Sig Cox, Inc.

National Labor Relations Board - Board Decisions

Jan 19, 1977

227 N.L.R.B. 1270 (N.L.R.B. 1977)

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.