Bickerstaff Clay Products, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1983

266 N.L.R.B. 983 (N.L.R.B. 1983)

BICKERSTAFF CLAY PRODUCTS
Bickerstaff Clay Products, Inc. and Laborers Local
Union No. 246. Case 10-CA-17949
13 June 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JENKINS AND HUNTER
On 3 January 1983 Administrative Law Judge J.
Pargen Robertson issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering 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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as it Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Bickerstaff
Clay Products, Inc., Russell County, Alabama, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order.
I As noted by the Administrative Law Judge, Respondent admitted the
jurisdictional allegations in the complaint. Accordingly, we find specifi-
cally that, during the past calendar year, which period is representative
of all times material hereto, Respondent sold and shipped from its Russell
County, Alabama, facilities finished products valued in excess of $50,000
directly to customers outside the State of Alabama. Therefore, Respond-
ent is, and has been at all times material herein, an employer engaged in
commerce within the meaning of Sec. 2(6) and (7) of the Act.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This case was heard in Columbus, Georgia, on October
21, 1982. The complaint, which issued on April 22, 1982,
and is predicated on a charge filed on March 1, 1982,
and amended on March 24, 1982, alleges that Respond-
ent violated Section 8(a)(1) and (3) of the National Labor
Relations Act by refusing to recall employees Wiley
Jackson, Rozell Preer, Derrick Phillips, and Johnnie Wil-
liams following an economic layoff, and Section 8(a)(1)
and (5) of the Act by refusing to furnish the Union with
information requested which was relevant to grievances
regarding the layoffs of the four above-mentioned em-
ployees.
266 NLRB No. 171
Upon the entire record and from my observation of
the witnesses, and after due consideration of the briefs
filed by the General Counsel and Respondent, I hereby
make the following findings.
The Evidencel
The allegations involve grievances of and failure to
recall from layoff employees Wiley Jackson, Rozell
Preer, Derrick Phillips, and Johnnie Williams. There is
no allegation that the layoffs of Jackson, Preer, Phillips,
and Williams were unlawful. During the fall of 1981 and
January and February 1982, Respondent laid off a total
of 35 employees.
Wiley Jackson had previous periods of employment
with Respondent. His most recent employment date was
March 26, 1979. At the time of his layoff on September
18, 1981, Jackson was employed as "stacker" in Re-
spondent's plant 42.
Rozell Preer, like Jackson, was employed as a "stack-
er" in plant 42 when he was laid off on September 18,
1981. Preer was hired on February 10, 1981.
Derrick Phillips was employed as a "stacker" in plant
32 when he was laid off on September 18, 1981. Phillips
was hired on February 23, 1981.
Johnnie Williams was laid off on February 24, 1982.
At that time, Williams' job was "yard laborer" in plant
41. Mr. Williams was first employed on June 16, 1981.
Grievances were filed regarding the above layoffs
among others. On October 7, 1981, grievance meetings
were held regarding the layoffs of Jackson, Preer, and
Phillips. Union Business Manager Tommy Williams testi-
fied that he was told during the October 7, 1982, griev-
ance meeting that Jackson, Preer, and Phillips were se-
lected for layoff because their job performances had been
poor. Williams stated that, upon being advised of the
basis for the three employees' layoffs, he requested the
personnel files on those employees.
Respondent's vice president of production, Richard
Matheny, testified regarding the October 7, 1982, griev-
ance meetings. Matheny admitted that employees Jack-
son, Preer, and Phillips had been laid off out of seniority
but Matheny contended that the three had been selected
because of their "overall ability." Matheny also admitted
that the Union was not informed before the October 7
meetings why Jackson, Preer, and Phillips had been se-
lected.
Matheny admitted that the Union asked to see the per-
sonnel files for Jackson, Preer, and Phillips after being
told of Respondent's basis for selecting the three for
layoff. Matheny replied he would have to check with
Respondent's attorney. Shortly after October 7, Re-
spondent informed the Union that the requested person-
nel files would not be available to the Union. All three
grievances were denied on October 8, 1981.
1 The commerce facts and conclusions are not at issue. The complaint
alleges, the answer admits, and I find that Respondent, a Georgia corpo-
ration with offices and places of business located in Russell County, Ala-
bama, where it is engaged in the manufacture of bricks, is an employer
engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act.
The complaint also alleges, and Respondent admits, that the Charging
Party (Union) is a labor organization within the meaning of Sec. 2(5) of
the Act.
