complaints
from other management personnel about Bowman, and Bowman ad-
mitted that in October a supervisor had discussed with him the morale
of one of his employees. The Trial Examiner also relies on the fact
that no other supervisor testified to any "misconduct as a supervisor"
by Bowman "at any time near the date of his discharge." However,
the record shows that one supervisor testified that from August to
the end of December he had occasion to talk to Bowman about his
conduct toward employees "quite often," approximately once a month.
Another supervisor testified to trouble with Bowman in October and
November.
Also, the Trial Examiner relies on the fact that Bowman had been
a supervisor from approximately September 1960 to April 1962 with-
out any complaints from management. The record, however, shows
that during this period Bowman was "leadman," which is not shown
to be a supervisory position, and that complaints started coming in
about 2 months after his promotion to assistant foreman in April
1962. McConnell testified that from June to December, 5 or 6 of
Bowman's 12 employees requested that they be transferred away from
his supervision. Bowman admits at least four such requests. The
Trial Examiner does not deal with this admission.
And finally, the Trial Examiner notes McConnell's "failure to act
in any fashion" during the `tilong period" between the time he became
convinced that Bowman was causing dissatisfaction among employees
and his discharge, i.e., from "prior to the November 30 election" until
January 4. He concluded that McConnell's failure. to act "clearly,
reflects either upon .his credibility as a witness or his acumen as a
management representative." The record, however, contains testi-
mony by McConnell that on two occasions he told Bowman that if he
had to "blow his top" to go into McConnell's office and not to do it in
front of his employees (corroborated in part by Bowman) ; that he
talked to Bowman''in the last week of November or the 'first week of
December about the morale of his employees; and that he ordered
POINSETT LUMBER AND MANUFACTURING COMPANY 1201
Department Manager Jordan to spend time in Bowman's section to
help him improve morale. According to Jordan, he attempted to do
so during October and November.
It is apparent from the Trial Examiner's Decision that the 8(a) (3)
findings rest in large measure on the foundation supplied by the testi-
mony of Bowman.3 Since, for the reasons noted above, we cannot
accept the Trial Examiner's version of that testimony and since a clear
preponderance of the evidence strongly indicates that McConnell did
not make the statements attributed to him by Bowman, we feel that
the remaining evidence in the record is insufficient to sustain the Gen-
eral Counsel's burden of proof concerning the alleged 8(a) (3)
violations 4
Accordingly, we shall dismiss the complaint.'
[The Board dismissed the complaint.]
CHAIRMAN MCCULLOCH, dissenting :
I do not agree that a fair preponderance of the evidence warrants
reversal of the Trial Examiner's credibility resolutions. I would
adopt the Trial Examiner's findings and conclusions which, I am
satisfied, are substantially supported by the record.
3 Particularly in the cases of Patterson , Fulghum, and Deanhardt , there is almost a
complete absence of proof as to discriminatory motivation unless Bowman 's testimony es-
tablishes an overall plan to weed out union adherents.
I There are , however, additional reasons why we are unable to accept the Trial Exam-
iner's conclusions concerning these alleged violations.
Three employees , Looney, Burriss , and Campbell , were discharged for falsifying produc-
tion reports . Concerning one of these discharges , the Trial Examiner states that "there
is no evidence that any supervisor had ever accused Looney of falsifying any production
records until his discharge ." In describing the discharge , the Trial Examiner makes it
appear - to be a very precipitous event. The Trial Examiner does not, however , allude to
testimony by Mrs. Ward , a department checker ( apparently not a supervisor ), who testi-
fied without contradiction that she discovered a discrepancy in Looney 's production record
about 2 weeks prior to .his discharge and related this to management.
Concerning the discharges of Burriss and Campbell , the Trial Examiner is critical of the
fact that "for some reason unexplained by management " a ticket system , a "simple and
sensible" method of keeping track of production was abandoned and employees were re-
quired to keep their own production count. However , an employee witness for the General
Counsel testified that management had given two reasons for abandoning the ticket system,
one reason being that attaching the tickets scratched the paint.
