Carolina Paper Millis, Inc.

National Labor Relations Board - Board DecisionsMar 4, 1981

254 N.L.R.B. 1071 (N.L.R.B. 1981)

INC. Goodwin. 11-CA-8238 11- iri lloard a ~ d l q c ) Relatioils 13oard - - (ieneral cledibility S~andard P d ~ r c t s Inc., 544 (1950). F.2d KING, ~ o c k i n ~ - 11-CA-8238 Paper- ;!3, 11-CA-8243 filetl Goodwin May tht: o ' improper Goodwin Angelo :!0, 8(a)(l) ' t h r ~ u g h Goodwin witne~ses,~ 2(2), (6), 2(5) Sec. Sec. employer- cond~tion diwour- bc ts N. Walton and Loganville 404. contradict~on thew diwredit- NL.RB 1071 CAROLINA PAPER MILLS, Carolina Paper Mills, Inc. and United Paperworkers International Union, AFL-CIO and Harold Dean Cases and C A -8243 March 4, 1981 DECISION A N D O R D E R On September 19, 1980, Administrative Law Judge Russell M. King, Jr., issued the attached De- cision this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in opposition to the General Counsel's exceptions. The has considered the record and the at- tached Decision in light of the exceptions and briefs has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and t o adopt his recommended Order. O R D E R Pursuant t o Section of the National Labor Act, as amended, the National Labor Re- lations adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed. The Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Dry Wall 91 NLRB enfd. 188 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. DECISION STATEMENT OF T H E CASE RUSSELL M. JR., Administrative Law Judge: These consolidated cases were heard by me in ham, North Carolina, on October 18 and 19, 1979. The charge in Case was filed by United workers International Union, AFL-CIO (the Union) on March 1979,' and the charge in Case was by individual Harold Dean on March 26. On 9 a consolidated complaint regarding both charges was issued by the Regional Director for Region 11 of National Labor Relations Board (the Board) on behalf the Board's General Counsel. The complaint al- leges threats by Maintenance Supervisor Tommie Harrelson on single occasions to employees Harold and Kaifos and the unlawful discharge of these two employees on October 19 and March respectively, in violation of Section and (3) of the National Labor Relations Act, as amended Herealter, all dates in August December will be in 1978 and all dates in January through March will be in 1979 unless otherwise indi- cated. 254 No. 142 Respondent denies the threats and alleges that and Kaifos were discharged for good cause, unrelated to their union support or activities. Upon the entire record, including my observation of the demeanor of the and after due consider- ation of the briefs filed herein by the General Counsel and Respondent, I make the following: (the I. JURISDICTION The pleadings and admissions herein establish the fol- lowing jurisdictional facts. Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of North Carolina with a facility or mill and place of busi- ness in Rockingham, North Carolina, where it is engaged in the manufacture of paper products. The Rockingham mill is the only facility involved in this case. During the 12-month period prior to the issuance of the complaint herein, Respondent, in the course and conduct of its business operations at the Rockingham mill, received goods and raw materials valued in excess of $50,000 di- rectly from points located outside the State of North Carolina. Also during said representative period, Respon- dent manufactured and shipped directly to points outside the State of North Carolina products valued in excess of $50,000. Thus, and as admitted, I find and conclude that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section and (7) of the Act. I further find and conclude, as alleged and admitted, that the Union is a labor organization within the meaning of Section of the Act. The pertient parts of the Act provide as follows: 7. Employees shall have the right to self-organization to form, join, o r assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining o r other mutual aid o r protection . . . . 8 (a) It shall be an unfair labor practice for an ( I ) to interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed in Section 7 . . . . (3) by discrimination in regard to hire or tenure of employment o r any term or of employment to encourage o r age membership in any labor organization . . . . The found herein are based on the record as a whole and upon my observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the wit- nesses, and the teaching of L. R. B. v. Manufacturing Company Pants Co., 369 U.S. 408 (1962). As to those testifying in of the findings herein, testimony has been ed either as having been in conflict with the testimony of credible wit- nesses o r because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in light of the entire record. 