Southwire Co.

National Labor Relations Board - Board Decisions

May 25, 1967

164 N.L.R.B. 1018 (N.L.R.B. 1967)

1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southwire Company and Industrial Union
Department , AFL-CIO. Case 10-CA-6615.
May 25,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 18, 1967, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended dismissal as to them. Thereafter,
the Respondent 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.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings,' conclusions,2 and recommendations of the
Trial Examiner,3 as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Southwire
Company, Carrollton, Georgia, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
1 We agree with the Trial Examiner that the Respondent
discharged McColley in violation of Sec 8(a)(3) of the Act
However, in addition to the reasons set forth in the Trial
Examiner's Decision, we note that the Respondent's no-
solicitation rule provides not that any prohibited solicitation itself
would be cause for discharge but that any such activity which
"interferes with the work of any employee or employees would be
an intolerable offense" (Emphasis supplied ) There is no claim or
showing on this record that McColley at any time interfered with
the work of Lester, who was allegedly solicited during working
time , or with his own work. Rather, since Lester himself testified
that he asked McColley for, and upon receiving permission took, a
union authorization card while they were allegedly at work, it
would seem to have been Lester who would have interfered with
McColley's performance, if there were any interference with
work
2 We reject the Respondent's contention that the Trial
Examiner was biased, there being no evidence that the Trial
Examiner prejudged this case or made prejudicial rulings. Hot
Shoppes, Inc , 146 NLRB 802. In any event, a careful review of the
conduct relied on to demonstrate the alleged bias, set forth in
Respondent's brief, does not, in our opinion, support the claim
What Respondent essentially complains of are the Trial
Examiner's credibility resolutions, claiming that in every instance
conflicts were resolved in favor of the General Counsel As stated
in N L R.B v. Pittsburgh S S Company, 337 U.S 656, at 659, " . .
[T]otal rejection of an opposed view can not of itself impugn the
integrity or competency of a trier of facts " Further, after a careful
review of the record, we conclude that the Trial Examiner's
credibility findings are not contrary to the clear preponderance of
all the relevant evidence Accordingly, we find no basis for
disturbing his credibility resolutions in this case Standard Dry
Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
3 Member Zagora does not agree that the Respondent's so-
called "flip-chart presentation" constituted a threat that the
Respondent would engage in reprisals in the event of union
organization of its plant, consequently, he does not adopt the Trial
Examiner's finding of a violation of Sec 8(a)(1) of the Act in that
respect
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On a charge filed
July 14, 1966, the Regional Director of Region 10 (Atlanta,
Georgia), on September 21,1 issued his complaint in the
subject matter pursuant to which a hearing was held
before me on November 1, with all parties ably
represented. At the conclusion of the hearing, the parties
were given leave to file briefs and briefs were received
from each. Upon the entire record in this case, including
the briefs, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a Georgia corporation which manufactures
wire cable and related products in its factory at Carrollton,
Georgia, annually ships its products valued in excess of
$50,000 from its Carrollton plant directly to points outside
the State of Georgia. Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION
International Union of Electrical, Radio and Machine
Workers, AFL-CIO, herein called the Union, is a labor
organization within the meaning ofSection 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that by the discharge of Jerry L.
McColley, Sr., the Respondent violated Section 8(a)(3), (4),
and (1) of the Act and by the interrogation by three
supervisors of three employees, showing the motion
picture entitled "And Women Must Weep" to all new
employees, solicitation of employees to report union
activities to Respondent, informing employees they would
I All dates herein are in 1966, unless otherwise stated
164 NLRB No. 135
SOUTHWIRE COMPANY 1019
never sign a contract with the Union, threatening loss of
employment if the Union were successful, and engaging in
surveillance of employees' union activities , Respondent
has violated Section 8(a)(1) of the Act. The Respondent
denies the commission of all the unfair labor practices
alleged. Pursuant to the requests of various parties that I
take official notice of decisions involving Respondent,
found at 133 NLRB 83, enfd. 313 F.2d 638; Trial
Examiner's Decision in Case 10-CA-4546 adopted, in the
absence of exceptions, by the Board; 145 NLRB 1329,
enfd. in part 352 F.2d 346; 152 NLRB 1594; 159 NLRB
394; Case 10-RC-5693; and Cases 10-CA-6579 and
10-CA-6661 (withdrawn), to the extent that they provide
background evidence relating to the instant case, I have
considered them. I have in no way given the findings in
those prior cases evidentiary value with respect to the
unfair labor practices alleged herein, except to the extent
that, as the Board pointed out in 159 NLRB 394, "The
numerous unfair labor practices committed by
Respondent in the past in furtherance of its stated
antiunion policy ... amply establishes animus." It is
admitted and I find that Respondent's policy continues to
be antiunion.
