Troxel Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 23, 1969

175 N.L.R.B. 505 (N.L.R.B. 1969)

TROXEL MANUFACTURING CO.
Troxel Manufacturing Company and Rose Ayers.
Case 26-CA-3178
April 23, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On December 27, 1968, Trial Examiner Laurence
A. Knapp issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain unfair labor practices and
recommending that the complaint be dismissed in its
entirety. Thereafter, the General Counsel filed
exceptions to the Decision and a supporting brief
and the Respondent filed an answering 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 General Counsel's
exceptions and brief, the Respondent's answering
brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LAURENCE A KNAPP, Trial Examiner : I heard this case
in Memphis , Tennessee , on November 13, 1968, following
pretrial procedures in compliance with the National Labor
Relations Act, as amended , herein called the Act ' A brief
filed with me subsequent to the hearing by counsel for
Respondent has been fully considered.
The charge herein was filed on September 20, 1968, and was thereafter
served on Respondent by registered mail The complaint issued on October
16, 1968 , and Respondent filed an answer on or about October 28, 1968,
denying the commission of the unfair labor practices alleged in the
complaint All dates used herein refer to the year 1968 unless otherwise
stated or indicated
THE ISSUE
505
Mrs. Ayers, the Charging Party, voluntarily quit her
job with Respondent on February 19, 1968. On occasions
thereafter, at least one of which falls within the 6-month
statutory period of limitations, she sought and was refused
reemployment by Respondent, for what on this record had
to be the same reasons in each instance. The question
presented is whether Respondent refused to rehire her
because of her union membership or activities. I conclude
that the General Counsel has failed to prove this
allegation of the complaint by a preponderance of the
evidence and will, therefore, recommend that the
complaint be dismissed.'
Upon the entire record in the case, I make the
following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT ; THE LABOR
ORGANIZATION INVOLVED
The complaint (as amended) alleges, the answer admits,
and I find that during the 12 months preceding issuance of
the complaint Respondent , an Ohio corporation engaged
at Moscow , Tennessee , in the manufacture of bicycle
seats, received directly from points outside the State of
Tennessee products valued in excess of $50,000 and
shipped directly to points outside the State of Tennessee
products valued in excess of $50,000. Respondent is
engaged in commerce and in activities affecting commerce
within the meaning of Section 2(6) and (7) of the Act. The
complaint alleges, the answer admits, and I find that
United Packinghouse , Food and Allied Workers , District
7, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.'
II. THE ALLEGED UNFAIR LABOR PRACTICES
Mrs. Ayers has a sister who lives in Chicago. About 5
a.m. on the morning of February 19, Mrs. Ayers left her
place of residence (some miles from Respondent's plant)
on a trip to Chicago with her brother-in-law, who had
arrived by automobile a brief time before to inform her
that her sister was ill and needed her assistance. In
departing, Mrs Ayers instructed an employee of
Respondent with whom she was living to inform
Respondent that she had quit, and as this employee
reported to work that morning he so informed Mrs.
Ayers' foreman, making some mention of Mrs. Ayers'
sister's illness The foreman, a Mr. McQueen, passed on
this information to Respondent's personnel manager, Mrs.
Carpenter. There is no claim in the case that Mrs. Ayers'
action on February 19 constituted anything other than a
definitive and voluntary "quit" on her part.
'My disposition of the case amounts, in effect, to granting Respondent's
motion to dismiss for lack of proof, on which decision was reserved at the
hearing
'The sketchy evidence of record concerning Mrs Ayers ' union activities
does not specifically identify this labor organization as the union in
question , but I infer from the way the hearing proceeded that the parties
tacitly acknowledged that this is the case
With the employee she instructed to give Respondent notice of her
resignation , Mrs Ayers also sent in her work badge She made no effort to
communicate with her foreman or any other supervisory official of
Respondent poor to departing for Chicago to give any advance notice of
her quitting , or to obtain leave of absence without quitting She simply quit
her job in the manner previously described
175 NLRB No. 85
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 26 Mrs Ayers telephoned to Mrs
Carpenter from Chicago She asked Mrs Carpenter if she
still had her job and Mrs. Carpenter told her that she did
not - that she had quit. She then asked Mrs. Carpenter
if she could get her job back if she returned immediately
and Mrs. Carpenter told her "No." Sometime thereafter
Mrs Carpenter informed Mr Worley, Respondent's plant
superintendent, of her telephone conversation with Mrs.
