Phelps Dodge Aluminum Products Corp.

National Labor Relations Board - Board Decisions

May 27, 1969

176 N.L.R.B. 181 (N.L.R.B. 1969)

ALABAMA ROD AND WIRE DIVISION
Alabama Rod and Wire Division , Phelps Dodge
Aluminum Products Corp . and Aluminum Workers
International Union , AFL-CIO. Cases 26-CA-1999
and 26-RC-2271
May 27, 1969
DECISION, ORDER , AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULIOCH AND MEMBERS
FANNING AND JENKINS
On June 28, 1965, Trial Examiner C. W.
Whittemore issued a Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices in violation of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He further recommended that
the election, of December 22, 1964, be set aside.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief. Upon consideration
of Respondent's exceptions, the Board found that
certain of them, dealing with adverse rulings of the
Trial Examiner as to the admissibility of evidence,
had merit. Accordingly, on May 18, 1966, the Board
issued an Order Reopening Record and Remanding
Proceeding to Regional Director for Further
Hearing in accordance with the Board's Rules and
Regulations. Thereafter, Trial Examiner
Whittemore, after a further hearing in accordance
with the terms of the remand order, issued his
Supplemental Decision dated June 19, 1968,
attached hereto. The Respondent has filed
exceptions to the Supplemental Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
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 Trial
Examiner's Decision, and Supplemental Decision,
the exceptions and briefs, and the entire record in
this proceeding, and hereby adopts the findings,:
conclusions, and recommendations of the Trial
Examiner, as modified herein.
'In its brief in support of exceptions to the Trial Examiner's
Supplemental Decision , Respondent renews its motion to disqualify the
Trial Examiner on the ground of prejudice and to dismiss the complaint or
in the alternative to order a remand of the entire proceeding for hearing
before a different Trial Examiner. We find no merit in the Respondent's
contentions as we see nothing in the record to indicate that his conduct of
the hearing , his resolutions of credibility , or the inferences he drew were
based upon a bias and prejudice in favor of the Charging Party and against
the Respondent Company ; rather we are of the opinion that the record, as
will be discussed in more detail below , supports the findings and the
176 NLRB No. 25
181
In his original Decision dated June 28, 1965, the
Trial Examiner found that Respondent had engaged
in unfair labor practices violative of Section 8(a)(1),
(3), and (5) of the Act. Thereafter, we found merit
in certain exceptions to the Decision filed by the
Respondent because of the failure of the Trial
Examiner to receive certain evidence, and on May
18, 1966, we issued an Order remanding the
proceeding to the Regional Director of Region 26
which directed that a further hearing be held before
the Trial Examiner for the purpose of receiving
additional evidence relevant to: (1) authorization
cards, and (2) the defenses of economic necessity
and altered operations. Pursuant to this Order, a
further hearing was conducted on October 25
through 28, 1966. By agreement of the parties the
hearing was recessed in order to permit the parties
to determine whether court enforcement of certain
subpoenas would be sought. On June 14, 1967, the
United States District Court issued its Order
enforcing the subpoenas, and on August 22, 1967,
the hearing was resumed, with the witness failing to
appear. This particular witness, Mr. Arthur Hanks,
an International Representative of the Charging
Party, had been subpoenaed to testify regarding the
authorization cards which he had solicited from
various of the Respondent's employees. On October
5, 1967, we ordered that the hearing be reopened
again for the purpose of receiving testimony of this
single new witness. Subsequently, however, the
General Counsel moved to dismiss from the
complaint the 8(a)(5) allegations. On April 4, 1968,
the Trial Examiner granted General Counsel's
motion and dismissed the 8(a)(5) allegations, and
the hearing was closed without Hanks' testimony
having been taken.' After reviewing the record
evidence in the remanded hearing relating to the?
Respondent's defenses of economic necessity and
altered operations, the Trial Examiner issued his
Supplemental Decision of June 19, 1968, in which
he reaffirmed his Section 8(a)(3) and (1) findings in
his original Decision to which the Respondent has
again excepted.
1. We agree with the Trial Examiner's findings
that the Respondent violated Section 8(a)(1) of the
Act. The record shows that almost every category of
classical independent 8(a)(1) violations was engaged
conclusions of the Trial Examiner . Accordingly, the Respondent 's motion
is hereby denied . See Henry Colder Company, 163 NLRB No. 13, fn. 1.
'The Respondent has excepted to certain credibility findings made by the
Trial Examiner. It is the Board 's established policy not to overrule a Trial
Examiner 's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect . Standard Dry Wall Products. Inc., 91 NLRB, 544, enfd.
188 F.2d 362 (C.A 3) We find no such basis for disturbing the Trial
Examiner's credibility in this case.
'We find no merit in the Respondent 's contention that the failure of
union representative Hanks to testify was prejudicial in view of the
dismissal of the 8(a)(5) violation to which his testimony would have been
relevant . Whether the card signers had "union interest" or were "union
adherents" is in our opinion merely a matter of semantics since to
discharge employees for either reason would be violative of the Act. See
Infra.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in by the Respondent. The violations were not only
massive in the number of incidents involved, but
were unsubtle in the message they conveyed to the
employees that the Respondent not only opposed the
Union, but would take positive steps to prevent the
employees from exercising their right to
self-organization. The 8(a)(1) violations found by the
Trial Examiner in his original Decision are amply
documented. The General Counsel presented
approximately 26 witnesses, some still employed by
the Respondent, who credibly testified to over 100
separate incidents of independent Section 8(a)(1)
violations.'
The General Counsel' s witnesses testified to
extensive and intensive interrogations by
Respondent: e.g., they were asked how they felt
about the Union, how other employees felt about
the Union , if they had signed union authorization
cards, if other employees had signed authorization
cards and who those employees were . Most of these
witnesses testified that management representatives
had threatened them with plant closure if the Union
were successful . Several testified that Respondent
threatened to effectuate a general layoff and/or to
discharge specific employees because of their union
activity. The testimony further revealed that
Respondent continually and constantly impressed
upon its employees the futility of selecting the
Union as their representative for the purposes of
collective bargaining , by stating that the employees
would be on strike if the plant were organized; by
alluding to strikes at other unionized companies; by
stating that the Union caused the employees at
another of Respondent's plants to lose their benefits,
and to miss receiving a wage increase. The
testimony also revealed that several management
representatives engaged in the surveillance of a
union meeting in mid-October 1964, at a time the
Union had begun its organizational campaign.
In addition, testimony disclosed that Respondent
created the impression of surveillance of the
employees ' union activities by telling employees that
Respondent had someone watching their homes at
night to see that the employees stayed in; that
Respondent knew who had signed union cards; that
Respondent knew "what ' s been going on ever since
it started"; and that employees were seen at other
employees ' homes getting union cards signed. The
Respondent also made manifold promises to its
employees that if they would refrain from being or
becoming union members or engaging in any
activity on behalf of the Union they would be
guaranteed job security, better working conditions,
higher wages , and greater fringe benefits.'
Not wishing to burden the record with cumulative evidence regarding
8(aXl) violations , the Trial Examiner suggested to the General Counsel
that additional evidence of this nature was unnecessary . Accordingly, the
General Counsel limited his witnesses and pursuant to such suggestion
thereafter merely proferred the names of approximately 12 additional
witnesses who would testify if called as witnesses to alleged unlawful
interrogations by Respondent 's supervisors.
Additionally, the Respondent promulgated a
no-solicitation rule which was directed only against
union activity. At the same time it permitted and
condoned participation in antiunion activity by one
of its employees.
Accordingly, the Trial Examiner's detailed
findings and conclusions of violations of Section
8(a)(1) based as they are on testimony oftentimes
uncontradicted6 and many times corroborated or
partially corroborated by management witnesses,'
are hereby adopted.
2. The Respondent excepts to the Trial
Examiner's Section 8(a)(3) findings regarding the
discharges of employees Clymer and Rochelle. For
the reasons discussed below, we find without merit
the Respondent contentions that these employees
were discharged for insubordination rather than for
union activity.
The Trial Examiner found that Clymer was the
leader among the employees in the initial
organizational drive which began in early October
1964 and that he was discriminatorily discharged on
October 8, 1964. The Trial Examiner concluded that
the reason advanced for Clymer's discharge, his
insubordination towards the plant superintendent
over a work assignment , was pretextual and that the
true motive for the discharge was to rid the
Respondent of the principal union advocate among
its employees. Not only does the Respondent
contend that Clymer was discharged for cause, but
denied that it had knowledge of Clymer' s union
activities.
We note initially that Respondent's contention
that it had no knowledge of Clymer's union activity
at the time he was discharged is contrary to the
evidence. Clymer was one of the first four
employees to contact the Union on October 2, 1964,
at which time he signed a union authorization card.
Thereafter, he led the union organizational drive
'Respondent granted a wage and fringe benefit increase to its employees
shortly after the Union began its organizational campaign.
'For example , General Counsel presented several witnesses who testified
to 8(aXl ) conduct engaged in by General Foreman Bernard Elmer Burns,
namely, interrogation, threats to close the plant , threats to effectuate a
general layoff of employees and/or to discharge specific employees,
promises of benefit, and creating the impression of surveillance. Burns was
never presented by Respondent to testify, and therefore, each of these
specific accusations was uncontroverted.
'Welding Foreman Ezell Rose admitted having many conversations with
employees about the Union, both at the plant and at the homes of
employees . He admitted interrogating employees about the union activity
and about the union cards without telling them why they were being
interrogated ; he admitted telling employees that if the Union was
successful in its organizational campaign the employees would not work as
much overtime ; and he admitted telling employees during a conversation
about the Union that the employees were better off working than losing
time. Rod Mill Foreman J. B. Burns admitted talking to employees about
the Union , at the plant and at the employees ' homes and to telling them
during these conversations that if the Union were defeated , the Company
would be a better place to work. Bar Mill Foreman Milton Stephens also
admitted to extensive union discussions with employees in which he told
these employees that the plant would close if the Union's campaign was
successful . He also admitted telling employees, during these union
conversations , that if the Union was defeated , the Company would be a
better place to work in the future.