A. The 8(aXl) Allegations
Jerry McColley was reinstated on or about January 20,
pursuant to a Board Order enforced by the circuit court.
On or about February 1, Supervisor Todd asked him how
he felt about the Union now that he had been reinstated.
Employee Larry Willis was asked by his leadman,2 Freddy
Henderson, if he was helping McColley get union cards
signed in the plant sometime in May. In June, employee
James Mathews was asked by his leadman, LaVerne
Williams, if he had anything to do with the Union.
There is apparently no issue that all three of the above
questions were asked. Respondent contends however, that
they are not unlawful because in the case of McColley
"certainly the Respondent was already aware of
McColley's union sympathies"; in the case of Willis, he
was of the impression that Henderson was joking; and in
the case of Mathews, he considered Williams a personal
friend and felt no apprehension. The test, of course, is not
whether the Respondent's action did restrain, coerce, or
interfere with employees, but whether they had a tendency
to do so. Under the circumstances of this case, with
Respondent's overt and continuing campaign against
union organization, and in the face of the fact that no
employee could help having realized that Respondent was
motivated by union animus, there is a serious question in
my mind whether interrogation of any nature could be said
to be free of the tendency to restrain or interfere with
employees in violation of the Act.
In Blue Flash Express, Inc., 109 NLRB 591, the Board
pointed out that the interrogation of employees concerning
their Section 7 activities is inherently coercive and found
that to form an exception to the rule that such coercion is
violative of Section 8(a)(1) it is necessary that the
interrogator should give the employee being questioned
assurances that respondent would not engage in reprisals.
In Johnnie's Poultry Co., 146 NLRB 770, 775, the Board
spelled out the only two circumstances under which, even
with the safeguards mentioned in Blue Flash,
interrogation would not violate the Act. These are when
the union has demanded recognition and the employer
attempts to verify its claimed majority, and where a
complaint has issued and respondent must prepare to
meet the issues raised thereby. Here, neither of these
circumstances exist . Accordingly, the interrogation,
without any ameliorating circumstances, is coercive within
the meaning of Section 8(a)(1) and I so find.
Tommy N. Bell testified that his supervisor, Henry
Warren, in response to a question from Bell what all the
union talk was about, stated that he did not believe that
the Union would help Southwire and said that Roy
Richards (the company president) would never sign a
contract for the Union. He said further that in the
supervisors' meeting a couple of weeks before that,
Richards said that if the Union did come in he had enough
supervisors to run the most important jobs.3 This
statement by a ranking officer of Respondent that he
would never sign a union contract has been held to be
violative of Section 8(a)(1) too often to require the citation
of authority.4 I find that by such a statement in the context
of this case Respondent has violated Section 8(a)(1) of the
Act.
Bell further testified that in an employee meeting,
concerning a profit-sharing plan, held on July 19, 1966,
President Richards, after explaining to the employees the
background of the Southwire Profit-Sharing Plan, and how
much the employees and the Employer put in it and get out
of it, commenced, with a flip chart, discussing various
plants in and around the State of Georgia that had closed
down after unions went in . He mentioned a General
Electric plant at Anniston, Alabama, with 1,700 employees
which closed down when a union went in. He also
mentioned the Cannon Casket Co. in Villa Rica, a small
Georgia town, the Pico plant in Austell, Georgia, and two
plants in Newnan, Georgia, a town some 25 miles from
Carrollton, one of which shut down and the other in which
a union organized successfully and it took 17 months to
work out the same raise that an unorganized plant of the
same employer in Carrollton had achieved immediately.
