Polson Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1979

242 N.L.R.B. 1210 (N.L.R.B. 1979)

D: C(ISIONS OF1: NATIONAL LABOR RELATIONS BOARD
Poison Industries, Inc. and Teamsters Local Union
No. 549. Case 10 CA-13728-1
June 15, 1979
DECISION AND ORDER
By MEMBERS JENKINS, MURPHY, ANI) TRUE SDI)AI.
On March 15, 1979, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of' the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 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 Rela-
tions Board adopts as its Orders the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
I The General Counsel 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 the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products Inc.. 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings.
2 In adopting the Administrative Law Judge's finding that Dean was not
entitled to have a representative present during the interviews conducted by
Respondent after his resignation we rely solely on the finding, which we also
adopt, that Dean was not an employee of Respondent at that time.
DECISION
STATEMENT OF rHE CASE
JAMES L. ROSE, Administrative Law Judge: This matter
was heard before me on January 8 and 9, 1979, in Green-
ville, Tennessee, upon the General Counsel's complaint
which alleges that on May 25, 1978,' Respondent dis-
charged Daniel H. Dean in violation of Section 8(a)(3) of
the National Labor Relations Act, 29 U.S.C. § 151 et seq. It
is also alleged that Respondent violated Section 8(a)(1) by
I All dates are in 1978, unless otherwise indicated.
denying Dean his request to have a union representative
present at a disciplinary interview.
Respondent denies that it has committed any unfair la-
bor practices and affirmatively contends that Dean volun-
tarily terminated his employment.
Upon the record as a whole, including briefs and argu-
ments of counsel, and my observation of the witnesses, I
hereby make the following:
FINI)INS ()F FA( I ANI) CoN(cUSIONS OF LAW
I. JURISDI(CIION
Respondent is a Tennessee corporation engaged in the
manufacture of rubber inner tubes at five facilities in three
States, including a facility in Greenville, Tennessee. In con-
nection with this Greenville operation Respondent annually
sells and ships directly to points outside the State of Ten-
nessee goods valued in excess of $50,000. Respondent ad-
mits, and I find, that it is and employer engaged in com-
merce within the meaning of Sections 2(2), (6), and(7) of the
Act.
II. FIIE LABOR ORGANIZAIION INVOL VED
Teamsters Local Union No. 549 (herein called the
Union) is admitted to be, and I find it is, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
111. 'ItE AL.I.E(iED UNFAIR LABOR PRACTICES
A. Factual Background
An organizational campaign among Respondent's em-
ployees began in the spring of 1978 and culminated in an
election on June 30.2 In late March the Union sent two
Mailgrams to Respondent, naming 12 individuals as mem-
bers of the Union's in-plant organizing committee. Dean
was one of those named, as were leadmen Kenneth Foshie
and Donnie Holt, who subsequent to the election was pro-
moted to a supervisory position.
At the time material here, Dean was assigned to the third
shift (10 p.m. to 6 a.m.), which he worked the first 4 days of
the week beginning Sunday, May 21. So that he might have
an extra day over the Memorial Day weekend, in order to
take a trip to Illinois, he arranged to trade Thursday shifts
with another employee. Thus, on May 25 he finished his
fourth third shift at 6 a.m. and returned to work at 2 p.m. to
work the second shift (2 p.m. to 10 p.m.). To change shifts
with another employee is not an uncommon practice and
though not with the total blessing of Respondent's manage-
ment, at least such is not objected to.
At or about 4 p.m. on May 25 Dean asked his general
foreman over the second shift. Eddie Hensley, if he could
have his paycheck. Hensley stated that he would check, but
2 Case 10 RC 11429. The tally of ballots shows that of approximately 172
eligible voters, 82 ballots were cast for the Union and 74 against, and there
were 11 challenged ballots. Respondent filed objections to the election and
exceptions to the Hearing Officer's report recommending that the objections
be overruled, which, along with his recommendations concerning the chal-
lenged ballots, was pending before the Board at the time this matter was
heard.
242 NLRB No. 185
1210
POLSON INDIUSTRIFS. INC.
was advised by higher officials that Dean would have to
wait to receive his check until 10 p.m.. or the beginning of
his regular shift.