ALABAMA ROD AND WIRE DIVISION
seeking out employees at their homes and obtaining
signed authorization cards from a majority of unit
employees. During this week and prior to his
discharge, he admitted on several occasions to
Scalping Foreman James Lunn that he was for the
Union. After he was discharged by Plant
Superintendent Cobb, employees were warned by
management officials to stay away from Clymer.
We find, therefore, that Respondent had knowledge
of Clymer's activities on behalf of the Union prior
to his discharge.
As for the reasons advanced by the Respondent as
a basis for his discharge, we find, in agreement with
the Trial Examiner, that Clymer's alleged
insubordinate conduct toward his superiors was not
the true cause. The record shows that soon after he
became active in organizing the Union he was given
without explanation a disagreeable work assignment
and when he inquired about the reason for such
assignment he was merely told that he, Cobb, was
not obliged to give any reason and that Cobb could
put Clymer on a pick and shovel if he wanted to.
Admittedly, Clymer was a satisfactory employee
and there had been no criticism of his work prior to
the reassignment . After this curt explanation Clymer
returned to his work station and there uttered
language which is the basis for Respondent's charge
that he was insubordinate to a degree requiring his
discharge.
We note that Clymer's allegedly profane remarks
were an expression of his resentment of what he
considered arbitrary treatment by Plant
Superintendent Cobb, and, were stated to Foreman
Stephens who was not responsible for Clymer's
transfer. Foreman Stephens immediately reported
Clymer's conduct to Cobb, whereupon Cobb called
for Clymer and peremptorily terminated him. We
further note that such language was not uncommon
in the plant and was part of the give and take
relationship between employees and supervisors as
well as between employees.
In view of the provocation which prompted
Clymer's remarks, the nature of the remarks
themselves, and the plant background in which the
remarks were uttered, we are unable to find that
they indicated such aggravated and gross
misconduct as to warrant such drastic and
precipitate action by Cobb, and we agree with the
Trial Examiner that in the circumstances the
discharge of Clymer was not for the reasons
asserted by the Respondent, but was for
discriminatory purposes." We further find that
Clymer's discharge was part of Respondent's
extensive overt antiunion campaign and that the true
motive in discharging Clymer was to rid the
Respondent of the Union's major adherent and to
defeat the Union' s organizing campaign.
Accordingly, we conclude that by such discharge,
Respondent violated Section 8(a)(3) and (1) of the
Act.
183
Similarly, we agree with the Trial Examiner that
Rochelle was discharged by the Respondent because
of his union activity and not for the purported
reasons stated. Respondent's knowledge of
Rochelle's union interest appears clear. He was one
of the first employees to sign a union authorization
card, toward which activity, as discussed, the
Respondent evinced a public and hostile interest. He
was seen at the union hall by management officials
in the acts of surveillance in mid-October found to
be violative of Section 8(a)(1). Also, shortly before
the discharge Plant Manager Rainey sought out
Rochelle to convince him of the advantages of
working for Respondent. Rochelle at that time
made unmistakably clear to Rainey that he
supported the Union.
Rochelle was terminated for refusing to punch out
when ordered to do so by Plant Superintendent
Cobb and for making insubordinate remarks when
he and two other employees allegedly violated a
safety rule. During the trial Respondent sought to
imply that the reason for Rochelle's discharge was
his violation of a safety rule. No disciplinary action
was taken against the other alleged violators, and
Respondent' s counsel ultimately asserted,
"Respondent is not contending that the man was
fired because he was off the mill." The Respondent
contends that it did not intend to discharge Rochelle
at the time he was called into the office but only to
discipline him. We are satisfied that when Rochelle
was called into Cobb's office, it was for the purpose
of discharging him and not for the purposes of
discipline as asserted by Cobb. At no time was
Rochelle told that he was only to be disciplined by a
temporary suspension at the time he was ordered to
punch out. Nor do we find the Respondent's
explanation strengthened by its subsequent
explanations that Rochelle had been involved in
previous acts of insubordination and that the above
conduct must be viewed as more than just a single
incident.
On the basis of the foregoing, including
Respondent's demonstrated hostility to the
organizing activities of its employees, its knowledge
of Rochelle's participation in such activities, and the
fact that the reasons advanced for Rochelle's
discharge do not withstand scrutiny, we agree with
the Trial Examiner that the reasons advanced for
Rochelle's discharge were pretextual and that the
real reason for his discharge was because of union
activity in violation of Section 8(a)(3) and (1) of the
Act.'
3. The Respondent excepts to the Trial
Examiner's finding that the Respondent's
discharging 32 unit employees on November 20,
1964, was violative of Section 8(a)(3) of the Act.
Principally, Respondent contends:(1) that it was
'See Santa Fe Drilling Co., 171 NLRB No. 27, cases cited in fn. 3.
'See e .g., Buss Machine Work , Inc.. 170 NLRB No. 109; LTV
Electrosystems , 169 NLRB No. 64.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deprived of due process and a fair hearing in that it
was not permitted to call and examine International
Representative Hanks, and (2) that the Trial
Examiner failed to consider, properly evaluate, and
make appropriate findings regarding Respondent's
defenses of economic necessity and altered
operations.
With regard to the first contention, Respondent
argues that the testimony of International
Representative Arthur Hanks, who had solicited
union authorization cards from several employees,
would be relevant to the alleged 8(a)(3) violations
since the General Counsel relied upon the Union
cards as the sole basis for showing that the alleged
discriminatees were sympathetic to the Union.
Respondent argues that if it had been permitted to
call Hanks it would have been able to show that the
employees solicited by him had signed the
authorization cards for the sole purpose of getting
an election rather than to designate a representative
and thus, according to its view of the law, the cards
could not be used as evidence of union activity on
the part of the employees. Assuming that
Respondent's witness would have so testified, the
argument nevertheless is without merit.
The signing of a union authorization card is no
less a protected activity under Section 7 if the
motive of the signer is to obtain an election than if
it is to designate a bargaining representative.
Clearly, both types of activity are protected under
the Act."' An employer who discharges an employee
because he had signed a union authorization card
for the sole purpose of obtaining an election
discriminates against such employee within the
meaning of Section 8(a)(3) just as much as does one
who discharges an employee because he has signed
an authorization card for the specific purpose of
designation of a bargaining representative. Indeed,
Respondent's contention is refuted by conduct of its
own supervisory officials seeking to identify card
signers through unlawful interrogation, surveillance
of union meetings, and other illegal activity
discussed above, conduct clearly demonstrating that
the Respondent regarded the act of signing cards as
an expression of sympathy and support for the
Union and as identifying such signers as union
supporters. Moreover, such conduct demonstrates
that Respondent had knowledge of this union
activity of the card signers. In any event, it is clear
that Respondent was not apprised of the fact that
the card signers may have signed the cards only to
obtain an election until long after the events in issue
occurred. It is clear, therefore, that this contention
of Respondent is an after thought and merits no
serious consideration.
The issue as to whether the Respondent's reasons
for terminating the employees on November 20,
"It is true , of course , that an authorization card may be invalidated as a
reliable designation of a bargaining representative when signed solely for
the purpose of obtaining an election. However , this is not the issue here.
1964, were based upon economic considerations is,
of course, pertinent and crucial. The Respondent
contends that it was obliged to lay off the 32
employees in question because of lack of orders, and
that the layoff was made permanent because the
installation of new equipment made full scale
production in the immediate future unlikely.
The Respondent's widespread and intensive
antiunion campaign strongly supports the inference,
absent convincing and credible evidence to the
contrary, that the Respondent's action on November
20, 1964, was motivated by antiunion animus. As
noted above, and detailed in the Trial Examiner's
Decision, the record is replete with evidence of
numerous threats by Respondent's supervisors to
terminate employees because of their union activity.
Thus, Foreman Bernard Elmer Burns told employee
Pigg that "it would not hurt Phelps Dodge. . . to Iay
off some men for a while," and he told employee
Ivey that if the Union did not come in, no one
would be fired. Foreman Stephens threatened
employee Wallace King that the employees "would
be out of a job in the winter time watching others
work." Foreman J. P. Burns admitted to employee
Odom that the November 20 terminations, and the
employees selected therefor, were based on union
activity. He also told William LeMay that if the
Union came in, employees would be laid off and the
plant closed, but if the Union was defeated, there
would not be any layoff.
As to timing, the layoffs appear to be the last
phase of a calculated plan to counteract the Union's
activity and to discourage support for the Union.
Thus, the Union's organizational drive began the
beginning of October, and on the day the demand
for recognition was made on October 8, the leading
instigator of the union activity, Clymer, was
unlawfully discharged; thereafter, the Respondent
engaged in extensive 8(a)(1) activity, and employee
Rochelle, a vocal union supporter was unlawfully
discharged on November 2; and finally, on
November 20, about a month before the
representation election, 32 employees, mostly union
adherents, were discharged. The employees affected
in the layoff were not selected strictly through
seniority and had been given no advance
notification.
Respondent's contentions that the layoff was
precipitated by lack of orders appears to be
unsupported. Although from 50 to 75 percent of
Respondent's orders came from other Phelps Dodge
plants and records were thus easily available,
Respondent introduced no substantial evidence to
support its lack of business defense. Instead, the
Respondent sought to support its contention through
the introduction of certain charts containing
summaries reflecting a parallel diminution in
production and personnel. Perhaps the most
significant conclusion to be drawn from these
records was stated by Rainey during his testimony:
ALABAMA ROD AND WIRE DIVISION
The production of the rod plant was cut with the
termination of the people, because at that time we
couldn't operate the two mills simultaneously.
[I]t takes a certain number of people to
operate these mills, which prior to this date of
November 20 we operated simultaneously. After
termination of these people we could only operate
the mills individually. Consequently our
production rates went down, because we couldn't
operate the rod mill, which is the one that
produces rods. We could only operate it on
alternate days.