Ayers and Worley informed Mrs. Carpenter that he was
not going to rehire Mrs. Ayers' On Respondent's
undisputed evidence I find that, in the main , Worley
makes the decision whether or not to reemploy a former
employee and, in any case, that it was Worley who made
the decision in Mrs. Ayers' case
In early March, Mrs. Ayers visited Respondent's plant
where she first talked to Mrs Carpenter. She informed
Mrs. Carpenter that she wished to return to work but
Mrs. Carpenter told her that Respondent did not have a
job for her - that she had quit When Mrs Ayers
pointed out that Respondent had rehired other employees
who had quit, Mrs Carpenter replied that Mrs. Ayers had
quit without notice. Mrs Ayers then ventured the idea
that Respondent was refusing to rehire her because of the
talk around the plant about her and a male employee
(with whom she had for about a year been living but to
whom she was not married) Mrs. Carpenter denied being
interested in this matter. Mrs Ayers then asserted that
she was being refused reemployment because of a letter
which she asserted Respondent had earlier received, and
which she claimed listed her as a member of a union
organizing committee. Mrs. Carpenter stated that she did
not know what Mrs Ayers was talking about - that she
had never seen any such letter
Mrs. Ayers then asked to see Mr. Worley, which was
arranged . She asked Worley to rehire her and explained to
him why she had quit and gone to Chicago so suddenly
Worley told Mrs. Ayers that he had nothing for her then,
and, according to him, explained to her that these matters
were usually handled by the personnel department, and
suggested to Mrs. Ayers that she apply at another local
company which he knew was then hiring press operators,
Mrs. Ayers' type of work with Respondent. According to
Mrs. Ayers, Worley also said he would call her when she
was needed in the press department where she had
worked. Further in their conversation, Mrs. Ayers asked
Worley if Respondent was refusing to rehire her because
she was a member of a union committee and, when
Worley denied knowledge of any such membership on her
part, Mrs. Ayers stated that she had a copy of the letter
in question and asked Worley if he wanted to see it.
Worley replied in the negative. (There is no evidence in
this record of the existence of any such letter; the General
Counsel did not offer any such letter in evidence or
otherwise attempt to prove that any such letter was ever
sent to or received by Respondent, and Worley denied
knowledge of such a letter.)'
On September 11, Mrs. Ayers, in a telephone
conversation with Mrs Carpenter, asked the, latter if
'In this conversation Worley made some reference to Mrs Ayers' having
quit without notice and may have said something about his having been
bothered by Mrs Ayers on some past occasions
'According to Mrs Ayers, she also- asserted to Worley in this
conversation that Worley had rehired an employee discharged for "messing
around" with a girl , but other than Mrs Ayers' asserted statement to
Worley there is no evidence of record regarding this alleged incident
Respondent had a job for her. Mrs. Carpenter replied in
the negative and said she would let Mrs. Ayers know if
Respondent had an opening for her'
As previously found, about February 26 plant
superintendent Worley determined not to rehire Mrs.
Ayers, and so informed Mrs. Carpenter." He testified that
the primary basis of his decision was the fact that Mrs.
Ayers had quit without notice, but gave as additional
reasons (1) gossip around the plant that Mrs. Ayers was
having an affair with a male employee, and (2) the
disagreeable way in which he asserted Mrs Ayers had
presented some work complaints to him during a period
some 2 years preceding the date she quit her job.
Finally, for completeness sake, reference should be
made to a stipulation of the parties that during the period
from February 26 to November 1968, Respondent (1)
hired "numerous" new employees; (2) rehired some 23
former employees who had quit or been discharged; and
(3) refused to rehire 13 former employees Supplementing
the stipulation, Respondent's evidence establishes, as I
find, that the or a reason why some of this last group of
13 were not rehired was the fact that they had quit
without notice
Concluding Analysis and Findings
The dominating feature of this record is its lack of any
proof, either direct or circumstantial, indicating that
Respondent refused to rehire Mrs. Ayers because of her
union activities. For the record is totally devoid of any
evidence that Respondent was aware that Mrs. Ayers had
engaged in any union activities, whether by being a
member of an organizing committee or otherwise. In these
circumstances, there is no occasion for me to question
Respondent's explanations for its action. For any
employer has a right not to rehire, as well as to discharge,
for any reason or no reason, so long as its action is not
taken for the discriminatory reasons forbidden by the Act
Since there is no evidence of any such proscribed
motivation, the General Counsel has failed to sustain the
complaint by a preponderance of the evidence and it
should for that reason be dismissed
CONCLUSION OF LAW
Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact and conclusions of
law, I recommend that the Board issue the following:
ORDER
The complaint herein is hereby dismissed in its entirety.
'In the meantime , about March 26 or 28, Mrs Ayers had a telephone
conversation with Mr. Worley in which, while mainly devoted to the fact
that Mrs Ayers had been denied unemployment compensation benefits by
some corresponding agency, I find by inference from Mrs Ayers'
testimony that, in effect , Worley again declined to rehire her
'Mrs Carpenter, while testifying that Worley made the nonrehire
decision , admitted that she had rejected Mrs Ayers ' first request for
reemployment (that of February 26) without first consulting Worley In
explanation , however, she testified that she commonly rejected the first
application for reemployment of one who had quit without notice, because
of Respondent's aversion to such employee conduct, without consulting
Worley