South Carolina Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1970

181 N.L.R.B. 1031 (N.L.R.B. 1970)

SOUTH CAROLINA INDUSTRIES, INC.
South Carolina Industries , Inc. and Harry Harwell
Holt. Case I I-CA-3928
April 9, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On December 12, 1969, Trial Examiner Anne F.
Schlezinger issued her Decision in the above
proceeding, finding that the Respondent had not
engaged in the unfair labor practice conduct 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 Decision
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
powers in connection with this case to a
three-member panel. t:,<,
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed in its entirety.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Trial Examiner: Based upon a
charge filed on June 18 and amended on August 4, 1969,
by Harry Harwell Holt, the General Counsel, by the
Regional Director for Region 11 (Winston-Salem, North
Carolina), issued a complaint on August II and an
amendment to complaint on September 10, 1969 The
complaint, as further amended at the hearing, alleges that
South Carolina Industries, Inc., herein called the
Respondent, discharged Holt for union or concerted
activities in violation of Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended In its answer
and supplemental answer, duly filed, the Respondent
admits certain allegations set forth in the complaint, but
denies that it has committed any unfair labor practice.
Pursuant to due notice, a hearing was held before me at
Florence, South Carolina, on September 24, 1969 All
parties appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce relevant evidence. Subsequent
to the hearing, the General Counsel and the Respondent
filed briefs which have been fully considered.
1031
Upon the entire record in this case and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, is engaged in
the manufacture of kraft liner board at its Florence,
South Carolina, plant, the only plant involved in this
proceeding. During the past 12 months, which period is
representative of all times material herein, the Respondent
manufactured, sold, and shipped from its Florence plant
goods valued at over $50,000 directly to points outside the
State of South Carolina, and caused goods and raw
materials valued at over $50,000 to be purchased and
shipped directly to its Florence plant from points outside
the State of South Carolina. The Respondnet in its answer
admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent in its answer admits, and I find, that
International Brotherhood of Pulp, Sulphite and Paper
Mill Workers , AFL-CIO, Local 674, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
The only issue in this proceeding is whether the
Respondent discharged Holt on or about December 23,
1968, because of his union and concerted activities, as the
General Counsel contends,' 'or for absenteeism, as the
Respondent maintains.
The Respondent's plant was built during 1962-3, and
began trial operations in December 1963 and regular
operations on about January 1, 1964. The Respondent
operates on a continuous basis 24 hours a day, 7 days a
week, with three 8-hour shifts covered by four crews on a
4-week rotating basis. Employees on each shift replace
their counterparts on the preceding shift automatically.
The Respondent has had collective bargaining agreements
since July 15, 1964, jointly with International Brotherhood
of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, and
its Local 674, and United Papermakers and
Paperworkers, AFL-CIO, and its Locals 877 and 879.
Holt was hired to work in the power house on November
4, 1963. He was a member of International Brotherhood
of Pulp, Sulphite and Paper Mill Workers, AFL-CIO,
Local 674, which is referred to herein as the Union.
'The original complaint alleged in Paragraph 7(a) that Arthur "Shorty"
Jones, a foreman in the power house, unlawfully threatened employees on
February 24, 1969 The complaint was amended prior to the hearing to
add Paragraph 7(b) alleging that Houston "Pappy" Taylor, a foreman in
the power house, unlawfully threatened an employee on July 7, 1969 The
Respondent's answer states that Jones was permitted to resign on
December 27, 1968 At the opening of the hearing , the General Counsel
asserted that he was advised that "Jones was no longer employed by the
Company as alleged in Paragraph 7(a) and consequently , of course , we wall
not seek to bind the Company by any statements that he allegedly made at
that time Also Paragraph 7(b) should be amended out " These were
the only allegations of unfair labor practices other than those pertaining to
Holt's termination
181 NLRB No. 164
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Holt's Union and Concerted Activity
Holt was hired by Fordham, superintendent of the
power house, as a second helper, and was an assistant
operator in the power house at the time of his discharge.
Sometime in 1968 Holt voluntarily declined promotion
and "froze" on his job. For an employee to "freeze" on a
job requires the Respondent to train another employee to
be able not only to substitute for the one who "freezes"
but also to bypass him on a temporary promotion to the
next job category. While the collective bargaining
agreement provides that employees may "freeze" in
certain circumstances, the Respondent admitted that "We
discourage it intensely." Holt testified that when he told
Foreman Taylor' of his decision to "freeze," Taylor said,
"Holt, you don't want to do that " This was apparently
the only comment by a supervisor to Holt when he
decided to "freeze."
