Varco Steel, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1968

172 N.L.R.B. 689 (N.L.R.B. 1968)

VARCO STEEL, INC. 689
Varco Steel, Inc. and International Union of Operat-
ing Engineers, Local 382, AFL-CIO. Case
26-CA-2950
June 27, 1968
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS , AND ZAGORIA
On April 10, 1968, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled proceed-
ing, finding that Respondent had not engaged in
certain unfair labor practices alleged in the com-
plaint and recommending that the complaint be
dismissed , as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision
and a supporting brief. Respondent filed cross-ex-
ceptions.'
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
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, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
alleging that Respondent had violated Section
8(a)(3) and (1) of the Act by the discharge of an
employee, Walter Davis, and Section 8(a)(1) of the
Act by the conduct of two supervisory employees in
engaging in surveillance of union activities of the
employees on two separate occasions and by inter-
rogation of an employee. Respondent's answer de-
nied the commission of any unfair labor practices.
All parties were represented at the hearing held
in Pine Bluff, Arkansas, on February 16 and 17,
1968, and had an opportunity to present evidence
and examine witnesses. The parties waived oral ar-
gument; excellent briefs have been received from
the General Counsel and Respondent.
Upon the entire record in this case and my obser-
vation of the witnesses and in consideration of the
briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent is an Arkansas corporation engaged,
at its Pine Bluff, Arkansas, plant, in the manufac-
ture and erection of preengineered metal buildings.
Respondent during the 12 months immediately
preceding issuance of the complaint sold and
shipped its product valued in excess of $50,000
from its Pine Bluff, Arkansas, plant directly to
points located outside the State of Arkansas, and
during the same period received at its Pine Bluff,
Arkansas, plant goods valued in excess of $50,000
directly from points outside the State of Arkansas.
Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
' In view of our Decision herein , we find it unnecessary to consider
Respondent's cross-exceptions
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E . WEIL , Trial Examiner: Upon a charge
filed December 4, 1967, by International Union of
Operating Engineers , Local 382 , AFL-CIO,
hereinafter called the Union , against Varco Steel,
Inc., hereinafter called Respondent , the General
Counsel issued a complaint on January 12, 1968,
172 NLRB No. 85
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent prefabricates metal buildings in its
plant in Pine Bluff.' In the manufacture of these
metal buildings Respondent employs some 90 em-
ployees, divided, at the time herein concerned, into
four departments, each under the supervision of a
foreman. The frame department, under Foreman
John Johnson, is subdivided into three sections,
each in the custody of a leadman as follows: the
shear section under Leadman Kentle, the auto-weld
under Leadman Haynes, and the welders under
Leadman McBee.2
' Respondent has other plants located in North Carolina and Wisconsin,
and since the filing of the charge in the instant case has become a subsidi-
ary of Fuqua Industnes. The other plants, and Respondent's ownership by
Fuqua Industries , have no bearing on the matters alleged and litigated
herein
2 McBee was made a foreman in January 1968
354-126 O - LT - 73 - pt. 1 - 45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employees of Respondent are not
represented by a labor organization. In mid-Sep-
tember 1967, the Charging Party's organizer, H. D.
Mayfield, gave employee Walter Davis authoriza-
tion cards to sign and to distribute . Davis dis-
tributed some to William Davis and some to Lead-
man Kentle. In addition Davis himself got two em-
ployees named Hale to sign cards.
Union meetings were held October 12, 19, and
26 and November 8 and 29, all in 1967. The first
meeting was held at Walter Davis' home and at-
tended by 12 or 13 employees . The October 19
meeting was announced by distribution of handbills
or pamphlets which invited all hourly rated em-
ployees to attend the meeting. Foreman Johnson
received one of the handbills and together with
Robert McBee attended the meeting . Employee
Walter Davis arrived late, and , looking inside,
noticed McBee and Johnson and returned home
without attending the meeting.