Thus, these charts do not in our opinion
demonstrate that the employees were laid off
because of a lack of orders, nor do they demonstrate
that there was in fact a lack of orders. Rather, they
merely support Rainey's testimony that a
relationship exists between the amount of production
and the number of production employees available,
and that production is necessarily curtailed when the
number of employees is reduced. The only other
substantial evidence relating to the Respondent's
contention that the November 20 layoffs were based
upon economic considerations was the
uncorroborated testimony of Plant Manager Rainey
that in his opinion there was a business slowdown.
We, therefore, find the economic justification put
forward by the Respondent to justify the layoffs
unpersuasive. The facts relating to the terminations
must be considered against the background of the
Respondent ' s active and vigorous union animus, as
detailed above, including numerous threats by
supervisors and officials that the plant would be
closed and that employees would be discharged
because of the interest of the employees in the
Union. We find significant that in discharging the
32 employees seniority was not followed strictly and
that 90 percent of the employees involved had signed
union authorization cards, and that no advance
notice or announcement was made to the employees
affected. On the basis of this background and the
entire record, we are satisfied, in agreement with the
Trial Examiner, that Respondent's termination of
the 32 employees on November 20 was motivated
not by economic considerations, but by
Respondent's hostility to the Union and was
intended to discourage union membership and
activity, and to deprive employees of the rights
guaranteed by the Act, thereby violating Section
8(a)(3) and (1) of the Act.
4. With regard to the objections to the election, as
noted above, the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1)
and (3) during the critical period, between the date
the petition was filed, October 12, 1964, and the
date the election was held, December 22, 1964. It
has been held that when such conduct occurs during
this period this is a fortiori grounds for setting aside
185
the results of the election, since it is clear that such
election could not be held in an atmosphere
conducive to a free choice of representatives."
Accordingly, we shall set aside the election and
direct that a second election be conducted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that Respondent,
Alabama Rod and Wire Division, Phelps Dodge
Aluminum Products Corp., Columbus, Tennessee,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as herein modified.
1. Delete "Conclusions of Law" numbered "4"
and "5" and renumber the following "Conclusions
of Law" accordingly.
2. Delete paragraph 3 from the section entitled
"The Remedy."
3. Delete paragraph 1(b) from the Recommended
Order and reletter the following paragraphs
accordingly.
4. Delete paragraph 2(d) of the Recommended
Order and reletter the following paragraphs
accordingly.
5. Delete the fifth indented paragraph of the
Appendix B "Notice to all Employees."
IT IS FURTHER ORDERED that the 8(a)(5)
allegations contained in the complaint be, and they
hereby are, dismissed in their entirety.
IT IS FURTHER ORDERED that the election held on
December 22, 1964, among Respondent's employees,
be, and it hereby is, set aside, and that Case
26-RC-2271 be, and it hereby is, severed and
remanded to the Regional Director for Region 26
for the purpose of conducting a new election among
the employees in the unit found appropriate in his
Decision and Direction of Election dated December
9, 1964, at such time as he deems that the
circumstances permit the free choice of a bargaining
representative.
[Direction of Second Election12 omitted from
publication.]
"Dal-Tex Optical Co., Inc., 137 NLRB 1782, 1786-87.
"In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc., 156 NLRB 1236; N L. R.B. v. Wyman-Gordon
Company, 394 U.S. 759. Accordingly, it is hereby directed that an election
eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 26
within 7 days after the date of issuance of the Notice of Second Election
by the Regional Director . The Regional Director shall make the list
available to all parties to the election . No extension of time to file this list
shall be granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
C. W. WHITTEMORE, Trial Examiner: Upon charges
and amended charges filed by the above-named labor
organization on several dates between December 23, 1964,
and February 15, 1965, in Case 26-CA-1999, and pursuant
to a Supplemental Decision and Order Directing Hearing,
issued by the Regional Director for Region 26 on
February 23, 1965, in Case 26-RC-2271, the said Regional
Director on behalf of the General Counsel of the National
Labor Relations Board on March 19, 1965 , issued an
Order Consolidating Cases, a complaint and a notice of a
consolidated hearing. On March 29, 1965, the Respondent
filed an answer to the complaint . The complaint alleges
and the answer denies that the Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)(1), (3), and (5) of the National Labor
Relations Act , as amended . Pursuant to notice a hearing
was held in Columbia, Tennessee, on April 20, 21, 22, and
23, 1965, before me.
At the hearing all parties were represented and were
afforded full opportunity to present evidence pertinent to
the issues , to argue orally and to file briefs . A brief has
been received only from General Counsel.
After the hearing , and pursuant to an understanding
reached by all parties during the hearing , I have received
from General Counsel copies of certain documents
relating to Case 10-RC-6126, involving the certification of
the Charging Union at another plant of the Respondent.
General Counsel's covering letter states that copies of said
documents have been served upon the Respondent. No
objection having been received from the Respondent, said
documents and covering letter are hereby made a part of
the record as Trial Examiner 's Exhibit 1.
Upon the record thus made, and from my observation
of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT-EMPLOYER
Alabama Rod and Wire Division, Phelps Dodge
Aluminum Corp., is a Delaware corporation with a plant
and place of business located at Columbia, Tennessee,
where it is engaged in the manufacture of aluminum rods.
During the year preceding issuance of the complaint it
produced , sold and shipped products valued at more than
$50,000 from its Columbia plant directly to points outside
Tennessee.
The complaint alleges , the answer admits , and it is here
found that the Respondent is engaged in commerce within
the meaning of the Act.
11. THE CHARGING PARTY-PETITIONER
Aluminum Workers International Union, AFL-CIO, is
a labor organization admitting to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and chief issues
In mid-May 1964, the nationally known concern of
Phelps Dodge purchased a going business in Columbia,
Tennessee, called Columbia Metal Products, Incorporated.
One Horace Rainey, Jr., continued to be the plant
manager, as he had been since 1955 with the predecessor
enterprise.
At the time of the hearing Phelps Dodge had at least
three plants in its aluminum division: one in Florence,
Alabama, another in Covington, Georgia, and the plant
which it had recently taken over in Columbia, the one
plant with which this case is immediately concerned. The
testimony of Rainey establishes that the two operations in
Georgia and Alabama directly control the majority of
aluminum rod production at the Columbia plant, since the
latter depends upon the other two for between 50 and 75
percent of such orders.
The record indicates no history of unfair labor practices
or of efforts at self-organization at the Columbia plant
until a few months after Phelps Dodge acquired it.
On October 2, 1964, at the invitation of an employee
made earlier, a representative of the Charging Union
came to Columbia, where he met in a public place with
four plant employees, one of whom was summarily
discharged a few days later under circumstances described
in a later section and whose dismissal is alleged as a
violation of Section 8(a)(3) of the Act. These four
employees and others participated in an intensive
organizing campaign , visiting at employees' homes and
obtaining signatures to authorization cards. As will be
discussed hereinafter a majority of the employees then on
the payroll signed such authorization cards on or before
October 8, when the Union sent to the employer a formal
demand for recognition and bargaining . Management not
only failed to reply to the Union letter but it is conceded
in the answer that at all times since receipt of the demand
the Respondent has refused to bargain with the Union.
This refusal is the basis for the 8(a)(5) allegation of the
complaint.
Also on October 8 the Respondent not only fired the
employee leader above referred to but through its plant
manager, Rainey, assembled all employees and announced
that an 8 cents hourly wage increase would become
effective as of the following week, and made it clear that
"outside" representation was not wanted at this plant. It
is General Counsel's contention that this raise and other
promised benefits were given for the unlawful purpose of
discouraging union organization.
On October 12 the Union filed with the Regional Office
a petition for an election and certification. A hearing was
held on the petition on November 4. The day before this
hearing management summarily discharged another
employee-leader in the union organizational campaign,
one Rochelle, whose dismissal is also the subject of an
8(a)(3) allegation.
On November 20, some 2 weeks after the
representation hearing, the Respondent suddenly
terminated the employment of nearly half its working
force in the appropriate unit. The mass discharge is
alleged as a violation of Section 8(a)(3) of the Act.
A direction of election was issued on December 7, 1964,
and the election was conducted on December 22. The
following day the Union filed the first of its several
charges and on December 29 filed its objections to the
election . Some 28 of the 33 challenged ballots involved
employees included in the mass discharge of November
20. On February 23, 1965, as previously noted, the
Regional Director issued a Supplemental Decision and
Order Directing Hearing, in which he ruled upon certain
objections but ordered a hearing on others.
ALABAMA ROD AND WIRE DIVISION
The record is replete with credible evidence, much of
which is undisputed, to the effect that since early October
1964, when management admittedly became aware of its
employees' efforts to organize , many of its representatives
engaged in conduct prohibited by the Act, all of which
General Counsel contends was designed to deprive
employees of their rights guaranteed by Section 7 of the
Act. A summary of such conduct appears in the following
section of this Decision.
B. Interference, Restraint, and Coercion
At the outset I note that in nearly 28 years of
conducting hearings for the Board never have I received
so much detailed and credible testimony concerning
coercive threats and promises uttered by management
representatives to so many employees in so small a plant,
as in this proceeding. Indeed, so burdensome was the
record becoming with evidence concerning incidents of a
like nature and involving the same company agents that I
finally asked General Counsel to forego offering more
such cumulative testimony. Acceding to this request,
General Counsel named a dozen additional witnesses
whom he had intended to call but whom he would and did
withhold.
All such threats and promises by subordinate
management representatives summarized below are
consistent in tone and intent with the company policy set
out at length in a letter admittedly sent to each employee
by Plant Manager Rainey just before the Board-conducted
election. In that letter Rainey bluntly made the
Respondent's position unmistakeably clear by stating:
"We are very much opposed to this Union," by warning
employees that at the election they would be voting "to
determine whether or not your rights as an employee of
this company will be turned over to the Aluminum
Workers Union,"' and by the thinly veiled threat that
"the decision you make will probably be one of the most
important decisions you will ever make since the outcome
of this election could affect your future and could
seriously change the future of this plant."2
Before turning to the summary of actual events, it may
be well here to determine a point in issue: whether or not
the Respondent is to be held accountable for conduct
engaged in by three individuals; Billy Haines, Howard
Burns and Elmer Rummage, all of whom the complaint
alleges and the answer denies are "agents of the
Respondent" and supervisors within the meaning of
Section 2(11) of the Act.