Dean then went to Richard Gentry, also a foreman on
the second shift that day, and asked if he could have his
paycheck. Gentry is a friend of Dean's and as such told him
he would inquire. Personnel Manager Lee Huff advised
Gentry that they were not giving out any checks early, as
such was against company policy, and that Dean would
have to wait until his regular shift.
Gentry so informed Dean, to which Dean responded,
"[Fluck it I quit." Dean took off his gloves and began to
walk away, followed by Gentry, who attempted to explain
to him the Company's reasoning. Dean said a second time
that he quit, and finally when Gentry suggested that he and
Dean go talk to Huff about this matter, Dean responded,
"[F]uck you and Huff too. I quit."
Dean went to the restroom and there in a conversation
with Kenneth Foshie told Foshie that the Company had
refused to give him his paycheck and that he needed his
paycheck so that he could make a car payment, inasmuch
as he and his wife were driving to Illinois that evening.
Dean said that he had quit because the Company had re-
fused to give him his paycheck. Foshie told him that that
was no reason to quit and said he would loan Dean $20. On
the plant floor Foshie got his checkbook and wrote out a
check for Dean.
Dean then left the plant building and went to the parking
lot, where his wife was waiting. Meanwhile, Gentry talked
to Huff about this matter and was advised by Huff that
since Dean had said he quit. Gentry should pull Dean's
timecard and write out a separation report. As Gentry was
doing this, he was asked by the plant superintendent, Larry
Landers, what was going on. Gentry told him about Dean
quitting and the reason given. Then gathered in the fore-
men's office were Landers. Huff, Gentry. and Edsel Van-
horn. Huff saw Dean still in the parking lot, and it was
determined, since he had quit, to go ahead and give him his
check.
Landers, Huff, and Vanhorn found Dean in the parking
lot, and Landers gave him his check, during which some
conversation ensued to the effect that this was being done
since he had quit. Dean said in effect that they had it
wrong, that he did not quit and that he needed his job. At
this point then it was decided that they should all go to the
foremen's office to discuss the matter rather than doing so
in the parking lot.
Present at the meeting then in the foremen's office were
Dean, Gentry, Landers, Huff, and Vanhorn. During the
course of this meeting Dean admitted that he had in fact
quit, but he recanted, stating that he had a wife and family
to support and that he needed his job. Also during this
meeting Dean asked to have Foshie present as a witness for
him. This request was denied.
During the course of this meeting Holt approached the
foreman's office, he testified, in an attempt to represent
Dean because he felt that, as a member of the in-plant
organizing committee, he was a union representative. Holt
was denied access to the meeting.
At the meeting the company officials took the position
that Dean had quit his employment, and it was company
policy not to rehire individuals who quit. Nevertheless, it
was determined to hold another meeting on this subject
with Dean the following Tuesday. the plant being closed
Monday to observe Memorial Day. And in the meantime
Huff conducted an investigation.
The second meeting was held on Tuesday, with the same
results, namely, that since Dean had told Gentry three
times he quit his employment and had left the plant, the
Company considered him to have done so and would not
rehire him. On Thursday Dean had requested that Foshie
be present at both the Thursday and Tuesday meetings.
These requests were denied.
B. The .4nalvlsis and Concluding Findings
I. The termination
The General Counsel contends that Dean did not quit his
employment on May 25 but rather was discharged because
of his known interest in and activity on behalf of the Union
and, further, that by denying him the right to have Kenneth
Foshie present at both the May 25 and the May 30 inter-
views, Respondent violated Section 8(a)( 1). . .. R. B. v. J.
eiingarten, Inc., 420 U.S. 251 (1975).
Although Dean denies that he quit,' the overwhelming
credible evidence in this matter is to the contrary. Dean
admitted that he became angry when he was refused his
check at 4 p.m., and General Counsel's witness Foshie testi-
fied that in the restroom Dean told Foshie that he had quit.
Thus the real issue in this matter is whether Respondent
unlawfully refused to reinstate Dean when he made the
request on May 25 and again on May 30.
As with a discharge, a company can refuse to hire or
reinstate an employee for any reason, good or bad, or for no
reason at all other than where motivated by the employee's
union or other protected activity. In order to establish the
violation here the General Counsel has a burden of proving
by a preponderance of the credible evidence that Respon-
dent's refusal to reinstate Dean was motivated at least in
part by his union activity or to discourage union activity.
