Walker Machine and Foundry Corp.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1070 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walker Machine and Foundry Corp. and United
Steelworkers of America, AFL-CIO. Case 5-CA
10005-1,-2
September 28, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.E
On July 17, 1979, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions.
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 has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order,2 as modified herein.3
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, Walker
Machine and Foundry Corp., Roanoke, Virginia, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a) and
reletter the following paragraphs accordingly:
"(a) Offer Timothy Mitchell immediate and full re-
instatement to his former job or, if such job no longer
i Respondent has expected to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). we have carefully examined the
record and find no basis for reversing his findings.
In the section of his Decision entitled "Mitchell," the Administrative Law
Judge inadvertently stated that Mitchell testified that the incident ostensibly
resulting in his discharge occurred on September 29, and that his dismissal
occurred the following day. In fact, Mitchell's testimony fixes the dates of
these events to be September 28 and 29. respectively.
2 Member Truesdale is of the opinion that a narrow order is appropriate
herein and would modify the Administrative Law Judge's recommended
Order accordingly. See, generally. Hickmott Foods, Inc., 242 NLRB 1357
(1979).
The Administrative Law Judge inadvertently failed to conform his find-
ings with his recommended Order. We shall therefore correct his recom-
mended Order and notice accordingly.
In addition, we shall correct the Administrative Law Judge's citation of
F W Woolworth Company, 90 NLRB 289 (1950), in reference to interest on
monetary awards, in par. 2(a) of his recommended Order. Woolworth has
nothing whatsoever to do with interest.
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
"(b) Make whole Timothy Mitchell and Gary Nel-
son for any loss of pay or any benefits they may have
suffered by reason of the Respondent's discrimination
against them. Backpay shall be computed in the man-
ner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon as prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977).3"
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR REILATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated the Federal law by
discharging an employee and by suspending another
because of their union activities:
WE WILL NOT discourage membership in
United Steelworkers of America, AFL-CIO, or
any other labor organization of our employees,
by discharging any of our employees, or by sus-
pending them from work, because of their mem-
bership in, support of, or activities in favor of the
above-named or any other labor organization.
WE WILL NOT interrogate our employees con-
cerning their union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights to self-organization, to form,
join, or assist the above-named labor organiza-
tion, or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any and all such activities.
WE WILL offer Timothy Mitchell immediate
and full reinstatement to his former job or, if
such job no longer exists, to a substantially
equivalent position, without prejudice to his se-
niority or any other rights or privileges previ-
ously enjoyed.
WE WILL make whole Timothy Mitchell and
Gary Nelson for any loss of pay or any benefits
they may have suffered by reason of the discrimi-
nation practiced against them, plus interest.
WALKER MACHINE AND FOUNDRY CORP.
245 NLRB No. 137
1070
WALKER MACHINE & FOUNDRY CORP.
DECISION
STATEMENT OF THE CASE
THOMAS A. Rcc(l, Administrative Law Judge: A hearing
in this proceeding was held in Roanoke, Virginia, on March
12 and April 9, 1979, on complaint of the General Counsel
against Walker Machine and Foundry Corp., herein called
Respondent or the Company. The complaint issued on No-
vember 13, 1978, on a charge filed on October 5, 1978, by
United Steelworkers of America, AFL-CIO, herein called
the Union. The issues presented are whether Respondent
discharged one employee and suspended another without
pay in violation of Section 8(a)(3) of the Act. Briefs were
filed by the General Counsel and Respondent.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Walker Machine and Foundry Corp., a Virginia corpora-
tion, is engaged in the manufacture of metal products at its
Roanoke, Virginia, location. During the 12-month period
preceding issuance of the complaint, a representative pe-
riod, it purchased and received in interstate commerce
goods and supplies valued in excess of $50,000 from points
located outside the Commonwealth of Virginia. I find that
Respondent is an employer engaged in commerce within
the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
I find that United Steelworkers of America, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
During September 1978 there developed a move among
the approximately 200 production and maintenance em-
ployees at this plant to join the Union. The principal activ-
ists were Timothy Mitchell and Gary Nelson. After talking
it over with their fellow employees in the cafeteria and else-
where inside the plant they met with Gordon Deaton, the
Union's staff representative, in front of a diner across the
street from the plant entrance on September 25, a Monday.
Deaton gave the two men about 200 authorization cards,
and they proceeded during the next 3 days, to distribute
them to others and to solicit signatures. They did this from
between I and 3 p.m. at the plant entrance, while many of
the employees ended their work shifts and left for home.
They were assisted by one other man. The two of them
succeeded in obtaining about 70 signed authorization cards
between them. Eligah Board and Jimmie Sanders, both su-
pervisors, knew this was going on. In fact, there can be no
question in the total circumstances that top management
well knew of Mitchell's and Nelson's solicitation activities.