Whatever their actual titles, if any (Rainey claimed
they were called "lead men," the more credible testimony
of at least two employees is to the effect that bulletins
were posted announcing Rummage and Burns to be
"assistant foreman") there is small dispute as to the facts
that:
(1) all three act as and exercise the full authority of
department foremen, admitted to be supervisors within
meaning of the Act, when such foremen are absent from
their assigned departments because of illness , vacations,
or temporarily in other plant areas;
'An obvious distortion of facts , since a Board election merely determines
whether or not a majority of employees , as principals , desire a union to
serve them as their bargaining agent.
'The significance as a violation of the Act of this bald threat to an
employee 's future , voiced as it was shortly after the abrupt discharge of
half the working force , will be considered below.
187
(2) higher management considers recommendations of
these individuals, as it does of foremen;
(3) Haynes, at least, actually discharged one employee,
and effectively recommended the hire of another;
(4) all three are paid substantially higher wages than
employees under them;
(5) all three are present at supervisory meetings not
attended by rank and file employees; and
(6) on a number of occasions, described more
specifically below, each of the three accompanied
foremen on their visits to employees' homes in carrying
out management's announced policy of "opposing" the
Union.
It is concluded and found that Haynes, Howard Burns,
and Rummage were, at times material herein, supervisors
within the meaning of the Act and agents of the
Respondent.'
The Respondent concedes the management
representative status of the following named, who are
involved in one or more of the incidents to be described
below:
Plant Manager Rainey ------ Foreman Stephans
Plant Superintendant Cobb ----- Foreman Ross
General Foreman B.E. Burns
Foreman J. B. Bruns
The following summary findings, noted below, are
based upon the credible testimony of employees, a good
part of which is not specifically contradicted and some of
which is not disputed in any fashion. General Counsel's
witnesses not only testified at length and in detail but
withstood rigorous cross-examination despite the
advantage accorded counsel for the Respondent in
permitting him to use, for cross-examination, affidavits
previously obtained by Board agents from the witnesses.
1. Foreman Stephens engaged in the following conduct:
a. The day after Rainey's promise to all employees of a
general raise , Stephens told employee Pigg that both
Rainey and Cobb had informed him that no union would
be tolerated at the plant, and that to prevent it the plant
would be closed. A few days after the promised raise had
been received by the Columbia plant employees, Stephens
told Pigg that employees at the Phelps Dodge Alabama
plant had not received the raise because of the Union. He
told Pigg to pass this information along to other "hot
heads" in the department.
b. Stephens asked employee Moore what he thought
about what was "going on," and declared that the plant
would close if the Union came in. Two or three days later
Stephens went to Moore's home and repeated the threat
of the plant closing.
c. On many occasions during the organizing campaign
and before his eventual discharge on November 20,
employee Ellis was repeatedly warned that if the Union
came in the plant would close, and that it was a bad time
of the year to be laid off or fired. Stephens mentioned an
Alabama plant which had been closed because of a union,
where 300 or 400 men lost their jobs. Stephens also asked
Ellis who and how many employees had signed union
cards. One night Stephens visited Ellis at the home of the
latter's father, and for some 2 hours urged him to try to
'As authority for such conclusions General Counsel appropriately cites
Research Designing Service, 141 NLRB 211, and The Bama Company,
145 NLRB 1141.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
get "the boys" to change their mind and go "non-union."
He promised that if so in 2 years Phelps Dodge would be
paying them more money than any other plant in the
vicinity. He cited a plant in Alabama where employees
had lost all their privileges because they had voted a union
in.
d. Stephens made similar threats of plant closing and
promises of higher pay if the Union were kept out to
employees Beard, Collins, Hill, Ronnie Lunn, Ray Odom,
Whelan King, and Rochell, Jr.
e. Stephens asked employee King if he had signed a
union card, and when the employee replied that he had
not, the foreman asked him to find out and let him know
who had signed . A few days later Stephens again called
King aside and declared that he knew that either he or his
brother had signed a card . Stephens said he would call at
his home that night, but later in the day said he could not.
Howard Burns went to visit King in Stephens' place. As
will be noted more fully below , Burns promised King a
job as long as he wanted if he would withdraw from the
Union. The next day Stephens asked King if he had
thought over what Burns had said, advised him to "wake
up," and warned that things were not looking "good."
f. In early November Stephens called employee Estes
outside, told him that the company knew what was going
on ever since it started, queried him about going to a
certain place with employee Clymer, an organizing leader
who had been fired on October 8, and after ascertaining
that he had a wife and family warned him that he would
hate to see him lose his job "over something like what
was going on."
g. On October 8, the day Rainey made it clear to
assembled employees that the Respondent opposed union
organization, employee Ray Odom and seven others sent
Rainey a letter which stated, in part, that because of
having been "molested" by foremen about the
organization they were frankly admitting to management
that they had signed union "authorization cards." Labor
Stephens called Odom from his job, asked him to change
his mind and help get the Union "out," and if he did he
would not be "sorry." Apparently since one of the letter
signers, Clymer, had already been fired under
circumstances described below, Odom voiced his opinion
to Stephens that if the Union were "voted out" he would
probably be fired anyway. The foreman assured him that
in such case he would not lose his job. Later in the day
Stephens again approached Odom and said that Cobb had
said that if the Union "was voted in" the plant would
close.
h. A week or two after employee Kelley was hired on
October 5, Stephens asked him if he had heard about the
Union, told him the company did not want a union, and
asked him to report any union talk he heard.
General Foreman Burns engaged in the following
undisputed conduct:
a. In mid-October he asked employee Pigg what he
thought of the "situation." Pigg said he was trying to stay
neutral . Burns pointed out that the company had given
hi m a wage increase and promised other benefits. He told
the employee of a plant in Alabama where a strike had
occurred when the Union tried to organize, and that the
Union had deserted the employees. When the employee
asked for directions to reach this place, so he could go
down and get "some first hand information ," Burns began
to "back up" and said his story was only "hearsay."
Later Burns told the same employee that he had heard the
plant would close if the Union should be voted in, and
that it would not hurt Phelps Dodge to lay men off for
awhile. He told the employee of the company's planned
"expansion," and urged him to give the company a
"chance."
b. Burns approached employee L. D. Estes, Sr., and
told him that "it has been reported to us" that his son,
also an employee, had been seen with Clymer, a union
leader who had been fired on October 8. He told the
father that his son was a good worker and he did not want
to see him get "mixed up" with "this kind of people."
Burns also told him that the "big bosses " had informed
him that "the plant would shut down before they would
operate under a union."
c. Employee Ivey was one of the employees who
notified management , in the letter above-referred to, on
October 8 that they had signed union authorization cards.
Burns called Ivey away from his work, reminded him of
all the "company had done" for the employees, and
warned that the plant would be closed if the Union came
in. He also warned the employee that he had better stay
at home with his wife and baby at night, because "we've
got somebody out watching you." Ivey replied that it
probably would do him little good if he did stay at home,
since they had already fired Clymer. Later Burns went
uninvited to Ivey's home, and for some 2 hours talked
against the Union, threatening that the plant would be
closed.
d. Shortly after the organizing campaign began Burns
and Haynes (previously indentified as one whose
supervisory capacity was questioned by the pleadings)
went uninvited to the home of employee LeMay and
asked him how he felt about the Union and if he had
signed a card. LeMay admitted that he had. Burns asked
who had given him the card and the employee declined to
say. Burns then told him that one King, apparently a
divisional manager, had told him that if the employees
would give him "two years," they would have better
working conditions and higher wages, but had said that if
the Union came in they could lay the employees off and
"shut the plant down," as they had done in Alabama. He
also quoted King as saying that they were planning to p ut
another "mill" in the plant, and if the Union did not
come in there would be no layoffs.
The following conduct was engaged in by Plant
Superintendent Cobb:
a. Shortly before he was included among the mass
discharges of November 20, employee Pigg was
approached by Cobb, who said that "sometimes he didn't
like to do some of the things he had to do" and then
reminded him of the several benefits the company had
given and promised. He declared that if he wanted to be
"rotten" enough, he could get rid of a man "if he was just
so of a mind to," and he "wanted some help in talking to
those boys out there." Pigg countered by suggesting that
Cobb give his "sales pitch" to employees himself, and was
shortly fired.
b. Cobb called employee Ivey from his work and in
effect asked him why he had to have someone represent
him. He pointed out what Phelps Dodge had done for the
employees, and said that he would not be fired if he would
"forget about it." (As noted, Ivey had signed the letter of
October 8.) Ivey reminded him that he would probably be
fired anyway, since another signer, Clymer, had been
fired. Cobb merely replied, "Yeah."
c. Cobb told employee Ellis that if employees would
"leave the union alone," for a couple of years Phelps
Dodge would see that they got "real good money."
ALABAMA ROD AND WIRE DIVISION
d. Cobb told employee Sullivan that Phelps Dodge
would not let the Union come in, but would close the
plant. He told Sullivan, who also had signed the letter of
October 8 as a signer of a union card, that if he would
"reconsider" he could have a job as long as he wished.
Apparently as a result of such warnings, Sullivan and
employee Ellis finally went to Cobb and said they had
been thinking over what he had said, and couldn't make
up their minds. Cobb advised them to write a letter in
their own handwriting for posting on the plant bulletin
board, to let the "other boys" know they were against the
Union. It appears that neither employee wrote such a
letter, and both were among the November 20 discharges.
e. Cobb guaranteed his job to employee Ronnie Lunn,
who also had admitted signing a card in the October 8
letter, if he would "back out."
f. Cobb told employee Odom that the plant would close
if the Union was voted in.
Foreman Rose engaged in the following conduct:
a. Rose told employee Stanfill, who also had signed the
letter above referred to, that he would guarantee him his
job if he would have nothing more to do with the Union,
but warned him that if the Union should come in the
plant would close.
b. About a month before being included in the mass
discharge employee Irwin was asked by Rose if he had
signed a card and told that if he had, everything would be
all right if he would go to the office and talk with Cobb.
b. Rose also told employee Sullivan, after the October
8 letter had been received, that if he would reconsider he
could have a job as long as he wanted, but warned him, as
he had Stanfill, that the plant would be closed if the
Union came in.
c. Rose accused employee Collins of being seen with the
"boys" getting cards signed , and warned him that the
plant would be closed if the Union came in.