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the layoff of Johnnie Williams, a grievance
meeting was held in his regard on March 1, 1982. Busi-
ness Manager Williams testified that in preparation for
that meeting he phoned for Richard Matheny on the day
before the meeting. Matheny was out, and Williams was
connected with Lee McDaniel. Williams testified that he
asked McDaniel to see the personnel files of the meetings
the next day. Tommy Williams testified that he was
never supplied with those files. Richard Matheny denied
that the Union requested Johnnie Williams' personnel
file. However, Lee McDaniel did not testify. Johnnie
Williams' grievance was denied by Respondent on
March 2, 1982.
All four alleged discriminatees are members of the
Union. Respondent was aware of their union member-
ships. Each of the four had union dues deducted from his
pay. Neither Derrick Phillips nor Wiley Jackson has
been recalled. Johnnie Williams was recalled on June 28,
1982. He was subsequently terminated on July 12, 1982,
when he did not report for work. Rozell Preer was re-
called on July 6, 1982, but was terminated on July 12,
1982.
It is uncontested that from the dates of their recalls,
Respondent satisfied all legal recall obligations, if any ex-
isted, as to Johnnie Williams and Rozell Preer.
Conclusions
(i) The refusal to reinstate: Although the General Coun-
sel does not allege that any of the layoffs were illegal, he
does allege that Respondent violated Section 8(a)(1) and
(3) to the extent it failed to recall Jackson, Phillips,
Preer, and Williams.
In support of its recall allegations, the General Coun-
sel argues that a prima facie case was established when it
proved that known union members were passed over for
recall in favor of Respondent hiring new employees. In
that regard, the General Counsel contends that Respond-
ent's assertion that laid-off employees' work performance
was the overriding indicia used in determining recall
should be rejected since no competent evidence demon-
strated that the work of Jackson, Preer, Phillips, or Wil-
liams was inferior to what could be expected from an in-
experienced new hire.
Unfortunately, from the General Counsel's standpoint,
that argument fails to withstand a logical analysis. In the
first place, that particular argument is inconsistent with
the General Counsel's failure to allege that the layoffs of
Jackson, Preer, Phillips, and Williams were illegal in
view of the fact that work performance was the precise
reason given for those layoffs. At the time of the layoffs,
Respondent knew the union membership of Jackson,
Preer, Phillips, and Williams, and the General Counsel
does not argue that any occurrences subsequent to the
layoffs contributed to Respondent's failure to recall those
employees. 2
2 In that regard, the only postlayoff occurrence that was supported by
the record, which could have contributed to an unlawful motive, was
filing and processing by Jackson, Preer, Phillips, and Williams of their
layoff grievances. However, the evidence showed that other laid-off em-
ployees filed and processed similar grievances, and there was no showing
that those grievances differed from those of the alleged discriminatees.
Moreover, the General Counsel did not show or argue that the four al-
Secondly, there was no showing that Respondent's
recall procedure differed from past incidences of recall
following layoffs, or that union members were discrimi-
nated against in the recall. In regard to the discrimina-
tion question, Respondent showed that 20 of the 35 laid-
off employees have been recalled. Twelve of the 20 re-
calls were union members. Before the September 1981
layoffs, there were 259 employees in the bargaining unit,
159 were union members. At the end of 1981, there were
222 or 223 employees in the unit, 146 were union mem-
bers. In October 1982 there were 208 employees in the
unit, and 130 were union members. Those figures failed
to establish a trend of discrimination in the layoffs or re-
calls against union members, and no evidence was forth-
coming which showed such a trend.
The General Counsel argues that the absence of work
performance discipline notations in the files of Jackson,
Preer, Phillips, and Williams proved that their work per-
formance was not poor. However, while the absence of
such disciplinary notations may well support a grievance
under the layoff provisions of the parties' collective-bar-
gaining agreement (see next section of this Decision),
that fact alone does not demonstrate discriminatory treat-
ment. Here, there is no showing of inconsistencies re-
garding the selection of nonunion employees for layoff
or recall; i.e., there was no showing that the personnel
files either contained or did not contain disciplinary nota-
tions.
Richard Matheny testified that employees were consid-
ered for layoff and recall because (in the opinion of their
immediate supervisors) of the quality of their work per-
formance and their attendance. That procedure is legiti-
mate under the Act, even though it may or may not be
permitted under the collective-bargaining agreement.
Again, the bottom line for my inquiry must be does the
procedure demonstrate unlawful discrimination. I found
the answer to be no discrimination was proven. Re-
spondent established a nondiscriminatory business basis
for its recall selection. That evidence, which was subject
to attack from the General Counsel, was not overcome.
The General Counsel failed to show that nonunion em-
ployees were recalled before Jackson, Preer, Phillips,
and Williams, even though their work records were infe-
rior to the alleged discriminatees. See Wright Line, 251
NLRB 1083 (1980); Weather Tamer v. NLRB, 676 F.2d
483 ( lth Cir. 1982).