11. .4ngelo a.m. 3:30 19'19. Kaifos co:~tacted s handed ques- tio.1~. beg;inning or- ILaifos ap~sroached Un:on disputed %was firs1 such tele,;ram "[Wle union cards5 lal,ge ' l'he de- termillations findings " 2,700 a.m.6 3:25 3:30 DECISIONS O F NATIONAL LABOR RELATIONS BOARD THE ALLEGED UNFAIR LABOR PRACTICES A. Summary of the Evidence4 Kaifos was hired in May 1978 by the Compa- ny as a maintenance mechanic and he worked on the 7 to p.m. shift. He was discharged on March 20, His supervisor was Maintenance Supervisor T c mmie Harrelson. testified that sometime in August 1978 he was by several employees who expressed interest in union, and that he thereafter contacted a union orga- nizer, who in turn consulted with Union Representative Arnold Price. T h e first union organizational meeting was set and held sometime during the last week of August and thereafter there were approximately four additional meetings. Kaifos was a strong and active supporter and was a member of the union's organizational committee. He solicited signatures to union authorization cards, out literature, and answered employees' The organizational attempt failed for lack of inter- est or support, and, according to Kaifos, all union activ- ity ceased sometime in December before Christmas, but he had plans to renew the campaign the following year in March or April (1979). On August 31 the Union sent a telegram to the Company listing the 10 narnes of the employees, including Kaifos, who were ap- pointed after voluntering for the "in-plant organizing cornmittee," and who would be actively engaged in gar izing the Union at the mill. testified that one morning late in September he Maintenance Supervisor Harrelson and ac- cused Harrelson of telling other employees that if the got in the mill would be shut down. According to Kaifos, Harrelson replied that the Union would not d o the employees any good, and before "we let the union in" the mill would be shut down. Kaifos indicated that he this fact with Harrelson, further relating that he "president of the Local Union," to which Harrel- son replied he knew that because he had him "investigat- ed." Kaifos further explained that sometime during the week of September the Company posted two letters on the employee bulletin board in the production area, signed by the company president, Daniel Cohen. One letter acknowledged receipt of the August 31 union and began by stating, d o not want a in this plant, and will d o anything legally possible to cppose them, and to keep them out of here." Accord- ing to Kaifos, the other letter dealt with union authoriza- tion cards, advising employees that they had an absolute legal and moral right not to sign such Kaifos' discharge centered around a piece of equip- ment in the mill called a centrifuge machine, which was a piece of equipment purchased several months ago following includes a summary of the testimony of the witnesses appearing in the case. The testimony will appear normally in narrative form, although on occasion some testimony will appear as actual quotes from the transcript. The narrative only and merely represents a summary of wtat the witnesses themselves stated or related without credibility unless indicated, and does not necessarily reflect my ultimate and conclusions in this case. Copies of both of these letters were admitted into evidence. Howev- er, neither letter is the subject of an alleged violation of the Act in this case. by the Company and which served as a pollution device. The machine had an internal cylinder which rotated at revolutions per minute, separating liquids from solids, and thus serving as a required pollution device. Sludge from the mill's operation was pumped to the cen- trifuge machine, which separated water from solid matter, and the water was reused within the plant and the remaining solid waste was hauled away in trucks. According to Kaifos, if the centrifuge machine did not operate, the mill would have to be shut down within 3 hours unless the sludge was rerouted to a nearby lagoon. Kaifos testified that early in the morning of March 20 the centrifuge machine was "making a racket" and that he determined the machine had a bad bearing and told Maintenance Superintendent Harrelson about this fact a t approximately 9 Harrelson instructed him to start the centrifuge machine, which he did, after which the machine still made noise and he immediately turned it back off. Harrelson then insisted that he turn the ma- chine back on, but he replied that he would not start the machine unless he got instructions from someone "higher." Kaifos indicated that later in the morning he talked to Personnel Manager John Suggs about the cen- trifuge machine, explaining that he thought it had a bad bearing and it should not be run, but that Harrelson in- sisted that it be turned on anyhow. According to Kaifos, both he and Suggs went to the centrifuge machine, Kaifos turned it on, and Suggs told him to turn it off im- mediately and leave it off until he "got back" to him. Both he and Suggs then talked to Harrelson and Suggs again stated, according to Kaifos, that the centrifuge ma- chine should remain off until he (Suggs) talked with General Manager Daigle. Kaifos testified that after lunch he and fellow mechanic Charlie Veach removed the housing and discovered that the bearing was in fact bad. Daigle and Harrelson then appeared, saw the bad bear- ing, and Harrelson went to check the supply room to see if they had a replacement. Later, at about 2 p.m., Harrel- son told him to reroute the sludge from the centrifuge machine to the lagoon, which he did. However, after doing so it was discovered that the lagoon line had been rerouted to "Hector's Pond," a collection pond for water used by the city. At o r about 3 p.m. Harrelson told him to turn off the sludge pump, which he did. Kaifos testi- fied that about p.m. he asked Harrelson if he had decided what to d o with the sludge or if he had decided to run the centrifuge machine with a bad bearing, and Harrelson stated that he could not make such a decision regarding such an expensive piece of equipment. Kaifos then washed up and punched out at his normal quitting time of p.m., indicating that no one told him to either remain or leave at that time. The following morn- ing (March 21) when he reported to work he found a note on his timecard from Harrelson stating "take off until I call you." He then left the mill, but apparently re- turned at o r about 9 a.m. and approached Harrelson about the note, indicating he wanted a witness present, to which Harrelson replied he did not "rate" a witness. Kaifos' primary duty in the mill was maintenance of the centrifuge machine, and he had received instructions from the manufacture when it was installed. suspe~~ding bt:fore on(: po~nting $80,000 " sc~," Har- how t h ~ t thi~t w e n * Brigman, Goodwin a.m. latt: Goodwin wage^."