Rummage (previously found to be a supervisor)
engaged in the following conduct:
a. Rummage told employee Stanfill that he was a good
worker, and if he would go to Cobb and tell him he would
drop the Union, he would not be laid off and out in the
cold.
b. Rummage approached employee Sullivan and asked
how he felt about the Union. The employee replied that he
should know since his name was on the letter above
referred to. Rummage then threatened that the plant
would close.
Haynes engaged in the following conduct:
a. He told employees Stanfill and Beard that the plant
would close if the Union came in.
b. Haynes reminded employee King that he had told
him, upon his being hired, that the company wanted no
union at the plant, and said that if he would "keep his
mouth shut" he could have his job.
Howard Burns engaged in the following conduct:
a. Burns went to employee King's home, telling him
that he came to see if he was for the company or for the
Union. He promised the employee that if Phelps Dodge
were to be given 2 years the employees would get good
"fat" wages. He asked King if he had received any mail
from the Union that day, and promised that if he would
turn it over to Cobb and "get out" of the Union, he could
have a job as long as he wanted.
b. Burns threatened employee Estes that the plant
would close if the Union came in.
The above-described course of conduct of threats,
promises, interrogation, and claims of surveillance
189
constituted unlawful interference, restraint, and coercion.'
Rainey's speech of October 8, moreover, promising a
wage increase and other benefits, while at the same time
making it plain to employees that these benefits were for
the purpose of discouraging union membership,
constituted a violation of Section 8(a)(l) of the Act. As a
witness he admitted that he was aware of the union
activity when promising the raise.' Also violative of the
same section of the Act was the actual granting of the
wage increase and benefits, which became effective after
the Union's demand for recognition.
Also unlawful was an incident of surveillance of a union
meeting placed in mid-October, engaged in the same
evening by several management representatives, including
Stephens, Howard and J. B. Burns, Rose and Haynes.
Credible testimony established that these supervisors drove
slowly by the hall several times. In substance they
admitted being in the vicinity and seeing certain union
adherents there. Their feeble claim that they went to look
for a used car, in one case, and in another to buy tires
lacks persuasive merit, as does the coincidence that all five
supervisors should have legitimate reason to be in the
same area at the same time. Howard Burns, riding with
Stephens, claimed that the latter wanted to look at a car,
but admitted they never even stopped at the lot.
I also find merit in the allegation of the complaint to
the effect that the sudden posting of a notice shortly after
Rainey's speech forbidding any union activity during
working hours was violative of the Act. No activity,
talking, or solicitation except that relating to the Union
was so prohibited. Such proscription was clearly disparate
and discriminatory. Especially is this so since as found
above, supervisors repeatedly and persistently called
employees from their work to try, by coercion, to
discourage union membership.
Finally, credible evidence establishes and it is found
that management representatives were aware of, permitted
and condoned the activity of one employee, McNeese, in
circulating about the plant during working hours, seeking
signatures to an antiunion petition. As a witness for the
Respondent McNeese admitted that he was able to obtain
so few such signatures that he did not, as he had intended,
turn the petition in to the Respondent. His activity in this
respect is consistent with the efforts of supervisors to get
card signers to withdraw their union allegiance.'
C. The Unlawful Discharges
1. Carl Clymer
Clymer, the most active leader in the organizing
campaign , was summarily discharged on October 8 by
The Trial Examiner can credit none of the general or specific denials
drawn by counsel for the Respondent from the supervisors . In many cases
these individuals admitted the occasion, but made such obviously
implausible claims as contending that employees came to them for
confession and advice In many respects their testimony is seriously
contradictory to statements appearing in previously given affidavits to a
Board agent.
'Employee Pigg credibly testified that he was told by Stephens that the
wage increase was to prevent the Union from coming in.
'In his able brief General Counsel urges that it be found that certain
pretrial conduct on the part of counsel for the Respondent , in querying
employees just before the hearing as to whether they had signed union
cards, was violative of the Act Although the Trial Examiner agrees that
such interrogation, made in the presence of Cobb and Rainey, was
unlawful, he finds it unnecessary to make a specific finding of a violation
of Sec . 8(a)(l) of the Act. The record is replete with far more aggravated
incidents of coercion and interference.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cobb, the same day Rainey made his unlawful speech to
employees.
Circumstances previously described make it plain, and
it is found , that management was well aware of his
activity in visiting employees at their homes on October 2
and thereafter in getting union cards signed.
No credible evidence was adduced by the Respondent
to show why Clymer, 3 days before being fired, was
suddenly transferred from his regular job to undesirable
work usually performed by new and inexperienced
employees . Clymer remained , however , at such work for
the next 3 days without protest. Finally , on October 8, he
asked first Foreman Stephens and then Cobb for a reason.
He was told bluntly by the superintendent , according to
the latter 's own testimony , "that I did not have to give
him a reason ." Clymer asked him, also according to the
superintendent , if his work performance was satisfactory,
and was told that it was . The employee returned to his
work and may very well have made some
uncomplimentary remark to his foreman about the callous
and unwarranted treatment he had received from the
superintendent . He may even , as Stephens claimed, used a
couple of oaths , and said that Cobb should be pulled off
his "big white horse."
In any event Stephens promptly hastened to Cobb, gave
the superintendent some version of Clymer' s protest, and
the latter immediately called the employee in and fired
him, as he himself admitted, without giving any reason.
As a witness , Cobb claimed he dismissed Clymer for
insubordination . Under all the circumstances revealed by
the record , including the threats uttered both by Stephens
and Cobb to other employees, as well as Cobb's own
testimony relating to the discharge , I am convinced that
the superintendent himself provoked and precipitated any
grumbling resentment Clymer may have expressed to his
foreman , and that he then used his reported remarks as a
pretext for ridding the plant of its known union leader.
Subsequent events , undisputed, support the conclusion that
the discharge was discriminatory and to discourage union
membership and activity . As previously found, Estes, Sr.,
was told by General Foreman Burns that his son would be
fired if he continued in company with Clymer.
It is concluded and found that by the unlawful
discharge of Clymer the Respondent interfered with,
restrained , and coerced employees in the exercise of rights
guaranteed by the Act.
2. Ernest Rochelle
This employee, when summarily fired by Cobb on
November 3 , possesses seniority in service at this plant
exceeded by very few others . There is little dispute that
down through the years he had engaged in occasional
horseplay - indeed in one instance it is undenied that he
was aided and abetted by Foreman J. B. Burns, yet at no
time until November 3 had he been disciplined or warned.
Since at least mid-October, however, a new element
entered into employer-employee relationship : Rochelle's
vigorous partisanship in the union campaign . The same
Foreman Burns, as well as other supervisors participating
in the above-described surveillance of a union meeting,
admitted having seen Rochelle with Clymer outside the
union hall that evening . Furthermore , Plant Manager
Rainey himself called Rochelle from his work, showed
him a card listing the raises he had received in the
preceding 4 1/2 years, and demanded to know why he felt
"mistreated here."
In view of these incidents and the clear evidence that
management well knew the identity of the leading union
adherents, the Trial Examiner concludes and finds that
Rochelle 's union activity was known to the Respondent's
officials at the time of his discharge.
The incident used by Cobb as the basis for dismissing
this employee is so trivial as to stamp it plainly as a mere
pretext.
It appears that there was a rule at the plant to the
effect that only one man was supposed to be away from a
certain mill at one time . On November 3 Rochelle headed
for the toilet on his break at a time when two other
employees on the same mill were also there. As he
reached the toilet , Foreman Burns spoke to him , saying,
"Hell, it's three men in the bathroom." Rochelle
countered with the ambiguous comment , "hell, there will
be more than that tomorrow ." Burns promptly reported
this remark to Cobb. The latter summoned the employee
to him , accused him of being smart and ordered him to
"punch out ." Rochelle declined , obviously fearing that if
he did so it would appear that he voluntarily quit. Up to
this point, according to Cobb, he had had no intention of
firing the employee , but only of giving him a
"disciplinary" layoff. Cobb said that he actually
discharged the employee for refusing to punch out - but
admitted that he neither told Rochelle that this was the
reason for the dismissal nor told him that he had intended
only a temporary layoff.
Contrary to the lame contentions of Cobb, I am
convinced and find that the real reason for Rochelle's
discharge was to discourage union membership and
activity. Such discrimination interfered with , restrained
and coerced employees in the exercise of rights guaranteed
by the Act.
3. The 32 discharges of November 20
As noted earlier in this Decision , two other Phelps
Dodge plants directly control the greater portion of
production by the Columbia plant. It is within the power
of divisional headquarters to withhold orders , intentionally
or for economic reasons, thereby diminishing the call for
the greater part of the Columbia plant's output.
On November 16 management posted a notice stating,
in part:
Due to business conditions it is necessary that we
reduce our work force effective the end of this week...
. We see no prospect of any improvement in business at
anytime in the foreseeable future . We suggest that
persons being terminated seek employment elsewhere.
The notice further stated, in effect (as proved to be the
fact) that none of the employees to be terminated would
be notified of their identity until the day of discharge,
which occurred the following Friday.
The Respondent ' s answer advanced no affirmative
reason- for this unusual mass discharge , merely admitting
the fact of its occurrence.
At the opening of the hearing General Counsel called
for production of voluminous records , in response to a
subpena previously served , not only for the local plant but
also of the other two plants noted above.
Counsel for the Respondent objected to the request for
compliance, and moved for revocation of the subpena.
When the following discussion revealed that such records
were called for by General Counsel , not to support his
ALABAMA ROD AND WIRE DIVISION
own allegations as to the nature of the general discharges,
but to refute an anticipated defense - and one admittedly
not alleged by the answer, I granted the motion to revoke,
stating in effect that the subpena,might be reinstated if,
"at a later time (General Counsel) find you want these
documents to meet something which the Respondent
may" put in.
