Sig Cox, Inc.Download PDFNational Labor Relations Board - Board DecisionsJan 19, 1977227 N.L.R.B. 1270 (N.L.R.B. 1977) Copy Citation 1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sig Cox, Inc. and Jimmie D. Edenfield . Case 10-CA- APPENDIX 11905 January 19, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On November 4, 1976, Administrative Law Judge Joseph I. Nachman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Sig Cox, Inc., Augusta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice shall be substituted for that of the Administrative Law Judge. I The General Counsel has excepted to the finding that the threat of discharge was made in early December 1975 The record shows that the threat was made in late December, approximately I week before the discharge However, that finding in no way affects our adoption of the Decision of the Administrative Law Judge We note that in the par 4 in sec 2 of the Decision's "Contentions and Conclusions," the Administrative Law Judge inadvertently stated that no "employee" had been hired since Edenfield's termination, whereas it is clear from his Decision and the record that he intended to state that no "journeyman " had been hired since the discharge 2 In the absence of exceptions by the Respondent, we adopt pro forma the conclusions that it violated Sec 8(axI) by threatening the discharge of Jimmie Edenfield I In order to conform the notice to the "narrow" type of order found appropriate in this case, we shall substitute the attached notice for that recommended by the Administrative Law Judge NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to abide by the following: Section 7 of the Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To bargain collectively through represen- tatives of their own choosing To refuse to do any or all of these things. WE WILL NOT reprimand or threaten any employee with discharge because he has aided, assisted, or supported a union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. All our employees are free to become or remain a member of Sheet Metal Workers Local 85, or not to become or remain a member of that or any other union. SIG COX, INC. DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Administrative Law Judge: This proceeding heard before me at Augusta, Georgia, on June 28, 1976, with all parties present and duly represented, involves a complaint' pursuant to Section 10(b) of the National Labor Relations Act (herein the Act), which alleges in substance that on December 23, Sig Cox, Inc. (herein Respondent or Company), threatened an employee with discharge if he engaged in activities on behalf of Sheet Metal Local No. 85, Sheet Metal Workers International Union (herein Union or Local 85), and on December 30 Issued May 13, on a charge filed and served on April 12, 1976 All dates hereafter mentioned are 1975 227 NLRB No. 205 SIG COX, INC. 1271 laid off and thereafter refused to reinstate Jimmie D. Edenfield because of his membership in and activities on behalf of Local 85. By answer , Respondent admitted certain allegations of the complaint , but denied the com- mission of any unfair labor practice . For reasons hereafter stated , I conclude that the evidence sustains the 8(a)(1) allegations of the complaint , and that the layoff of Edenfield was motivated solely by economic considera- tions. At the hearing all parties were afforded full opportunity to introduce relevant and material evidence , to examine and cross -examine witnesses , to argue orally on the record, and to submit briefs . Oral argument was waived. Briefs submitted by the General Counsel and Respondent , respec- tively, have been duly considered. Upon the pleadings, stipulation of counsel, the evidence , including my observa- tion of the demeanor of the witnesses while testifying, and the entire record in the case , I make the following: FINDINGS OF FACT2 Respondent has been engaged for some years at Augusta, Georgia , as a contractor installing and servicing sheet metal , electrical , plumbing, air-conditioning, and heating equipment . Its operations are divided into six major divisions,3 each operating under the direction of a general manager . Robert S . Haynie is general manager for both the fabricating and commercial heating and air-conditioning divisions . G. W. Amerson is president of the Company, but devotes his time mainly to financial matters and those of a general policy nature. Employees in the fabricating , commercial heating and air-conditioning , plumbing, and electrical divisions are represented by a union ; those in the residential and small commercial work division are unrepresented . Local 85, which is basically a construction union , being a member of the Building Trades Council, represents the sheet metal workers employed by the Company in its fabrication and commercial heating and air -conditioning divisions . A labor contract between Local 85 and Respondent covering the terms and conditions of employment of sheet metal workers is in effect , but the contract is not in evidence.' Edenfield , a member of Local 85, was first employed by Respondent about 1968 . Initially, his employment was as an apprentice but, on his completion of his apprentice program in about 1972 , he attained the status of a journeyman sheet metal worker, and at all times since 2 There is no issue of commerce or labor organization The complaint alleges and the answer admits facts which establish those elements. I find those facts to be as pleaded 3 These are ( 1) residential and small commercial work , (2) fabricating, (3) commercial heating and air-conditioning , (4) plumbing and piping, (5) electrical contracting , and (6) service 4 Although I advised counsel that the provisions of the contract might have some relevance to the issues in this case , neither party saw fit to introduce it Why the secrecy , I do not comprehend The General Counsel did state on the record that the contract contains no seniority provision, nor any provision applicable to the facts of this case , as to the manner in which employees should be selected for layoff in the event such becomes necessary 5 Local 85 has a separate steward for the fabrication department. 