United States Stove Co.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1402 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Stove Co. and James R. Lawhorn. Case
10-CA- 13476
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On May 17, 1979, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, United
States Stove Co., South Pittsburg, Tennessee, and
Bridgeport, Alabama, its officers, agents, successors,
and assigns, shall take the action set forth in said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph (b):
"(b) In any like or related manner, interfering
with, restraining, or coercing employees in the exer-
cise of their rights guaranteed them in Section 7 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i In adopting the Decision of the Administrative Law Judge, we note that
the Administrative Law Judge failed to pass on whether the Board should
defer to the arbitrator's decision. We have carefully considered that issue,
and have decided that deferral is inappropriate since the arbitrator's decision
was clearly repugnant to the Act. In this regard, this case is controlled by
Sea-Land Service, Inc., 240 NLRB 1146 (1979). Member Truesdale joins the
majority for the reasons stated in his concurrence in Sea-Land Service. He
further finds this case distinguishable from Atlantic Steel Company, 245
NLRB No. 107 (1979), on the grounds that here, as in Sea-Land, the employ-
ee's obscene outburst was provoked by the Employer's unfair labor practice,
while in Atlantic Steel the arbitrator specifically found that the employee's
obscene outburst was not provoked by the employer.
2 In light of our Decision in Hickmott Foods, Inc., 242 NLRB No. 177
(1979), which issued after the Administrative Law Judge's Decision in this
case, we will substitute "In any like or related manner" for "In any other
manner" in par. I(b) of the recommended Order and the notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR REI.ATIONs BOARD
An Agency of' the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against employees in regard to hire or ten-
ure of employment, or any term or condition of
employment, because of their concerted activi-
ties for purposes of collective bargaining or other
mutual aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL make whole James R. Lawhorn for
any loss of pay or other benefits suffered by rea-
son of the discrimination against him, plus inter-
est.
UNITED STATES SOVEl Co.
DECISION
STATEMENT OF TilH CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act as amended, was heard pursuant to due notice on
September 7, 1978, in Jasper, Tennessee.
The charge was filed on February 27, 1978. The com-
plaint in this matter was issued on March 29, 1978. The
issues concern whether Respondent has (1) violated Section
8(a)(1) of the Act by threatening employees with physical
violence if they processed grievances under a collective-bar-
gaining agreement, and (2) violated Section 8(aX3) and (1)
of the Act by discharging an employee because of his mem-
bership in, and activities on behalf of the Union, and be-
cause he engaged in concerted activities with other employ-
ees for the purposes of collective bargaining and other
mutual aid and protection. There is also an issue as to
whether the Board should defer to an arbitrator's award
concerning the critical events of the discharge of the em-
ployee involved herein.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by Respondent
and the General Counsel and have been considered.
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and admis-
sions therein.
United States Stove Co., Respondent, is, and has been at
all times material herein, a Tennessee corporation with an
office and plants located at South Pittsburg, Tennessee, and
Bridgeport. Alabama. where it is engaged in the manufac-
ture of wood burning stoves. Respondent, during a repre-
245 NLRB No. 183
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UNITED STATES STOVE CO.
sentative -year period, sold and shipped finished products
valued in excess of $50,000 directly to customers located
outside the State of Tennessee.
As conceded by Respondent and based upon the forego-
ing, it is concluded and found that Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED'
Local No. 56, Stove, Furnace and Allied Appliance
Workers International Union of North America, AFL-
C1O, herein called the Union, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
Il. THE UNFAIR LABOR PRACTICES
A. Preliminary Facts'
1. Supervisory status
The following-named individuals, occupying the posi-
tions set opposite their respective names, are, and have been
at all times material herein, supervisors within the meaning
of Section 2(1) of the Act: Eddie Ray York, Foreman;
James Pelham, Foreman; Bill King, Foreman; and Dave
Sebring, Foreman.
2. Lawhorn's union status
At all times material herein, James R. Lawhorn has been
president of the Union.
3. Collective-bargaining agreement
At all times material herein, Respondent and the Union
have been parties to a collective-bargaining agreement cov-
ering all nonsupervisory employees of Respondent at its
SOuth Pittsburg, Tennessee, and Bridgeport, Alabama,
plants, except foundry employees, which contains, inter
alia, a grievance procedure.
4. Other facts
James Lawhorn commenced his employment with Re-
spondent in August 1975. In July 1977, Lawhorn became
president of the Union, was serving as president at the date
of his discharge on December 6, 1977, and continued to
serve as president until July 1978.
During the time that Lawhorn was president of the
Union, he took steps to insure that the collective-bargaining
agreement was lived up to by the Company. Thus, on cer-
tain occasions when employees were apparently entitled to
certain higher paid jobs because of their seniority status and
had not received the same, Lawhorn was able to get the
I The facts are based upon the pleadings and admissions therein.
2The facts are based upon the pleadings and admissions therein, upon
stipulations, and upon the evidence relating to King's status as a supervisor
who fired Lawhorn.
company supervisors to agree to correct this problem. On
other occasions Lawhorn filed or participated in the filing
of grievances relating to Respondent's alleged failure to pay
proper wage rates to certain employees, relating to Respon-
dent's alleged failure to pay proper overtime payments, and
relating to Respondent's alleged harassment and threaten-
ing of employees.
The evidence relating to the grievances filed by Lawhorn
is as follows. Lawhorn identified certain exhibits as being
grievances filed by him on or about certain dates. Thus,
General Counsel Exhibits 2 through 12 were identified as
grievances. One exhibit, apparently without n identifying
number or with a duplication of exhibit numbers 2 or 3,
related to a grievance filed in September of 1977 against a
foreman named York. General Counsel Exhibit 2, as identi-
fied, related to a grievance filed the latter part of July 1977.