General Counsel then called Plant Manager Rainey, as
an adverse witness. He was promptly asked why he had
terminated these 32 employees on November 20. He
stated flatly and only: "They were terminated because of
the lack of business." He repeated his claim, and only this
claim, "We had no business. We had a lack of business.
Business declined." He then said that the "lack of
business" was "lack of orders for aluminum rod," the
plant's only product. He then admitted that the two other
plants - in Alabama and Georgia, controlled the greater
portion of his plant's output, by their orders.
At this point, an effective affirmative pleading having
been voiced by this company official, and the documents
called for appearing to be relevant to this new issue, I,
upon motion, reinstated the subpena. He held in abeyance,
at the request of and pending examination of Rainey by
the Respondent's counsel, revocation of the subpena.
Rainey then declared, in response to General Counsel's
continued examination, that the "layoff" of November 20
was "permanent," and so intended at the time. I, with
counsel for the Respondent's agreement, then questioned
Rainey. The manager admitted, in effect, that "orders
fluctuate" and that at the time of the layoff he had no
assurance that it would have to be "permanent."
Considering these admissions, it appeared clear to me that
Rainey had conceded the implausibility and lack of merit
in his claim that lack of orders necessitated a
"permanent" discharge of half his working force. He so
stated, and granted the motion to revoke.
Counsel for the Respondent asked no questions of
Rainey on cross-examination, although he had asked that
ruling upon his motion to revoke be held in abeyance, on
the ground that such documents were "unnecessary," until
he could question the plant manager concerning the
discharges.
Since the hearing I have reviewed the R case transcript,
made on November 4, 1964, less than 2 weeks before the
posting of the discharge notice. I find nothing in that
record to support any claim of "lack of orders" or falling
off of business. On the contrary, according to Rainey's
testimony they were so busy they could not spare
production men to work on a certain current construction
project, and, furthermore, he expected to put some of
these construction men, when available, in his production
force. And records in evidence show that during a few
weeks before the mass discharge the Respondent had hired
some 20 new employees.
Not until near the end of the hearing, 4 days later, did
counsel for the Respondent attempt to raise an entirely
new defense for the mass discharges. Then, by way of an
offer of proof, he claimed that the terminations were "in
anticipation of the ultimate installation of new
equipment." The offer was rejected. Plainly spurious on
its face, it was raised obviously in an effort to substitute
something by way of a reason-appealing defense, after
Rainey had cut support from under the reason stated in
the posted notice as well as his sole claim on the first day
of the hearing. Counsel for the Respondent merits much
commendation for zealousness on behalf of his client, but
-somewhat less for his judgment: he even endeavored to
191
place in evidence as an "affidavit" a document which had
neither been dated nor notarized.
The real reason for the terminations, of course, had
been made known to many employees, by many plant
officials, long before their occurrence, as found in the
section above.
More than 90 percent of the employees terminated were
union adherents, as shown by signed cards in evidence.
Many of them had declined to sign the antiunion petition,
many of them had been vigorously warned by supervisors
of layoffs or closing of the plant.
Seniority in selection was not followed. Moreover, it is
most difficult to reconcile management's repeated
exhortation to employees of how beneficent Phelps Dodge
was and would be to them, with the actual lack of
consideration displayed by withholding any notice as to
the identity of those to be discharged until the very day of
separation. The circumstances revealed manifestly indicate
an unlawful purpose.
I am convinced and find that the 32 employees, listed
on Appendix A, were discharged on November 20 to
discourage union membership and activity, to make
certain, if possible, that the Union would not win the
forthcoming election, and to deprive employees of rights
guaranteed by the Act.
D. The Refusal To Bargain
The complaint alleges, the answer admits, and it is here
found than an appropriate unit for the purpose of
collective bargaining consists of all production and
maintenance employees at the Respondent's Columbia,
Tennessee, plant, excluding office clerical employees,
watchmen, guards, salesmen, professional and technical
employees and supervisors as defined in the Act.
Documentary evidence and admissions establish and it
is found that on October 9, 1964, the Respondent received
from the Charging Union a written claim of majority
representation and a request for bargaining.
The complaint alleges, the answer admits, and the fact
of refusal of bargain since October 9, 1964, is here found.
The question remains as to whether or not the admitted
refusal to bargain was and continues to be in violation of
Section 8(a)(5) of the Act.
At the outset it is noted that the Respondent' s answer
fails to allege any affirmative reason for its refusal to
bargain. And as noted above, at the hearing it was
conceded that the Respondent at all times had failed to
reply to the Union' s demand.
First, majority status must be established to sustain
General Counsel' s allegations.
At the hearing, by agreement of the parties, a list of the
production and maintenance employees on the payroll as
of October 12, 1964, was placed in evidence. As amended
at the hearing, it contains 79 names. Included on the list
are the names of four individuals claimed by General
Counsel to be supervisors within the meaning of the Act:
Haynes, Rummage, Howard Burns, and Ernest Wilson.
The first three have been found herein to be supervisors.
Wilson was found by the Regional Director to be a
supervisor, since he was night foreman, and it does not
appear that t he Respondent took exception to this finding.
General Counsel also contends that the name of one
Johnny Spencer should not be included. Credible evidence
establishes the merit of this contention. He was clearly a
member of the construction crew, which was not included
in the agreed-upon unit. Thus the list total is reduced to
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
74. Carl Clymer' s name does not appear on the list. Since
his discharge has been found to have been unlawful, his
name should be added, making a total of 75.
I count 45 authorization cards properly authenticated,
either by the signer or by other employees who obtained
them from the signer , all bearing dates on or before
October 8, 1964, of employees of the October 12 payroll.
The Respondent called a single witness , one Bobby
Willis, whose testimony , if believed , would require not
counting the card upon which his name appears. As a
witness he declared that he had not signed a card and had
not been approached by Clymer (who previously had
testified that Willis had signed the card in evidence for
him), and asked to sign one. Having observed the witness
I cannot believe his denial that he signed the card for
Clymer. On cross-examination he admitted that the night
before testifying he had been summoned to the
Respondent ' s office before Cobb, Rainey , a company
secretary and counsel for the Respondent. Confronted
with a photostat of the card in evidence bearing his name,
he was asked if he had signed it. He denied it, and as a
witness said that this was the first time he knew of the
card ' s existence . To me it seems hardly surprising that
Willis, still employed, confronted by so many company
officials, and after so many of his fellow-employees had
been summarily and without warning fired, should have
denied signing a card.
Other circumstances discredit him as a witness on this
point. He flatly denied that at any time had any employee
or anyone else ever said anything to him about the Union.
Yet there is also in evidence the McNesse petition,
previously discussed, which bears his name. And while I
do not presume to be a handwriting expert, the signature
on the union card and on the petition appear to have been
made by the same individual. It seems hardly likely that
Clymer, prounion, and McNeese, admittedly antiunion,
should both have perpetrated forgery on opposing
do cuments in similar handwriting.
In rebuttal General Counsel called others whose cards
had been identified by Clymer, and all readily admitted
having signed them.
In any event, even if Willis' card is not counted, it is
clear and is found that on October 8, 1964, the date of the
majority claim, the Union in fact enjoyed majority
representation status.
The sole remaining question is whether or not the
Respondent was justified in refusing to bargain . As noted,
the answer makes no claim of good -faith doubt as a
reason for refusal. As a witness Rainey, at the close of the
hearing , claimed that one reason he refused was because
of "certain instances in which indications of forgery of
signatures on these cards ." The claim is so utterly false
and ridiculous as to disprove all his other claims of any
credibility. There is no evidence that anyone connected
with management had ever seen a signed union card until
the hearing . Certainly it is admitted that no charge of
"forgery" was made to the Regional Director at the time
of the R-case hearing . And Rainey was in the hearing
room when Willis, the one witness who even raised the
question "forgery," said that not until after his card was
in evidence had he known anything about it.
In short, I find no credible evidence of "good faith"
doubt as to majority status in the record.
It is concluded and found that the Respondent, at all
times since October 9, 1964, has unlawfully refused to
bargain in good faith with the Union , although at all
times since October 8 it has been the representative of all
employees in the appropriate unit . Such refusal interfered
with , restrained , and coerced employees in the exercise of
rights guaranteed by the Act.
In view of the foregoing conclusions , it will be
recommended that the election of December 22, 1964, be
set aside.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section
III, above , occurring in connection with the operations of
the Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Aluminum Workers International Union , AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
2. By discriminating against employees Clymer and
Rochelle and the 32 listed on Appendix A , as described
herein , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. All production and maintenance employees at the
Respondent ' s Columbia , Tennessee, plant, excluding office
clerical employees , watchmen , guards , salesmen,
professional and technical employees and supervisors as
defined in the Act , constitute an appropriate unit for the
purpose of collective bargaining within the meaning of
Section 9 (b) of the Act.
4. By virtue of Section 9(a) of the Act the above-named
labor organization has been since October 8 , 1964, and
now is , the exclusive bargaining representative of all
employees in the above -described unit.
5. By failing and refusing to bargain with the said labor
organization on and after October 9 , 1964, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
6. By interfering with , restraining , and coercing
employees in the exercise of rights guaranteed by Section
7 of the Act , the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
It will be recommended that the Respondent offer
employees Clymer and Rochelle and the 32 employees
'I find no substantial evidence to sustain the allegations of the complaint
to the effect that employees Ray Odom and Hobert Stanfill were
unlawfully assigned arduous tasks during certain periods before they were
discharged on November 20. Nor does General Counsel urge this point in
his brief.
ALABAMA ROD AND WIRE DIVISION 193
named in Appendix A immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may
have suffered by reason of the discrimination against
them, by payment to each of them of a sum of money
equal to that which he normally would have earned as
wages from the date of the discrimination to the date of
offer of full reinstatement , less his net earnings during
said period, and in a manner prescribed by the Board in
F. W. Woolworth Company 90 NLRB 289, and with
interest on the backpay due in accordance with Board
policy set out in Isis Plumbing & Heating Co., 138 NLRB
716.
It will also be recommended that the Respondent, upon
request, bargain collectively and in good faith with the
Charging Union and, if an understanding is reached,
embody such understanding in a signed agreement.