One of the cards on the flip chart simply said in large red
letters "Don't sign anything." As to this card, Richards
said it was not necessary to sign cards to have an election
and that card signers just signed away their rights.
General Counsel contends that by its "flip-chart
presentation" Respondent threatened the employees that
the plant would be shut down if it were organized.
President Richards was not called as a witness. Vice
President Holiday and Personnel Director Brown
corroborated the testimony of Employment and Training
Manager Wiggins, who testified that he never heard
Richards make any statement to the effect that the plant
would be closed down in the event of unionization.
As I see it, the testimony adduced by the Respondent
does not quite meet the issue. There is no contention that
Richards said in so many words that the plant would be
shut down. Rather the General Counsel contends that
Richards left the clear inference with the employees that
this would be the result of union organization.
It is difficult to see what other message Respondent's
presentation had for the employees. I don't believe the
2 An admitted supervisor
2 Neither Warren nor Richards was called to the witness stand.
The testimony was not denied
' Grunwald-Marx, Inc, 127 NLRB 476, Berry Kofron Dental
Laboratory, 160 NLRB 493
1020 DECISIONS OF NATIONAL
Board is required to shut its eyes to reality. I can see but
one inference to be drawn from a presentation of this
nature, that in the event Southwire is organized, Southwire
would follow,the lead of all the other plants indicated and
shut down, or at best that employees would fail to get the
normal raises in pay which they would get but for
organization , as in the one plant in Newnan, Georgia. I find
that President Richards' speech was reasonably
calculated to interfere with the organization among the
employees and to coerce and restrain employees in their
Section 7 rights and violated Section 8(a)(1) as charged.
General Counsel contends that Assistant Security
Director Henry G. Lane engaged in surveillance of
employees' union activity. The evidence produced in
support of this allegation was testimony of Union
Representative McIver that after a union meeting held at a
private club in Carrollton, acting upon a report that Lane
was watching McIver's room with field glasses, he went
there and found Lane sitting in his car and asked him what
he was doing. Lane denied that he was doing anything.
McIver told Lane that he was wasting time watching the
hotel since they weren't going to hold the union meeting
there and said that he had just left the union meeting and
was going to sign up some more men if Lane wanted to
follow him Lane asked McIver how many cards he had
and McIver replied, "About 550."
While it might very well be that Lane was parked where
he was for the purpose of watching McIver's room, in view
of his admitted interest in the union organization and
knowledge thereof as displayed in other conversations
reported by McIver, nevertheless, I cannot find from the
above that General Counsel has produced substantial
evidence that Lane was so engaged. Accordingly, I shall
recommend that the complaint be dismissed in this regard.
Employee Robert L. Parks credibly testified that when
he was hired and went through Respondent's
"orientation " procedure, Henry Grady Lane said to the
employees gathered together there that if someone was to
ask them to sign a card to notify Respondent and the office
would see about them.
Lane, who is no longer employed by Southwire, did not
testify. Respondent does not apparently contend that Lane
is unavailable and did not seek a subpena to enforce his
attendance. By way of meeting Parks' testimony,
Respondent merely produced testimony that such a
statement was not normally part of the orientation
proceedings. Parks' testimony appears credible and
especially so in this regard in view of the several
outspoken statements attributed to Lane. Accordingly, I
credit Park's testimony in this regard. The solicitation of
employees to report the union activities of other
employees has long been found violative of Section
8(a)(1).5 Lane's instruction to the 20 or so new employees
at the orientation meeting is clearly violative and I so find.
B. "And Women Must Weep"
Every Friday morning during the past 6 months and
continuing to the present, Respondent has conducted an
"orientation " of all employees hired in the preceding
week, during the course of which it has shown the film
5 Everest & Jennings, Inc , 158 NLRB 1150, Filler Products,
Inc, 159 NLRB 1536, Colony Furniture Co , 156 NLRB 728
6 The above text was taken from a transcript corrected and
agreed upon by all parties at the hearing I have carefully
LABOR RELATIONS BOARD
"And Women Must Weep." In a former case involving this
Respondent (159 NLRB 394), the Board found that the
showing of this film is violative of Section 8(a)(1) of the Act
Respondent contends that the Board was incorrect in its
decision in the earlier case and, in addition , maintains that
changes in the film of that title presently being shown,
which is not the same as the film of the same title with
which the Board was concerned in the earlier case, bring
the film within the bounds of Section 8(c).