The Trial Examiner found that two employees , Fulghum and Deanhardt , were dis-
criminatorily transferred to jobs where neither "had ever had any experience ." Dean-
hardt, however , testified that he had previously spent 2 months on this operation.
5 With regard to the alleged interrogation of Burriss by Brissey , we find that it is at
best an isolated incident and that it would not effectuate the policies of the Act to issue a
remedial order based thereon.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE'
Upon a charge in Case No. 11-CA-2087 filed by Lee Bowman, an individual, on
January 29 , 1963, and upon an original and an amended charge in Case No.
11-CA-2099 filed by International Union of Electrical , Radio and Machine Work-
ers, AFL-CIO, herein called the Union, on February 18 and March 11, 1963, re-
spectively , the General Counsel of the National Labor Relations Board on No-
756-236-65-vol. 147-77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vember 22, 1963, issued an order consolidating the two cases, a consolidated
complaint, and a notice of hearing. Thereafter, Poinsett Lumber and Manu-
facturing Company, herein called the Respondent, duly filed its answer. The com-
plaint alleges and the answer denies that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended. Pursuant to notice, a hearing was held in Anderson,
South Carolina, on January 6, 7, and 8, 1964, before Trial Examiner C. W.
Whittemore.
At the hearing all parties were represented by counsel and were afforded full
opportunity to present evidence pertinent to the issues, to argue orally, and to file
briefs. Briefs have been received from the Respondent and General Counsel.
Disposition of the Respondent's motion to dismiss the complaint, upon which
ruling was reserved at the conclusion of the hearing, is made by the following find-
ings, conclusions, and recommendations.
Upon the record thus made, and from his observation of the. witnesses, the Trial
Examiner.makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Poinsett Lumber and Manufacturing Company is a New Jersey corporation which,
until about July 1, 1963, operated a sewing machine assembly plant at Anderson,
South Carolina, the only plant involved in these proceedings. -
During the year ending July 1, 1963, the Respondent shipped goods valued at more
than $50,000 from its Anderson plant to points outside. the State of South Carolina.
During the same .period it caused goods valued at more than $50,000 to be shipped
directly to its Anderson plant from points outside the State of South Carolina.
The complaint alleges, the answer admits, and it is here found that the Respond-
ent is engaged in commerce within the meaning of the Act. _
H. THE CHARGING UNION
International Union of Electrical, Radio and Machine Workers, AFL-CIO, is
a labor organization admitting to membership employees at.the Respondent's Ander-
son plant. .
M. THE UNFAIR LABOR PRACTICES .
A. Setting and issues
Although the record indicates that over a period of several years attempts 'hm
been made to organize the employees of this plant, it does not appear that manage-
ment has ever recognized a labor organization as the bargaining agent for such
employees.
At the hearing the parties stipulated that a Teamsters union lost a Board-conducted
election in March 1962: Objections to the election were filed by that union and
General Counsel issued a complaint alleging unfair labor practices in August 1962.1
In early October the parties agreed to a settlement of the complaint case and to
the holding of a new election. Board-prepared notices were posted: A new elect
tion was held on November 30, 1963, at which time it appears that the Charging
Union lost.
Contrary to counsel for the Respondent's disclaimer of antiunion bias on the part
of his client, the Trial Examiner notes, without further comment, that in Poinsett
Lumber and Mfg. Co., 103 NLRB 113, the Board found that at its Pickens, South
Carolina, plant the same Respondent violated the same provisions of the Act, and
that the same labor organization was involved. Furthermore, the following letter
to all employees from Works Manager Frank W. Mohney, and placed in evidence
by the Respondent itself, can hardly be said to exude the fragrance of traditional
southern hospitality. It was issued a few days before the November 1962 election.
We have arranged for a new labor board election November 30.
Why?
Because one of those outfits you rejected so firmly last March told the labor
board we had threatened you and twisted your arm to vote "no union' by
telling you we would move north or you would lose your jobs if the union
came in.