In view of the serious and extended nature of the
Respondent's unfair labor practices, it will be
recommended that it cease and desist from infringing in
any manner upon the rights of employees guaranteed by
Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in the case,
I recommend that the Respondent, Alabama Rod and
Wire Division, Phelps Dodge Aluminum Products Corp.,
its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in and activity on behalf
of Aluminum Workers International Union, AFL-CIO, or
any other labor organization, by discharging, laying off,
refusing to reinstate , or in any other manner
discriminating against employees in regard to hire or
tenure of employment, or any term or condition of
employment.
(b) Refusing to bargain with the above-named labor
organization.
(c) Threatening employees with reprisals, or granting or
promising benefits, to discourage union membership and
activity.
(d) Promulgating or enforcing any rule against
employee activity during working hours, when the single
subject proscribed relates to a union.
(e) Interrogating employees as to their union activities
in violation of Section 8(a)(l) of the Act.
(f) Engaging in surveillance or creating the impression
of surveillance of employees in their union activities.
(g) In any other manner interfering with , restraining, or
coercing employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer immediate and full reinstatement to
employees Clymer, Rochelle, and the 32 employees listed
in Appendix A, and make them whole for any loss of pay
suffered by reason of the unlawful discrimination against
them in the manner set forth above in the section entitled
"The Remedy."
(b) Preserve and, upon request, furnish Board agents all
records necessary to determine the amount of backpay
due.
(c) Notify said employees if presently serving in the
Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(d) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all employees at its Columbia,
Tennessee, plant, in the appropriate unit described herein,
with respect to wages, hours, grievances or other terms
and conditions of employment and, if an understanding is
reached, embody such understanding in a signed
agreement.
(e) Post at its plant in Columbia, Tennessee, copies of
the attached notice marked "Appendix B."8 Copies of the
said notice, to be furnished by the Regional Director for
Region 26, shall, after being duly signed by an authorized
representative of the Respondent, be posted immediately
upon receipt thereof, and be maintained for 60 consecutive
days, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the said Regional Director, in writing , within
20 days from the receipt of this Decision, what steps have
been taken to comply herewith.'
Finally, it is recommended that the election in Case
26-RC-2271, held on December 22, 1964, be set aside.
Earnest Beard
Stanley Bridges
Bobby Cockrell
John Collins
Wade Collins
Billy Ellis
David Estes
Larry Hill
Jessie Leroy Hill
Frank Irwin, Jr.
Richard Ivey
Clyde Kelley
Harlong Kelley
Marvin Kelley
Wallace King
Whelan King
APPENDIX A
Claude Lemay
William Lemay
Ronnie Lunn
Hollis Moore
Ray Odom
Willard Pigg
Harold Reed
John Reed
Raymond Reed
Howard Rochelle, Jr.
William Rogers
Ray Scroggins
Hoberg Stanfill
Elgie Sullivan
Floyd Sullivan
Larry Wood
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of The National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act we hereby notify our employees that:
WE WILL NOT unlawfully discourage you from being
members of Aluminum Workers International Union,
'In the event that this Recommended Order is adopted by the Board the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals , the words "pursuant to a decree of the United States
Court of Appeals Enforcing an Order," shall be substituted for the words
"pursuant to a Decision and Order."
'In the event that these Recommendations be adopted by the Board, this
provision shall read : "Notify the said Regional Director, in writing, within
10 days from the date of this Order, what steps the Respondent has taken
to comply herewith."
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO, or any other union.
WE WILL NOT threaten you with reprisals , nor grant
nor promise benefits to discourage you from joining
any union.
WE WILL NOT spy upon your union meetings, and
will not violate any of the rights you have under the
National Labor Relations Act, to join a union of your
own choice or not to engage in any union activities.
WE WILL offer reinstatement to employees Clymer
and Rochelle , and all 32 employees listed on the
accompanying "Appendix A," and give them backpay.
WE WILL , upon request, bargain collectively with the
above-named Union and , if an understanding is
reached , sign an agreement covering such
understanding . The unit represented by this union is all
our production and maintenance employees at our
Columbia , Tennessee , plant, excluding office clerical
employees , watchmen, guards, salesmen , professional
and technical employees and supervisors as defined in
the Act.
ALABAMA ROD AND
WIRE DIVISION , PHELPS
DODGE ALUMINUM
PRODUCTS CORP.
(Employer)
Dated By
(Representative ) (Title)
Note : Notify any of the employees listed in Appendix
A as well as Clymer and Rochelle if presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office , 746 Federal
Office Building , 167 North Main Street , Memphis,
Tennessee 38103, Telephone 534-3161.
TRIAL EXAMINER 'S SUPPLEMENTAL
DECISION
C. W. WHITTEMORE , Trial Examiner : On June 28,
1965, I issued my Decision in this proceeding , finding that
the Respondent had engaged in unfair labor practices
violative of Section 8(a)(1), (3), and (5) of the Act.
On May 18, 1966 , the National Labor Relations Board
found merit in certain exceptions filed by the Respondent,
and issued an Order remanding the proceeding to the
Regional Director of Region 26, and directing that a
further hearing be held before me for the purpose of
"receiving additional evidence relevant to: (1)
authorization cards , and (2 ) the defenses of economic
necessity and altered operations."
Pursuant to said Order , a further hearing was held in
Columbia, Tennessee , on October 25, 26 , 27, and 28,
1966. At this hearing appearance was entered by Attorney
Trost , on behalf of a number of employees who declined
to honor subpenas served upon them by both General
Counsel and the Respondent . After other available
evidence and testimony was received, by agreement of the
parties the hearing was recessed to provide said parties
with an opportunity to decide whether Court enforcement
of the subpenas would be sought.
On June 14, 1967, the U . S. District Court for the
Middle District of Tennessee , Columbia Division , issued
its Order requiring obedience to the subpenas involved.
On August 22, 1967, the hearing was resumed . Certain
of the employees subpenaed were called by and testified
for the Respondent . One individual , a union
representative , did not respond to a newly issued subpena
served upon him by the Respondent . I denied the
Respondent ' s motion to continue the hearing for the
purpose of obtaining enforcement of this one subpena.
The hearing was thereupon closed.
On October 5, 1967 , the Board directed that the
hearing be reopened for the purpose of receiving testimony
of this single new witness.
Various delays followed this Order . It is pointless to
describe them here , since the 8(a)(5) issue , to which such
testimony would have been relevant , was subsequently
withdrawn by the Union and the General Counsel.
On April 4 , 1968, I granted General Counsel 's "Motion
to Dismiss 8(a)(5) Allegations of the Complaint," said
motion not being opposed by the Respondent . In his order
granting the motion I stated that he:
(1) Consents (pursuant to Sec. 102 . 9 of the Board's
Rules and Regulations ) to the withdrawal of the 8(a)(5)
charge in Case 26-CA-1999;
(2) Orders dismissal of the 8 (a)(5) allegations contained
in the complaint, and
(3) Declares the hearing , reopened by the Board in its
order of October 5 , 1967, closed as of the date of this
Order.
The same order granted a period of 3 weeks for filing
of briefs upon the one remaining issue: the Respondent's
"economic defense ," as it bears upon the remaining
8(a)(3) issue , evidence as to which was introduced by the
Respondent on October 28, 1966.
A brief has been received from General Counsel, and
has been fully considered . No briefs have been received
from the Respondent or the Union.
1. EVIDENCE AS TO THE RESPONDENT'S "ECONOMIC
DEFENSE " ADDUCED ON OCTOBER 28, 1966
All testimony on this point , both at the original hearing
and the remand, was adduced from Horace Rainey, Jr.,
manager of the Columbia "rod plant," which was
purchased by Phelps Dodge in May 1964. He had been
manager of the same plant since 1955, the plant then
known as Columbia Metal Products . Summarized in this
section is his testimony on October 28, 1966 , without
comment or findings as to the merit of his statements.
According to Rainey:
1. Phelps Dodge bought the plant for the purpose of
continuing and expanding production of "alloy redraw
rod" and also of producing "conductor grade redraw
rod." To implement this plan of expansion , additional
equipment was sought and purchased , "in the summer of
1964."
2. Through that summer the "alloy" production was
"maintained at reasonable rates ," but toward the end of
August he anticipated that it would not be continued in
September . So "at that time" he talked with W. S. King,
general manager of the rod and wire division, and
suggested that they "consider a cutback in production and
ALABAMA ROD AND WIRE DIVISION
probably a cutback in personnel ." King told him he felt
such action might be "premature" and advised that they
"wait and observe the situation."
3. About the middle or the latter part to September,
Rainey "felt like possible we were coming up with a real
bad prospect for October," so he called King again. In
October "production was down drastically" and upon
calling King a third time they "agreed to make a cutback
and to reduce our forces."
4. In reply to his counsel's direct question as to why he
terminated, on November 20, 1964, the employees herein
involved, he testified:
The reason for letting these people go at that time were
[sic] twofold, actually. We needed to make a
determination as such because of the declining business,
the lack of orders. We decided to make it permanent,
after complete review, on the basis of the beginning of
our construction period of installing this machinery to
increase our production capabilities.
5. Before November 20, 1964, the plant did not have
the capability of making the "electrical conductor," but
had two mills - one the rod mill and the other the bar
mill, for production of "alloy redraw rod."
6. Since November 20, certain changes have been made
in the equipment of both the rod mill and the bar mill -
to increase "its production rates." And a certain "pre-heat
process" was eliminated.
7. A number of new employees were hired during the
week before November 20, 1964, "to maintain the normal
work force," to operate the rod and bar mills. "It
required a certain number of people to operate these mills.
Consequently we had to hire replacements all the time."
8. New equipment was "finally purchased in July of
1964." A purchase order for buildings to expand the plant
was issued August 14, 1964.
9.. On November 7, 1964, he issued a purchase order to
a Pittsburgh concern to "dismantle and load on carriers
for shipment" this machinery purchased in Connecticut.
10. In August, 1965, production was shut down for
about 90 days "as a result of having to make these
changes and put this new equipment in."
11. Division Manager King and Rainey , together, made
the decision for the November 20 layoffs.