It appears that the two films are the same with the
exception of the fact that at the beginning and end of the
film presently being shown is a statement by a person who
refers to himself as a locomotive engineer and a vice
president of the Right-to-Work Committee. At the
beginning he states:
Hi, I'm [man 's name ]. By trade I am a locomotive
engineer , by free choice I am a union man . At present
I am devoting all my time to the Right to Work
movement . I am Vice President of the Right to Work
committee in Washington , D.C. Our committee is a
coalition of workers and employers. We have over
15,000 charter members all over the nation. We are
conducting a national educational program on the
means and right to work. The film you are about to see
is a true story . It is a story of vital importance in your
welfare and your freedom.
In the trailer, the same person is flashed back on the
screen and states:
You have experienced the events that took place in a
quiet town of Princeton in Southern Indiana. This
could happen in your town, but it will not happen if
you demand that your representatives see that the
right-to-work laws are placed on the State Statute
book now. Good unions are okay but force and
violence are wrong. It is wrong to force a man or
woman into a union, it is wrong to say "you can't work
here unless you belong to a certain union." Most
people of America agree that this is wrong.
Right to work laws protect workers in their right to
join or not join a union. The National Right to Work
Committee, a coalition of workers and employers,
invites you to join in our nationwide crusade for right
to work laws. Write our committee.6
I conclude that the two films are the same with the
exception of the above-quoted matter. Respondent
contends that this matter bears out its contention that "the
main theme of the film is the advocation of State Right to
Work Laws" and that inasmuch as there is nothing in the
record to show that Respondent presented this film to its
employees as anything more than a dramatized production
showing the possible disadvantages of unionization, in
States that do not have right-to-work laws, such a showing
is protected activity within the meaning of Section 8(c) of
the Act.
The thrust of the picture is to show dramatically and, in
fact, horrendously, the impact upon a community of action
taken by an apparently wildly excitable majority of the
members of a union who engaged in a strike , marked by
violence and criminal activity , over a completely
unjustified issue. The message, if it could be called that,
delivered by the picture is not, in my opinion, that a right-
compared the transcripts of the film shown before me and that
shown before the Trial Examiner in the prior case, and I find them
substantially identical, with the exception of the matter quoted
above, which does not appear on the film considered in the earlier
case
SOUTHWIRE COMPANY 1021
to-work law would alleviate or eliminate such problems but
rather that union organization in a plant is apt to lead to
the same or similar circumstances . The only relationship
the dramatic portions of the picture have with the right-to-
work law is a somewhat forced dialogue in the middle of
the picture in which an alleged minister states, "I just wish
I were half as sure what the answer is" and is answered by
an alleged employee, "I think I know, it's the right to join a
union or stay out." The minister replied, "I don't quite see
how that applies here. That won't prevent strikes," and
the employee replies, "No, but it'd pave the way for
responsible leadership and if we had that, we never would
have had this." The minister asks, "How's that?" and the
employee states, "Well, in the first place if we'd had a
chance to decide whether this union out at the plant is
worth joining or not, I'll bet a year's dues that the leaders
would have seen to it that it was and in the second place, a
bunch like Hallie's (the union president and leader of the
strike) would have been afraid to pull any shenanigans like
this because we could have quit the Union without losing
our jobs. As it is they've got us over a barrel."
No one who gave the picture a second thought, whether
sophisticated or unsophisticated, would, in my opinion,
come to a conclusion that the events depicted in "And
Women Must Weep" resulted from the lack of a right-to-
work act in the State of Indiana and nothing contained in
either the prologue or the trailer to the film can support
that argument. As I view the film, the alleged theme of
support for the right-to-work concept is an almost
complete non-sequitor to the action portrayed in the film.
The real theme is that unions cause violence, hatred,
distrust, and community upheaval and the real warning of
the film is that if you bring a union into a town, you subject
it to the possibility of just those things.
Accordingly, I find, as the Board did with respect to the
earlier version of the film, that its showing to new
employees under the circumstances of this Employer's
demonstrated union animus interferes with, coerces, and
restrains employees in their Section 7 rights and violates
Section 8(a)(1) of the Act.