Now, we believe and we think you know, none of our supervisors said these
things, but the labor board doesn't know who said what. We would have to
have a long drawn out trial with lawyers, cross examination, etc., stirring up a
lot of bitterness to establish the facts.
i Case No . 11-CA-1977.
POINSETT LUMBER AND MANUFACTURING COMPANY 1203
The quick and easy way to settle this thing once and for all is for you simply
to tell these unions once again by your vote that you don't want them.
So that there will be no chance that these unions will again claim we threat-
ened you, I have again cautioned all supervisors to say nothing anybody could
take as a threat about unionism. And we do not plan to tell you about these
unions, their motives and purposes again. You know them for what they are
already.
We may have to slap down a union lie now and then, but will do our best
to keep things calm here between now and "D-Day" Friday, the 30th.
("D-Day"-that's Union Death Day.)
After the election a number of active union adherents and leaders were discharged
or transferred to work at which they were inexperienced. It is General Counsel's
contention, opposed by the Respondent, that such discharges and transfers were
violative of the Act.
B. The discharge of Assistant Foreman Lee Bowman
1. Relevant facts
As to the fact of Bowman's discharge on January 4, 1963, there is no dispute. As
to the motive precipitating the summary dismissal there is conflict: General Counsel
urging that management took this action because Bowman had failed, during the
preelection period in the fall of 1962, to engage in 8(a)(1) activities; and the Re-
spondent claiming, in effect, that his termination was because he was unable to get
along with employees under his supervision.
Management advances no claim that Bowman was not a satisfactory worker. • His
record establishes beyond question that management, during the 3 years of his em-
ployment, held him in high regard. Shortly after his hire he was promoted to
"setup" man in the hardware department, less than a year later was promoted to
leadman, and in April 1962 was again promoted to assistant foreman. All service'
was in the same department.
As a witness, McConnell, superintendent of his department, conceded that there
had been no complaints about Bowman while a leadman-clearly a supervisory
position.
According to Bowman's credible testimony,2 management representatives attempted
to use him as an instrument for reporting back union activities among employees.
The following factors bear upon the point:
a. Early in 1962, before the March election, at hardware departmental meetings
attended by foremen and leadmen, progress of the union campaign and its leaders
were discussed. Superintendent McConnell told Bowman "to keep an eye on a Cleo
Welborn" and "to keep account on his parts." Pursuant to such instructions, Bow-
man reported to McConnell any "discrepancies" he found .3
b. Not long before the November election Lewis Acker, who shortly before this
had been made personnel manager, asked Bowman, by then an assistant foreman, to
persuade one Ansel Poole, an employee in his department, to have his son, working.
in another department, stop associating with employees wearing. union badges,
or the son "was going to get himself'into' an awful lot of trouble." 4
2 The Trial Examiner finds no merit in the Respondent's attack upon Bowman 's general
credibility on the ground that in 1952, more than 10 years before his discharge, Bowman
had pleaded guilty, in California, to issuing checks without sufficient funds and had re-
ceived a 5-year probationary sentence. In the opinion of the Trial Examiner the incident
is altogether too remote.
3 As a witness McConnell admitted that the Union was discussed at such supervisory
meetings, especially "where a supervisor had received information from an employee . .. .
Although denying that "any attempt" was made "to become aware" of union strength in
his department, he admitted, "We made some very definite efforts to find out where areas
of dissatisfaction were, because this is the most effective way of fighting any union organi-
zation," and that he equated "dissatisfaction with support for the Union." And although
at one point McConnell testified, "I was never convinced that we had any union votes in
hardware," he later said, "I had decided that Mr. Bowman's section was an area where
we had a number of dissatisfied employees." The superintendent did not deny instructing
Bowman to watch Welborn, but said be did so after Bowman had first volunteered the be-
lief that the employee was falsely reporting his production count. The Trial Examiner
can place small reliance upon McConnell' s mercurial testimony.
