McCorvey Sheet Metal Works

National Labor Relations Board - Board Decisions

Sep 23, 1998

326 N.L.R.B. 1066 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066
McCorvey Sheet Metal Works, Inc. and Sheet Metal
Workers Local 54. Case 16–CA–18734
September 23, 1998
DECISION AND ORDER
On April 17, 1998, Administrative Law Judge Keltner
W. Locke issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, McCor-
vey Sheet Metal Works, Inc., Houston, Texas, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Delete paragraphs 2(a) and (b) and reletter the sub-
sequent paragraphs.
2. Substitute the following for former paragraph 2(c).
“(a) Within 14 days after service by the Region, post
at its Houston, Texas facility copies of the attached no-
tice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent and former employees employed by the Respondent
at any time since June 2, 1997.”

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We find no merit in the Respondent’s contention that the judge
failed to take into consideration the demeanor of employee Royce
Shanks during his testimony. In his decision, the judge clearly stated
that his evaluation of Shanks’ testimony included his “observation of
the witness.”
The judge erroneously stated that the Respondent admitted in its an-
swer the allegations contained in paragraph seven of the complaint.
This error does not affect our decision.
2 We shall modify the recommended Order in accordance with our
decisions in Indian Hills Care Center, 321 NLRB 144 (1996), and
Excel Container, Inc., 325 NLRB 17 (1997). In addition, we shall
delete paragraphs 2(a) and (b) of the recommended Order because,
contrary to the Board’s usual practice, they direct the Respondent, in
the affirmative portion of the Order, to refrain from engaging in further
unfair labor practices.
3 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.’’
3. Substitute the following for former paragraph 2(d).
“(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.”

Robert G. Levy, II, Esq., for the General Counsel.
Samuel E. Hooper, Esq. (Neel, Hooper & Kalmans, P.C.), for
the Respondent.
Patrick M. Flynn, Esq., for the Charging Party.

BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on February 23, 1998, in Houston, Texas. After all parties
had rested, I heard oral argument, and on the same date, issued a
bench decision pursuant to Section 102.35(a)(1) of the Board’s
Rules and Regulations, setting forth findings of fact and conclu-
sions of law. In accordance with Section 102.45 of the Rules and
Regulations, I certify the accuracy of, and attach hereto as “Ap-
pendix A,” the portion of the transcript containing this decision.1
The remedy, Order, and notice are set forth below.
REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act, including posting the notice to employees
attached hereto as Appendix B.
On the findings of fact and conclusions of law, and on the en-
tire record in this case, I issue the following recommended 2
ORDER
The Respondent, McCorvey Sheet Metal Works, Inc., Houston,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge or other form of re-
prisal because of their support for Sheet Metal Workers Local 54
or any other labor organization.
(b) Interrogating employees as to whether they had distributed
union literature or were members of the Union.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
1 [The transcript has been corrected in accordance with Appendix C,
which is excluded from publication.]
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, these findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board, and all objections to them shall be deemed waived for all pur-
poses.
326 NLRB No. 89
MCCORVEY SHEET METAL WORKS 1067
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Refrain from threatening employees with discharge or other
reprisal because they supported Sheet Metal Workers Local 54, or
to discourage membership in any labor organization.
(b) Refrain from interrogating employees about their union
membership or activities.
(c) Post at its place of business in Houston, Texas, and at all
other places where notices customarily are posted, copies of the
attached notice marked “Appendix B.”3 Copies of the notice, on
forms provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including all
places where notices to employees customarily are posted. Rea-
sonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days from
the date of this Order what steps the Respondent has taken to
comply.