This burden can be met by circumstantial evidence, and
inferences, particularly of discriminatory motive, are per-
mitted. Shattuck Denn Mining Corporation, (Iron King
Branch) v. N. L. R. B. 362 F. 2d 466 (9th Cir. 1966).
The precipitating event leading to Dean's determination
to quit his job was the Company's decision not to give him
his paycheck until 10 p.m., or the beginning of his regular
shift. The Company contends that it had a policy to the
effect that first- and third-shift employees would be paid
during their last shift of the week, while second-shift em-
ployees would be paid during their Thursday shift. And the
Company had a policy against issuing checks early, be-
cause, it contends, if a check is issued to an employee early
and is cashed, then such adds to the interest which the
Company must pay on payroll. An exception is made for
second-shift employees because banks are not open on Sat-
I generally found Dean to he an unreliable witness, and on the question
of whether he quit. as well as other matters where there is a conflict. I
discredit Dean. This determination is based on Dean's negative demeanor as
well as his evasive and contradictors answers to such questions as whether
he later threatened company officials Itollo ing an unemploment compensa-
tion hearing.
1211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
urdays, and thus to pay them on Friday would mean that
they would not be able to cash their checks until the follow-
ing Monday.
The Company thus contends that when Dean asked for
his check on Thursday, he was asking for it early, even
though he was in fact working his fifth shift of the week and
was working then on the second shift. That day Huff had
received some 15 to 20 requests from other employees, none
of whom were actually working, to receive their checks ear-
ly. Indeed, Carol Hampsey, another third-shift employee
who also on the in-plant organizing committee, came to the
plant and asked for her check early. She was denied it, and
she quit.
Thus when Huff was approached by Hensley and then
Gentry with the request that Dean be paid early, Huff rea-
sonably thought that such was the same situation, not
knowing at that time that Dean was in fact working on the
second shift and was in fact working his fifth shift of the
week. Rightly or wrongly, the Company determined not to
vary its policy. While Dean's situation is clearly distinguish-
able from that of the other employees, leaving a serious
question as to whether to have given Dean his check when
requested would have violated policy, that issue is not be-
fore me.
It is noted that Larry Lee, the Company's vice president
of operations, who happened to be at the Greenville plant
on May 25, felt that when Dean asked for his check early,
following the Hampsey event, the Company was being "set
up" for an unfair labor practice. It was his suggestion that
before making the determination with regard to Dean, they
should check with legal counsel. And it was decided not to
vary from what they perceived to be the company policy
with regard to issuing checks. Again, the correctness of this
decision is not in issue before me and serves only as the
background event leading to Dean's quitting.
The issue is whether after Dean quit and requested his
job back, Respondent acted with a discriminatory motive.
From all the facts and the circumstances I conclude it did
not.
First, there is no evidence of animus against the Union in
connection with the organizational campaign or generally.
Indeed, two of the five plants of the Company are organized
and have labor agreements. There are no unfair labor prac-
tices alleged in connection with the organizational cam-
paign other than these involving Dean.
While Dean was a known union activist and was named
on the in-plant organizing committee, this is the only cir-
cumstance advanced by the General Counsel to support an
inference of an unlawful motive. Other factors which some-
times support the inference of an unlawful motive are ab-
sent here. For instance, Dean was not a particularly long-
time employee, was not working in a skilled job, and did
not have a particularly good employment record. In fact he
had been employed just 18 months. during which period he
had received one warning for tardiness, two for absentee-
ism, and three for poor workmanship, including a 3-day
suspension.
Beyond that, Dean clearly has a quick temper, as shown
by his determination to quit his employment when denied
his paycheck without even giving his foreman an opportu-
nity to explain the Company's reasoning. This is also dem-
onstrated by Dean's conduct at the unemployment com-
pensation hearing and threatening remarks he made to
company officials following it. In short, on the state of his
record, Dean is not the sort of employee the Company
would be concerned about losing.
