Allied Chemical Corp.

National Labor Relations Board - Board Decisions

Jun 27, 1963

143 N.L.R.B. 260 (N.L.R.B. 1963)

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the employees involved were an accretion to the contract unit and
were therefore covered by the contract.16 In addition, the arbitration
proceeding was fair and regular and free from any procedural in-
infirmity which might render the award unacceptable. 17
In view of the foregoing, we find it will effectuate the policies and
purposes of the Act to honor the arbitration award. We, accordingly,
find that the contract between the Employer and the Intervenor covers
the employees sought herein, and that, since the petition is untimely
with respect to such contract, the contract is a bar to the petition.
[The Board dismissed the petition.]
MEMBERS RODGERS and BROWN took no part in the consideration of
the above Decision and Order.
le See, for example, Simmons Company, 126 NLRB 656, where the Board held that
employees in the employer 's new mattress department were an accretion to a contract
unit covering all production and maintenance employees working in the employer 's "Liv-
ing Room Division" because both groups of employees were engaged in the "same func-
tional activity" and the two operations were "closely integrated " Here, as noted , clerks
who are covered by the contract perform and have performed work identical to that
performed by janitors and bottle sorters, and , in addition , the record establishes that
janitors and bottle sorters are under the same supervision as clerks. While the terms of
the multiemployer contract had not been applied to janitors and bottle sorters, as noted,
as soon as the Intervenor discovered that the Employer was hiring these employees on a
full-time basis , it sought to have these employees covered by the contract. The principle
of North Ame,ican Aviation, Inc, 127 NLRB 356, and similar cases, would therefore be
inapposite.
17 While the Petitioner was not a party to the arbitration , as already indicated, its
position was vigorously defended by the Employer, which at all times maintained, in
agreement with the Petitioner, that the contract did not cover the employees sought
herein . See International Harvester , supra.
Although Member Fanning dissented in International Harvester because of his agree-
ment with the Trial Examiner , who had relied, inter alia , on the absence of the alleged
discriminatee from the arbitration proceedings even though his position had been vigor-
ously espoused by the company, he is of the view that the circumstances of this case are
so different from International Harvester that the absence of the Petitioner from the
arbitration proceeding here does not bar its acceptance by the Board.
Allied Chemical Corporation , National Aniline Division ( Colum-
bia Plant ) and District 50, United Mine Workers of America.
Case No. 11-CA-2043. June 27, 1963
DECISION AND ORDER
On March 11, 1963, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in unfair labor practices as alleged in
the complaint, and recommending that the complaint be dismissed, as
set forth in the attached Intermediate Report. Thereafter, the Charg-
ing Party filed exceptions to the Intermediate Report and a support-
ing brief.
143 NLRB No. 37.
ALLIED CHEMICAL CORP., NATIONAL ANILINE DIVISION 261
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard before Trial Examiner Frederick U. Reel at Columbia, South
Carolina, on January 29 to 30, 1963, pursuant to a charge filed October 5, 1962,1
a complaint issued November 30, and an answer filed December 7. The basic issues
are whether Respondent, herein called the Company, violated Section 8(a)(3) and
(1) by discharging one Garland G. (Red) Williams, and violated Section 8(a)(1) by
certain statements allegedly made to Williams or (on one occasion) to his wife.
The Company urged that Williams was discharged for proper cause, and denied that
its supervisors made the intimidatory statements attributed to them. Upon con-
sideration of the entire record, including my observation of the witnesses, and after
due consideration of the briefs filed by the Company and by General Counsel, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
The pleadings establish and I find that the Company, a nationwide producer of
chemicals and related products, is engaged at its Irmo, South Carolina, plant in manu-
facturing goods for interstate commerce, and annually both receives and ships goods
in interstate commerce valued in excess of $50,000. I find, in accordance with the
pleadings, that the Company is engaged in commerce within the meaning of Section
2(6) of the Act. Uncontradicted testimony establishes that District 50, United Mine
Workers of America, herein called the Union, is a labor organization within the
meaning of the Act, and I so find.
II THE ALLEGED UNFAIR LABOR PRACTICES
General Counsel's entire case except in one minor respect was presented through
the testimony of Williams, whose discharge on October 3 gives rise to the main issue?
Williams' testimony, uncorroborated and in many respects sharply contradicted by
company witnesses, would, if credited, establish violations of Section 8(a)(1) and
(3) of the Act.
From November 1961 until his discharge Williams was employed as a maintenance
mechanic, responsible for the repair and upkeep of certain large draw twist ma-
chines. He became active in the Union in March, distributing union cards and
soliciting for the Union on company time until early June when he learned that such
solicitation was not protected by the Act. At that time Williams was suspended for
7 days for violating a company rule against interfering with production; the preceding
April he had received a written warning for "leaving job and conducting personal
business [not a union matter] on company time." According to Williams, Mainte-
nance Superintendent Todd told Williams at the time of the June suspension that Wil-
liams would be terminated immediately in the event he was guilty of any infraction
of the rules.