APPENDIX A
111
JUDGE LOCKE: This is a bench decision in the case of
McCorvey Sheet Metal Works, Inc., and Sheet Metal Workers
Local 54, Case 16–CA–18734. It is issued pursuant to Section
102.35, subparagraph 10, and Section 102.45 of the Board’s
rules and regulations.
Respondent has admitted in its answer to the allegations
raised in paragraphs one, two, three, four, five, six, and seven
of the General Counsel’s complaint. Based upon those admis-
sions and the record as a whole, I make the following findings
of fact:
The charge in this proceeding was filed by the Union on June
10, 1997 and a copy of it was served by first class mail on the
Respondent on the same date.
At all times material, Respondent, a Texas corporation, with
an office and place of business in Galena Park, Texas, contigu-
ous to the City of Houston, Texas, has been engaged in the
business of fabricating and installing sheet metal products.
During the 12 months before the date of the complaint,
which issued on October 22, 1997, Respondent, in conducting
its business operations described in paragraph two of the com-
plaint, performed services valued in excess of $50,000 directly
to customers located outside the State of Texas. At all material
times, Respondent has been an employer engaged in commerce
within the meaning of Sections 2(2), (6), and (7) of the National
112
Labor Relations Act.
At all material times, the Union, Sheet Metal Workers Local
54, has been a labor organization within the meaning of Section
2(5) of the National Labor Relations Act.
At all material times, Raymond McCorvey, Tony McCorvey,
and Billy Ware have been supervisors of Respondent within the
meaning of Section 2(11) of the National Labor Relations Act.