In 1968 Holt was a candidate for president of the
Union, but was not elected ' He testified about a
conversation in which Foreman Taylor said that "I hear
you are running for President of the Local" and that "We
are going to have to get you a campaign slogan," to which
Holt replied, "No, Pappy, it is illegal for a man to
campaign for that office " This was all of the conversation
Holt could recall. Other than this candidacy, the only
union or concerted activity in which Holt was shown to
have engaged involved the filing of grievances
The collective bargaining agreement provides for a
4-step grievance procedure and for arbitration. The first
step of the grievance procedure permits an employee to
take up a grievance with his immediate foreman and, if
the employee so requests, his shop steward will be given
an opportunity to be present. The second step provides
that "the Union may appeal by presenting the grievance
in writing . . to the Department Superintendent and the
Personnel Director," and that they will "meet with the
employee and the Union Adjustment Committee "
Holt served three terms as a shop steward but could not
recall the dates or duration of any of these terms, which
were not consecutive. He was serving the third term, and
had been for at least 4 months, at the time of his
discharge.
Employee Wallace testified about two grievances he
filed on which Holt assisted him as shop steward. The
first was in or about September 1968, a couple of weeks
after Wallace transferred to Holt's shift, pertained to an
injury Wallace sustained before he transferred, and was
settled by Fordham at the second step. The second
grievance, filed several weeks later, is referred to as the
"salt cake" grievance,' and was also settled by Fordham
at the second step. Wallace on direct examination testified
that Holt signed both grievances when they were reduced
to writing, but, on cross-examination by the Respondent,
was not sure Holt signed them. Holt testified that to the
best of his knowledge he did sign them.'
Dixon, a stores clerk, testified that he filed one written
grievance in about August or September 1968 on which he
'Holt testified that he had worked under the supervision of the following
foremen Hooks, Taylor on two different occasions , Cremminger , Edwards,
and "if I made overtime, I worked with , if I remember, one or two times,
maybe one or two shifts , with "Shorty" Jones on overtime "
'The General Counsel had apparently been misinformed about this as he
asserted in his opening statement that "Holt served as Union President "
'This apparently referred to the issue whether salt would be unloaded
from tank cars by a utility man or a second helper
'The form for written grievances designates lines for "Employee's
Signature" and for signature by "Dept Supt " and "Department Head "
was assisted by Holt. There was no shop steward at the
time in the stores, and Holt and Dixon were, according to
Holt, old friends Dixon also testified that he "froze" on
his job in, he thought, the summer of 1968, that Foreman
Jones said "It is going to be rough on me and him both";
and that Jones made no mention of Holt
Holt was not only unable to recall when or for how
long he served as shop steward, he also did not know how
many shop stewards there were in the plant or in his local
union,' or how many grievances were filed by other
stewards. It is not shown how Holt became a steward the
first two times, but he stated that he was elected for the
third term by his shift He testified that his foreman knew
when he became a steward the third time because he told
the foreman, but he did not recall whether he did so the
first two times.