^ Goodwin, then:." Goodwin sonie no prodems, Harrelson samebody requested basicall I expe1,ienced schedi 2(1, Goodw.n Goodwin Goodwin Goodwin, Harrelson 14, Goodwin Brig- Goodwin 6:30 a.m. [him.Iwg Goodwin 18), Goodwin, desk.1° Goodwin 9:30 Goodwin Har- Goodwin, Goodwin Goodwin, - Goodwin Weather- l a testified Goodwin Goodwin testified Goodwin 1 the a.m. CAROLINA PAPER MILLS. INC. 1073 According to Kaifos, Harrelson then explained that he was him because he was working on a job and left the job was completed." Kaifos replied that no would make a decision as to what to d o with the sludge, and he merely left at his normal quitting time, further out to Harrelson that the Company was using him as a "goat concerning an piece of equipment According to Kaifos, Harrelson replied, "Maybe and that if he did not like it to "take it to the Labor Board." Kaifos related that he then asked relson much time he was going to give him off, to which Harrelson replied he had not decided, advising Kaifos to check back with him the following Monday morning. The following Monday, Harrelson advised Kaifos "we decided to let you go" because the Company was cutting down expenses in the shop. Kaifos related he argued with Harrelson, pointing out that they discharging him for union activities, which Harrelson denied, indicating that they were also laying off emplcyee Joe who did not support the Union. Harold was employed as a mechanic in July 1978 and was discharged on October 20. He indicated that he worked the "swing" shift from 8 to 4 p.m. From August on he supported the Union, was a member of the organizing committee, passed out litera- ture, and solicited signatures to union authorization cards. He also attended four out of the five union meet- ings. testified that in early October Harrelson ap- proached him and stated that if the union got in he could "put [him] through a test and lower [his] Ac- cording to Harrelson further remarked that employee Kaifos "puts [the employees] up to talk to him" every time something goes wrong and that Kaifos "hadn't teen anything but an agitator ever since he's been On August 21 fell on oil in the mill, injured his back, and was out from August 21 to October 2, during which time he was under a doctor's care. He had been released for "light-duty" work sometime in September, but he did not return to work until October 2 because light work was available. He was released from the doctor's care shortly before his return to the job on October 2. On his return he continued to have back and he related that on October I I he asked Harrelson if he could take off on October 15 and 16, and granted the request subject to his ob- taining to take care of his shift. The reason for this absence was to attend or g o to a "drag strip," although he did not state this reason to Harrelson. Kaifos indicated that the Company's alleged reason for his discharge was that he was working on a job and left before it was completed. This was the Company's defense to Kaifos' later claim for unemploy- ment compensation, which was ultimately granted. Kaifos conceded that on occasion mechanics were expected to work overtime when their ma- chines a breakdown. but on the date in question mechanics were led to come in on the night shift starting in the midafternoon of March indicating his assumption that. if there was anything left to be done regarding the machine, these mechanics would be there to com- plete the wc rk. initially testified that this incident occurred in "late" Octo- ber. His last day of actual work in the mill was October 14. indicated that he did in fact g o to a drag strip on those 2 days, notwithstanding the fact that his back was bothering him. related that employee Irvin Hodges agreed to work the 2 days for him because he needed the money, and, according to he re- ported back to that Hodges had agreed to cover his shift on October IS and 16. Prior to this leave, on October indicated that he worked only several hours and punched out because his back was "bothering" him. Prior to punching out on October 14 he received permission from Supervisor Howard Watson to leave early and he also obtained employee Joe man to cover his shift. testified that after his 2 days off, on October 17, he did not report to work, but that at 6 o r he called the mill and talked to me- chanic Frank Weatherford and asked him to "get the word to the shop for [Harrelson] to know that [he] couldn't get in, because [he] was still out sick because [his] back was bothering related that at this time he was living at his mother's house, she did not have a phone, and the only number the Company had for him was his "girl friend's" number, where he often stayed. On the following day (October accord- ing to he again called in sick early in the morning and talked to Paul Swails, who stated that he would write a note and put it on Harrelson's indicated that he was still at his mother's house at this time. O n October 19 at 9 o r a.m. went to the mill to get his check and explained to relson that he was going to a doctor and would report back to work the