General Counsel Exhibit 3 concerned a grievance filed in
1976 relating to a layoff of Lawhorn prior to his becoming
union president. In addition to the foregoing, Lawhorn's
testimony related to a grievance filed in late November
1977, against Foreman King.
Certain of the above referred to grievances were resolved
favorably to the Union's contentions as is revealed by the
following credited excerpts from Lawhorn's testimony.
Q. In what way were grievances filed in your favor?
A. Where incentive workers in particular, their
wages has been-incentive workers has been improp-
erly underpaid, they adjusted. And where people were
not being offered overtime that they were entitled to,
they started getting their overtime. People who were
entitled to higher paying jobs that they hadn't been
granted were granted the jobs or paid for the job.
One grievance relating to a question of alleged harass-
ment by Supervisor Pelham, apparently not included in the
grievance referred to above, occurring prior to Lawhorn's
discharge, was also resolved favorably to the employee.
In sum, the facts reveal that Lawhorn secured favorable
adjustments of some problems relating to pay for employ-
ees in some cases without the necessity of filing grievances,
that Lawhorn between July 1977 and December 6, 1977,
filed 11 or 12 grievances, and that certain grievances relat-
ing to pay, to overtime, and to harassment were settled fa-
vorably to the Union's viewpoint.
As indicated previously, the grievance concerning harass-
ment, which involved Lawhorn himself, is discussed in de-
tail later herein.
One other grievance, apparently included in the griev-
ances previously mentioned, concerned a grievance filed
against Supervisor King, the supervisor who discharged
Lawhorn on December 6, 1977.
What occurred with respect to the grievance filed in late
November against Supervisor King is revealed by the fol-
lowing credited excerpts from Lawhorn's testimony.
Q. Would you tell us what that grievance was
about?
A. Yes, ma'am. Bill King was substituting as fore-
man for James Pelham who was off sick. I believe he
was in the hospital. It had been the practice in the steel
room for the three years that I've been there, and prob-
ably years and years before that, that the steel room
1403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operators-a catering truck came to the plant. And
sometime before breaktime in the steel room, if the
steel room operators wanted to get something off the
catering truck to eat, rather than turn their machines
off and leave them, they would all get one laborer to
get, you know, go to the truck and get what everybody
wanted. It was just something that we'd always done
and we didn't lose any time from the machines or any-
thing.
Bill King, when he substituted for James Pelham,
decided that was, that wasn't a good idea; it should be
stopped and he threatened to fire a couple of laborers
if they went back out to the truck. And, to get the
operators something to eat. And told me that if I went
out there, he'd fire me.
It appears from the record that this grievance has not
been resolved, or if resolved, was resolved adversely to the
Union's contentions as revealed from the following credited
excerpts from King's testimony.
Q. Did he ever file any grievances involving you?
A. One.
Q. Okay. Tell us about that.
A. Well, we get a 10-minute break in the morning.
We usually take it somewhere along 5 minutes to nine,
10 minutes to nine or something like that. So Mr. Law-
horn-he wasn't the only one, there were two or three
more. They was going and getting their sandwiches
somewhere along about 20 minutes till nine and sitting
at the machines eating their sandwiches. And then
whenever the break whistle blowed, then they got up
and took their break. Which I thought they was taking
20 minutes break instead of 10.
Q. What'd you tell him?
A. I told him they wasn't supposed to do that. They
only got 10 minutes and the breaktime was at-either
10 minutes to nine or 5 minutes to nine till 5 after.
They only got 10 minutes.
* *
Q. Do you know what happened to that grievance?
A. No, sir, I don't.
Q. Did anybody ever tell you to change your mind
or reverse your position?
A. No.
Q. How is it run now?
A. Like it's supposed to. We take a 10-minute
break.
B. Interference, Restraint, and Coercion
Animus
I. The General Counsel alleges and Respondent denies
that Foreman James Pelham on or about November 9,
1977, at the South Pittsburg, Tennessee, plant, threatened
its employees with physical violence if they processed griev-
ances under the collective-bargaining agreement.
The witnesses presented with respect to this issue were
Lawhorn, Pelham, Eldon Holder, and Charles Taylor. Al-
though the witnesses could not fix the date as precisely al-
leged, witnesses' testimony clearly reveal that they were
talking about the same event and that the event occurred
within the 10(b) period and around October or early No-
vember 1977. The facts are based upon a composite of the
credited aspects of the witnesses' testimony.
Respondent had some trainees who were working in the
steel room for a training period of 6 weeks. It appears that
such trainees worked on machines, that the amount of in-
centive pay for such production is paid into an incentive
workers' pay pool and that such employees are paid for
work from such pool at a laborer's rate. It appears that a
question arose whether such employees had been taken off
work on the machines and were engaged in picking up
scrap off the floor. Union Committeeman Huckaby, in Oc-
tober or November 1977, spoke to Union President Law-
horn and asked whether the trainees were still being paid
out of the incentive workers' pay pool when the Company
was not still putting money into the incentive workers' pool
for incentive work. Lawhorn told Huckaby that he did not
know the answer, that they both could go to see Foreman
Pelham.
Lawhorn and Huckaby then went to see Foreman Pel-
ham and saw Pelham. Prior to the time that Lawhorn and
Huckaby saw and spoke to Pelham, employee Eldon
Holder cut his finger and sought Pelham to get medical
assistance. After being told by Holder about his injury, Pel-
ham left the area to locate employee Taylor to get Taylor to
take Holder to a hospital for treatment. Holder, at the time,
was following Pelham at a slight distance. While Pelham
was enroute across the steel room toward his office seeking
to find Taylor, he encountered Lawhorn and Huckaby.