The meeting of November 8 was held at the Car-
penters union hall which is situated diagonally
across an intersection from a restaurant known
variously as Tommy's Place and the Poplar Street
Drive-In. Walter Davis testified that when he ar-
rived at the Carpenters hall he saw an automobile
belonging to Dale Hendrix, Respondent's vice pres-
ident of production and operations, parked in
front of the restaurant across the street. He did not
testify that he saw Hendrix. George Connor
testified that when he arrived at the meeting he saw
Hendrix's car, and when he left the meeting he saw
Hendrix inside the restaurant. He testified also that
he was accompanied by Larry Connor arriving at
the meeting and by Larry Connor and Ted Rannen-
berg when he left the meeting. Larry Connor
testified that when he arrived at the meeting with
his brother he saw Hendrix's car parked in front of
the restaurant and saw Hendrix inside the restau-
rant. He testified that when he left the meeting with
his brother, he saw Hendrix standing outside the
restaurant and apparently alone. Ted Rannenberg
testified that he did not see Hendrix when he ar-
rived at the meeting but that when he left, im-
mediately before the Connor brothers, he saw Hen-
drix and Leadman McBee standing outside the
restaurant. Organizer Mayfield testified that he was
told by "the Connor boys" that Hendrix's car was
parked outside, and he went down with them and
one of the Connor boys, he did not recall which,
pointed out Hendrix and McBee inside the restau-
rant.
Vice President Hendrix testified that he was in
fact in Tommy's Drive-In that evening from some-
time before 7:30 until 9 or 9:30, which embraces
the times reported by the General Counsel's wit-
nesses. Hendrix testified that he was at the restau-
rant at the request of a friend, Ferrell Megee, to
discuss a hunting trip which Hendrix and Megee
were taking for a week commencing the following
Saturday. Hendrix testified that he was not aware of
the fact that a union meeting was held across the
street that evening. Hendrix's testimony is sup-
ported by that of Mr. Megee as well as by testimony
of Tim Massanelli and Gene Roberts, local
merchants who were also present.4
General Counsel would have me find that McBee
was present on this occasion and that McBee and
Hendrix engaged in surveillance of the union meet-
ing at Carpenters' hall. Only Rannenberg and
Mayfield testified to seeing McBee. Rannenberg
testified that he was outside, Mayfield that he was
inside. Larry Connor testified to seeing Hendrix
outside alone after the meeting, while his brother
George who was with Larry testified to seeing Hen-
drix inside the meeting and did not testify to seeing
McBee. Further Mayfield testified that one of the
Connor boys pointed out McBee, along with Hen-
drix, inside the restaurant before the meeting
started , whereas neither of the Connor brothers
testified to pointing out either Hendrix or McBee to
Mayfield before the meeting, and George Connor
testified that he did not see Hendrix before the
meeting , while Larry Connor testified that he saw
Hendrix and could identify no other persons inside
the restaurant before the meeting. Under these cir-
cumstances I cannot find that McBee was present.
Further, in view of the confusion in the evidence
adduced by the General Counsel, I cannot reach
the inference suggested by the General Counsel
that Hendrix was present at the restaurant for the
purpose of surveillance over the express denial of
Hendrix and the logical and supported assertion of
Hendrix that he was in fact there to plan a hunting
trip.5 I therefore shall recommend that the com-
plaint be dismissed insofar as it alleges surveillance
by Hendrix and McBee of the union meeting on
November 8.
The 8(a)(3) Allegation
November 10 was payday. The employees of
Respondent are paid by check. When Walter Davis
left work he went to a nearby liquor store, where he
cashed his check and bought a half pint of whiskey.
He testified that McBee was present in the liquor
store, cashing his check and buying whiskey at the
same time. He went home and, together with two
other persons, drank his bottle of whiskey,
replenished the supply with another half pint, and
' It appears that all employees under the plant superintendent , including
the foremen , are hourly paid
' Hendrix , Megee , Massanellt , and Roberts all concurred in their
testimony that Wednesday night in Pine Bluff , Arkansas , is "boys night
out," resulting perhaps from the fact that it is "stag night " at the local
country club of which Massanelli is the president They testified that
generally the men of Pine Bluff gather at various restaurants and night
spots as well as the country club on Wednesday evenings to drink, play
poker , and converse Their testimony in this regard was not contradicted
s General Counsel adduced no evidence to controvert the testimony of
Hendrix and Megee that they left the following Saturday morning for a
week of hunting
VARCO STEEL, INC.
drank that. The following morning, Davis testified,
he arose around 5:30 and without breakfast or even
a drink of water went to the plant where he
checked in at 10 minutes to 6 for work. McBee
proceeded at 6 o'clock to the shear on which he
worked.' After he worked on the shear for about an
hour and 40 minutes, Leadman McBee came to
him and told him to go to the back of the plant and
help Earl Haynes who was welding flanges. Haynes
put him to work moving flanges up to the welding
machine to be worked on. After a short time
McBee called Davis to "come in," and said
"Walter, you've been drinking." Davis denied that
he had been drinking that morning, but McBee per-
sisted saying that he could smell it and stated that
Davis was drunk. McBee told Davis to punch out.