following day (Friday, October 20). According to Harrelson replied that he had been "laid off," advising him to g o talk to General Man- ager Daigle about the matter. He went to Daigle, who informed him that he had been fired and they had not been able to reach him at the number they had for him, and further that the Company's president, Cohen, had reaffirmed that he was fired. asked Daigle if his discharge had anything to d o with his union activi- ties, and, according to Daigle replied, "It don't make a damn what it is for." Hodges testified as a present employee of the Compa- ny. He had worked as a mechanic for 5 years. He agreed to, and did in fact, work Sunday and Monday, October testified that the rules, as he understood them, were to call in at least 2 hours before his shift was lo commence to avoid any penalty or suspension. Weatherford testified that he was not working and not in the mill that Monday, and thus received no such phone call. ford's timecard verified this. Kaifos that was not present for work on October I8 because when he went to work himself that night he saw a note on Harrelson's desk that would not be in that day. The note was signed "Paul," who is identified in this case as Paul Swails, the night su- perintendent. Swails was not called to testify in this case, nor was the note produced. Kaifos further that he picked the note up and put it in Harrelson's desk drawer for the purpose of delaying Harrelson's knowledge of the note in order to avoid having to cover or work for on his shift later on that morning. Kaifos related that the note was found and placed in the drawer at approximately a.m., and Kaifos further explained that the desk was actually Harrelson's desk, but was used during the day by a secretary for clerical purposes. Harrelson used the desk only occasionally. Kaifos indicated that he found note when he was working the midnight to 8 shift (October 18-19). an apparent deviation from his normal shift. DECISIONS 15 Goodwin, Har- Sunday broken M a ~ c h .:imecard askf:d rigt t 2nd home, Hoclges Ingram, Goodwin Ingram. J1:sse when "bli~nk" 3:30 centri- fugl: obsxved while whlch check[ed] 3:30 standing strtcted late.12 .was Floland Good- wir's Goodwin conlpany lear't Go3dwin v Goodwin ' I Kalfos mtll sometime earher ~ h c ~ h r e e after earl~er In " manufilcturer bearing, 3:15, Goodwin, Goodwin Goodwin Goodwin (330 situ- ' ation Har- Veach.13 '"each In 1074 OF NATIONAL LABOR RELATIONS HOARD and 16, for and Hodges indicated that relson knew this fact because Harrelson came in briefly to the mill. Regarding the bearing on the centri- fuge machine, Hodges testified that the bearing was in fact replaced a week or so after Kaifos' discharge, and was in fact defective. H e had saved the actual bearing and identified it during the hearing. The bearing was in half but the centrifuge machine continued to run, after Kaifos' discharge, until it was replaced. Hoclges also testified that he was standing nearby on 21 when Kaifos asked Harrelson what the note on his meant. According to Hodges, Kaifos further if he could have a witness and Harrelson replied that he could not, and Kaifos then replied that he had a to a witness, to which Harrelson responded, "You don't have any rights." Regarding the Company's absen- tee policy, Hodges testified that employees were to call in let Harrelson know, either at the mill or at his when they would not be able to report to work. also remembered one case where employee Leo before was discharged, "[took] about five" days off without calling in. According to Hodges, this resulted in a 3-day suspension of Jorden was employed by Respondent on January 20, 1978, as a mechanic. He worked on March 20 during the centrifuge incident and testified that after lunch, the centrifuge machine was off, he placed a in the sludge line upon Harrelson's instructions, but sometime after Harrelson stated that the machine was going to be turned back on and re- quested that he go and remove the blank. Thereafter, he Harrelson placing the note on Kaifos' timecard at the same time shouting to General Manager Daigle, "Are you sure this is what you want to do," to Daigle replied, "That's what I want to do." After removing the blank and punching out, he joined Kaifos and employee Hodges at a nearby tavern and drank a beer." At the tavern he told Kaifos about the note on his timecard and Kaifos then "[went] back and it out." Jorden also testified that between 3 and on March 20 five or six of the maintenance employees were around, including Kaifos, and none were in- to remain At this time Kaifos remarked to the group that since he had not been asked to stay late he "going on." Daigle testified as the mill's general manager, a position which he held for 5 years. Regarding discharge, Daigle indicated that he was not in- volved in the decision, although came to him the day after he was discharged to discuss the matter, and he advised him that it was between him and Mainte- nance Supervisor Harrelson. Daigle testified that it was policy for employees to call their supervisors at 2 hours prior to reporting time if they were sick, and that during Goodwin's absence he attempted to call "at least [a] half dozen times" at the number the had for him, and that he never got any answer. Ac- cording to Daigle, the decision to discharge and Hodges had left the and apparently had planned to meet work the day. Jorden indicated that he had earlier asked to work overtime that day was made by Harrelson. Regarding the March 20 centri- fuge machine breakdown, Daigle testified that about 3 p.m. he called the