Lawhorn and Huckaby asked Pelham as to how the train-
ees were paid. Pelham told Lawhorn and Huckaby that the
trainees were paid as they had always been paid. Lawhorn
and Huckaby continued to talk about the trainee pay prob-
lem. Pelham indicated that he did not have time to take
care of the matter then, that he would look into it in due
time, that he had a problem concerning getting Holder to a
hospital. Pelham left and continued toward his office and
went hehind his office. Pelham was unable to locate Taylor,
but either left word or others learned what he was trying to
do. In any event, Taylor learned that Pelham was looking
for him and wanted him to take Holder, an injured em-
ployee, to the hospital. Pelham then started on the way to
return to where Holder was. Along the way Lawhorn and
Huckaby had followed Pelham and had attempted to talk
about the trainee pay problem. During such time, appar-
ently about the time that Pelham was close to where Holder
was standing, Lawhorn and Huckaby continued to talk to
Pelham about the trainee pay problem. By this time Law-
horn and Huckaby had told Pelham that the trainees were
picking up scrap, were being paid from the incentive pay
pool, and the Company was not putting money into the
pool. Pelham told Lawhorn that if he did not go on, that he
would knock the hell out of him. Pelham added after a
pause that he would stamp the shit out of Lawhorn and cut
his throat. The above incident covered a space of 8 or 10
minutes.
Later. Lawhorn filed a grievance concerning the above
incident. Lawhorn alleged in his grievance that the cause of
the grievance was "Discrimination. James Pelham threaten-
1404
UNITED STATES STOVE CO.
ing to knock the hell out of me and stamp the shit out of
me. He also threatened to cut my throat." Later Lawhorn
and others met with Holcombe, director of Industrial Rela-
tions, to discuss this grievance. There ensued a discussion of
the grievance. Holcombe thought the matter to be funny
but stated that he would do his best to see that Lawhorn
was not harassed further for looking into the payroll system
or the way in which employees were being paid. The dispo-
sition of the grievance was as follows: "The company will
not harass employee."
Considering all of the foregoing, I am not persuaded that
the facts establish that Respondent, by Pelham, threatened
an employee with physical violence if he processed griev-
ances under the collective-bargaining agreement. Thus, the
facts reveal Pelham's anger and threats to have been occa-
sioned by Lawhorn's insistence upon talking about a pay
problem at an unreasonable time. Under such circum-
stances, there is not a reasonable basis for belief by the
employee that the threat was because of his pursuing a pay
problem. Rather, the natural effect of the threat and mean-
ing thereof, under the circumstances, was to reveal that the
basis thereof was Lawhorn's pursuing his interests at an
unreasonable time and under unreasonable circumstances.
Accordingly, it is recommended that the complaint allega-
tions in such regard be dismissed.
2. On or about December 7, 1977, Safety Committeeman
Cates filed a complaint with the Tennessee Department of
Labor, Division of Occupational Safety concerning unsafe
working conditions relating to the press that Lawhorn was
asked to operate on December 6, 1977.
On or about December 7 or 8, 1977, Foreman Sebring
spoke to Cates. Sebring told Cates that he knew where he
had been, that he had been with Lawhorn. Sebring asked
Cates, "Which is mor important, your job or going with
Lawhorn to file charges with OSHA?" Two or 3 weeks later
Sebring, Cates, and several employees were together dis-
cussing Lawhorn. Sebring told Cates that "before it's over
with your ass might be going down the hallway too."
The matter of Lawhorn's December 6, 1977, grievance
was presented to arbitration. An arbitration hearing was
held on March 22, 1978, and a decision of arbitrator was
issued on April 17, 1978. Before and after the arbitration
hearing, Foreman Sebring and Cates had some discussion
about Lawhorn and the arbitration. Sebring asked on some
of the occasions whether Cates thought Lawhorn would
win or what. Cates indicated to Sebring that he did not
know.
On September 6, 1977, the day before the trial in this
proceeding, Sebring and Cates had another discussion.
Sebring approached Cates and asked if he would be work-
ing the next day. Cates, who at least momentarily had for-
gotten about the trial in this case scheduled for September
7, 1977, replied that he would be working. Sebring told
Cates "No, you're not, you're going to trial." Cates then
said "Yes, sir ... I've got to go to trial tomorrow." Sebring
then told Cates that he was going to keep on messing
around with that damn stuff "until you get your ass fired."3
J The General Counsel did not allege the above conduct to be violative of
the Act, and the conduct was not litigated as a violation of the Act. Rather,
such evidence was presented as evidence of animus.
C. Events of December 6, 1977'
On the morning of December 6, 1977, employee Law-
horn was asked to work on a certain press, indicated refusal
to do so because of safety reasons, and was fired on his
third refusal to operate such press. The facts as to what
occurred will be set out in more detail later herein. First. I
find it proper to set forth certain facts and discussion con-
cerning the press involved and safety questions.
The Press
The press involved in the issues in this case may be de-
scribed as follows: The press itself does not sit on the floor,
but sits on a cast iron bottom or legs. The press is an electri-
cally operated press. There is an electric cable, apparently
from an electric power source, that runs into the press. This
electric cable carries 440 volts. Whether this 440 volts goes
all the way to the press or whether by some means such
voltage goes to only within 6 feet of the press and from that
point 110 volts proceeds along the cable to the press is un-
clear. In any event, it appears that the electricity that goes
to the press is for the press position approximately 2-1/2 or
3 feet above the floor. From a box on the side of the press,
apparently 2-1/2 to 3 feet above the floor, another electric
cable runs for about 6 feet and is attached to a foot pedal.