Holt testified that during 1967 and 1968, he filed, on
behalf of himself or other employees, about 20-25
grievances, about half in each year, that about half went
only to the first step and half to the second step; and that
nontjnwent beyond the second step. This would indicate
that Holt filed about 10-13 grievances a year, and that
about 5 or 6 of them went to the second step. The record
is not clear, however, as to the number of second-step
written grievances that bore Holt's name or signature
Holt testified that he thought there were probably "more
than three," and he referred to two that he filed outside
the power house, which he thought he signed He testified
specifically that he signed the salt cake grievance and one
relating to the number of canned beverages employees
could place in a refrigerator in the power house. He also
testified that he filed 5 or 6 grievances on his own behalf
during 1968, including one in about October when he "got
an unauthorized absence " Holt had Wallace go with him
to Foreman Taylor's office on this grievance but, Holt
testified, Taylor refused to permit Wallace to remain even
when Holt said he wanted Wallace there Holt admitted
that the collective bargaining agreement provides that an
employee going into a foreman's office is entitled to have
a shop steward present, not another employee. Holt
withdrew this grievance after the second step. The only
other reference to specific grievances filed on his own
behalf pertained to two he filed at the time of his
discharge, and are discussed in Section D below
Guest, the Respondent's vice president and general
manager, testified that he examined Holt's record in filing
grievances for himself and others; that he knew of only
two, other than those relating to Holt himself, that bore
Holt's name, the one about the canned beverages and the
salt cake grievance; and that both of these grievances
contained, in addition to Holt's name, the names of many
other power house employees. Fordham, superintendent of
the power house, testified that very few grievances were
filed by anyone in the power house, that he did not know
that Holt filed any more than the other stewards, and that
Holt had come to his office with other employees, he
would guess, two or three times
B Remarks by Supervisors
The General Counsel presented testimony about the
following conversations as background evidence to show
unlawful motive for Holt's discharge Thus Wallace
'The president of the Union testified that it had about 16.12 stewards
'The collective bargaining agreement defines an unauthorized absence as
one for any reason where the employee failed to obtain prior permission or
to notify the employer 3 hours prior to his shift starting time
SOUTH CAROLINA INDUSTRIES, INC. 1033
testified that a few days after his first grievance was filed
in writing, he had a "rather brief" conversation with
Foreman Taylor, that he did not recall all that was said
but "there was a lot concerning grievances that we
discussed, and of course, Mr Taylor asked me about
Harry Holt's influence over me at this time We were
talking about grievances that were being filed at the time,
and he said . . Well, Mr. Holt's influence was at the
point that that was the reason for filing the grievance .. .
Mr Holt advised me, according to Union activities and et
cetera, my rights under the contract . There was a lot
of conversation. I really don't recall most of it." He
recalled on cross-examination that Taylor expressed some
concern over the safety aspect as this grievance involved an
injury to Wallace.
Wallace filed his second grievance a few weeks later
Shortly after that he had another conversation with
Taylor in which, he testified, Taylor "said concerning the
influence that Harry had had, changes had to be made
concerning the grievances and activities on our shift, and
if there weren't, he would have to make some kindnoft
arrangement or possibly transfer me to another shift Ital..
if some changes didn't take place concerning these
grievances . - and my actions and Mr. Holt's actions."'
Wallace testified that he later transferred to another3 hift+
at his own request 1 sloI-i
Wallace further testified that in about mid-December
he had a conversation with Foreman Jones at the "301
Snack Bar" just outside the City of Florence; that he, his
brother, uncle, and another man whose name Wallace did
not recall, were at a table when Jones joined them; that
the conversation "lasted through a period of a couple of
hours and most of the words that were used were a
lot of vulgarity"; that in substance Jones "said that I was
in the wrong, and that by following Harry Holt's
discussions concerning our Union that South Carolina
Industries and he informed me myself - that if some
corrections weren't made that he knew personally that not
only would Mr Holt but myself also - it was mostly
concerning me in this conversation - that I would
probably be discharged from the plant or could be
discharged from the plant He was talking in the same
conversation about grievances being filed at the paper
mill, concerning Mr Holt and myself . . . He informed
me that I would be discharged . If we continued to file
grievances in such a manner."
E G. Moore, Sr , testified that he was 68 years old and
did not work but spent much of his time "hanging
around" a grocery store in which Holt owns a part
interest According to Moore, Jones came to the store,
Moore guessed, "somewhere around a month" before
Holt's discharge, and asked for Holt; Moore said Holt
was not there and he did not know where Holt was but
"supposed that he was down at the Trailer Park"; and
Jones then remarked, "Well, they are going to run Harry
off from out there It is on account of these grievances
and the Union affairs it was worrying them and that
they are going to get rid of him." Moore also testified
that Jones, who came to the store "pretty regular," had
"said that he [Jones] wouldn't be there [at the
Respondent's plant] any longer He came by there several
times after he was fired " Moore said he told Holt of this
incident but did not remember when 9 He also did not
remember who the others were who were present during
this conversation, and he was vague regarding other dates
and incidents about which he was questioned. Finally,
Moore testified that he had known Holt about 4 years but
knew him no better than anyone else "in the community "
He was not asked whether he and Holt lived together at
Moore's Trailer Park as indicated by testimony of both
Fordham and Holt referred to in section C below.'