C. The Discharge of Jerry L. McColley
McColley, who had been discriminatorily discharged
and ordered reinstated by the Board (145 NLRB 1329),
resumed his employment with the Respondent on
January 20 after the Board's Order was enforced by the
circuit court.? From the date of his reinstatement it
appears that his employment with Respondent was
marked by considerable bitterness by both sides which led
to investigations as to the state of compliance by the
Board's compliance officer and the filing and investigation
of charges alleging additional discrimination.
On May 31 McColley was given a warning notice for
five alleged infractions of Respondent's rules A charge
was filed alleging that Respondent's action was
discriminatory and the investigation resulted in the
removal of the warning notice from McColley's file and the
withdrawal of the charge.
On July 9, according to McColley's testimony he noticed
that some union cards which he had placed in his toolbox
were missing and asked several employees, including one
Lester, if they had seen anyone at this toolbox. All
reported that they had not.
At the end of McColley's lunch period he went into his
toolbox to get a tool. Lester was with him as he opened the
toolbox. Cards fell out of it and McColley said that they
had been put back. Lester looked over his shoulder and
said, "Aren't those union cards." McColley said that they
were and Lester said, "I have heard a lot about that, I
would like to have one, can I have one." McColley told him
to help himself, and Lester took a card. McColley
cautioned him to keep it in his pocket because he should
not be handling a card while he was on working time.
Lester put it in his pocket and followed McColley to his
workplace where he was chiseling heads off steel drums so
that they could be used for scrap. Lester followed him and
commenced a conversation, asking about the Union, and
McColley answered his questions. Lester continued
talking to McColley over a period of about 3 hours,
sporadically. He would leave every 10 or 15 minutes and
be gone for 5 or 10 minutes and then return and resume
the conversation.8
About 10:15 p.m., while McColley was in the washroom
preparatory to going home at the end of his shift, his
leadman, Shealey, came to him and told him not to come to
work the following day, for Sunday work. As he passed
through the gatehouse the guard gave him the same
message.
On July 11, McColley was called into the personnel
office where he was accused of soliciting an employee on
working time in defiance of the company rule and was told
to check out and come back the next day while the
Company investigated the alleged infraction. The next day
he came into work and was told that he was discharged for
solicitation for the Union on company time.
Lester, called as witness by the Respondent, testified
that on July 9 his machine broke down and that as soon as
Shealey came on duty at 6 p.m. he asked Shealey if he
could help McColley. Shealey agreed that he could do so
and also assigned him to help another employee loading
coils of wire on a forklift truck. Lester testified that he
helped McColley by holding the drum while he knocked
the heads out and went back and forth to his other job,
helping load the forklift truck. He testified, in agreement
with McColley, about McColley missing the cards and that
McColley declined to state what kind of cards he was
missing. Later he asked McColley to lend him his
tincutter9 and, when McColley went to get them out of his
toolbox, cards dropped out, whereupon McColley said,
"Nobody got those cards, here they are." Lester asked
McColley to let him see a card, stating that he heard a lot
of talk about it and he wanted to read one. McColley gave
him a card and told him to put it into his pocket, and said
that if he got caught with it that he would deny giving it to
him. He testified also that McColley told him to take it to
the bathroom and read it and sign it and bring it back to
him.