This cable to the pedal runs along and is on the floor. The
electricity carried in this cable is 110 volts. The foot pedal is
enclosed in a steel shell covering, excepting for an opening
where the operator's foot is inserted when operating the
pedal. The foot pedal is approximately I foot long. The
purpose of the shell covering is to keep objects from falling
on the pedal and accidentally "tripping" the press. The foot
pedal has rubber bushings (seals) inside and next to the
electricity source to prevent water or other objects touching
the live ends of the electric wire. The foot pedal is used to
trip the press for operation. When an operator has his foot
inside the foot pedal for operation of the press, the back
part of the operator's foot is actually on the floor.
Under normal operational conditions there would appear
to be no danger to arise from the operation of the press
because of water because there would be no water, or if
water were present, it would be present only momentarily
and of a limited time nature. Thus, on nondraw type jobs, it
would appear that there would be no reason to believe that
there would be water on or about the press. The press, how-
ever, is used for some jobs wherein a drawing compound is
used on the steel inserted in the press for production use.
Such drawing compound is described as being similar to
grease or oil and used similarly to grease or oil to keep steel
used in production from tearing. Sometimes an operator
will use a rag to put the drawing compound on the steel.
Other times, a mop is used to mop the drawing compound
on the steel. And sometimes the steel is dipped into the
drawing compound. The drawing compound is described as
a water soluble soap and is apparently made by a mixture
of soap and water.
'The facts are based upon a composite of the credited aspects of the
testimony of Lawhorn, Holder, Barbee, McCauley, Taylor, and King. Where
there is dispute and the testimony of witnesses is discredited, such is noted
later herein.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It would appear that the insulation of wires carrying elec-
tricity and the use of rubber seals in the foot pedal would be
normally required for safety and prevention of possible
electrical shock, whether or not there was a water problem.
The Respondent has had to replace electrical cables be-
cause of cuts and nicks. This would also appear to be neces-
sary as a matter of common sense to prevent electrical
shock.
As has been indicated, normal operational conditions,
with the safety devices and insulation in effect, would not
appear to reveal that there was a great danger created by
the presence of water. Thus, whatever water problem that
might exist would appear to exist only from possible acci-
dental drops or minor spillage from the use of a drawing
compound made up in part from water. It would appear
that management and employees could easily size up the
possibility of danger and what was needed to be done on
such occasions.
Refusal to Operate the Press
On the morning of December 6, 1977, Respondent had a
problem in its steel room caused by water which was on the
floor and in certain machines as a result of a storm and rain
that had occurred on December 5, 1977. On December 5,
1977, the storm and rain had caused a hole in the roof of
the steel room. Because of said hole, the rain had caused the
water problem referred to above.
When Foreman King reported to work, he was aware of
a need for continued production of a "Sprague tank head"
for which the dye had apparently been put on a certain
press (described as a blank or draw press) before the events
of the December 5, 1977, storm. King told leadman Jerry
Bill McCauley that he needed the "Sprague tank head" job
run and to get a man for such job who was not particularly
needed at the time. The condition of the steel room, as
affected by the water from the storm, was of such a nature
that it was obvious that the room had to be cleaned up, and
such was known by McCauley. Thus, King credibly testi-
fied to the effect that there was an inch or an inch and a
half of water covering the floor. Charles Taylor also cred-
ibly testified that there was water in the press that had to be
swept out before McCauley could set or reset the dye in the
press. King then went to Charles Taylor, who apparently
was used at times in supervising some of the laborers. King
told Taylor to have some laborers to sweep up the water in
the room, to use some heaters to dry up the water, and to
put sawdust down on the floor.
Taylor then proceeded to the steel room with several la-
borers. Taylor and McCauley set up a heater which was
directed toward the press for the purpose of drying up the
water in the press and on the floor. Taylor and/or the la-
borers proceeded to sweep water off the floor and appar-
ently to drains or outside the room.
While the laborers were sweeping the water from the
floor, McCauley inserted or reinserted the dye in the press
and ran a few pieces. At this point in time, the laborers had
not put any sawdust on the floor. McCauley either decided
at this point or had already decided to have Lawhorn to
operate the press. What occurred then is revealed by the
following credited excerpts from Lawhorn's testimony, ex-
cepting I also find that Lawhorn also told McCauley that
he was working on a job that he wanted the time on.5
Q. ... Okay, Mr. Lawhorn, going back to the date
of your discharge, would you tell us exactly what hap-
pened that day?
A. Yes, ma'am. At shortly after nine o'clock, it was
just after the break, I was asked by Jerry Bill McCau-
ley, a dyesetter, to operate a machine in the steel room
that was sitting just outside the bathroom. Mr. Mc-
Cauley, I was walking past the machine at the time.
Mr. McCauley was standing in front of it, and he
stopped me and asked me to run it. And the machine
was sitting in the middle of a large pool of water. I told
Mr. McCauley that while the machine was sitting in
water that I wasn't going to run it. And nobody else
had any business running it. And I returned to the
machine that I'd been running since I came into work
that morning.
McCauley then went to Foreman King and told him of
Lawhorn's refusal to run the press. About 10 or 15 minutes
later King went to see Lawhorn. What occurred thereafter
is revealed by the credited excerpts from Lawhorn's testi-
mony.6
A little while later, probably 10, 15 minutes maybe,
Bill King came and asked me why I was not running
the machine that McCauley had instructed me to. I
told Bill King that the machine was sitting in water; it
wasn't safe; he knew it wasn't safe and that I wasn't
going to run it while it was sitting in the water. Mr.
King left and came back, roughly 20, maybe 30 min-
utes later, and he told me that he had the water re-
moved, had got the water up and it could be run. So I
'The credibility determination herein is a difficult one. The only witnesses
to these particular details were Lawhorn and McCauley. The cross-examina-
tion of both did not really test their version of the particular details set forth.