C. Holt's Attendance Record
The record shows that attendance and promptness are
of particular importance in the Respondent's plant
because of its system of continuous operation and
automatic shift replacement The Respondent conceded
that Holt's attendance was satisfactory for a considerable
time after he was employed. When asked on
cross-examination by the Respondent, however, whether in
1965 there was a change in circumstances following which
he began to have trouble with his attendance, Holt replied,
"I can't remember right at the time when it was."
Superintendent Fordham testified, as a witness for the
Respondent, that approximately 2 years ago he went to
see Holt, who was living in a cabin at Moore's Trailer
Park with E. G Moore, Sr. Fordham was recalled as a
witness for the General Counsel, and testified further that
he went to see Holt on this occasion about going to work
because Holt had "called in that morning"; that "The
reason I went to check on him was to see if he was sick";
that Holt "was recovering from a `drunk' "; that he knew
this because Holt told him so; that he told Holt to drink
plenty of black coffee and get himself ready to go to work
that evening, and that Holt did get himself ready and did
go to work. Fordham also testified that Moore was
present. Holt had denied in his original testimony that
Fordham ever made such a visit to him. When he was
called by the General Counsel in rebuttal, however, he
recalled that Fordham did come to his cabin, and that
Moore "was not present in the cabin If he was around
the trailer park, I didn't see him." He denied that he was
recovering from a drunk, or that he had been absent from
work the preceding week except when he "traded off with
another boy to be off Saturday " He also testified that he
had called the nurse at the plant to ask for an emergency
vacation because his sister was in a hospital in Mobile,
Alabama; that Fordham came out to see him as a result
of that call, and that he told Fordham he "wanted an
emergency vacation, and he told me to go on to work I
said `I will if you want me to ' " Holt did not indicate
that he told Fordham why he wanted the emergency
vacation. Finally, he stated that he had persistently denied
in his original testimony that Fordham made any such
visit because he thought the questions referred to 1968
Employee Wallace testified that he and Holt were on
the same shift for about 4 months prior to Holt's
discharge, and that during this time Holt was tardy "No
more than normal," but he admitted this was an estimate
as he did not recall how many times either of them was
tardy. When asked if Holt was absent, he replied. "Yes,
sir. There were a couple of grievances filed about it on the
day he was absent "
As noted above, Holt testified about filing a grievance
on his own behalf based upon his being charged with an
unauthorized absence in about October 1968. He withdrew
this grievance after the second step Holt also testified
that when an employee has to work over 15 minutes past
'Holt made no reference in his testimony to any of these conversations
As stated above, he referred to Jones, in naming his various supervisors, as
one he worked with on "maybe one or two shifts on overtime " Jones
was not called as a witness
'Holt and Moore at the hearing each gave "Route 4, Florence," as his
address
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his shift change because his replacement is unavailable, he
is paid a half-hour overtime, that on Saturday morning,
December 7, 1968, when he was working on a shift that
began at 7 a m., he came to work a few minutes late; that
he called from the gate and told Foreman Taylor he could
not make it to the power house before the end of the
15-minute period, and suggested Taylor let the other man
make his half-hour overtime and dock Holt's pay for the
amount , and that Taylor said "okay." Holt further
testified that when he went on to his job that morning he
had an argument with another employee, Harrison, which
was settled in a few minutes, and that he proceeded to
work the remainder of his shift that Saturday and on
Sunday
On Monday, December 9, Holt was called to the office
of Superintendent Fordham. According to Holt, Fordham
said, "Fellow, you have caused me trouble ever since you
have been here, and I will get rid of you one way or the
other," and Holt replied, "If that is the way you feel,
okay." Later in the conversation, as Holt testified, he
asked if Fordham understood everything that happened,
Fordham answered in the affirmative, and he made no
attempt to tell Fordham what had happened Finally, Holt
testified, Fordham told him he was suspended 5 working
days for"chronic absenteeism, for habitual tardiness, and
for using abusive and threatening language " Holt testified
further that the "threatening and abusive language" in
question was directed at employee Harrison
Fordham denied making the remarks attributed to him
by Holt about Holt causing trouble and about getting rid
of Holt. He also testified that Holt's abusive language had
been directed not at employee Harrison but at Foreman
Taylor,- that he told Holt at this time that the employer
could not tolerate this and would have to take some
action, and that Holt would probably be dismissed if he
required further disciplinary action Holt testified that he