machine's and was ad- vised to go ahead and run the machine even with the bad the manufacturer indicating that they would ship a new bearing right away. Soon thereafter and about he made the decision to turn the machine back on and so informed Harrelson. According to Daigle, within 2 or 3 days thereafter the new bearing ar- rived and the defective bearing was replaced. Regarding the actual discharge of Kaifos, Daigle testified that the decision was also made by Harrelson. Daniel Cohen testified as the Company's president. He indicated that he had never met employee even at the time of his discharge, but at that time he knew he was a member of the union organizing commit- tee. Cohen testified that on the third day of Goodwin's absence Harrelson came to him and indicated that he wanted to replace because he had not heard from him in 3 days and had attempted to reach him by phone without success. Cohen indicated that he immedi- ately told Harrelson to discharge and replace him, whereupon Harrelson pointed out that was a union supporter. Cohen responded: "It doesn't make any difference . . . [he] has not shown up; he has not called." Regarding the discharge of employee Kaifos, Cohen testified that he made the final decision to discharge Kaifos. Cohen related that the centrifuge machine was vital to the plant's operation, the Company having been forced to install it by state and Federal authorites. Ac- cording to Cohen, disposal of sludge in any other manner could result in a $5,000-a-day fine. Cohen testi- fied that when the centrifuge was turned off on March 20, and after employee Kaifos had punched out for the day p.m.), Harrelson came to him and complained about Kaifos' departure before the centrifuge matter had been resolved. H e and Harrelson then discussed the and Harrelson "preferred to let him . . . stay on" because of his union involvement, but Cohen indicated that he insisted Kaifos be discharged, explaining to relson that Kaifos had "refused to obey his orders and that once you allowed that to happen we might as well fire [him]." Cohen related that both Harrelson and me- chanic Veach had ended up staying late that afternoon "putting the centrifuge back together," and when he talked to Harrelson he was "filthy" as a result of having worked on the machine with Cohen also testified that earlier in the week of the cen- trifuge problem he had complained to Harrelson about the rise in the payroll cost of the maintenance depart- ment over the last 6 months, and had told Harrelson he wanted a reduction immediately and that he would have to "get rid of a couple of men." When Harrelson came to him after repairing the centrifuge machine late in the afternoon of March 20, Harrelson himself suggested that they could discharge Kaifos for economic reasons, but Cohen testified that he insisted Kaifos be discharged for had been on the centrifuge problem that day and apparent- ly was due to leave when Katfos left, but had stayed over. INC. orders.14 Harrc:lson working tp o i refrlsal Har- d~rection, have K,iifos' machine 2:30 a r~d t11e w':re whether what Ifarrelson Earrelson bet,ween 1-1/2 the rephced. com~~le ted ac- comp1ish1:d they Goodwin company usual discharge.15 p e ~ a l t y disrespkct, ;m l 4 testlrnony. testlmo- Kaifta for notlces admltted coverlng '"Also tte Hurrelson Goodwin Goodwin Goodwin notif i~at ion. '~ Goodwin Goodwin machine.lB 3:30" " Goodwin Goodwin termmated l R testjfied 1075 CAROLINA PAPER MILLS, failure to obey In summary, Cohen testified that he discharged Kaifos for "insubordination" based on what and Daigle had told him; that is, "he had been on the job and he had left the job without permission after they had asked him stay there until they had gotten complete instructions from [the manu- facturer the centrifuge machine]." Cohen additiopally added tha; Kaifos' "insubordination" also included his earlier to turn on the centrifuge machine at relson's and that in his opinion Harrelson would discharged Kaifos at that time, based upon this refusal along, had it not been for Harrelson's knowl- edge of union involvement. Charlie Veach testified as a present employee of the Company and as an assistant supervisor. When Kaifos was discharged, Veach was a mechanic. Regarding this discharge, Veach testified that on March 20 the centri- fuge was "vibrating real bad and we thought we had a bad bearing in it," and thus at or about p.m. he Kaifos pulled the cover and ascertained that in fact a tearing was bad. Since they had no replacement bearing manufacturer of the machine was called and it was determined that the machine could be operated with the faulty bearing. Veach testified that he and Kaifos instructed to "stay there until they found out they could get the bearing in or on the ma- chine or we had to d o to it." When came back to the centrifuge machine after the manufacturer was called, Kaifos had left, and he and then put the bearing covers back on the centrifuge machine and restarted it. This process took 1 and hours and, according to Veach, machine thereafter ran for approximately 7 days befcre the new bearing arrived and the old bearing was Veach confirmed that it was company policy that maintenance employees remained overtime and any job they were on if it could be within a reasonable time. Regarding the bearing itself, in Veach's opinion the bearing that me- chanic Hodges had identified in testimony earlier was not the one that was taken from the centrifuge machine. John Suggs testified as the Company's personnel man- ager. According to Suggs, he interviews employees when are first hired, and