1 Unless otherwise indicated all dates herein refer to 1962.
In addition to calling Williams as a witness, General Counsel called only Williams'
wife, who testified as to a single episode allegedly violative of Section 8(a) (1), and one
other witness solely to establish that the Union is a labor organization.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williams testified to a conversation he allegedly had with Todd early in August in
which Todd berated him for his stupidity in continuing his union activity and told
him he was sure to "get caught" and was "going to be fired." Todd, according to
Williams, advised him to "quit that foolishness," and added that he (Todd) would
call a meeting of the employees at which he would announce revocation of their
coffee breaks and cafeteria privileges and advise them that these "strenuous condi-
tions" were being imposed because of Williams.
Williams also testified to a conversation later in August with one Ben Redfearn,
who at the time was Williams' supervisor, but who at the time of hearing was em-
ployed by another concern in another State. According to Williams, Redfeam ad-
vised him to remove union literature from his toolbox, told him to quit the union
activity and mind his own business, and warned him that the supervisors were watch-
ing him and waiting for him to make a mistake which would result in his discharge
Redfearn further stated, according to Williams, that if Williams would "quit this
foolishness," Redfearn would speak to the supervisors, get Todd to remove the
condition that Williams would be discharged for his next infraction of rules, and try
to get Williams' record "wiped clear in the Personnel Office."
Turning to the events of October 2 and 3 which culminated in his discharge,
Williams testified that on October 2 in the course of performing maintenance work
on the machines, he found it necessary on two occasions to delay the work of one of
the production crews. He also testified that while he was working, one member of the
crew, Frances Bright, mentioned to him that her car had broken down on the highway
the night before. According to Williams, he replied only that she should have
called for help as it was dangerous for a woman to stand on the highway at night for
2 hours, and "that is about all that was said."
The next morning, October 3, Williams was again checking one of the machines
which was being operated by the same crew he had delayed the day before. Accord-
ing to Williams, he said "good morning" to two of the girls on the crew, Bright and
Sherry Free. He testified that he then asked Free certain necessary questions con-
cerning the manner in which the machine was operating, but she replied in a loud
voice that she could not talk to him. When he replied, according to his testimony,
that he needed this information to effect the repairs, she again "hollered" that she
could not talk to him as management had been complaining over low production.
Williams testified that he then went to work on the machine, and was busily so
engaged when Bob Jones, supervisor of the crew, told him to accompany Jones to
the production office.
According to Williams, he waited outside the production office while Jones con-
ferred with Richard Beals, superintendent of production, and with Ray Wood, Wil-
liams' supervisor. Williams testified that he was then summond into the office, where
Jones accused him of talking to a girl for 5 minutes at her machine. Williams testi-
fied that he denied the accusation, that Wood said it was sometimes necessary for
his men to talk to the girls, and that Beals refused to hear Williams' explanation but
ordered him back to work and asked for a written report to be placed in Williams'
personnel folder. Later that day Williams, at the direction of his supervisor, went
to the office of Industrial Relations Superintendent Coffin. where Coffin notified
Williams he was discharged. According to Williams, Coffin stated that he had a
report on Williams' having talked to a girl 5 minutes that morning, brushed aside Wil-
liams' statement that the conversation lasted only 1 minute, and stated that he
neither knew nor wanted to know what had been the subject matter of the conversa-
tion. Williams further testified that Maintenance Superintendent Todd, who was
present in Coffin's office, reminded Williams of the numerous warnings to cease his
activities which Williams had ignored, and that on their way out of the office Todd re-
minded Williams of their August conversation in which Todd had told Williams
he was "stupid." Finally Williams testified that "quite a few times" he had seen fore-
men engage in apparently idle conversation and laughter with the girls while the
latter were engaged in production work.
Redfearn and Todd, called as company witnesses, substantially contradicted Wil-
liams' testimony with respect to the alleged August conversations, except that Red-
fearn admitted telling Williams and other mechanics not to bring any literature of
any kind into the plant, as he wanted them to work, not to read. With respect to the
discharge, the Company introduced evidence that on October 2, Doff Crew Instruc-
tress Bickley had complained that Williams had interfered with the work of her
crew by talking to members, and that the next morning Foreman Jones saw Williams
talking to Frances Bright, a trainee member of the crew, and timed the conversation
as lasting 5 minutes. Jones made a written report of this infraction of company
ALLIED CHEMICAL CORP., NATIONAL ANILINE DIVISION 263
rules, and after the matter was reviewed by various officials in the company hier-
archy, Williams was discharged in view of his repeated offenses of this nature.