Lawhorn is a witness with an interest in the case. McCauley on the other
hand has no apparent interest in the outcome of the proceeding. McCauley is
a long term nonsupervisory employee and a long term union member. The
tilting factors of persuasion are (I) the fact that Lawhorn as a witness pre-
sented testimony in a more complete and detailed manner, and (2) after
McCauley had reported to Foreman King that Lawhorn had refused to
perform the job, there was a lapse of time of 10 to 15 minutes before Fore-
man King went to Lawhom to ask him to perform the job. (King's testimony
was to the effect that after McCauley told him of Lawhorn's refusal, he
waited a few minutes. I credit Lawhorn's testimony that it was 10 to 15
minutes after he talked to McCauley that King spoke to him.) Under such
circumstances, I am persuaded that King, had the refusal been based upon
Lawhorn's desire to work on the job he was on, would have immediately
gone to Lawhorn to get him to work on the press involved and would have
talked about the same when he saw Lawhorn. This is not being shown by the
facts; I am persuaded that Lawhorn did raise a safety question, and King's
delay was because of the realization of a safety question.
The testimony of the witnesses with respect to what King said to Law-
horn and Lawhorn said to King is consistent excepting as to whether Law-
horn made the remarks about taking the machine and shoving it before or
after King discharged Lawhorn. There is also a minor divergence on the
precise adjective used to describe King's posterior. The meaning of essen-
tially the same although, if anything, Lawhorn's version of testimony is
stronger. The credibility determination of the dispute is close. Essentially it
may be said that Respondent's witnesses, other than King, did not give
testimony that would be helpful to resolve the issue. However, I note that the
grievance that was filed and Respondent's response to such grievance indi-
cate that the language used by Lawhorn was not the reason for his discharge.
Considering this, I find Lawhorn's testimony more reliable than that of other
witnesses as to the incidents set out and discredit testimony of witnesses
inconsistent therewith.
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UNITED STATES STOVE CO.
went back to look at the machine again. This time I
asked committeeman Jerry Huckaby to look at it with
me. And we went back and looked at the machine. It
was still sitting in water. The only difference I could
see in it from the time before when I looked at it, there
was some wet sawdust in front of it. But the machine
was still sitting in water. The foot pedal was in water.
And so I went back to this-my same machine again
that I'd been running all day, and started running it
again.
It was a short time after that when Bill King came
over the third time and asked me why I wasn't running
the machine. It was sitting in water. I told him the
machine still wasn't safe and I wasn't going to run the
machine. Mr. King told me I would either run the ma-
chine, or he would fire me. I asked Mr. King, just leave
me alone, and let me run the machine I was on. Just
get away from me, and let me alone. And he told me
again that I would go over there and run the machine
again or he'd fire me. I refused again, and Mr. King
told me I was fired. And I told Mr. King that-do you
want the exact words that I said to Mr. King?
Q. What did you say to him?
A. I told him to take the goddamn machine and
shove it up his motherfucking ass.
What occurred then is revealed by the following credited
excerpts from Lawhorn's testimony.
Mr. King left. I assumed he was going to the office.
He came back. I continued to run the same machine. I
really didn't think that Mr. King's firing of me would
be upheld. He returned and told me I was wasting time
on the machine. I'd been taken off the clock, my time
had been stopped, and I didn't work there. I went then
to see Mr. Roper, John Roper, the vice president, plant
manager. And on the way to Mr. Roper's office, I
stopped and told John Pearson, the chairman of the
grievance committee, what had happened and asked
Mr. Pearson to look at the machine himself and to tell
him I was on the way to see Mr. Roper. And I went
over and saw Mr. Roper. I told him that Bill King had
told me I was fired and I asked Mr. Roper. And Mr.
Roper told me that Bill King had just, had been there
a few minutes earlier. I asked Mr. Roper if he had
looked at the machine and he told me, no, that he
couldn't, he wouldn't get involved in a conflict out in
the plant of that sort. And told me if Bill King said I
was fired, then I was fired. He suggested that I go back
and ask Mr. King if he would let me clean up around
the machine, get the water cut from under it and
maybe assign a laborer or two to help me so that the
machine would be safe to run. I went back to the steel
room and I asked Mr. King if he had any intentions at
all of getting the water up from around the machine.
All Mr. King would say was he meant what he said.
He told me I was fired. So I went and filed a grievance.
I had to get all the committee members to sign the
grievance and I asked each of them and several other
people to go look at the machine. And I took the griev-
ance and I took it to John Pearson, chairman of the
shop committee. And on my way out, I stopped and
asked the plant electrician, Bill Evans, if he had been
asked to check the machine. I asked him first how
much electricity was on the machine And he informed
me it ran on a 440-volt circuit. I asked him if he had
been asked to check the machine or examine it in any
way. He told me that he hadn't. And so I left the plant.
A grievance was filed by Lawhorn concerning his dis-
charge. The grievance and Respondent's reply thereto are
revealed by the following excerpts from the record.
MR. TRACY: I don't think we can make a good copy
of it. This is a copy as it is. It's dated December 6,
1977.
"I was discharged by a man who is not my foreman
for refusing to operate a steel press which ran on 440
volts of electricity while it was standing in a large pud-
dle of water. Mr. John Roper would not even look at
the machine when I appealed to him. I was afraid of
losing my life if I operated this machine." Signed,
James Lawhorn. And then, committee signatures of
James Lawhorn, John Pearson, Huckaby, and James
Bailey.