They talked to employees during the very hours that super-
visors as well as rank-and-file workmen left the plant
through the main gate, they did so across the street from the
management offices which look out at that very spot, and
they wore very distinctive union insignia. See Qualit,
Transport Inc., 211 NLRB 198 (1974).
On Friday, September 29, Mitchell was discharged, and
on Monday, October 2. Nelson was suspended for 3 days
without pay. The complaint alleges that this punishment
was imposed upon the two men to put a stop to the union
activity and therefore in each case constituted an unfair
labor practice under Section 8(a)(3) of the Act. Denying
any illegal purpose, Respondent contends affirmatively that
Mitchell was dismissed because he falsified his timecard,
that he had someone else clock him out after he had left the
plant. It also asserts that Nelson was disciplined because he
had violated a company rule that calls for suspension when
a man has come to work late four times within a 4-month
period.
The case turns almost entirely upon credibility. Nelson
was late not only four times within 4 months but many
more times before that. In fact, the company records span-
ning a -year period show that he practically never came on
time. But with the Company having accepted this way of
life for so long a period can Jimmie Sanders, his supervisor,
who said that he suspended the man for this exact reason be
believed that that was really his reason? Or is it more logi-
cal in the light of the significant timing to hold that the real
reason was the unlawful one alleged in the complaint and
therefore to discredit Sanders?
The question of credibility reaches into the discharge of
Mitchell. In his case it is a question of both motive and fact.
The Company says that he left the plant without checking
out-for 6 minutes or 10-minutes before 12:30 p.m., for
which he was to be paid according to the way his timecard
was punched. It argues that Mitchell had someone else
punch his card and therefore defrauded the Company.
Mitchell denies this; he says that he did punch out at 12:30
p.m. as he was supposed to, but that the card read 12:27
p.m. because the clock was out of order, as it had been time
and time again, including that very morning. Robert Ellis, a
company vice president, testified that he saw Mitchell walk-
ing on the sidewalk at 12:22 p.m., according to his wrist-
watch, but Mitchell insisted it was after 12:30 p.m. Who is
to be believed?
B. The Evidence: Findings of Section 8(a)(l)
On Wednesday, September 27, shortly after noon while
Mitchell was at work in the shop, Foreman Board ap-
proached him and asked, "what's this I hear about you
starting a union." Mitchell's first answer was he knew noth-
ing about it, that on heard many things "around this place."
Board repeated "why?" Mitchell said only that he had his
reasons. When Board again asked "why" Mitchell came
back with, "what are you going to do, fire me?" Board just
smiled and walked away.
Board did not testify. I find that he unlawfully interro-
gated Mitchell that Wednesday about his union activities
and thereby committed an unfair labor practice chargeable
to Respondent in violation of Section 8(a)( ). But more im-
portant, this uncontradicted testimony proves clearly that
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
top management knew of the union solicitation activity that
was going on that week, and that it deemed Mitchell a
particular activist. Three days later Mitchell was summarily
fired. Cf. Treasure Island Food Store, 205 N LRB 394 (1973).
1. Nelson
Because Supervisor Sanders' testimony is intimately tied
to the discharge of Mitchell, it is best first to consider his
credibility with respect to the suspension of Nelson. In his
department, where Nelson worked, employees start early in
the morning, many at 6 a.m., some at 5 a.m., and some at 7
a.m. Sometimes, depending upon work needs, they are told
to come in at 4 a.m., or 3 a.m., or even at 2 a.m. This is in
the middle of the night, and what could be more natural
but that many would arrive a little late. They punch time-
cards on the clock, which registered at 6 minute intervals,
5.1 meaning 6 minutes after 5, 5.2 meaning 12 minutes af-
ter, etc. Each man is paid according to how long he works:
that is, if the man arrives at 5:18 instead of 5 exactly he is
only paid from 5:18. Looseness in time of arrival therefore
was of no moment to the Company. When the men came
late they stayed to do the full 8 hours of work, continuing
an extra 12 or 18 minutes, as the case might be. Nelson,
whose starting time for more than 6 months before his sus-
pension was 5 a.m., said that he rarely came on time, and
the company records clearly show that this is true. A look
at all of his cards shows that he came on time only occa-
sionally. And Sanders, despite his testimony at the hearing
that he enforced the rule of four latenesses followed by sus-
pension, never once spoke a word to Nelson about his never
ending late arrivals. That is, he never said anything until
the week when the man openly sported union badges on his
clothing and solicited as many as 35 authorization cards
inside of and in front of the building. When he suspended
the man Sanders gave him a slip, saying that it was for five
latenesses within the allotted time. Later the same day he
made out a second slip, now writing it was because of six
latenesses within the same period. He said that he just
wrote this out for the Company's record. If the first was
more than enough to justify the discharge why make a sec-
ond, registering a more serious offense record? The implica-
tion is obvious.