As the foregoing summary indicates, what is involved here is fundamentally a
question of credibility. Upon careful consideration of the entire record, I credit the
testimony of the company officials and former officials insofar as they testified that
Williams was discharged for repeated infractions of company rules, and insofar as
they denied the intimidatory antiunion statements he attributed to them. In making
this resolution of credibility I have been motivated by the following considerations:
the demeanor of the witnesses; the comparatively disinterested character of the
testimony of Redfearn and Coffin, both of whom were no longer employed by the
Company at the time of the hearing; the inherent improbability that Redfearn and
Todd made certain statements Williams attributed to them; 3 the documented nature
of the Company's difficulties with Williams in the months preceding his discharge;
and the absence of any other evidence of antiunion activity by the Company, par-
ticularly in the light of evidence that Williams was by no means the only active
union adherent and that the Union had filed a representation petition only 2 weeks
before the hearing.
The most suspicious circumstance tending to support General Counsel's case is
the Company's failure to investigate carefully the Williams-Bright episode on Oc-
tober 3 before discharging Williams. The failure of either party to call as wit-
nesses either Bright or Doff Crew Instructress Bickley leaves the episode in some
obscurity,4 particularly as I was not favorably impressed with the credibility of
Sherry Free, who testified for the Company as to the conversation between Williams
and Bright. But it was not altogether unreasonable, especially in the light of recent
complaints against Williams, for the Company to rely on the report of Foreman
Jones, and there is considerable merit to the Company's point that as Bright was a
mere trainee, Williams would scarcely have singled her out for a discussion as to
the performance of the machine. There is evidence, or more accurately, testi-
mony which was not objected to, that after the charge was filed Bright told Coffin
that Williams had interrupted her work and that she had complained about the
interruption.
In essence, General Counsel's case is that Williams became a target after he started
union activity, and that all his difficulties with the Company, culminating in dis-
charge, were the result of company hostility to the Union and to Williams in his
role as a union protagonist. At most, this record gives rise to mere suspicion that
this occurred. I find that General Counsel failed to establish his case by a pre-
ponderance of the evidence, but this, of course, is because of the credibility resolu-
tions made above.
There is evidence, which I credit over the partial denial of Foreman Richardson,
that in May he asked Williams' wife and another employee, who were coming to
work together, what they thought of the Union, and asked Mrs. Williams what the
Union would do for them that the Company could not do. Assuming arguendo
that this interrogation, apparently engaged in contrary to company directions to its
foremen, violated Section 8 (a) (1) of the Act, it was too isolated to warrant the
issuance of a remedial order. See American Gilsonite Company, 122 NLRB 1006;
Canton Carp's, Inc., 130 NLRB 1451; International Ladies Garment Workers Union,
AFL-CIO (Twin-Kee Manufacturing Co., Inc.), 130 NLRB 614; International Wood-
workers of America, AFL-CIO (Central Veneer, Incorporated), 131 NLRB 189,
190, 196; The Great Atlantic & Pacific Tea Company, Inc., 129 NLRB 757, 760.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
S Particularly, Redfearn's alleged offer to get Williams' personnel records "wiped clear,"
and Todd's alleged references to cancellation of all coffee and cafeteria privileges and to
Williams' being so "stupid" that Todd did not see how Williams' wife could stand him
' General Counsel in his brief argues that Respondent's failure to call these and certain
other witnesses gives rise to an inference that their testimony would have been adverse
to Respondent I draw no such inference The four cases cited by General Counsel are
plainly distinguishable in that three deal with a failure to produce certain business
records of which the respondent in each case had knowledge and which could have docu-
mented its defense, and the fourth (Satilla Rural Electric Membership Corporation, 129
NLRB 1084, 1091) deals with a respondent's failure to call witnesses whose testimony,
had it been elicited by General Counsel and been favorable to him, "would have been
cumulative "
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent has not engaged in the unfair labor practices alleged in paragraphs
7(b) to (e), and 9 of the complaint.
4. Respondent has engaged in no unfair labor practices which would warrant the
issuance of a remedial order.
RECOMMENDED ORDER
The complaint herein should be, and hereby is, dismissed.
Texas Boot Manufacturing Company, Inc. and Boot and Shoe
Workers' Union , AFL-CIO. Case No. 26-CA-1345. June 27,
1963
DECISION AND ORDER
On February 26, 1963 Trial Examiner James T. Barker issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the attached Intermedi-
ate Report. He also found that the Respondent had not engaged in
certain other unfair labor practices and recommended dismissal of
the complaint as to them. Thereafter, the Respondent and the Gen-
eral Counsel filed exceptions to the Intermediate Report and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
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 entire
record in this case, including the Intermediate Report, the exceptions,
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications.
The Trial Examiner found that on March 28 and 29, 1962, Presi-
dent Vise read a prepared speech to employees containing the follow-
ing remarks :
This is the reason that I am against the Union and that Texas
Boot Company is against the Union. It is simply this. I don't
believe that we can do business with the costs the Union will
demand. The only way the Union can enforce its demands on
Texas Boot Company is by calling you out on a strike to enforce
its unreasonable demands. This is the history of Unions. So
I want you to know that I am not going to close down this
143 NLRB No. 17.