The disposition of the grievance dated December 12,
1977, is as follows: "Supervisor had machine set up
and checked to be safe before grievant was asked to
operate same. Feel grievant was insubordinate by re-
fusing to carry out supervisor's orders. Another em-
ployee operated same without problems." Signed, Hol-
combe, H-o-I -c-o-m-b-e.
This grievance went to arbitration, was heard on March
22, 1978, and the Decision of Arbitrator was issued on
April 17, 1978. Said decision revealed in effect findings and
conclusions that the Respondent, in a case involving the
circumstances and safety questions involved, had the bur-
den of proof of establishing that Lawhorn's discharge was
for just cause and had not met such burden, that Lawhorn's
remarks to King were insubordinate and constituted a just
cause for discipline, if not for a discharge. The arbitration
decision set forth that Lawhorn should be reinstated to his
job but not receive backpay for time lost.'
D. The Water Problem on December 6, 1977
There is no dispute that there was water in the press
involved in the issues in this proceeding at the beginning of
the workday on December 6, 1977. Nor is there dispute that
there was an inch or an inch and a half of water covering
the floor in the steel room around such press at the begin-
ning of the workday on December 6, 1977. There is dispute
as to whether there was water covering the floor with the
depth of such water in places around the press being an
inch or an inch and a half at the times that Lawhorn was
asked to operate the press and thereafter. There also ap-
A complaint was filed on December 7, 1977, with the Tennewee Depart-
ment of Labor, Division of Occupational Safety, relating to the safety condi-
tions as to the operation of the press on December 6, 1977. An inspection
was apparently made by TOSHA on December 12, 1977. Thereafter on
December 29, 1977, a letter was sent by TOSHA to Respondent indicating
that "No cause was found during the course of this safety inspection to issue
a citation." Since such does not constitute a litigated finding as to issues in
this case, I find no value to such evidence in determining the issues in this
case.
1407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pears to be a dispute as to whether the floor was dry or not
at the time that Lawhorn was asked to operate the press.
Respondent witnesses King, McCauley, and Taylor testi-
fied to the effect that McCauley, Taylor, and laborers
worked at cleaning up the water in and around the machine
by sweeping, use of a heater (blowing on the machine and
floor) and by putting sawdust on the floor, taking up saw-
dust, and then putting new sawdust down.
Lawhorn, Eldon Holder, and Barbee testified with re-
spect to observation of water on the floor. The questions
directed to Holder and his answers, however, were not spe-
cific enough to be of value to determine whether his obser-
vation of the conditions around the press were before, dur-
ing, or after any cleanup. Holder's testimony thus affords
little value in determining the conditions around the press
at the times Lawhorn was asked to operate the press and
refused or at the time of Lawhorn's discharge. Barbee's tes-
timony, if believed, would show the conditions at and
around the press shortly after Lawhorn's discharge and
would have some value in determining the conditions
around the press at the time of Lawhorn's refusal to operate
the press and at the time of his discharge. Cross-examina-
tion of Barbee, however, casts great doubt upon his credi-
bility and revealed him not to be a thoroughly frank, forth-
right, and honest witness. Thus, Barbee's testimony reveals
that he knew that Lawhorn had refused to operate the press
because of Lawhorn's belief that the water conditions made
the press unsafe. When Barbee was asked to operate the
press, his testimony reveals that he didn't want to operate
the press if Lawhorn thought it was unsafe, did not want to
refuse to operate the press and get fired for refusal to do so,
and therefore Barbee indicated as much to Foreman King
and stated in effect that in order to avoid the dilemma he
would just get sick and go home. When cross-examined as
to whether he was sick or not when he told King that he
was sick, Barbee was extremely evasive but ultimately
stated that he was sick. Barbee also indicated that all of his
testimony was of similar truthfulness. Considering all of the
facts, I am persuaded that Barbee did not testify truthfully
about whether he was sick or not, and I am persuaded that
he did not reveal himself to be a reliable witness as to the
rest of his testimony.'
McCauley's testimony reveals that he spoke to Lawhorn
about operating the press before the sawdust had been
placed on the floor the first time. Taylor's testimony reveals
that he left the press before the laborers had finished plac-
ing sawdust on the floor. King testified to the effect that
sawdust was used to absorb water but to the effect that the
floor was dry and that the sawdust was merely put down as
a safety precaution. If the floor was really dry, I am not
persuaded that sawdust would have been placed on the
floor. Rather, it is clear that under a version of facts most
favorable to King's testimony, the floor was at least damp
and revealing moisture.
Considering all of the facts and the fact that it is clear
that when McCauley spoke to Lawhorn, the sawdust had
not been placed on the floor, I am persuaded that Law-
I imilarly do not believe King's testimony as to whether he considered
Barbee to be ick when he had the discussion with Barbee concerning Bar-
bee's operation of the press.
horn's testimony of what he observed at such time is the
more credible testimony as to the conditions around the
press. I thus find that there was water on the floor sur-
rounding the press, the electric cable to the foot pedal, and
the foot pedal that operated the press at such time. I am
also persuaded that Lawhorn's testimony as to the condi-
tions that he observed, after the second conversation with
King, is the most credible testimony of all of the witnesses.
I thus find that there was water (or dampness) on the floor
around the press and that the foot pedal of the press rested
in wet sawdust.
E. The Operation of the Press after Lawhorn's Discharge
After Lawhorn was discharged, Respondent attempted to
get J. B. Barbee to operate the press. Barbee indicated that
he didn't want to operate the press if Lawhorn thought it
was unsafe, that he did not want to be fired for refusal to
operate the press and that therefore he would be sick and
go home. Respondent accepted this obvious pretext, and
Barbee went home.