* Acker's denial of this incident is not credited. The record shows that his recollection
of many important matters was faulty. Moreover, his flat denial that the Union was ever
discussed at supervisory meetings is not only implausible but is refuted by Superintendent
McConnell's candid testimony, referred to in the preceding footnote.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Also before the election Acker asked Bowman if he knew any of the "ring-
leaders connected with the Union activities." Bowman told him the only two he
knew were Asa McKenzie and Coy Fulghum. (The latter's transfer later is an issue
in this case.) Acker asked Bowman if he knew one Jake Crawford. The foreman
said he did, and was planning to go hunting with him on Thanksgiving Day. Acker
then suggested that he take Crawford and McKenzie out, "buy them a bottle," "give
them a few drinks," and "get us some good information out of them." Bowman
replied that he would let him know. A few days later Acker asked the foreman,
while the latter was busy assigning employees to their work at the beginning of a
shift, if he had been able to contact any of the "ringleaders" over the weekend.
Bowman said he had not, and then asked the personnel manager to wait awhile
for further comment. Bowman then went to his superior, Doys Jordan, and pro-
tested Acker's interference with his duties by bringing up such matters. Jordan
agreed with Bowman's stated intention to take his protest up with Superintendent
McConnell. Bowman went to McConnell. The superintendent merely pointed out
that Acker was doing his "job" and said it was the duty of supervisors to provide
him with such information, because "this is the kind of information we are going
to.need to weed these fellows out." 5
d. Shortly before the November election, at another supervisory meeting at which
Bowman was present, Hardware Department Manager Jordan and Hardware Super-
intendent McAlister (McConnell by then having been made manager of manu-
facturing) again brought up the question of employee Cleo Welborn, whom Bow-
man had earlier been instructed to check. According to Bowman 's credible testimony,
"Jordan suggested that we take Welborn off of the welder and put him on a
press, that it was so near election time there wasn't anything else we could do about
it right then, but maybe he would get disgusted and quit." Bowman replied that
"transferring Cleo onto a press he would tear up more presses and dies than it would
be actually worth us to transfer him." 8
e. On January 4, 1963, McConnell summarily discharged Bowman, telling the
foreman that the action was taken because of a "cost program" and because he was
the only supervisor who had not given management a "feed back" on the union
campaign . At first McConnell told him the decision had been made a few days
earlier, and then said it had been made many weeks earlier. Bowman was paid off
and has not been reinstated.7
2. Conclusions as to the discharge
The Trial Examiner is not convinced of the merit of McConnell's long and
rambling recital of events upon which he claims he based his decision to discharge
Bowman. In substance, his testimony comes down to the contention that Bowman
was unsatisfactory as a supervisor because employees complained about him. No
employee was brought forward by the Respondent to corroborate McConnell or any
other supervisor as to such complaints.
5 Acker's denial of having had any part in the foregoing I- incidents is not credited,"
for reasons described in the preceding footnote. Although Jordan was a witness for the.
Respondent, he was not questioned concerning Bowman's complaint to him about Acker.
Nor did McConnell specifically deny making the remarks attributed to him by Bowman on
the occasion of the latter's protest about Acker. He did admit, however, that Bowman
had complained to him about the personnel manager, that the complaint was "very vague"
and to the effect that Acker had "misused" some information he had provided . The super-
intendent's testimony on this point is implausible on its face. He claimed that when he
asked. Bowman what this "information" was, the foreman refused to tell him. It is wholly
unreasonable to believe that a foreman would go to the superintendent to complain about
a personnel manager and yet not disclose the nature of the complaint. McConnell did not
deny having told Bowman that Acker needed the information in order "to weed these
fellows out."
e Neither Jordan nor McAlister specifically denied Bowman's account of this incident,
merely denying that they had asked Bowman "to transfer union supporters from regular
work with a view to inducing them to quit." Further doubt upon such general denials is
cast by Jordan's response, on cross-examination, to General Counsel's question, "When it
was decided to put Welborn on the presses, was Mr. McAlister there?" Jordan replied,
"Mr. McAlister might have been, I wasn't."
7 The account of the discharge interview is based upon Bowman's credible testimony.
McConnell did not deny telling him a reason for the discharge was of failure to "feed
back" union information. The manager's version of his reasons for the discharge is noted
in the next section.