'While a number of employees were found to have been
discrimina torily discharged in the various cases involving
Respondent , it appears that only McColley has accepted
reinstatement
8 Among other things discussed was the fact that the employees
had been directed that they would receive a warning notice unless
they came to work the following day, a Sunday McColley
objected to working on Sunday According to McColley, Lester
asked him whether having a union would make any difference
regarding Sunday work and McColley told him that the Union
didn't believe in Sunday work and by requiring premium pay
attempted to eliminate it
9 McColley testified that he had no tincutters and did not lend
any to Lester
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lester also testified that later in the evening , McColley
called him over and asked him if he had signed a card yet
and he said he had not had a chance to read it. In the
meantime he had gone to his supervisor , told him of the
incident , showed him the card , and said that McColley had
given it to him. Still later in the evening , according to
Lester, McColley came to where he was working and told
him not to worry about the other man that was working
with him , the fork truck operator, because he was "in it"
too. Later, again according to Lester, McColley called him
over to where he was cutting the tops out of the barrels and
told him that the Union had already gotten McColley
reinstated and got him backpay one time and that Lester
should sign the card because if the Union came in after he
signed the card it would not cost him anything, but if he
had not signed the card it would cost him $10'to join. He
testified that it took 15 or 20 minutes to say this. With a
little assistance from counsel he then recalled also that
McColley had told him that "if the Union came in , that we
wouldn't have to work on Sundays anymore but that
"we'd get more raises and we wouldn't have to work as
hard as what we was." He testified that he was busy at the
time but he did not testify what he was doing.10
Finally Lester testified that McColley came up to him
again when he was getting a drink of water, asked him if he
had signed the card yet, and told him that if he didn't have
time to sign it that night he could sign it during the
weekend and bring it back to McColley on Monday.
Lester testified that he informed leadman Shealey about
these conversations and was subsequently, on the
following Monday, called into the front office.
In the front office, Lester testified he was given an
opportunity to tell about McColley's solicitation of him for
the first time and on that occasion he signed an affidavit
containing the full story and swore to it before a notary
public. He testified he might have made a statement in
that affidavit that "a short time later I spoke to my lead
man Bod Shealey and I showed him the card that
McColley had given me, and I told Shealey some of what
McColley had told me about signing the card. Shealey told
me to go back to work and that when I was caught up that
it was allright for me to talk with McColley." He testified
that that was true and he testified in addition that he told
them he had seen the union cards fall out of McColley's
toolbox, that he told McColley he would like to look at one
of them, and that McColley gave it to him on company
time.
Leadman Shealey testified that he did not ask whether
Lester got the card on company time and that while there
was something wrong with accepting a card on company
time , he was not interested. All he was interested in was
for Lester to hold onto the card. He also testified that he
did not "get mad" at Lester as Lester had testified when
Lester stopped outside to talk with McColley at
McColley's request. In fact he testified that he was not
aware that Lester had stayed out for 15 minutes because
he had gone on to other work. Although he testified he did
not ask and was not told that the card passing took place
on company time he knew that this was the case.
On cross-examination Shealey testified that he called
Night Plant Superintendent Lamineck about 9:30 p.m. on
July 9, and pursuant to Lamineck's instructions had
Lester stay over that same night. At 10 p.m., when
McColley had left, Shealey took Lester to Lamineck's
office where Lester was interviewed by Lamineck, Day
Foreman Smith, and Shealey. On that occasion Lester
made a statement, which was reduced to writing by Smith
or Lamineck, and, pursuant to instructions from one of
them, placed identifying marks on the back of the union
card.
Vice President Holiday testified that he terminated
McColley for no other reason than violation of the no-
solicitation rule and that he did not discipline or discharge
Lester because "he was the one that was approached. He
did not initiate any action. There was nothing taken on his
part to initiate any action concerning the approach that we
had evidence of and that he did report the incident to his
foreman when it happened."
Personnel Director Robert Brown testified that he
interviewed Smith, Shealey, and Lester the following
Monday, called for his attorney who came on Tuesday and
took an affidavit from Lester, and the affidavit was typed
up, signed, and notarized on the following Wednesday.
This would have been July 13. He did not testify how the
statement came to be dated July 15, as Lester testified
when his affidavit was displayed to him.
As Respondent points out, a determination of this issue
must necessarily be based on a determination of
credibility as between Lester and McColley. Respondent
appears to argue that I should determine that McColley's
impressive demeanor, his firm testimony, and his
excellent memory discredit his testimony because he has
had to give testimony several times before this. Aside from
the fact that McColley's previous experiences on the
witness stand appear to have resulted from Respondent's
prior unfair labor practices, I can conclude only that his
preceding experiences enable McColley to give his
testimony clearly, in a forthright manner. I do not find his
credibility impaired by his manner of testifying. On the
contrary, I found it enhanced by his consistency and
demeanor.