There was no showing of union animus. The General
Counsel argues that Respondent's action was inherently
destructive of protected rights. However, this case must
be distinguished from cases where reinstatement was
denied or delayed following strike activity. Here, the
layoffs were economically motivated. There was no
showing or allegation that the layoffs were related to
protected activity, and there was no other proximate
connection demonstrated between any protected activity
and the failure to recall. Moreover, there was no evi-
dence that Respondent ever indicated any hostility
toward the union or protected activities of the employ-
ees.
leged discriminatees' grievances contributed to Respondent's failure to
promptly recall them.
984
BICKERSTAFF CLAY PRODUCTS
Therefore, I find that the allegation of unlawful refusal
to recall was not proven (cf. Earle Industries, 260 NLRB
1128 (1982), where the evidence demonstrated animus,
timing, and a motive of disenfranchising employees from
voting in an NLRB election).
(ii) Failure to furnish information: It is well established
that unions have a "statutory right to potentially relevant
information necessary to allow it to decide if the under-
lying grievances have merit and whether they should be-
pursued .... " (Safeway Stores, 236 NLRB 1126 (1978);
see also United-Carr Tennessee, 202 NLRB 729 (1973);
and Worcester Polytechnic Institute, 213 NLRB 306
(1974)). Employees' bargaining representatives must be
afforded access to relevant records for the purpose of
carrying out their bargaining duties (J. P. Stevens & Co.,
239 NLRB 738 (1978)). Those duties include the process-
ing and arguing of grievances under applicable collec-
tive-bargaining agreements as noted in the below-cited
cases:
There can be no question of the general obliga-
tion of an employer to provide information that is
needed by the bargaining representative for the
proper performance of its duties. .... The duty to
bargain unquestionably extends beyond the period
of contract negotiations and applies to the labor-
management relations during the term of an agree-
ment. [NLRB v. Acme Industrial Co., 385 U.S. 432
(1967).]
The duty to bargain in good faith requires an em-
ployer to furnish information that the bargaining
agent needs for the proper performance of its duties
.... The obligation extends to the union's needs
for information during the administering and polic-
ing of a contract as well as during contract negotia-
tions. [Western Mass. Electric Co. v. NLRB, 589 F.2d
42 (lst Cir. 1978).]
The Board has long held that a union, as the bar-
gaining agent of the employees involved, is entitled
to relevant information which is necessary to fulfill
its role as bargaining agent in the administration of
its collective-bargaining agreement. [Equitable Gas
Co., 227 NLRB 800 (1977); see also Procter &
Gamble Mfg., 237 NLRB 747 (1978); Canal Electric
Co., 245 NLRB 1090 (1979).]
Here the evidence is convincing that the Union,
through Business Manager Tommy Williams made timely
requests for the personnel files of Jackson, Preer, Phil-
lips, and Williams. Richard Matheny admitted that
Tommy Williams requested the files of Jackson, Preer,
and Phillips during the October 7, 1981, grievance meet-
ings. As to Johnnie Williams, Union Business Manager
Williams testified that he asked Lee McDaniel for that
file on the day before the scheduled March 1, 1982,
grievance meetings. I was impressed with Tommy Wil-
liams' demeanor, and I credit his testimony, especially in
view of the lack of competent evidence to the contrary.
Lee McDaniel was not called to testify.
The applicable collective-bargaining agreement, with a
duration of November 1, 1979, through October 31,
1982, s provides as follows:
ARTICLE XIII-SENIORITY
When, for any reason, the employee work force
is increased or reduced, or when promotions, trans-
fers, or demotions are made, the following factors
as listed below shall be considered:
I. Ability to perform work.
2. Physical fitness.
3. Length of continuous service.
When in the sole judgment of the Company, both
factors (1) and (2) are relatively equal, then length
of continuous service shall be the determining
factor.
Respondent admitted during the hearing that Jackson,
Preer, Phillips, and Johnnie Williams were laid off "out
of seniority." During the grievance proceeding, the
Union was advised that those employees were selected
for layoff under item 1, above, "Ability to perform
work." Against that background, it is obvious, and I
find, that the requested personnel files contained "poten-
tially relevant information." The Union should have been
given access to the requested personnel files in sufficient
time to enable it to consider and use those files in proc-
essing the grievances of the alleged discriminatees.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Laborers Local Union No. 246 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed at Respondent's Plants I and 2, Ceramic, Ala-
bama; Plant 3, Dixieland, Alabama; and Plant 4, Brick
Yard. Alabama, including the sample department, Ce-
ramic, Alabama, but excluding the material handling di-
vision, plant clerical employees, office clerical employ-
ees, professional employees, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.4
4. At all times material herein, Laborers Local Union
No. 246 has been, and is, the exclusive collective-bar-
gaining representative of the employees in the above-
mentioned appropriate unit.