POINSETT LUMBER AND MANUFACTURING COMPANY 1205
McConnell admitted that there had been no complaints about Bowman as a
leadman, a supervisory position which he held until after the first election in 1962.
The two complaints which the superintendent said were made to him "personally"
were in June and July, long before the discharge. As noted, neither of the two em-
ployees named by McConnell was called as a witness, and the Trial Examiner can-
not credit McConnell's unsupported testimony.
No incident of Bowman's misconduct as a supervisor was cited by McConnell or
any other supervisor as having occurred at any time near the date of the discharge.
And if, as McConnell testified at one point in his account, "Prior to the Novem-
ber 30 election, I was sure that Mr. Bowman was the cause of dissatisfaction of the
employees in his section," he offered no reasonable explanation as to why he
waited until January to discharge him, or at least deprive him of his supervisory
powers. His failure to act, in any fashion, during this long period clearly reflects
either upon his credibility as a witness or his acumen as a management representative.
In short, the Trial Examiner finds no merit in the management-advanced reasons
for Bowman's discharge. The preponderance of credible evidence, in the opinion of
the Trial Examiner, sustains the complaint. It is concluded and found that Bowman
was discharged because he had failed to comply with instructions from his superiors
to engage in conduct violative of Section 8(a)(1) of the Act, and that his discharge
was in violation of the same Section 8 (a) (1) 8
C. The discharges of Major Looney, Robert Burriss, and Odron Campbell
Since these three discharges fall within the same general pattern, although not
occurring on the same date, they will be considered together. General Counsel
alleges that all three dismissals were unlawfully motivated to discourage union
membership. The Respondent contends that the discharge of each was brought
about by his falsifying a production report.
All three employees were of long and apparently satisfactory service with the
Company until just before their dismissal. So far as the record shows, during their
combined service of nearly 30 years, management had had no occasion to complain
of their conduct, work, trustworthiness, or anything else.
The Trial Examiner concludes and finds that management well knew that each of
the three employees was an active union adherent. Looney had participated in both
1962 campaigns, and was the union observer at the first Board-conducted election.
In mid-December 1962, Department Manager William Brissey told Burriss that he
had had a future at the plant until management found out he had attended a union
party, and asked how many votes he thought the Union had received in the hard-
ware department. Burriss declined to tell him, saying that he would "stool" neither
for the Union nor the Company.9 Campbell solicited signatures to union cards dur-
ing the latter 1962 campaign and wore his union button openly.
Looney was the first of the three to be discharged. For an unrevealed number
of years he had been the only day operator of an automatic press in his department,
drilling and reaming holes in certain sewing machine parts, performing such opera-
tion upon some 1,400 parts each day. It was his practice, admittedly prescribed by
management instructions, to turn in a daily production report at the end of his shift,
recording such production from the figures showing on two electric meters attached
to his press. There is no evidence that any supervisor had ever accused Looney of
falsifying any production record until his discharge on January 23, 1963.
Just before the end of his shift that day, and after he had turned in his report, two
company officials, Department Manager Tribble and Foreman Norris, suddenly de-
scended upon him, demanded that he wait, and asked him how many parts there were
on the floor. He said he did not know, a count would be necessary. The three
then counted the parts by the machine, apparently those which had not been drilled
that day. Tribble then told him there were more "parts on the floor" than there
were supposed to be. Looney disclaimed any knowledge as to this claim, and said
he had merely reported the number of finished parts recorded by the meters, as he
had always done. Assistant Department Manager Skelton and Superintendent Kelly
were called in. Tribble told them Looney had been cheating. Looney again pro-
tested that all he knew about it was what the meters had shown. Before they had
arrived at his press Looney's relief had come onto the job, had turned the meters
8 See Vail Manufacturing Company, 61 NLRB 181, 182.
9 Brissey admitted the time, place, occasion, and the fact that the names of union voters
came up, but, in effect, denied telling Burriss he had "lost benefits" because of his support
of the union. This denial is not credited, and the findings rest upon Burriss' credible
testimony.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back, and had gone to work . Looney was taken to the office , where Norris then re-
vealed to him that they had previously made a record of the number of parts, un-
drilled, which had been delivered to him that day. He was fired.