this orientation interview includes explaining the Company's rules and policies. Suggs indicated that the overtime requirement to get equipment "back on line" was a company rule or policy, and that he explained this to Kaifos when he was hired. Suggs further related that he also explained to the rule or policy about the 2-hour notification of illness (absence) to a supervisor. Suggs testified that the result for failure to give such notice prior to absence was Suggs also related that a fre- quent for walking off a job, or failure to obey order was also discharge. At this point in his Cohen had heard the earlier ny of to the effect that Harrelson had stated that Kaifos' termina- tion was economic reasons. Cohen insisted that his decision to fire Kaifos was based on Kaifos' failure "to obey orders." Some I8 separation were into evidence a 10-year period involving employee failure to report. admitted into evidence were I8 separate separation notices covering past 10-year period involving such conduct. Tommie testified as the Company's mainte- nance supervisor. He denied ever making any statement to or Kaifos, o r any other employee, about the Union or ever discussing the Union with any employee, although he did concede that Kaifos himself would often mention the Union to him during minor confrontations in the mill. Harrelson testified that when was hired he also advised him that he should call in before his shift started if he was sick and unable to work. Harrelson in- dicated that he discharged because of his ab- sence from work without Harrelson testi- fied that he tried to reach by phone four or five times, but received no answer at the number they had listed for him. He indicated that he did not impose the more lenient punishment of suspension because Goodwin's absence involved more than I day. He relat- ed that he told personally, at the mill, that he was "laid off o r fired." Regarding employee Kaifos, Harrelson testified that he hired Kaifos himself and that he was a good mechanic. Harrelson related that upon hiring Kaifos he explained that a "few" employees would occasionally have to work overtime if it involved a "key" machine or one which was necessary to keep the mill operating. Kaifos and Veach, who Harrelson characterized as the best me- chanics he had, often worked on the centrifuge machine together. Sometime in the morning hours of March 20 Kaifos indicated that he thought the centrifuge machine had a bad bearing. Mechanic Veach confirmed this, and Harrelson agreed with Veach, but also wanted the ma- chine to continue running and directed Kaifos to turn it on; Kaifos refused. After lunch, Veach and Kaifos changed the bearing oil, and Harrelson and Daigle decid- ed to call the manufacturer after learning that they could not reroute the sludge and thus the mill could not oper- ate without the centrifuge According to Harrelson, sometime after 3 p.m. Daigle called the manufacturer and ascertained that the centri- fuge machine could be run. At this time the "cap" and "end" were off the bearing housing and Kaifos and Veach were "waiting" for instructions as to what to do. Harrelson testified that he had instructed both to "wait" until a decision was made. After learning that the centri- fuge machine could be run, he went back to the machine "close to and Veach was there but Kaifos had left. Thereafter. he and Veach then worked on the machine approximately 1 to 1-1/2 hours and placed it back into operation. Harrelson indicated that after this he put a note on Kaifos' timecard and then went to the Compa- ny's president, Cohen, and told him what had happened, explaining that Kaifos had walked off the job and that he proposed a suspension. According to Harrelson, Cohen When was discharged. Harrelson instructed secretary Judy Page to draft a memo, which he signed, and which reads as follows: H.D. was because of not reporting to work. I tried for three or four days to reach him at home because we needed him for work. He could not be reached at home, and he reported that he was sick and under a doctor's care. but did not give us an excuse from the doctor. Harrelson later that he knew from the beginning that the sludge could not be rerouted because the line was stopped up. 107ti then insited clne day."lg noan $80,000 Inirial I1 com- Goodwin 19 Goodwin t11e Goodwin 1ow.r H a ~ r e l s o n . ~ ~ 0tht.r Goodwin K a i f o ~ . ~ ~ Kaifos remilrk Goodwin. violi~ted A,though Goodwin involv- -- '9 reasor becaule 2 0 Ifarrelson Goodwin contell 2 1 Goodwin lackadaisical throuehout, serioucness diff:rent Goodwin, attempt ,ut discharge, Har- rclson is on situation^.^^ discharged Goodwin 11, 16.23 O n 17 Goodwin 6:30 Goodwin Goodwin Goodwin Goodwin who Goodwin Goodwin Goodwin Goodwin 2 2 act~vity, Divtsion Inc.. (1980), "prima d~stlnction often Inc., supra 23 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Kaifos be discharged for his conduct. In summary, Harrelson indicated that Kaifos was dis- charged for "disobedience of an order, direct; two times in He denied that he directed the rerouting of the sludge to the lagoon, knowing full well that it was impossible because the line was stopped up. Harrelson conceded that he stated to Kaifos, sometime after 12 on March 20, that he himself could not make a de- cision on an piece of equipment. B. Analysis and Conclusions is undisputed in this case that both employees Good- win and Kaifos were known by Respondent to be union supporters and members of the Union's organizing mitlee, and that Respondent was strongly and firmly against the Union, and I so find. T h e complaint