Davis proceeded toward the timeclock and met
Foreman Johnson, and told him what McBee had
told him. Johnson said "If that's what he told you to
do, go ahead and punch out." Davis punched out
and returned the following Tuesday.' On Tuesday
morning he found his card had been removed from
the rack. He stood there for a few minutes and was
called by Johnson into the office where Johnson
told him "The man said let you go, this is the
second time you have been here drunk." Davis an-
swered, "John, you know I haven't been drunk, you
know that." Johnson gave him his papers and told
him to get his personal possessions and leave.
Johnson's testimony regarding the incident was
somewhat different. Johnson testified that on the
morning of Saturday, November 12, Leadman Ken-
tle came to him a little after 6 o'clock and told him
that he thought Walter Davis was drinking. Johnson
went to the shear where Walter Davis was working
and talked to him, but couldn't tell whether or not
he was drinking, so he moved him to another de-
partment to work with Haynes so that he could ob-
serve 'him through the glass window of the fore-
man's office nearby. He testified that he observed
Davis for some 45 minutes and "then I could tell
that he wasn't maneuvering just right so I went to
him. I could smell it when I went to him so I told
him to punch out." Johnson testified that he fol-
lowed Davis to the clockroom, and Davis didn't
punch out when he left, so Johnson signed Davis'
timecard indicating in pen that he had left at 8 a.m.
Johnson identified the timecard, which in fact in-
dicates that it was not punched out but bears the
notation "8:00 J.J."
The General Counsel contends that Walter Davis
was discharged because of his union activities. He
argues that the evidence shows that Davis was not
in fact drunk or drinking and that the alleged
reason for his discharge was pretextuous and alter-
natively that, assuming that Respondent had reason
to believe that he was drinking or was drunk, Davis
was the victim of disparate treatment. In support of
" The shear is a heavy machine capable of cutting a 20-foot strip of half-
inch steel by means of a falling blade
691
this latter proposition, General Counsel placed in
evidence a recordbook kept by Foreman Johnson
containing notations of all disciplinary actions
taken between September 1, 1966, and the end of
1967, among the employees under Johnson's super-
vision. It appears therefrom that during the time in-
terval September 1, 1966, through the year 1967,
only four employees were guilty of any breach of
Respondent's rules other than those connected with
attendance. Fifty-one employees were guilty of in-
fractions with regard to attendance, of whom I I
were discharged, 13 quit, and the remainder ap-
parently still are employed. Of the four employees
who committed other infractions, only one was
discharged, the Charging Party herein. The records
show the others as follows: On the page dedicated
to Willie Harris the following entries appear:
December 3, 1966 "Didn't report for work call in
said he had business [sic[ to take care of but was
drunk. 12-5-66 report for work given `1' one week
layoff. 7-15-67 report for work Drunk given `1'
one week layoff." On the page dedicated to James
D. Norman the following entry appeared:
"12-14-66 given 2-1/2 Days Layoff for abused-
ment [sic] to company machine."
On the page headed with the name Teddy
Ranningberg (presumably Rannenberg) commenc-
ing with October 24, 1967, appeared notations of
1 1 or 12 items which apparently constitute work in-
correctly done and one notation "Went to Bath
Room 5 min's til quitting time." The fourth entry
dealt with Davis and states: "11-11-67 Report for
work Drunk and was sent back home. and later
fired. "
It appears that during the time covered by
Foreman Johnson's notebook the only incidents of
an employee being under the influence of liquor,
other than that of Walter Davis, were those re-
ported with regard to Willie Harris. In both cases
he was given a 1-week layoff. Foreman Johnson
testified that in neither of those cases did Harris
punch in and attempt to go to work. On the one oc-
casion he telephoned and on the other he was met
by Johnson at the timeclock and sent home by
Johnson. Harris testified that he did not ask John-
son why he was sending him home "because I
figured he knew I was drunk."