5. By refusing to furnish the Union with the personnel
files of Wiley Jackson, Rozell Preer, and Derrick Phil-
lips, since on or about October 7, 1981, and refusing to
furnish the personnel file of employee Johnnie Williams
I In that regard, Respondent, in its answer, admits that the Union was
its employees' bargaining representative only until November 1, 1979. In
view of the existence of the above-mentioned collective-bargaining agree-
ment, I find that the Union is the exclusive bargaining representative of
the employees in the admittedly appropriate unit at all material times.
4 Although the alleged discriminatees herein were mentioned as being
employed in plants 32, 41, and 42, the evidence revealed that those
plants, although identified with other numbers, are actually among the
plants set forth in the description of the appropriate bargaining unit.
985
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since on or about March 1, 1982, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(l) and (5) of the Act.
6. Respondent has not otherwise engaged in violations
of unfair labor practices as alleged in the complaint.
THE REMEDY
Having found Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. As I have
found Respondent unlawfully refused to furnish person-
nel files regarding employees Jackson, Preer, Phillips,
and Williams, I shall recommend that Respondent be or-
dered to furnish those files to the Union upon request.
Further, in view of my findings that the Union is entitled
to consider those files and use them in grievance pro-
ceedings, I shall recommend that the status quo be re-
stored by reopening the grievance proceedings of Jack-
son, Preer, Phillips, and Williams as those proceedings
existed on October 7, 1981, and March 1, 1982, respec-
tively, and that any resolution of those grievances be
given retroactive effect.
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, Bickerstaff Clay Products, Inc., Rus-
sell County, Alabama, its officers, agents, successor, and
assigns, shall:
i. Cease and desist from:
(a) Failing and refusing to bargain collectively with
Laborers Local Union No. 246, as the exclusive repre-
sentative of its employees in the following appropriate
bargaining unit, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment, by refusing to furnish the Union with re-
quested files and other information potentially relevant
to the Union's obligation as the employees' exclusive col-
lective-bargaining representative:
All production and maintenance employees em-
ployed at Respondent's Plant I and 2, Ceramic,
Alabama; Plant 3, Dixieland, Alabama; and Plant 4,
Brick Yard, Alabama, but excluding the material
handling division, plant clerical employees, office
clerical employees, professional employees and su-
pervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed to be necessary to effectuate the policies of the
Act:
5 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 find-
ings, 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.
(a) Rescind its actions in denying the grievances of
employees Wiley Jackson, Rozell Preer, Derrick Phillips,
and Johnnie Williams; furnish the Union with the files
and other information which is potentially relevant to
those grievances, upon request by the Union; and restore
the status quo ante by reconsidering those grievances, if
requested by the Union, at the state those proceedings
existed on October 7, 1981, in the cases of Jackson,
Preer, and Phillips, and on March 1, 1982, in the case of
Johnnie Williams.
(b) Post at its facilities located in Russell County, Ala-
bama, copies of the attached notice marked "Appen-
dix."6 Copies of said notices, on forms provided by the
Regional Director for Region 10, after being duly signed
by Respondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order what
steps Respondent has taken to comply herewith.
e 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Laborers Union No. 246 as the exclusive collective-
bargaining representative of our employees in the
appropriate bargaining unit described:
All production and maintenance employees
employed at Respondent's Plants 1 and 2, Ceram-
ic, Alabama; Plant 3, Dixieland, Alabama; and
Plant 4, Brick Yard, Alabama, including the
sample department, Ceramic, Alabama, but ex-
cluding the material handling division, plant cleri-
cal employees, office clerical employees, profes-
sional employees and supervisors as defined in
the Act.
WE WILL NOT refuse to furnish the Union with
requested files and other information potentially rel-
evant to the Union's obligation as exclusive collec-
tive-bargaining representative of the employees in
the above-described bargaining unit.
WE WILL NOT in any other like or related
manner interfere with, restrain, or coerce our em-
ployees with respect to their exercise of rights guar-
986
BICKERSTAFF CLAY PRODUCTS
anteed them by Section 7 of the National Labor Re-
lations Act.
WE WILL, upon request by the Union, rescind
our actions in denying the grievances of employees
Wiley Jackson, Rozell Preer, Derrick Phillips, and
Johnnie Williams; furnish the Union with files and
other inforamtion which is potentially relevant to
those grievances; and restore the status quo ante by
reconsidering those grievances at the state of the
proceeding as they existed on October 7, 1981, in
the cases of Jackson, Preer, and Phillips, and on
March 1, 1982, in the case of Johnnie Williams.
BICKERSTAFF CLAY PRODUCTS, INC.
987