could not remember Fordham giving him such a warning
of possible discharge, but Fordham maintained that he did
so, and the written reprimand handed to Holt on this
occasion stated, as the parties stipulated at the hearing,
"You are warned that commitment of any further offense
requiring disciplinary action within next 12 months will
almost certainly result in your discharge "
Holt was aggrieved by this suspension for various
reasons For one thing, he testified that although a
suspension usually occurred "on the spot" when it was
necessary to get a man away from a job to protect other
people or property, his conduct was not of such a nature
and he was suspended days after it occurred He did not,
however, file a grievance at that time. He testified that
"We were off Saturday, Sunday, Monday and Tuesday,"
and that he consequently did not return to work until
Wednesday, December 18 When Holt returned to work on
Wednesday, he took up a verbal grievance with Foreman
Taylor who, Holt testified, said he could not give Holt an
answer. Holt did not, however, proceed with the second
step because, as he testified, "Mr. Fordham was having
family problems, and I would not bother the man then,"
"Neither Harrison nor Taylor testified
"The collective- bargaining agreement contains the following provisions
with regard to "Classes of Disciplinary Action"
Class 2 action refers to written reprimands A written reprimand is
given on the first minor offense if the Supervisor is not convinced of the
employee's intention to refrain from repeating the offense
If an employee is suspended once during a period of one (I) year for
any reason , and commits another offense within that year for which he
would have been suspended , that instead of suspension , the employee will
be discharged
and he did not file one with Cremminger, a foreman who
was acting in Fordham's place, because "the way things
had been working in the Power House when Mr Fordham
was out, unless it was absolutely necessary, you did not
process anything through the Superintendent or the one
acting as Superintendent."
D. Holt's Discharge
Holt did not work on Saturday, December 21,1 1 but the
record does not indicate the reason He was scheduled to
work on the I 1 p m. to 7 a m shift on Sunday, December
22, but, as he testified: "I reported to work, somewhere
around an hour and a half late, and called the foreman
from the gate . . . I asked the foreman did he want me to
come on to work then, and he said, 'No, go on back home
and come in on the day of the 23rd ' He didn't say `the
day of the 23rd.' He was referring to that date, to come
in, I believe, at 10:00 o'clock that morning." On
cross-examination, Holt further testified that he called
Taylgr "about an hour and a half after the shift changed,
thel best I can remember", that this made it about 12
o'clock midnight; that he did not think it was as late as
130 a.m ; and that Taylor told him, "Go on back home
and. get some rest."
,,Holt further testified that he went in on December 23
at 10 o'clock; that he saw Acting Superintendent
Cremminger, Personnel Director Hardee, and Johnson,
who is unidentified, in Johnson's office;" and that Johnson
"said that he had no alternative but to discharge me."
Asked by the General Counsel if there was "any
discussion of grievances," Holt replied: "Yes, sir That is
when I told him that I had held those grievances back
because of Mr. Fordham's trouble, I didn't want to bother
him. I said, 'It looks like I have problems too myself' I
said, `I will have to file them ' " Holt also told
Cremminger that, in view of the discharge, there was no
use going through Cremminger's step, and he would just
give the grievances to Johnson, which he did. Johnson
took them and told Holt to call him to arrange for a
grievance meeting
Both of the grievances Holt handed Johnson are in
Holt's handwriting, bear only his signature, and are dated
December 23, the date he handed them to Johnson One
of the grievances states as follows
NATURE OF GRIEVANCE I was sent home from
work after having worked two hours.
SETTLEMENT REQUESTED Payment by
Contract Page 83 Article B Not less than four hours
pay.
The other grievance contains the following statements:
NATURE OF GRIEVANCE In reference to the
reprimand I received on 12-9-68, my union records does
not show three reprimands My other records should
not show the accused tardiness and absenteeism There
is no previous pattern of a habitual nature
The language I used was not bad enough for the
action taken.
SETTLEMENT REQUESTED Remove reprimand
from my record and Payment in full for entire week.
"Holt's final discharge paper shows December 20 as "DATE LAST
WORKED "
"Superintendent Fordham was away from the plant from December 16
until Christmas because of a death in his family
SOUTH CAROLINA INDUSTRIES, INC. 1035
Holt testified that about a week after his discharge he
went to the office of the Respondent's vice president and
general manager , Guest ; that those present in addition to
Guest included Johnson, employees Gary Dixon and
Bobby Hanna, and Swymer, president of the Union; and
that Guest told him he could say what he wanted at that
meeting, which was not final, but he could not be at the
final meeting, which would be attended by a Union
representative and the Union Adjustment Committee.