Although both Kelly and Tribble were witnesses for the Respondent , neither testi-
fied regarding Looney's discharge . Norris and Skelton testified at length as to the
methods they had used to check the employee's production report that day . Norris
said they had first removed all parts from his place of work, so that he would have
to go to another department to obtain a supply for his day's work , and had the head
of that other department record the number of parts issued to Looney . By subtract-
ing the number of unfinished parts left at the end of the day's shift from those
Norris said someone else had reported as having been supplied Looney , they arrived
at a figure which did not correspond with the employee 's production report.
Their story is implausible on its face . Why this number of plant officials should
have participated in so elaborate a scheme to ensnare an employee of so many
years' satisfactory service is without explanation-except the one which supports
General Counsel 's contention . Even if there had been suspicion of "padding," all
his foreman had to do was to make note of the meter readings shortly before the end
of the shift.
That management had embarked upon "weeding out" known union adherents by
one pretext or another is further supported by the discharges of Burriss and Camp-
bell. It is undisputed that a week or so before his discharge, Burriss was suspended
for 3 days by Acker, the occasion being a mere "bumping " of one machine during
handling, a trivial accident which, it is undisputed , also occurred when Skelton him-
self did the handling , at Burriss ' request.
Both Burriss and Campbell worked in the same "operation" of the assembly lines.
For some reason unexplained by management , and sometime before the last elec-
tion, the method of accounting for each operation 's daily production-through a
ticket system-was abandoned . Until the change each operator would tear off the
number assigned to the operation as it was completed , and turn in, at the end of the
day, these ticket segments , which were counted in the office and served as the basis
for the day's pay. When this simple and sensible method , so common in an industry
with an assembly line, was . stopped , all an employee could do was to make a mark
on a piece of paper when he finished a part , and add up the marks at the end of his
shift . Obviously this method of recording , on a busy assembly line, an operator's
production left open the way for error, intentional or inadvertent. In their long years
of service neither of these two employees had been accused of intentionally padding
his reports.
And even if some credit be given to management 's claim that it suspected some or
several employees on operation 13 to be claiming more than actual production, there
is no explanation as to why it did not return to the previous system, but instead laid
another elaborate trap. According to their implausible story, on a Saturday preced-
ing the firing of Burriss and Campbell, Skelton and Tribble spent some time in the
plant counting the supply of a single part, a "tension," at each of the several
operators' places of work. Also according to their story, they went around at the
end of the next day's work, counted the remaining tensions, compared the figures
with the operator's production report for that day, and concluded that both Burriss
and Campbell had falsified such reports.
Early the next morning, February 12, these two were called separately into Acker's
office and accused of falsification. Burriss protested that he had given an accurate
account, and was permitted temporarily to return to work. After Skelton and
Tribble had accused him of the act, Burriss approached his foreman, Durwood
Bowers. The employee's following testimony as to his colloquy with Bowers is
undisputed:
I said, "Durwood," I said, "I'm being accused of running forty-three machines,
and I run sixty-nine." And he said, "Bill, you and I both know better than
that." He said, "You're a ninety machine a day man." I said, "You know that
and I know that but what about going and telling them that." And he started
to walk away. I said, "Durwood, come back here." He come back and I said,
"Durwood," I says, "This is getting serious, I'm about to lose my job over this
thing." He wanted to know what I was going to do about it. I said, "There's
one way I can prove my innocence." He said, "How's that?" And I said,
"By going down through yonder and counting my machines." It would have
been very simple, it would have taken a little time.
Q. Where were you going to count your machines?
A. Well, we could count them on the rack, what was down in sew-in part,
and on the racks and what was shipped at the packing department . We could
very easily have counted them.