It is part of Sanders' responsibility as a supervisor to sign
the timecards regularly, to verify them, and to assure their
reliability. He said that he is supposed to do this every day.
When asked if he had done so all along in Nelson's case he
equivocated. His testimony shifts back and forth. He was
asked what the starting time was of one employee after
another. A casual look at the timecards of the other men-
8 or 10 of them-shows that everyone had been late repeat-
edly, yet none was ever suspended. The truth of the matter
is there is no rule, as Sanders claimed at the hearing, be-
cause too many people came late and nothing was done
about it. Considering this very clear overall picture, the
critical timing-Nelson was suspended at the peak of his
overt and singular union activity-and the clear fact that
Board, the supervisor, was keeping watch on the organiza-
tional campaign, I do not credit Sanders as to his true mo-
tivation.' I find instead that Respondent suspended Nelson
I On May 1, 1978, Sanders recommended Nelson for a pay raise, which
in order to put a stop to his union activities and to intimi-
date the rest of the employees. I find that by suspending
Nelson Respondent violated Section 8(a)(3) of the Act.
2. Mitchell
Mitchell worked for this Company for 2 years. He testi-
fied that on September 29, a Friday, that he was supposed
to clock out for his 30-minute lunch period at 11:30 a.m.,
but that the timeclock was out of order when he was leav-
ing. He brought the matter to Sanders' attention, and Sand-
ers fixed the clock. Thus far the story is not questioned,
because Sanders too recalled that and even that he had
corrected the cards of several others at that same moment
for the same reason. Mitchell was back at noon and later
went to punch out for the day at 12:30 p.m., his usual quit-
ting time. Again, according to his testimony, the clock was
off, and he showed his incorrectly marked card to several
other employees. He left the building, he said, at 12:30 p.m.
anyway, had lunch somewhere, and was back again at
about 12:45 p.m. to start distributing union cards on the
sidewalk. He did this until 3:00 p.m. and went home.
When Mitchell reported to work at 4 a.m. the next day
Sanders called him to the office and asked who had
punched his timecard the day before; Mitchell said that he
had. Sanders then said someone had seen Mitchell outside
the plant at 12:15 p.m. or 12:20 p.m. the day before. Mitch-
ell denied this, saying that others had seen him punch out at
12:30 p.m. instead. He asked Sanders who had seen him
outside at so early a time, but the supervisor refused to say.
With this Sanders said that he would have to discharge the
man, and when Mitchell asked why Sanders added only he
was sorry but that there was nothing he could do about it.
On behalf of Respondent two witnesses testified about
this discharge-Sanders, the immediate supervisor, and El-
lis, the vice president. Ellis said that as he happened to be
looking out the window of his office "at approximately
12:20," or about "12:22 or 12:23," he saw Mitchell walk
out of the building, "pacing back and forth, like he was
nervous," and that because Mitchell was alone and because
"it was a time that most people don't go out," he asked
Forbes, the personnel manager, togo down to the foundry
to see "was Mr. Mitchell on the job." "He reported back to
me he was not." There then followed testimony by both
Sanders and Ellis about what they said to one another that
afternoon and about what Forbes and Polfelt, another vice
president, did or did not do and at what time. I think that
both these witnesses were making up a story, and I do not
believe them. It would be best therefore to look first at their
beginning stories.
Called first by the General Counsel at the start of the
hearing, Sanders said unequivocally "it was my decision to
fire him." Recalled later by the defense, he switched and
said that at 2 p.m. that afternoon after the higher officials
told him the story he "suggested" that the man be fired if it
was true, and that after more talk, "They told me, at that
the man received; in his written recommendation Sanders wrote "attendance
very good." But the Company's records received in evidence show that Nel-
son was late for work 10 times during the 6-week period immediately pre-
ceeding May . Sanders stands as a discredited witness in this case at every
point where he is contradicted.
1072
WALKER MACHINE & FOUNDRY CORP.
time, to go ahead and discharge him." Ellis' phrase that he
sent Forbes downstairs to see if Mitchell was "on the job"
could mean only one of two things. The first is to see
whether Mitchell was physically at work. Ellis could have
not meant this because, as he was saying, he was looking at
the man outside the window. The other meaning therefore
had to be for Forbes to ascertain whether Mitchell's time-
card showed that he was at work. When, still according to
Ellis, Forbes reported that Mitchell was "not" on the job he
was of necessity saying that according to the timecard
Mitchell was already clocked out. But if Mitchell's card
showed that he was already "off the clock," it means the
entire defense assertion of defrauding the Company col-
lapses completely.