Although Holt admitted that this was in accord with the
collective bargaining agreement , he testified that "I told
him that I would refuse to let him have a meeting
concerning me if I could not attend."
Holt's grievances were nevertheless taken up at a
grievance meeting. Among those present were Swymer
and Couch, president and vice president respectively of the
Union , and Folger, an International Representative.
Swymer testified that the session was conducted in accord
with the collective bargaining agreement , that he as
president of Local 674 tried to resolve Holt's grievances,
and that the union representatives decided not to taker the
matter to arbitration as they could have done under the
agreement . Holt testified that sometime after this-lie
wrote a letter to Hardee about picking up some personal
belongings in the locker, and that he thought the;fetter,
said nothing about his union or shop steward activitya1His
written grievance likewise makes no reference thereto
Guest testified that he examined Holt's attendance
record after the Union's grievance about Holt's discharge
came in; that Holt was discharged for "chronic
absenteeism and tardiness tied together with a number of
reprimands that had been given in the period stipulated in
the contract"; and that none of the disciplinary actions
against Holt were ever taken to arbitration by the Union
The General Counsel contends, as stated in his brief,
that Holt's discharge "was prompted by his activities in
filing grievances, encouraging other employees to file
grievances , assisting them in the filing of grievances, and
by availing himself of his right under the operative
collective - bargaining agreement [to] freeze on his Job."
The Respondent's position is that Holt was discharged
for absenteeism and failure to report to work on time,
that he was not known to the Respondent to be very
active in union affairs or in regard to the filing of
grievances, that many more grievances were filed in other
areas of the plant than in the power house where Holt
worked , and that the Respondent has had agreements and
good relations with the unions representing its employees
ever since the plant began operations
Concluding Findings
It is apparent from all the evidence, and I find, that
Holt's absenteeism and late arrival for work had been
causing problems for some time because of the
Respondent ' s system of continuous operation and
automatic shift replacement The situation became
sufficiently aggravated at one time for the superintendent
of the power house to make a visit to Holt ' s home to
check on the reason for Holt ' s absence . I credit
Fordham's testimony, adduced by the General Counsel,
that Fordham found Holt recovering from a "drunk."
In October 1968 Holt was charged with an
unauthorized absence He filed a grievance about this but
dropped it after the second step. On December 7 he was
admittedly late in reporting for work, which required his
counterpart on the prior shift to work overtime, and he
admittedly engaged in an argument when he arrived at his
work place. Holt did not deny that he used abusive and
threatening language but claimed that the language was
directed at employee Harrison Superintendent Fordham
claimed, however, that the language in question was
directed at Foreman Taylor I found Fordham a more
candid and convincing witness than Holt, and credit
Fordham's testimony that the language was addressed to a
foreman and was one of the grounds for Fordham
warning Holt on December 9 that the employer could not
tolerate such conduct
There is no question that Fordham on December 9 gave
Holt a 5-day suspension; that he told Holt it was for
"chronic absenteeism , for habitual tardiness , and for using
abusive and threatening language"; and that he gave Holt
a written reprimand warning "that commitment of any
further offense requiring disciplinary action within next 12
months will almost certainly result in your discharge"
This warning was in accord with the provision in the
collective bargaining agreement that an employee who has
been suspended for any reason and commits another
offense within a year that would warrant suspension
"instead ... will be discharged " Nevertheless , within a
few days after his return from the 5-day suspension, Holt
admittedly reported for work at least 1 1/2 hours late,
and admittedly in a condition that caused the foreman to
tell him not to go to work but to go home and get some
rest.
Holt's written grievance, filed on December 23, states
that, "In reference to the reprimand I received on 12-9-68,
my union records does not show three reprimands " The
collective bargaining agreement provides, however, for a
written reprimand for the "first" minor offense if the
supervisor is not convinced of the employee 's intention to
refrain from repeating the offense. The written grievance,
furthermore, contains only qualified denials of the conduct
for which Holt was suspended , asserting that his "other
records should not show the accused tardiness and
absenteeism ," that there is "no previous pattern of a
habitual nature ," and that the ,'language I used was not
bad enough for the action taken."