3 If this Order is enforced by a Judgment of the 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.”
Raymond McCorvey is chairman of the board of Respondent
corporation and Tony McCorvey is president at present.
Respondent has denied other allegations raised by the com-
plaint.
I find that on June 2, 1997, Royce Shanks, who was then an
employee of the Respondent, distributed literature he had re-
ceived from the Union to other employees. This literature con-
sisted of photocopies of a pamphlet published by the National
Labor Relations Board concerning employees’ rights under the
Act, and photocopies of a leaflet published by the Union con-
cerning impermissible conduct by employers.
Shanks distributed this literature either before or during an
employee safety meeting on that date. Shop Supervisor, Billy
Ware, conducted this meeting. I credit his testimony that he did
not realize the nature of these pamphlets during the meeting
itself, but learned about it after the meeting ended when he
spoke with employees about it. Ware also credibly testified that
he brought this literature to the attention of higher
113
management. I find that the information he provided to higher
management included the identification of Royce Shanks as the
employee who had distributed the union literature.
The General Counsel suggests that Ware’s testimony is im-
plausible. However, the materials which Shanks had distributed
were not colorful booklets likely to attract attention but photo-
copies which had little distinctiveness from a distance. It ap-
pears quite reasonable to me that Ware would not be aware of
the nature of the photocopies until after the meeting when he
saw them up close. It also seems reasonable that he would re-
port this matter to higher management rather than taking any
action on his own. Ware appeared to be a cautious and prudent
individual unlikely to act rashly.
Moreover, based upon my observations of the witness, I
credit his testimony.
When Raymond McCorvey arrived at his office that day, he
learned about Shanks’ distribution of literature. He told his son,
Tony McCorvey, to accompany him, and they went to Shanks’
work station. The testimony of Raymond McCorvey and Royce
Shanks differs about what was said at Shanks’ work station. In
deciding which of these witnesses to believe, I give consider-
able weight to the fact that Tony McCorvey was also present
during this encounter, and that the Respondent did not call him
to testify.
When relevant evidence which would properly be part of a
114
case is under the control of the party whose interest it would be
to produce it and this party fails to do so without satisfactory
explanation, the trier of fact may draw an inference that such
evidence would have been unfavorable to that party. See the
case of Martin Luther King, Sr. Nursing Center, 234 NLRB 15
(1977).
In this instance, Tony McCorvey was a participant in the en-
counter at issue and also remained a high management official
of Respondent. Respondent easily could have called him to
testify. Respondent did not call him to testify and did not pro-
vide a satisfactory reason for failing to do so.
Therefore, I infer that the testimony of Tony McCorvey
would not have supported the testimony of his father, Raymond
McCorvey, and instead, I credit the testimony of Royce Shanks.
I find that this encounter took place at Shanks’ work station
about 9:30 on the morning of June 2, 1997. Additionally, I find
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068
that Raymond McCorvey did ask Shanks if he were the one
who had been passing out the Union related pamphlets. I also
find that when Shanks acknowledged he had passed out the
pamphlets, McCorvey asked where’s mine. When Shanks of-
fered to bring one in, McCorvey told him not to do so because
McCorvey had already read the pamphlet.
Further, I find that Raymond McCorvey told Shanks that it
was pretty obvious that he was in the Union and was trying to
stir up trouble. Additionally, I find that McCorvey warned
115
Shanks not to “mess up.”
Based upon my observations of the witness, I do not find that
Raymond McCorvey added the comment “watch what you do.”
Shanks appeared to be somewhat tentative when he attributed
these remarks to McCorvey, and I believe that might reflect
Shanks’ interpretation of the “don’t mess up” statement as eas-
ily as being an additional warning actually given by McCorvey
to Shanks. After these statements, I find the McCorveys then
left the area of Shanks’ work station.
Applying an objective standard, I find that this encounter
clearly was coercive. The two highest management officials of
the Respondent were confronting an employee about his union
activities. When Raymond McCorvey asked Shanks if he were
the one who had passed out the union literature, that clearly
constituted interrogation of an employee in violation of Section
8(a)(1) of the Act as alleged in paragraph 7(b) of the complaint.
When McCorvey told Shanks not to mess up, that statement
constituted an implied threat of reprisal. Although complaint
paragraph 7(a) alleges that Respondent made a threat of dis-
charge rather than of unspecified reprisal, in either case, the
threat violates Section 8(a)(1) of the Act.
I find that this matter has been fully litigated and that Re-
spondent violated Section 8(a)(1) of the Act by warning Shanks
not to mess up in the context of questioning him about his Un-
ion
116
activities.
According to Shanks, on June 5, 1997, while he was at work,
supervisor Ware told him that the McCorvey’s would never go
Union and that Shanks could forget about the Union. Shanks
also testified that Ware asked if, in effect, Shanks thought so
much—let me rephrase it.
Shanks also testified that Ware asked if Shanks thought so
much about the Union, why wasn’t he working in a union shop
or words to that effect. It is undisputed that at this time, Shanks
was wearing a button and a sign which identified him as a sup-
porter of the Union. It is also clear that Ware already knew
about Shanks distributing union literature 3 days before.
Ware denied making any of these statements which Shanks
attributed to him. Based upon my observation of the witnesses,
I credit Ware rather than Shanks. Therefore, I do not find that
Ware made these statements and recommend that paragraph 8
of the complaint be dismissed.
In sum, I find that the Respondent violated Section 8(a)(1) of
the Act as alleged in paragraph seven of the complaint, but not
as alleged in paragraph eight of the complaint.
The remedy for this violation will be for the Respondent to
post a notice in which the employees are informed of their
rights to engage in Union or concerted protected activities or to
reframe from such activity.
Upon the receipt of the transcript of these proceedings, I
117
shall issue a written Bench Decision and Certification, which
will include a recommended order and the specific language of
the notice to employees which the Respondent shall post.
I shall file these documents with the Board and cause a copy
of them to be served upon the parties pursuant to Section
102.45 of the Board’s rules and regulations.
Under those rules, the Board will then issue an order trans-
ferring the case to the Board and will serve a copy of this order
on the parties. Pursuant to Section 102.46 of the Board’s rules
and regulations, the time period for filing exceptions will begin
to run upon service of the Board’s order.
I appreciate how counsel in this case were very civil and pro-
fessional in their treatment of the other side and of the wit-
nesses and of the Bench, and thank you for your cooperation.
The hearing is closed.
(Whereupon, at 1:55 p.m., the hearing was closed.)

APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT threaten employees with discharge or other re-
prisal because of their support for any union.
WE WILL NOT interrogate employees as to whether they had dis-
tributed union literature or were members of a labor organization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

MCCORVEY SHEET METAL WORKS, INC
.