POINSETT LUMBER AND MANUFACTURING COMPANY 1207
Q. How would you have identified your machines?
A. By my badge number under the bed.
Q. What was Mr. Bowers reply to this suggestion?
A. Mr. Bowers kinda looked at me a few seconds and he told he, he said,
"Bill, we have this cost improvement program going on and it will take too much
time and cost too much money." And that was it.
And it was indeed "it" that day for both Burriss and Campbell. Acker fired the
employees.
The Trial Examiner cannot , under the circumstances , believe any part of the
testimony of the two supervisors.
In short, the Trial Examiner is convinced and finds that Looney, Burriss, and
Campbell were actually discharged by management because of their union activities,
not for any genuine , proven, or credible dereliction on their part . Such discrimina-
tion constituted interference , restraint, and coercion of employees in the exercise of
rights guaranteed by the Act.
D. The transfers of Coy Fulghum and Rayford Deanhardt
By early 1963 , both of these employees had had long service with the Respondent:
Fulghum 11 years, Deanhardt 6 years.
Both were known union adherents, wearing buttons openly. Both were on the
union organizing committee in 1962 . Both were transferred from other operations,
where they had had long experience , to operation 13-where , as noted above, em-
ployees Burriss and Campbell were entrapped and fired' under Skelton and Tribble.
Neither Fulghum nor Deanhardt had ever had any experience on this operation
which, Superintendent Kelly admitted, had some 40 different "steps."
Fulghum was the first to be moved on January 9 . Deanhardt followed on
February 7.
Undenied is Fulghum's testimony that he and one McKenzie, the only two union
button wearers on operation 13, were transferred at the same time . (McKenzie,
previously identified as an employee Bowman had told Acker was a union "ring-
leader ," is named in one of the charges, but not in the complaint.)
. Deanhardt and one other employee were the only employees on operation 2 who
had worn buttons.
Both Fulghum and Deanhardt protested against being transferred from jobs where
they had made good wages to work appreciably reducing their income. Their pro-
tests were futile. According to Fulghum's credible testimony, when he voiced his
protest to Kelly, the superintendent bluntly. told him, "If you can't make out, why
don't you get out?" (As noted in the section involving Bowman, other supervisors
urged him to transfer one Welborn in the hope that he would quit.)
Apparently quickly recognizing the frailty of his first claim that he transferred
Fulghum to an unfamiliar job because he had a "problem . of quality" Kelly
then said, "It consisted of quality and it consisted of production." The record is
barren of any explanation as to just how this transfer increased, or could have been
expected to increase, either quality or production. For at least 2 days, Fulghum was
provided with no place to work, as Kelly himself admitted.
Skelton, previously identified as having been involved in ensnarement proceedings,
assumed responsibility for moving Deanhardt to operation 13. He said he needed
"good" men there, but admitted that Deanhardt's production on this operation
was low.
Especially when considered in the context of other unlawful discrimination against
known union leaders about the same time, the Trial Examiner concludes that the
transfers of Fulghum and Deanhardt were designed to "weed out" such individuals,
either by forcing them to quit, or by eventually involving them in discharge treatment
similar to that involved by Skelton to others.
Both Fulghum and Deanhardt stayed on this operation, however, until the closing
of the plant, despite their low production, further refuting Kelly's contention that
they had been transferred to increase production.
That neither of the two was subjected to entrapment on this operation, as others
had been, finds reasonable explanation in the probable deterrent effect of the charges
of unfair labor practices filed in mid-February.
The Trial Examiner concludes and finds that employees Fulghum and Deanhardt
were transferred to discourage union membership and activity, and that thereby
the Respondent interfered with, restrained, and coerced employees in the exercise
of rights guaranteed by Section 7 of the Act.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The discharge of Carl C. Patterson
Patterson, an employee of some 6 years' service with the Respondent, was also
fired from operation 13 while under Skelton . The employee was dismissed on
February 5.
Patterson actively solicited union authorization cards during the two campaigns of
1962, and wore his union button openly before the November election.
In May 1962, while action was still pending on objections to the first election,
Patterson received his first written warning. It was signed by Tribble, a supervisor,
who, like Skelton, is involved in other unlawful dismissals. The warning, in evidence,
shows his dereliction to. have consisted merely of failing to tighten one screw
sufficiently.