The union representatives processed Holt's grievances,
but did not proceed to arbitration as they could have done
if they were convinced that Holt was discharged because
of his grievance activities. On the basis of all the evidence,
I credit Fordham's testimony that very few grievances
were filed by anyone in the power house and that he did
not know that Holt filed any more than the other
stewards, and Guest's testimony that he checked the
records and found, in addition to the grievances Holt filed
on his own behalf, only two - concerning canned
beverages and the salt cake grievance - that contained
Holt's name and also the names of many other power
house employees
While I note that testimony that was presented by the
General Counsel to show unlawful motivation for Holt's
discharge is unrefuted , I conclude nevertheless that it fails
to establish such motivation. I find Moore a completely
unreliable witness on the basis of his demeanor and the
nature of his testimony. He was untruthful about the
extent of his acquaintance with Holt, and vague as to
dates and incidents about which he was questioned other
than the alleged conversation with Jones about Holt. In
this conversation, Jones allegedly told Moore, who was
not connected in any way with the Respondent, that the
Respondent planned to get rid of Holt because of "these
grievances and the Union affairs " Although Moore
testified that he told Holt of this conversation, Holt gave
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no indication that he was so advised by Moore or by
Jones, to whom he referred, as noted above, as a foreman
with whom he worked only on "maybe one or two
shifts . . on overtime."
I also find Wallace an unconvincing witness whose
testimony seemed contrived and exaggerated in an attempt
to assist Holt in showing discrimination by the
Respondent. I therefore do not credit his testimony that
Jones, in a conversation at the "301 Snack Bar," in the
presence of Wallace's brother, uncle, and a man whose
name Wallace could not recall, discussed the filing of
grievances by Holt and Wallace Moreover, if there was
such a conversation , Jones pointed out, according to
Wallace, that grievances were being filed concerning
Wallace and Holt, and warned that Wallace could be
discharged if he and Holt continued "to file grievances in
such a manner."
Wallace also testified about remarks made to him by
Foreman Taylor after the filing of each of the two
grievances on which he was assisted by Holt . In the first
conversation , Taylor assertedly referred to Holt's
"influence" over Wallace in regard to filing grievances, at
a time when Wallace had filed a grievance about 2 weeks
after transferring to that shift based on something that
occurred on a different shift . Wallace filed his second
grievance a few weeks later, and testified that Taylor
again spoke to him about Holt ' s "influence " Taylor's
remarks on this occasion, as stated by Wallace, contained
no threat against Holt but referred only to a possible
transfer of Wallace Wallace admittedly transferred
voluntarily at a later date
Finally, there is no evidence of threats made by any
supervisor to Holt with reference to his decision to
"freeze" on the job, his candidacy for president of the
Union , or his grievance activity; no allegation of any
independent violations of Section 8(a)(1) of the Act; no
credible evidence of hostility against employees because
they engaged in the presentation of grievances or other
union or concerted activity ; and no showing of antiunion
animus in any other respect On the contrary, the record
shows that the Respondent has maintained harmonious
contractual relations with the unions representing its
employees since the plant began operations The record
also shows that grievances had been filed about Holt; that
the Respondent had reprimanded Holt, suspended him,
warned him of discharge for absenteeism, tardiness, and
other misconduct, and discharged him when he arrived at
work over an hour late a few days after such warning;
that its actions with regard to Holt were in accord with
the provisions of its union agreement; and that the union
representatives processed Holt's grievances but did not
seek arbitration
The Respondent failed to introduce certain relevant
evidence which was available to it, including records
showing the extent of Holt's absenteeism compared with
other employees and the extent of Holt's grievance
activity compared with other stewards The General
Counsel, however, has the burden of establishing the
alleged unlawful discharge. I find, upon the entire record,
that the General Counsel has failed to show, by a
preponderance of credible and probative evidence, that
Holt was discharged because of his union or concerted
activities Accordingly, I find that Holt was not
discharged in violation of Section 8(a)(3) and (1) of the
Act, and I shall therefore recommend dismissal of the
complaint.'
'Upon the basis of the foregoing findings of fact and
conclusions and the entire record in this case, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The General Counsel has failed to establish by a
preponderance of the evidence that the Respondent
engaged in the unfair labor practice alleged in the
complaint
RECOMMENDED ORDER
I recommend that the complaint herein be dismissed in
its entirety.
"See Maryland Cup Corporation , 178 NLRB No 59, Jackanic's
Reinforcing-Erectors, Inc, 158 NLRB 99, Franklin W Nix, v N L R B,
418 F 2d 1001 (C A 5)