On the other hand, while Lester was understandably
nervous I do not believe that the nervousness attendant on
a young man's first appearance on a witness stand could
result in the self-contradictions which his testimony,
spelled out above, led him into. His denial that he talked to
anyone in the supervisory hierarchy other than his
leadman, on the night of the 9th, cannot be explained in
my opinion by anything other than a desire to tailor his
testimony to fit what he conceived to be the Company's
best interest. I cannot believe that, asked directly, as he
was, whether he had told his story to any higher levels of
supervision on the 9th, he could have been confused or
forgetful in his blanket denial. I conclude from this that he
was prepared to depart from the truth if he felt it
necessary, and I look with suspicion on his testimony as a
whole. His cross-examination clearly illustrated that he
changed and embellished his story at will to meet what he
considered to be the demands of the situation. I discredit
him and I credit McColley's testimony as to the incidents
of July 9.
10 Lester also stated that leadman Shealey "got mad" because
he stayed talking with McColley for 15 to 20 minutes , and warned
him that he had to get his work done on time
D. The No-Solicitation Rule
SOUTHWIRE COMPANY 1023
Respondent has had a no-solicitation rule since 1952. In
Respondent's employees' handbook the violation of
Respondent's no-solicitation rule is listed as a "major"
offense, punishable on the first offense with a 2-week
suspension and/or a job demotion and by dimissal for the
second offense. However, in late May or early June,
Respondent promulgated a rule which stated "no
employee or employees will be permitted to solicit funds or
support from any individuals, institution, or organization
while in established work areas or on company time. Any
such activity which interferes with the work of any
employee or employees will be considered as an
intolerable offense." An "intolerable" offense requires
dismissal for the first offense. Vice President Holiday
testified that he was aware of the resumption of the
Union's organizing efforts when the new rule was
promulgated, although he denied any causal relationship.
He cited no other reason for upgrading the offense to
require instant dismissal.
The Board has held that a blanket no-solicitation rule
such as that quoted above is valid unless it is
discriminatorily enforced' or promulgated for
discriminatory reasons.12
It is clear from the record that Respondent knew that it
was Lester rather than McColley who initiated the action,
at least with regard to the union card. Lester testified that
he told the supervisors so. Holiday, who testified to the
contrary, did admit that he read the statement signed by
Lester which admitted that fact and in any event his
subordinates claimed to have investigated the matter
completely and talked to Lester on divers occasions and
could not have helped but to have been informed that he
was in fact the initiator of the conversation concerning the
Union. Nevertheless Lester was not in any way
reprimanded and certainly not discharged. 13
I am convinced and I find that Respondent used the
incident as a pretext to discharge McColley. It was
interested only in getting rid of him which was in effect
admitted by Foreman Shealey when he testified that he
did not even ask whether the card had been passed to
Lester on company time. He was interested only that it be
preserved.
Applying its own ground rules, as Vice President
Holiday laid them out, it appears that it should have been
Lester rather than McColley who was discharged. It may
well be that the key to the situation is Holiday's admission
that it was the fact that Lester did report the incident to
his foreman that preserved his job. Perhaps, as General
Counsel and the Charging Party appear to have
contended, the whole incident was planned and designed
to get rid of McColley, but there is no evidence of a prior
design.
Even were I to find that Respondent mistakenly
believed that McColley was the "instigator" who made the
"approach," this would not afford it a defense. See
N.I.R.B. v. Burnup and Sims, Inc., 379 U.S. 21.
Accordingly, I find that Respondent's discharge of
McColley was a violation of Section 8(a)(3) of the Act.
No evidence on the record supports a conclusion that
the discrimination against McColley stemmed in any part
" Tyrone Hydraulics, Inc , 161 NLRB 1476
12 Serv-Atr, Inc , 161 NLRB 382.
from his filing of charges or giving of testimony under the
Act rather than his advocacy of and efforts on behalf of the
Union. Furthermore, the remedy for his discharge in
violation of Section 8(a)(3) and (1) is the same as that which
would be afforded him under Section 8(a)(4). I shall
recommend that the 8(a)(4) allegation be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the Act.