Respondent did not offer the critical timecard into evi-
dence. Mitchell said that his card read 12:27 p.m. instead of
12:30 p.m., which was the correct time according to the
face of the clock, and I believe him. It was a clock that was
off "half the time," according to the uncontradicted testi-
mony of one witness. Earlier that same day it had required
adjustment. I find incredible the testimony of Sanders, an
already discredited witness, that he fixed the clock after
noon the day and stood there just watching it for 15 or 20
minutes.
The confusion, inconsistency, and therefore utter unrelia-
bility of the testimonies of both Sanders and Ellis are best
set out in the General Counsel's post-hearing brief at one
point. His statement, checked carefully against the tran-
script, shows clearly why the company witnesses cannot be
believed. It reads:
In his initial testimony, Sanders stated that he first
learned of the incident when he "was up getting a cup
of coffee" and "just happened to stumble" into Ellis'
office around 1:00. After hearing Ellis' testimony,
Sanders then testified that Ellis had called him up his
office after 1:00. However, Ellis stated that Polfelt had
called Sanders up to his office between 12:30 and 1:00.
Nor does the testimony become clearer once Ellis and
Sanders and maybe Polfelt and or Forbes seemingly
got together. Ellis testified that at his direction, Sand-
ers had checked Mitchell's timecard and reported that
it was punched out at 12:30. Sanders said Forbes had
been sent to check the timecard prior to his meeting
with Ellis. Since the timecard itself was critical to the
decision to discharge, these inconsistencies emphasize
the contradictions of Respondent's witnesses.
At some point during this confusion, the decision to
discharge Mitchell was made.... Sanders initially tes-
tified that it was his decision to fire Mitchell. Sanders
then stated, at 1:00 in a meeting with Forbes and Ellis,
he "suggested" Mitchell be discharged. However, Ellis
testified that Polfelt had told Sanders that we (presum-
ably Polfelt and Ellis) had decided to discharge Mitch-
ell. After hearing this testimony, Sanders changed his
story and stated Polfelt had told him to fire Mitchell at
a meeting held between 2:00 and 2:30. It is hard to
believe that Ellis and Sanders could be in such dis-
agreement on such a fundamental issue as who made
the decision to discharge. This testimony becomes even
more incredible when framed against the backdrop of
Respondent's apparent contention that Mitchell had
obviously violated a clear work rule which required
immediate discharge.
I find on this entire record that Respondent discharged
Mitchell because of his prounion activities and thereby vio-
lated Section 8(a)(3) of the Act.
Iv. Till RF.MEI-)Y
It having been found that Respondent committed certain
unfair labor practices, it must be ordered to cease and desist
therefrom and take appropriate remedial action. It must be
ordered to make both Mitchell and Nelson whole for what
losses in pay they suffered in consequence of the discrimina-
tion against them and offer Mitchell immediate reinstate-
ment to his old position or its substantial equivalent.
V. THE EFFECTS OF THE UNFAIR LABOR PRACTICE UPON
COMMER(CE
The activities of Respondent set out in section 3, above.
occurring in connection with the operations described in
section 1, above, have a close, intimate, and substantial re-
lationship 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.
CONCI.USIONS OF LAW
1. By discharging Timothy Mitchell and by suspending
Gary Nelson Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
2. By the foregoing conduct and by interrogating em-
ployees concerning their union activities Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices 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:
ORDER
The Respondent, Walker Machine and Foundry Corp.,
Roanoke, Virginia, its officers, agents, successors and as-
signs, shall:
1. Cease and desist from:
(a) Discouraging membership in United Steelworkers of
America, AFL-CIO, or any other labor organization of its
employees by discharging employees or otherwise discrimi-
nating against them in their employment conditions be-
2 In the event no exceptions are filed as provided b Sec. 102.46 of the
Rules and Regulations of the National L.abor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted b the Board and become its
findings, conclusions. and Order. and all objections thereto shall be deemed
waived for all purposes
1073
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause of their membership in or activities on behalf of the
above-named or any other labor organization.
(b) Interrogating employees concerning their union ac-
tivities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join, or assist the above-named labor
organization or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Make whole Timothy Mitchell and Gary Nelson for
any loss of pay or any benefits they may have suffered by
reason of Respondent's discrimination against them, with
interest thereon to be computed in the manner prescribed in
F. W. Woolworth, Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977). 3
(b) Preserve, and, upon request, make available to the
3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Board or its agents for examination and copying all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its place of business in Roanoke, Virginia,
copies of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional Director
for Region 5, after being duly signed by its representatives,
shall be posted by Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by it to insure that said notices are not
altered, defaced, or covered with any other material.
(d) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
' 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 Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1074