Walter Davis testified that when on a prior occa-
sion some 2 years before, under the supervision of
another foreman otherwise identified as Lester
Brazeal, he was accused of being at the plant drunk
or under the influence of whiskey, he clocked in
and was sent home.
Respondent contends that the dereliction of
Davis was being on the job under the influence of
liquor. Respondent distinguishes his circumstance
from that of Harris in that Davis punched the
timeclock and commenced operating his machine.
' Monday was a plant holiday because of the opening of the deer hunting
season
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because of the danger inherent in the machine,
Respondent contends , the rule was strictly applied
and Davis discharged.
Johnson testified that he enforced all the Com-
pany 's rules without disparity . The employee hand-
book , distributed to all company employees , recites
nine rules the breach of which will subject an em-
ployee to immediate dismissal . They include steal-
ing, willful destruction of property and deliberate
abuse of tools, or wasting materials , fighting,
timecard falsification , gross negligence or careless-
ness resulting in damage to equipment or property
or injury to employees , insubordination , garnish-
ment , coming to work with or being under the in-
fluence of alcohol or drugs , and falsification of ap-
plication . There are in addition seven rules re-
peated violation of which will be grounds for
dismissal . These include engaging in horseplay,
making misleading statements in order to protect a
fellow employee , inattention to duties or stopping
work before quitting time, tardiness or absenteeism,
negligence resulting in excessive scrap or breakage
of tools , violation of safety and health rules, and
leaving workplace without authorization except for
health purposes . Foreman Johnson testified that the
only employee he has discharge is Walter Davis and
that the only breaches of the rules in his depart-
ment are those contained in his notebook.
I cannot find that the distinction Respondent al-
legedly made between Davis actually going to work
under the influence of liquor and Harris merely re-
porting and being sent home without commencing
work is so inherently improbable that it raises an in-
ference of disparity . The other rule violations re-
ported in Johnson 's notebook appear to be not
among the rules a single violation of which subjects
an employee to immediate discharge, but rather
among those which provide that repeated violation
will subject an employee to discharge . There is no
evidence of repeated violation . On the whole, I do
not believe that the record will support a finding of
disparity of treatment except between the two in-
cidents involving the alleged discriminatee. I note
however that while Davis contends that he clocked
in on the earlier occasion some 2 years before,
General Counsel did not call for the production of
his timecard on that occasion. I am not inclined to
place complete credence in Davis ' testimony that
he clocked in, in the earlier instance , in view of his
testimony that he clocked out in the later instance
while his timecard reveals that in fact he did not.
The evidence of disparity in this regard is too insub-
stantial to warrant a finding.
With regard to the contention of the General
Counsel that Davis was not in fact under the in-
fluence of liquor, it is clear from Davis' own
testimony that he smelled of the whiskey that he
had drunk . I can reach no other conclusion from
his testimony that he did not even drink water from
the time he arose in the morning until his discharge.
I note also that while Davis testified he worked for
an hour and 40 minutes on the shear and thereafter
for a period of time with Haynes on the flanges
Johnson 's testimony is that he worked very briefly
on the shear and was moved to the flanges where
Johnson could watch him . Leadman Kentle testified
that while he had only 20 or 30 minutes of contact
with Davis on that Saturday morning he could smell
whiskey on Davis and "well his reaction was dif-
ferent ." He testified "Well, he had had a drink or
so. I couldn 't just say when he had had it ." He also
testified that Johnson came to him and asked if he
knew that Davis had been drinking and he an-
swered "Well yes I did know it because , well, I
could smell it on him."
I do not credit Johnson . He testified that Kentle
first told him that Davis had been drinking , whereas
Kentle , whom I credit and who, in testifying, ap-
peared to be as sympathetic to Davis as possible
under the circumstances , testified that Johnson
came to him first . However , I credit Kentle, that
Davis showed signs of his alcoholic consumption,
over the testimony of Davis that he did not, espe-
cially in view of Davis ' confusion over whether he
had punched out.