alleges the unlawful discharge of and Kaifos on Octo- ber and March 20, respectively. The two other viola- tions charged in the complaint involve Harrelson's al- leged mill-shutdown remark to Kaifos in late September and his alleged remark to in early October that if Union came in he could give a test and his wages. These incidents were unwitnessed and the statements were denied by There is no evidence of similar remarks, and the issue of the al- leged remarks thus and solely involves credibility, the resolution of which will also bear upon the discharges themselves. I can think of no way to subtly or tactfully dispose of the credibility resoulutions in this case. Abruptly and simply, I discredit the major and significant portions of the , estimony of both and I thus find that no mill-closing statement was made by Harrelson to in late September. The test-and-lower-wage was made, I find, as admitted by Harrelson, but was unconnected with the Union as alleged by Accordingly, I find and conclude that the Act was not as alleged in paragraph 8 of the complaint. having discredited and Kaifos, their discharge requires a more detailed discussion of the facts and evidence in this case in the light of the Board's most recent pronouncement regarding discharges Later Harrelson signed a "termination report" which stated the for termination as follows: "Employee was asked to stay on job of breakdown and he walked off job without reporting to super- visor." did admit that he talked to once in a nonunion about his abilities as a mechanic and remarked that if he "gave him a test [he] could probably cut his wages." 1 studied their demeanor closely and scrutinized the logic and plau- sibility of their testimony. was nonchalant and and treated his absences (and For that matter the entire pro- ceeding) without any whatsoever. His explanations were shal- low a rd often thrown out like afterthoughts. Kaifos, displaying an entire- ly personality than made a far better at the truth. the two appeared to become bound together by their common plight of and their explanations and denials soon took on a joint a r of false conjectures and contempt. Maintenance Supervisor a large man who was totally serious and somewhat nervous throughout his testimony. He obviously would have felt far more at home the line with the machines at the mill, but he impressed me as honest and hardworking and a man of few words, most of which were rcwrvrd for his singular work responsibility of maintaining the operation- al status of the equipment in the mill. ing "mixed motive" or "dual causality" In Goodwin's case, Respondent argues that the discharge resulted from his absences without calling his supervisor, Harrelson, in accordance with acknowledged company rules. Numerous other employees had been for the same reason, although there had also been excep- tions. was employed in July, injured his back on August 21, and was out and under a doctor's care until October 2. On Wednesday, October he asked and received permission to be off on Sunday and Monday, October I5 and Saturday, October 14, he worked only several hours and then left with permis- sion because his back was "bothering" him. O n Tuesday, October (at 8 a.m.), and Wednesday, October 18, he failed to report to work, and on Thursday, October 19, he arrived late only for the purpose of picking up his check, and told Harrelson he was going to the doctor and would report back to work the following morning. H e then was told that he was discharged. claims to have called in on October 17 at 6 or a.m. and talked to employee Weatherford, who creditably tes- tified that he received no such call and was not even working at that time (as reflected on his timecard). also claimed that he called in on October 18 and left a message with employee Paul Swails, who, without explanation, was not called to testify in this case. Kaifos claims to have found Swails' note and hid it in Harrelson's desk drawer so that he would not be asked to work Goodwin's shift (in Goodwin's place) on Octo- ber 18. does not claim that any call was made during the early morning hours of October 19 when he reported late to pick up his check. Both Harrelson and General Manager Daigle tried to reach by phone, but received no answer with each attempt. The number had left with the Company was that of his "girl friend," but during the period in question he claimed to have stayed with his mother had no phone; his aunt next door did have a phone, which he . indicated he used when calling in. Having discredited (and Kaifos), I find that did not in fact call in as required, and that Harrelson was never timely notified on October 17, 18, and 19 that would not be reporting for work. As of October 19, had worked less than half the time he had been employed. His dependability, and thus his value to Re- spondent, became understandably in serious doubt, espe- cially after 3 straight days without notification on the heels of 2 additional days of excused absences. Good- win's discharge came a month and a half after the union's organizational notification, during which period In the past the Board has generally held that, if the discharge was motivated "in part" by the employee's concerted protected it was in violation of the Act. In Wright Line. A of Wright Line. 251 NLRB 1083 the Board founded a new test, which pro- vides that the General Counsel must make a facie showing suffi- cient to support the inference that the protected conduct [or union activ- ity] was a 'motivating factor."' At that point, the burden shifts to the em- ployer "to demonstrate that