Some months before, and early in his tenure, Huff had
told a committee of employees that some companies had
lost good people by allowing them to quit in a fit of temper
and that he would not do so. Since it was company policy
not to rehire those who quit, he would allow an employee
time to cool off before accepting a quit. I do not believe
Huff had in mind one with Dean's record and do not infer
from his statement to the employee committee that Dean
was treated disparately when the Company accepted his
pronouncement: "[Fluck you and Huff too, I quit."
The mere fact that one event follows another chronologi-
cally does not imply a causal connection between them.
Thus, Dean's union activity followed by the Company's de-
termination not to rehire him after he quit does not imply
that the Company necessarily acted with a discriminatory
motive. E.g., Deven Lithographers, Inc. and Cavalier Multi-
color Corp., 224 NLRB 648 (1976), where an observer for
the union in an election was discharged for having another
employee punch his timecard after he left work.
2. The Weingarten allegation
Having concluded that Dean quit his employment, I fur-
ther conclude that he was not entitled under Section 7 to
have a witness present when subsequently he and manage-
ment officials met in the foremen's office to discuss the situ-
ation.
Clearly, under Weingarren had Dean not quit his employ-
ment and had this meeting been held preparatory to his
discharge, he would have been entitled upon request to
have a fellow employee present; and to have denied him
this without also terminating the meeting would have been
a violation of Section 8(a)(1) of the Act under Weingarten,
supra. Glomac Plastics, Inc., 234 NLRB 1309 (1978).
This meeting had some overtones of an investigatory in-
terview, and responsible management officials were present
who could have altered Dean's employment status by rein-
stating him. Thus to that extent the outcome of the inter-
view reasonably affected Dean's employment status and
was therefore the type of meeting contemplated by Wein-
garten. But Dean was not an employee at the time. He had
quit his employment under circumstances I find not to have
violated the Act. Thus his status was that of an employee
applicant. While he was thus an "employee" within the
meaning of Section 2(3) and entitled not to be discrimi-
nated against,' there is no authority for concluding that he
was entitled to have a witness present during those inter-
views.
To hold Weingarten applicable in this situation would
expand the rule to the point of making it applicable not
only to employees who reasonably expect to be disciplined
as a result of the interview but also to applicants for em-
ployment who also can expect their employment status to
be affected by the outcome of the interview. There is no
suggestion in Weingarten of subsequent Board decisions in-
dicating that the rule should be so extended.
' E.g., Kern's Bakeries, Inc., 227 NLRB 1329 (1977).
1212
POLSON INDUSTRIES, INC.
To conclude that a non-active-duty employee, such as
Dean, is entitled to representation by a witness during the
post termination interview would further require the rein-
statement of an individual who, I conclude, voluntarily and
knowledgeably quit his employment. See, e.g.. Anchortank,
Inc., 239 NLRB 430 (1978), where an individual who was
discharged for cause was nevertheless ordered reinstated
because the company had refused attendance of a union
representative during the discharge interview.
In short, I conclude that where an individual's employ-
ment has been terminated, and he then meets with com-
pany officials, even though the subject matter discussed re-
lates to the event of his termination, he is not entitled to be
represented in that interview or have a witness present. See
Party Cookies, Inc., 237 NLRB 612 (1978).
Under 'eingarten an employer is not prohibited from
having an interview with an employee by himself. Section 7
requires only that if the employee requests, he has the right
to have a representative present or have the interview ter-
minated. The clear mandate of Weingarten, supra., is that
the employer is required either to honor an employee's re-
quest for representation or to stop the interview. The viola-
tion occurs only after the request for representation is de-
nied, and the employer nevertheless continues with the
investigatory or disciplinary interview. By doing so the em-
ployer seizes an advantage vis-a-vis the employee.
Here, whether the interview continued after Respondent
denied Dean's request or did not, such would not change
Dean's status as a nonemployee. In short. Respondent did
not gain any advantage from its determination to refuse
Dean a witness.
I therefore conclude that on the facts of this case Respon-
dent was not required to honor Dean's request to have a
witness present either at the meeting on May 25 or at the
one on May 30. For these reasons I conclude that Respon-
dent did not violate Dean's Section 7 rights as alleged.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in this matter. and pursuant to
the provisions of Section 10(c) of the Act. I hereby issue the
following recommended:
ORDER'
The complaint is dismissed in its entirety.
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.
1213