F. Lawhorn's Discharge
Contentions and Conclusions
It is clear that Respondent discharged Lawhorn on De-
cember 6, 1977. The General Counsel alleged and Respon-
dent denies that Lawhorn was discharged because of his
membership in, and activities on behalf of the Union, and
because he engaged in concerted activities with other em-
ployees for the purposes of collective bargaining and other
mutual aid and protection. The General Counsel alleges
and Respondent denies that the discharge of Lawhorn was
violative of Section 8(a)(3) and (1) of the Act.
Although the facts reveal () that Lawhorn was a union
member and active in filing a number of grievances before
and after he became union president in July 1978, (2) that
Respondent had knowledge of Lawhorn's union member-
ship and status and filing of grievances, I am not persuaded
that the evidence is sufficient to reveal that Lawhorn's dis-
charge on December 6, 1977, was motivated by consider-
ations of Lawhorn's union membership and status. In mak-
ing this determination, I have considered the evidence
relating to the number of grievances filed by Lawhorn, the
threat of bodily harm made by Pelham to Lawhorn in Octo-
ber or November 1977, the remarks made by Sebring to
Cates after Lawhorn's discharge and before trial of this
matter, and the fact that King on one occasion in the past
at least had required a doctor's certificate from an employee
claiming to be sick and did not require Barbee to submit
such certificate when he claimed to be sick on December 6,
1977. Although animus is shown by Sebring's remarks, the
remarks, the circumstances surrounding the grievances and
Pelham's threats, and letting Barbee be off without a doc-
tor's certificate are not of such persuasion as to reveal that
the issue of Lawhorn's discharge on December 6, 1977, goes
beyond the question of whether his complaint and refusal
to operate the press constituted concerted activity for mu-
tual aid and protection.
Considering the facts in this case, I am persuaded and
conclude that Lawhorn's refusal to operate the press on
1408
UNITED STATES STOVE CO.
December 6, 1977, was based upon a reasonable belief that
to operate the press under the existing conditions was dan-
gerous and could result in his being electrocuted.9 The de-
termination upon the reasonableness of his belief must be
based upon the circumstances as they existed and not upon
whether in fact there actually existed such danger. Thus,
the facts reveal that the operation of the press was under
the extreme unusual conditions that water had been in the
press and on the floor surrounding the press as a result of
the storm and rain damage of the preceding day. Normally,
any problem of water concerning the operation of the press
was extremely small. Since the facts reveal that water had
been in and around the press, that the press was electrically
operated internally, that the press was in effect operated by
an operator's usage of a foot pedal which had an electric
cable (carrying 110 volts) running therefrom to the press.
that the operator's foot when on the foot pedal would also
be touching a wet or at least damp floor, it is clear that
objective criteria existed for a reasonable belief that a dan-
gerous condition existed. That this was not an isolated view
of the danger presented by the presence of water and elec-
tricity around a working press is revealed by Foreman
King's testimony to the effect that he would not have had
an employee operate the press if an inch or inch and a half
of water were on the floor. The same evidence relating to
safety, the rubber seals in the foot pedal, insulation on the
electrical cables, if all were in perfect condition, would have
revealed that the danger of being electrocuted would have
been nil even with the presence of a large amount of water.
Of course, if the rubber seals in the foot pedal were imper-
ceptibly bad or if there were unseen nicks or breaks in the
insulation on the electric cables, there in fact would be dan-
ger of injury if an operator operated the press.
As set forth above, Lawhorn had a reasonable belief that
the operation of the press under the existing conditions was
dangerous. The question then presented is whether Law-
horn's complaint and refusal to operate the press because of
asserted dangerous conditions constituted concerted activi-
ties for the purposes of mutual aid and protection.
It is clear that employees have a common concern to
work in safe conditions and not to be required to work in
unsafe conditions. Both the Federal government and Ten-
nessee have enacted occupational safety legislation.?0
9A complaint was filed on December 7, 1977, with the Tennessee Depart-
ment of Labor, Division of Occupational Safety relating to the safety condi-
tions surrounding the operation of the press involved in this proceeding on
December 6, 1977. As indicated, the Tennessee Department of Labor noti-
fied Respondent on December 29, 1977, that an investigation of the com-
plaint had been made on December 12, 1977, and that no cause was found
during the safety inspection to issue a citation. As previously indicated, such
determination was not a litigated determination and does not constitute rel-
evant evidence to determine the issues in this proceeding. Respondent refers
to Marshall v. Daniel Construction Company, Inc., 563 F.2d 707 (5th Cir.
1977) as holding that OSHA does not afford an employee the right to refuse
to work because of a reasonable safety concern because the Act does not so
specifically provide. There is a split among the circuits upon such point.
Thus, Whirlpool Corporation v. Marshall 48 LW. 4189 (February 22, 1980)
holds that rules and regulations promulgated by the Secretary of Labor un-
der such Act, which provided for protection from discrimination, under cer-
tain circumstances, for employees who refuse to perform work reasonably
believed to be under dangerous conditions, are an appropriate employment
of the regulatory power conferred upon the Secretary by the statute. As
Respondent indicates, such cases involve different statutes from the LRMA.