the same action would have taken place even in the absence of the protected conduct." Under this new test, it is appar- ently unnecessary to distinguish between "pretext" and "dual motive" cases, a which in the past has been difficult to discern. See Wright Line, at fns. 4 and 5. By his own admission, he attended drag races on these 2 days. Goodwill time.z4 furtker discharg: 19.z5 d~scharge had 20.26 machine, whtmther sometim~: Kaifc~s woeked and 3:30 msintenance none! 3:30 left f r m 3:15 3:30 Ha18relson 3:30, proc1:dure 1 Harrel- -- 24 m y , I3r f 2 5 1 2s he [hat compl@nt 2(2), (6), 2(5) 8(a)(l) 8(a)(3) (1) l q c ) 2 ' Sec. In Sec. 102.48 1077 CAROLINA PAPER MILLS. INC. was out sick and under a doctor's care for the majority of the I find not only that the General Counsel failed in this case to present sufficient credible evidence to raise the inference of an illegal discharge, but that the sole motivating factor for Goodwin's was his displayed undependability depicted by his failure to call or report to work on October 17, 18, and The of Kaifos came long after the union ac- tivity ceased and on March Early in the morn- ing it appeared that a bearing had burned out in the cen- trifuge which was vital to the mill's operation. Throughout the morning there was various talk about what to do, and the machine was turned off and on sev- eral times. At one point Harrelson directed Kaifos, who was the primary mechanic for the machine, to turn the machine on and he refused. Later on in the day the bear- ing houring was removed and the existence of the bad bearing was confirmed. There was no replacement bear- ing on kand, and the manufacturer was called to ascer- tain the machine could be run with the faulty bearing and to order a new bearing. This took place after 3 p.m. Harrelson testified that he instruct- ed to remain at the mill until the question had been resolved. This was not unusual and those mechanics who on particular key machines were to remain overtime for reasonable periods if necessary to place the machine back "on line." Kaifos denied he was told to remain, mechanic Jesse Jorden testified that some- time between 3 and p.m. Kaifos and four or five other employees were "standing around" and were instructed to remain late. Sharply at Kaifos the mill (his normal departure time). Within minutes thereafter the decision was made to place the machine back on line. It is unclear as to what precise time the manufacturer was actually reached. The best es- timate the record would be between and p.m. himself, together with mechanic Veach, actually placed the machine back on line after and the took between and 1-1/2 hours. son initially decided to suspend Kaifos, but Respondent's There is absolutely no evidence in the record as to the level or in- tensity, if o f union activity among the employees at the time of Goodwin's discharge. Kaifos testified that he abandoned the idea before Christmas lack of interest. There is no evidence as to when this lack of interest rst became apparent. do rot herein pass upon the severity of the result of Goodwin's conduct, but only that such conduct was the sole cause of his discharge. and that the result was not discriminatorily applied. Kaifor testified that when he abandoned his union activity before Christmas had intended to renew this activity in March or April. However, there is no evidence that he in fact renewed this activity in March, or he conveyed his earlier intentions to anyone at or con- nected with the mill. He had been the prime supporter for the Union. president, Cohen, upon learning of the events of the day regarding Kaifos, directed that Harrelson discharge Kaifos for "disobedience" of Harrelson's orders to both turn the machine back on and to remain at the mill until the problem of the machine had been resolved. Other employees over the past years had also been discharged for "disobedience." No matter what prompted Kaifos' discharge, I am sat- isfied it had nothing to do with his union activities some 3 to 6 months prior to the discharge. I find that in fact not only was Kaifos told to stay late, but he was aware of his responsibilities in this connection. In my opinion these responsibilities were not abrogated by any feelings Kaifos may have had regarding being used as a "scape goat" for an expensive piece of equipment. Although Kaifos himself may have been disturbed or mad, I find that his direct refusal to turn the machine on and his pre- mature departure under the circumstances infuriated Harrelson, whether rightly or wrongly. Not only was Harrelson defied in the presence of other employees, he was compelled to step into Kaifos' place and work on the machine late in the day. On the basis of the forego- ing, I shall recommend that the be dismissed. Upon the foregoing findings of fact and initial conclu- sions, and upon the entire record, I hereby make the fol- lowing: 1. Respondent is an employer engaged in commerce within the meaning of Section and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section of the Act. 3. Respondent has not violated Section or Sec- tion and of the Act as alleged in paragraphs 8 through 13 of the consolidated complaint filed herein. 4. Respondent has not otherwise violated the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section of the Act, I hereby issue the following recommended: It is ordered that the complaint herein be, and the same hereby is, dismissed. In the event no exceptions are filed as provided by 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided 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.