6 Based on a composite of the credited testimony of Edenfield , Fagan, and the admissions of Amerson The latter admitted that he had some conversation with Edenfield , which he claims took place in September, but initially denied that he made any statement of the nature Edenfield attributed to him However, on cross-examination, Amerson conceded that worked for Respondent in that capacity , until his discharge on December 30. For about 5 years, and until on or about June 1 , 1975, Edenfield was field steward for Local 85 on Respondent's construction jobs.5 Among Edenfield's duties as steward was to see that nonunion employees , particularly from the residential department, did not perform work which Local 85 felt was the work of its members under its contract with Respondent. If Edenfield found what he regarded as a violation of the contract, he took the matter up with management, but if he did not obtain a satisfactory resolution of the problem , he turned the matter over to his business agent. The 8(a)(1) Allegations On a morning in early December, when Edenfield reported for work, he was informed by Superintendent Pitman that he was wanted in the office of the Company's president , Amerson . Arriving at the office accompanied by Pitman, Amerson began berating Edenfield for turning a certain job over to the Union , allegedly because nonunion employees from the residential department were doing work on a commercial job. Edenfield then asked Amerson if he was going to "get on" him about that and, when Amerson replied in the affirmative, Edenfield stated that he wanted Shop Steward Fagan present . Pitman then went to get Fagan and, when the latter arrived , Amerson resumed his criticism of Edenfield for turning the job into the Union and stated that , if he found out that Edenfield had done so, the latter would be laid off, because anyone who did that was not a company man, and he did not want anyone working for them who was not a company man .6 The Discharge of Edenfield On December 30, Edenfield was told by Superintendent Pitman that he was being terminated at the end of that workday. ? Respondent makes no claim that it terminated Edenfield for improper or unsatisfactory performance of duty, its sole defense to this allegation being that the termination was made necessary by reduction in business and the volume of work available . The General Counsel's position, as stated at the hearing , but which he does not further explicate in his brief, is that Respondent failed to establish by evidence that a layoff was economically necessary , but, even if it did , the evidence shows that Edenfield was in fact terminated because he turned a job in he did tell Edenfield that if he knew who had turned the job in he would probably run him off, but claimed that he made the statement in jest, and only to tease Edenfield . In matters of labor relations, threats of discharge, like statements regarding a woman's virtue or a man's courage , are normally not the subject of hest. It is noted also, as the record shows , Pitman was present during this discussion and, though called as a witness by Respon- dent , he was not interrogated in this area In the circumstances of the case, the burden was upon Respondent to examine Pitman in this area , or at least to establish that he had no information on the subject Having failed to do so, it is reasonable to infer, as I do, that had Pitman been so examined, his testimony would not have supported Respondent's position . Halliday v United States, 315 U S 94, 99 ( 1942), Interstate Circuit, Inc v United States, 306 U S. 208 , 225-226 ( 1939), N L R B v Reed & Prince Manufacturing Company, 130 F 2d 765 , 768 (CA 1, 1942). 7 Employee Allen Hay was terminated at the same time as Edenfield and, according to Respondent , for the same reason . It is noted , however, that the complaint herein does not allege that Hay's termination violated the Act 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Union's business agent, or at least Respondent thought Edenfield did so. A summary of the evidence bearing on this issue shows that, in 1974, Respondent enjoyed what it considered a good volume of business, having processed approximately 250,000 pounds of sheet metal in its fabrication shop, and employed a total of 17 men in its commercial heating and air-conditioning department. Due to the general depressed conditions in the building and construction industry, which began in 1974 and continued through 1975 and which is a matter of common knowledge, Respondent processed a total of about 180,000 pounds of sheet metal in 1975, and employed a total of 16 men8 in that department. The Company's vice president, Haynie, who is in charge of the fabricating and commercial heating and air-conditioning departments, and whose uncontradicted testimony I cre- dit,9 testified that, by early December, business had declined to the extent that he discussed with Superinten- dent Pitman the necessity of reducing force, but that Pitman prevailed upon him not to terminate anyone before Christmas. After Christmas, Haynie became convinced that some action looking toward a reduced force had to be taken, and asked Pitman for recommendations as to the number and identity of the men to be terminated. After receiving Pitman's report, and some further discussion between them, it was concluded that four men should be terminated; two the last week in December, and two the first week in January.10 With regard to the selection of the men to be terminated, a list was made of the 16 men then on the payroll in the commercial heating and air-conditioning department, with Haynie and Pitman discussing the relative ment or value of each man to the Company. The conclu- sions they reached was that Edenfield and Hay were the two employees least valuable to Respondent," and that employees Redd and Cunningham were only a shade above Edenfield and Hay. The evidence also shows that, since the termination of Edenfield and Hay, Respondent has hired nojourneyman sheet metal workers. Both Haynie and Amerson credibly testified, without