5' For the Federal legislation and regulation see 29 USC 657(f) ) and
The Board in Alleluia Cushion Co.. Inc., 221 NLRB 999,
1000 (1975), discussed the question of concerted activities
for mutual aid and protection as related to employee ac-
tions related to OSHA rights as follows:
Section 7 provides that employees have the right to
engage in concerted activities for the purpose of mu-
tual aid and protection. Henley's filing of the com-
plaint with the California OSHA office was an action
taken in furtherance of guaranteeing Respondent's em-
ployees their rights under the California Occupational
Safety and Health Act. It would be incongruous with
the public policy enunciated in such occupational
safety legislation (i.e.. to provide safe and healthful
working conditions and to preserve the nation's human
resources) to presume that, absent an outward mani-
festation of support, Henley's fellow employees did not
agree with his efforts to secure compliance with the
statutory obligations imposed on Respondent for their
benefit. Rather, since minimum safe and healthful em-
ployment conditions for the protection and well-being
of employees have been legislatively declared to be in
the overall public interest, the consent and concert of
action emanates from the mere assertion of such statu-
tory rights. Accordingly, where an employee speaks up
and seeks to enforce statutory provisions relating to
occupational safety designed for the benefit of all em-
ployees, in the absence of any evidence that fellow em-
ployees disavow such representation, we will find an
implied consent thereto and deem such activity to be
concerted.
In Diagnostic Center Hospital Corp of Texas, 228 NLRB
1215 at 1217, the Board discussed its decision in Alleluia
and said, "A correct reading of the case is that activity will
be deemed concerted in nature if it relates to a matter of
common concern and this common concern will be found
with respect to violations of a safety statute which created a
general hazard for employees."
Considering the principles of Alleluia, the fact that Law-
horn's complaint and refusal to operate the press on De-
cember 6, 1977, was based upon a reasonable belief that the
operation of the press was under unsafe and dangerous con-
ditions, the fact that Lawhorn was only one of several em-
ployees subject to assignment to operate the press under
sucn conditions, the fact that the type of safety conditions
involved is covered by legislation in the OSHA Acts (Fed-
eral and state) and regulations pertaining thereto, it must be
found, in the absence of employee disavowal that Lawhorn
was acting on their behalf," that Lawhorn's activity in com-
regulations promulgated by the Secretary of Labor relating to such Act (the
Occupational Safety & Health Act of 1970) as revealed in the Code of Fed-
eral Regulations, 29 C.F.R. 1977. 12(a).(bX IX2). Also noted is Resp. Exh. 1,
a complaint filed with Tennessee Department of Labor, Division of Occupa-
tional Safety, and reference therein to Sec. 8(dX I) of the Occupational Safety
and Health Act of 1972. Said section referred to in such complaint compares
with 29 USC 657(f I). It should also be noted that Sec. 502 of the LMRA
relates to employees' refusal to work in abnormally dangerous working con-
ditions.
l Further, Lawhorn was president of the Union and in the past had filed
a number of grievances with the Respondent. The facts also reveal that
Barbee, who was the next one asked to operate the press, refused to do so
because he in effect adopted Lawhorn's view that it was unsafe to do so.
Lawhorn also asserted to McCauleN in effect that no one had any business
operating the press under such conditions
1409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaining and refusing to operate the press constituted con-
certed activity' in nature relating to a matter of common
concern." Thus, I conclude and find that Lawhorn's activi-
ties, in complaining about the refusing to operate the press
on December 6, 1977, because he believed it to be danger-
ous to do so and so expressed, constituted concerted activi-
ties for the purposes of mutual aid and protection and is
protected by the Act. The facts reveal that Lawhorn was
discharged for such complaints and refusal to operate the
press under the conditions he reasonably believed danger-
ous. Accordingly, it is concluded and found that the dis-
charge of Lawhorn for his protected concerted activities is
violative of Section 8(aXl) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section 1, 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
Havng found that Respondent has engaged in unfair la-
bor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act.
It having been found that Respondent discharged James
R. Lawhorn on December 6, 1977, in violation of Section
8(aX I) of the Act, the recommended Order will provide that
Respondent make him whole for loss of earnings or other
benefits from that date to April 24, 1978, the date of his
reinstatement to his job, all within the meaning and in ac-
cord with the Board's decision in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977), 4 except as specifically modified by
the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that Re-
spondent cease and desist from in any other manner inter-
fering with, restraining, and coercing employees in the exer-
cise of the rights guaranteed them by Section 7 of the Act.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
I. United States Stove Co., Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
12 As indicated in the Diagnostic Center Hospital Corp. case, Lawhorn's
activities are deemed concerted because the matter was a matter of common
concern to employees.
'3 As indicated in the Diagnostic Center Hospital Corp. case, the matter of
safety violations covered in OSHA Acts are deemed to be a matter of com-
mon concern to employees.
"See generally. Isis Plumbing Heating Co., 138 NLRB 716 (1962).
2. Local No. 56, Stove, Furnace and Allied Appliance
Workers International Union of North America, AFL-
CIO, herein called the Union, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging James R. Lawhorn on December 6,
1977, the Respondent interfered with, restrained and co-
erced an employee for engaging in concerted activity for the
purpose of mutual aid and protection and thereby violated
Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 5
The Respondent, United States Stove Co., its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, or otherwise discriminating against em-
ployees in regard to hire or tenure of employment, or any
term or condition of employment because of their exercise
of concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Make James R. Lawhorn whole for any loss of pay or
other benefits suffered by reason of the discrimination
against him in the manner described above in the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at Respondent's places of business at South
Pittsburg, Tennessee, and Bridgeport, Alabama, copies of
the attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for Re-
gion 10, after being duly signed by Respondent's represen-
tatives, shall be posted by it immediately upon receipt
thereof, and be maintained by Respondent for 60 consecu-
tive days thereafter, in conspicuous places, including all
'1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
1410
UNITED STATES STOVE CO. 1411
places where notices to employees are customarily posted. ing, within 20 days from the date of receipt of this Order,
Reasonable steps shall be taken by Respondent to insure what steps Respondent has taken to comply herewith.
that said notices are not altered, defaced, or covered by any IT IS FURTHER ORDERED that the allegations of unlawful
other material. conduct not specifically found to be violative herein be dis-
(d) Notify the Regional Director for Region 10, in writ- missed.