Respondent having discharged Jerry McColley, Sr., in
violation of Section 8(a)(3) of the Act, because of his union
activities, I shall recommend that Respondent offer him
immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority and other rights and privileges, and make him
whole for any loss of pay he may have suffered by
Respondent's discrimination against him by payment to
him of a sum of money equal to that which he normally
would have earned as wages from the date of his
discharge, July 11, 1966, to the date when, pursuant to the
Recommended Order herein contained, Respondent shall
offer reinstatement, less his net earnings during said
period. Said backpay shall be computed on a quarterly
basis in the manner established by the Board in
F.W. Woolworth Company, 90 NLRB 289; interest on
backpay shall be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 762. In view of the
nature of the unfair labor practices Respondent has
engaged in, considered herein, and prior hereto, I shall
recommend that Respondent cease and desist from
infringing in any manner upon the rights guaranteed
employees in Section 7 of the Act. I shall also recommend
that Respondent forthwith cease and desist from
exhibiting to employees or prospective employees the film
entitled "And Women Must Weep."
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce or
in an industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union of Electrical, Radio and Machine
Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Jerry McColley, Sr., and by
interfering with, restraining, and coercing employees in
13 The hearing was held less than 4 months after the incident
Lester had been moved to the day shift and given a 15- cent raise
in the interim
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exercise of rights guaranteed by Section 7 of the Act, what steps it has taken to comply herewith. is
Respondent has engaged in and is engaging in unfair labor IT IS FURTHER RECOMMENDED that the complaint
practices within the meaning of Section 8(a)(3) and (1) of insofar as it charges Respondent with engaging in
the Act. surveillance or violating Section 8(a)(4) be dismissed.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the case,
it is recommended that the Respondent, Southwire
Company, Carrollton, Georgia, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Exhibiting the motion picture film entitled "And
Women Must Weep" to any of its employees or to
prospective employees.
(b) Discouraging membership of its employees in
International Union of Electrical, Radio and Machine
Workers, AFL-CIO, or any other labor organization of its
employees, by discharging or otherwise discriminating
against employees in regard to hire or tenure of
employment or any term or condition of employment.
(c) Threatening employees with plant closure or loss of
jobs or that it would never sign a union contract.
(d) Interrogating employees in a manner violative of the
provisions of Section 8(a)(1) of the Act, and soliciting them
to report to it concerning the union activities of other
employees.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives 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 or all such activities.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Jerry McColley, Sr., immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to seniority or other rights and
privileges previously enjoyed, and make him whole for any
loss of pay he may have suffered by reason of
Respondent's discrimination against him in accordance
with the recommendation set forth in the section of this
Decision entitled "The Remedy."
(b) Notify Jerry McCulley, Sr., if presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Post at its place of business in Carrollton, Georgia,
copies of the attached notice marked "Appendix."14
Copies of said notice, to furnished by the Regional
Director for Region 10, after being duly signed by
Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicn,.us places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
" In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
15 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify the
Regional Director for Region 10, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT exhibit the motion picture film
entitled "And Women Must Weep," to any of our
employees or to prospective employees.
WE WILL NOT discourage membership in
International Union of Electrical, Radio and Machine
Workers, AFL-CIO, or any other labor organization
of our employees, by discharging or otherwise
discriminating against employees in regard to hire or
tenure of employment or any term or condition of
employment.
WE WILL NOT interrogate our employees in a
manner violative of the provisions of Section 8(a)(1) of
the Act, or solicit them to report to us concerning the
union activities of other employees.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the exercise of
the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or any other mutual aid or
protection or to refrain from any or all such activities.
WE WILL NOT threaten our employees with plant
closure or loss of jobs or that we would never sign a
union contract.
WE WILL offer immediate reinstatement to Jerry
McCulley, Sr., to his former or substantially
equivalent position, without prejudice to his seniority
and other rights and privileges, and make him whole
for any loss of earnings he may have suffered by
reason of the discrimination against him.
All of our employees are free to become, or refrain from
becoming, members of International Union of Electrical,
Radio and Machine Workers, AFL-CIO, or any other
labor organization.
SOUTH WIRE COMPANY
(Employer)
(d) Notify the Regional Director for Region 10, in Dated By
writing, within 20 days from the receipt of this Decision, (Representative) (Title)
SOUTHWIRE COMPANY 1025
Note: We will notify Jerry McColley, Sr., if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 730 Peachtree
Street, N.E., Atlanta, Georgia 30323, Telephone 526-5760.