contradiction, that Amerson had no knowledge of nor did he participate in the decision to reduce force, and did not learn that such a reduction had taken place until about a week after Edenfield was terminated. Contentions and Conclusions 1. The 8(a)(1) allegations Upon consideration of the entire record, I find and conclude that Respondent violated Section 8(a)(l) of the Act by Amerson's statement to Edenfield that he would "run off' any employee he ascertained had turned a job into the Union. This was clearly a threat to Edenfield's employment because of union and concerted activity in which he might engage . The fact, if it be a fact, that Amerson's remarks were intended to be in hest, or for that 5 This includes Edenfield and Hay 9 Haynie is corroborated by Superintendent Pitman , whose testimony is also uncontradicted 10 Although the decision was made to terminate two additional men the following week , before that was carried into execution, additional contracts were obtained which made it feasible to continue those two men on the job matter that Edenfield may have thought that Amerson was speaking in jest, in no way negates the violation. The test is not what the employer meant, or how the employees construed the remark, but rather whether the statement is reasonably calculated to restrain and coerce. Kohler Co., 128 NLRB 1062, 1091, fn. 51 (1960); Drennon Food Products Co., 122 NLRB 1353, 1356 (1959); School-Timer Frocks, Inc., 110 NLRB 1659 (1954), enfd. 224 F.2d 336 (C.A. 4, 1955); Zimnox Coal Company, 140 NLRB 1229 (1963), enfd. 336 F.2d 516 (CA. 6, 1964). That Amerson's statement is one reasonably calculated to restrain and coerce an employee there can be no doubt, and it therefore violated Section 8(a)(l) of the Act. I so find and conclude. 2. The 8(a)(3) allegation Notwithstanding my finding regarding Amerson's state- ment to Edenfield, I am convinced, upon consideration of the entire record, and therefore find and conclude that the General Counsel has failed to establish by a preponderance of the evidence that Edenfield's termination on December 30 was motivated by other than economic considerations, and hence his termination did not violate Section 8(a)(3) and (1) of the Act. I reach this conclusion upon the totality of the following considerations: 1. The evidence fails to establish any general union animus on the part of the Respondent. It is true, as I have found, that Amerson's statement to Edenfield constituted unlawful restraint and coercion. However, this incident, although serious and requiring a remedial order, is isolated and out of character with the many years of harmonious relationship between the parties. 2. That the economy of this nation, and especially the building and construction industry, was depressed from late 1974 and through 1975 is a matter of common knowledge. At the hearing, Respondent made available to the General Counsel, for his use on cross-examination , all the books and records relating to the state of its business during the period involved but the General Counsel produced nothing from which it might be appropriately inferred that the state of Respondent's business was not as Haynie and Amerson had described, or that its decision in December 1975, to reduce force, was either unnecessary, or not made in good faith. 3. Having made the decision to reduce force for proper reason and in good faith, and there being no evidence of a contract provision which called for such reduction to be made in a particular manner, Respondent was free to reduce force in any manner it deemed necessary, subject only to the requirement that the manner employed not be discriminatory. Respondent chose to make the reduction by evaluating the relative skills of all the employees in the department involved. The General Counsel made no showing that Respondent, when it selected Edenfield and Hay for layoff, did so for arbitrary or discriminatory reasons. 11 This conclusion was based on their view as to what duties a man could perform, and the extent to which he nught perform those duties with the least supervision. For example, a man who can weld is much more valuable than a man who cannot weld And , if an employee can do layout work, he is more valuable than one who cannot SIG COX, INC. 1273 4. No employee has been hired since Edenfield's termination. For these reasons, I find and conclude that the General Counsel has failed to establish by a preponderance of the evidence that the layoff or subsequent failure to recall Edenfield violated Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By Amerson' s statement to Edenfield, as herein found, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to establish by a preponderance of the evidence that Respondent violated Section 8(a)(3) and (1) of the Act when it terminated Jimmie Edenfield, and the allegations of the complaint in that regard should be dismissed in their entirety. THE REMEDY Having found that Respondent interfered with, re- strained , and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, I conclude that Respondent should be required to cease and desist from in any like or manner interfering with , restraining, or coercing its employees in the exercise of their Section 7 rights. 12 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. The Respondent, Sig Cox, Inc., Augusta, Georgia, its officers, agents , successors , and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge or other reprisal because of their assistance to or support of Sheet Metal Workers International Association, Local 85, or any other labor organization. (b) In any like or related manner , interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist a labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Post at its premises in Augusta, Georgia, copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by an authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customanly posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the aforesaid Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 13 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. Copy with citationCopy as parenthetical citation