There is nothing in the record to reveal that
Respondent was aware of Davis' union activities.
The only knowledge that I can attribute to Respon-
dent stems from the attendance of Johnson and
McBee at the meeting of October 19. However, it is
clear from Davis ' testimony that Johnson and
McBee did not see him at this meeting and there is
no other evidence from which I can attribute com-
pany knowledge of Davis' union activities.
As I have indicated above , I cannot find disparate
treatment in the discharge of Davis and I do not be-
lieve the evidence preponderates that the reason
given for the discharge was pretextual . I shall there-
fore recommend that the complaint be dismissed
insofar as it alleges a violation of Section 8(a)(3) of
the Act.
The General Counsel contends that Respondent
engaged in surveillance of another union meeting
on November 29. The evidence on which General
Counsel relies is that Ted Rannenberg , accom-
panied by another employee , James Norman,
worked until 9 o'clock on the night of the union
meeting and thereafter attempted to attend the
,meeting . When they got to the hall they found that
it was dark and drove into an ice cream store next
door where they purchased ice cream cones after
which they drove back toward Norman 's home. As
they drove into the ice cream store a truck driven
by Leadman McBee , accompanied by Marvin
Hester , drove up . As they proceeded down the
street away from the ice cream store Rannenberg
noticed that McBee 's truck was behind them about
100 yards. It followed them for 15 or 20 blocks
when they turned off and they saw it again after
proceeding for a block or 2 in a new direction.
Marvin Hester testified that he is McBee 's cousin
and on the night in question McBee took him to the
meeting . When they got to the meeting they found
the hall dark and turned around at "the ice cream
VARCO STEEL, INC.
place " and went back up the street behind Rannen-
berg 's car . They turned off Poplar Street after Ran-
nenberg did and went by McBee 's father 's house
where they slowed down and , seeing no lights,
proceeded home . Hester testified that in a conver-
sation with Larry Conner he told Conner that they
had seen Rannenberg go by and he didn 't stop and
that they thereafter followed him.
General Counsel contends that McBee was en-
gaged in surveillance . It is clear , however , from the
testimony of Hester that McBee's presence at the
union meeting place after the meeting is accounted
for by the fact that he agreed to take his cousin
Hester to the meeting . That he saw Rannenberg at
that time was clearly fortuitous and that he drove
back along the same route was equally so. I can
draw no conclusion from Hester 's statement that
they followed Rannenberg which , in fact , they did,
to support an inference of illegality . I do not believe
that this constitutes surveillance under any defini-
tion of the word . I shall recommend that the com-
plaint be dismissed in this regard also. Finally the
General Counsel contends that Respondent vio-
lated Section 8 ( a)(1) by the action of Robert
McBee in asking employee Sammy Thomas, Jr.,
what he thought about the Union , telling him to
check with " the boys in central transformer" and
stating that the Company paid good wages but
couldn 't pay too much because others would then
be able to sell cheaper , and because the material
they were building was cheaper . Assuming , without
deciding , that McBee is a supervisor , I do not be-
lieve that the statements attributed to him con-
stitute coercive conduct within the meaning of the
693
Act. The only aspect of the conversation, in my
opinion , that falls within the Board 's normal range
of disapproval is the inquiry about Thomas' opinion
of the Union, the remainder is unexceptionable.
The inquiry is not seen against a background of
animosity toward the Union and is addressed to
only one employee . It is a classic example of an iso-
lated incident. I recommend that the allegation be
dismissed . In view of my findings above I find it un-
necessary to determine whether McBee was a su-
pervisor as contended by counsel for the General
Counsel or whether he was a rank-and-file em-
ployee as contended by the Respondent and found
by the Regional Director in his Decision and
Direction of Election in the representation case.
CONCLUSIONS OF LAW
1. Varco Steel, Inc., is an employer within the
meaning of Section 2(2) of the Act and its opera-
tions effect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Union of Operating Engineers,
Local 382, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Varco Steel, Inc., Respondent herein, has not
engaged in the unfair labor practices charged
within the meaning of Section 8(a)(1) and (3) of
the Act.
RECOMMENDED ORDER
In view of the foregoing findings of fact and con-
clusions of law, it is recommended that the com-
plaint be dismissed.