In September 1962 he was given a second written warning. This was signed by
Superintendent Kelly. In summary the text of this warning is to the effect that as
Kelly walked by he asked the employee if he was using a gage, and that the em-
ployee replied "most of the time." It is undisputed that Patterson had been instructed
by his foreman that it was unnecessary to use the gauge, and there is no evidence
that after Kelly's instructions he failed to abide by them. It is also undisputed that
when he went to see Personnel Manager Acker about this "infraction," this official
brushed the warning aside, telling him to "forget about it" and assuring him that it
would "never be mentioned" anymore.
The third infraction is signed by Skelton, although it is apparent that this supervisor
had nothing to do with the incident itself. It appears that on February 4, Patterson's
foreman, Bowers, brought back to him a sewing machine which merely required
the tightening of a certain gear. There is no evidence that the foreman himself even
reprimanded him for the minor fault.
Despite the undisputed fact, noted above, that Acker had told Patterson to forget
about the second "infraction," the personnel manager summarily fired the employee
on February 5, telling him that three infractions brought automatic dismissal.
The Trial Examiner concludes and finds that Patterson 's discharge , when con-
sidered in connection with other previously found elements of management 's program
of "weeding out" known union adherents on any pretext , was of the same unlawful
pattern, and that the precipitating motive was to discourage union membership and
activity . Such unlawful discrimination constituted interference, restraint, and
coercion.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It has been found that the Respondent unlawfully discharged certain employees and
unlawfully transferred others. As noted, the Respondent ceased operations at its
Anderson, South Carolina, plant the last of June 1963. The record shows that the
then plant manager, W. F. Mohney, testified that at the time this plant closed all
employees with under 5 years' service were offered consideration as applicants for
hire at the Diehl Manufacturing Company, and all employees with more than 5 years'
service would receive the same consideration of hire at the same plant, but if they
declined to accept such hire, they would receive certain severance pay from the
Respondent. It will therefore be recommended that the Respondent offer to em-
ployees Bowman, Patterson, Looney, Campbell, and Burriss any option which they
would have had, absent the unlawful discrimination against them, based upon their
length of service at the date of the plant closing, of accepting employment with Diehl
Manufacturing Company, its agents or assigns, or of accepting severance pay. It
will also be recommended that the Respondent make whole the above-named em-
ployees and employees Fulghum and Deanhardt for any loss of earnings they may
have suffered by reason of the discrimination against them. As to the employees
discriminatorily discharged, it will be recommended that the Respondent make them
LOCAL 369 , INTERNATIONAL HOD CARRIERS, ETC. 1209
whole by payment to each of a sum of money equal to that which he would normally
have earned as wages from the date of the discrimination to the date of the closing
of the Anderson plant, less net earnings during said period, and in the manner pre-
scribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and with interest
on the backpay due in accordance with Board policy set out in Isis Plumbing &
Heating Co., 138 NLRB 716.
As to the posting of a notice, the Trial Examiner agrees with General Counsel
that the policy set out by the Board in Darlington Manufacturing Company, et al.,
139 NLRB 241, be followed. It will therefore be recommended that such notices be
published in local newspapers and mailed to the Respondent's former employees.
In view of the serious and extended nature of the Respondent's unfair labor prac-
tices it will be recommended that it cease and desist from in any manner infringing
upon the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union of Electrical, Radio and Machine Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating against employees as to tenure of employment and job
assignments and to discourage membership in an activity on behalf of the above-named
labor organization, the Respondent has engaged in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Local 369, International Hod Carriers , Building and Common
Laborers Union of America, AFL-CIO [McCloskey Construc-
tion Corp .] and James Lloyd. Case No. 22-CB-676. June 30,
1964
DECISION AND ORDER
On May 6, 1964, Trial Examiner Thomas N. Kessel issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in unfair labor practices as alleged in the complaint and
recommending that the complaint 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.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
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 General Counsel's exceptions and brief, and
147 NLRB No. 163.