12. Before November 20 "We shipped rod to both the
alloy wire plant in Florence, Alabama, and the screen
plant in Covington, Georgia." Both are Phelps Dodge
plants. Orders came from the Phelps Dodge sales office in
Florence. "All billing" for Columbia production to other
customers came from "Florence." Except for other Phelps
Dodge plants the Columbia plant had "a relative few
number of customers."
13. Questioned as to the records in existence to support
his claim of lack of orders, Rainey replied on
cross-examination:
. as far as to say just whether it was documented that
there was a shortage of orders or a lack of orders, or
whether I was aware from our own records that we had
a shortage of orders , I don't think that that 's true, no,
sir.
14. The new machinery is now part of the expanded rod
mill. The bar mill continued to operate.
15. "The production of the rod plant was cut with the
termination of the people , because at that time we
couldn't operate the two mills simultaneously."
16. ". . . it takes a certain number of people to operate
these mills, which prior to this date of November 20th we
195
operated simultaneously. After the terminations of these
people we could only operate the mills individually.
Consequently our production rates went down, because we
couldn't operate the rod mill, which is the one that
produces rods. We could only operate it on alternate
days."
11. SUMMARY OF RAINEY S TESTIMONY ON APRIL 20,
1965 RELATIVE TO THE LAYOFFS IN ISSUE
Summarized in this section is Rainey's testimony at the
original hearing as to his reason for the same
terminations, elicited from him by General Counsel, who
had called him as a Section 43(B) witness:
1. Asked why the 32 employees were "permanently
terminated" he replied: "They were permanently
terminated because of lack of business. . . We had no
business. We had a lack of business. Business declined."
2. There followed, this colloquy:
Q. That is, the economic conditions of your plant
here in Columbia worsened so that it necessitated the
layoffs of some 32 employees; is that correct?
A. Yes
Q. And the economic conditions worsened as a result
of a lack of orders coming in for the finished product,
aluminum rods, is that correct?
A. We didn't have the business, that is true.
Q. And that was because of the lack of orders for
the finished product; aluminum rods, is that correct?
A. That' s true.
Q. Now that is the only finished product made by
the Columbia plant, aluminum rod, is that correct?
A. That's correct.
Q. Now, is it not correct that between 50 percent to
75 percent or more of the finished product, aluminum
rod, from the Columbia plant, is sold directly to the
Florence, Alabama and/or Covington, Georgia, plants?
A. That's correct.
Q. And it was, again , a lack of orders from
Columbia customers, two of whom are the Covington,
Georgia, plant and the Florence, Alabama, plant that
required, or that made the economic conditions of the
Columbia plant worsen so that 32 employees had to be
laid off'?
A. Yes.
3. After an extended discussion by counsel on another
matter, and with permission of counsel for the
Respondent, the following colloquy occurred:
TRIAL EXAMINER: Your orders, which you spoke of,
which fell off in whatever month it was here, in
November, which caused you to layoff these employees
- how long have you been plant manager?
THE WITNESS: I have been plant manager, sir, since
the Phelps Dodge Corp. acquired this business which
was May the 15th, 1964. Prior to that time I had been
manager of the plant and the president of the company,
which was the Columbia Metal Products Company.
TRIAL EXAMINER: Well, has it been your experience,
then, that the orders fluctuate, - they go up, they go
down?
THE WITNESS: Yes, sir.
TRIAL EXAMINER: And at your plant in November
there was a lack of orders?
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE WITNESS: Yes, Sir.
TRIAL EXAMINER: But, you had no assurance that
you were not going to have orders in the future, enough
to bring back the plant personnel?
THE WITNESS: Yes, Sir.
4. The only communication made by management to
the employees, as to the impending permanent layoffs was
in the form of a notice dated November 16, 1964,
identified by Rainey. Its text, in essential part:
Due to business conditions it is necessary that we
reduce our work force effective the end of this week.
Those who are to be terminated will be notified by their
supervisors on Friday.
Persons terminated Friday will be paid in full through
the end of the shift Friday.
We see no prospect of any improvement in business at
any time in the foreseeable future. We suggest that
persons being terminated seek employment elsewhere.
5. None of the 32 employees terminated on November
20, so far as Rainey could recall, was notified of his
termination until he went to receive his pay on November
20.
III. SUMMARY OF RAINEY S TESTIMONY ON THE SAME
POINT AS A WITNESS FOR THE RESPONDENT ON APRIL
23, 1965
Three days after Rainey, as noted above, proffered as
the only reason for the effective discharge of the 32
employees: "lack of orders," he was called by counsel for
the Respondent . His testimony , relevant to this point is
summarized:
1. The year before the corporation was sold to Phelps
Dodge there was a discussion as to "modifications of the
equipment to be put into the plant."
2. Asked by the counsel "why were the people
ter minated, the 32-plus employees terminated?", he
replied:
These people were terminated in anticipation of the
ultimate installations of this equipment.
It was at this point that I sustained General Counsel's
objection to an offer of proof by counsel for the
Respondent regarding introduction of documentary
evidence and further testimony as to the purchase and
installation of new equipment. In its order, above
described, the Board reversed my ruling, and ordered that
the evidence be received.
IV. SUMMARY OF RELEVANT PORTIONS OF RAINEY S
TESTIMONY ON NOVEMBER 4, 1964
In his comprehensive brief General Counsel calls
attention to certain testimony given by Rainey on
November 4, 1964, at the representation hearing in Case
26-RC-2271, consolidated with the complaint case in this
proceeding.
I consider such testimony to be relevant to the
economic defense issue , since it was elicited only a few
days before the "permanent" layoffs of nearly half the
then working force, and was referred to briefly in his
original Decision.
This testimony was developed, it appears, during
exploration of a question as to whether or not about 15
employees engaged in certain construction work should be
included among the "production and maintenance
employees," the unit petitioned for.
Rainey testified that some of these construction
workers had been hired within the preceding 30 days.
The following colloquy occurred between Rainey and
his counsel:
Q. What do you intend to do with the construction
workers as things stand right today? What do you
intend to do with them upon completion of the work
they are now doing?
A. Well, upon the completion of the work that they
are now doing in the construction program, any
construction program eventually comes to an end.
There would be some of them that we would have no
further use for them. There would be no work for them
to do. As I said before, we still have not put all of our
entire casting operation to work. I think there would be
some of these boys that would be eligible for or capable
of doing the production work in the remainder of the
plant. So, we would handle it either way in our
jurisdiction, depending on the background of the people
themselves and their talents involved.
Q. As things stand today, do you anticipate that you
will be able to use some of these employees in your
production operation?
A. I think that's possible.
V. CONCLUSIONS AS TO THE EVIDENCE
The concluding paragraph of the Board's Order of May
18, 1966, remanding the proceeding , states , in part:
It is further ordered that upon conclusion of such
further hearing, unless the parties waive their rights
thereto, the Trial Examiner shall, on the evidence
received pursuant to this Order as well as on the record
previously made, prepare and serve upon the parties a
Supplemental Trial Examiner's Decision.. .
The rights were not waived. It is assumed that the
Board intended that in his Supplemental Decision I should
appraise the October 28, 1966, economic evidence and, in
its light, if any, reconsider evidence on the same point
adduced at the original hearing, with the purpose of
deciding whether his original conclusions of a violation of
Section 8(a)(3) should be affirmed, modified, or reversed.
In my original Decision I concluded, in effect, that
General Counsel had amply proved violation as alleged
and that such proof was not overcome by the
Respondent's evidence in support of its claim that
economic necessity, in terms of "lack of orders," caused
the 32 terminations.
Careful review of the entire record, including that part
of the RC proceeding which is relevant, leads inescapably,
in my opinion, to the conclusion, here made, that the
Respondent has failed to adduce competent and
convincing evidence that economic necessity, of any nature
revealed in the record, required or was the real reason for
the terminations. This general conclusion is based upon
the following points:
1. As to the claim of "lack of orders" as the reason for
the terminations, which was the only one made by Rainey
at the opening of this proceeding when called as an
adverse witness , in his original Decision the Trial
Examiner found lack of merit in it . The plant manager
admitted that "orders fluctuate" and that, in effect, he
had no assurance at the time that the "layoffs" would
have to be permanent.
2. The record, in its entirety, lacks any company
records supporting the contention of "lack of orders."
ALABAMA ROD AND WIRE DIVISION 197
3. As quoted in Section I, above , at the reopened
Hearing Rainey claimed , in substance , that there were no
documents to show " there was a shortage of orders or
lack of orders ." The Trial Examiner is inclined to believe
that this was a bit of inadvertent half-truth . But he cannot
believe that a company of the size of Phelps Dodge was
without any record of orders.
4. As previously found , Rainey admitted that most of
his orders came from the other two plants in the same
division . It is reasonable to conclude that if there had
actually been a "falling off of business" due to "lack of
orders," the Respondent would have produced records to
substantiate the contention . Its failure opens wide the door
to the speculation that if the Columbia plant did not
receive orders they were purposely withheld at the
Florence sales office.
5. At the reopened hearing on October 28, 1966, the
Respondent was permitted to place in evidence a typed
summary of purported production records . The summary
purports to show the monthly totals , in terms of dollars,
beginning in June , 1964. The document was offered
through Rainey, who admitted that he could not testify as
to its accuracy . In his brief General Counsel contends that
this document was not properly authenticated . The Trial
Examiner agrees, and does not consider himself in a
position to find accuracy where Rainey could not.
6. Accepting this document at its face value, however,
points to another inconsistency in Rainey 's testimony. As
quoted above , in Section 1, the plant manager testified
that production was "cut " with the "termination of these
people ." "A certain number of people," he said, were
required to operate the two mills simultaneously . "After
the terminations of these people we could only operate the
mills individually . Consequently our production rates went
down , because we couldn ' t operate the rod mill , which is
the one that produces the rods . We could only operate it
on alternate days." Yet the summary of "production
dollars" indicates that in November production increased
to $382 , 794 from $287 , 466 the previous month, although
for a third part of November the working force had been
cut in half.
7. It is plain that such production records are unreliable
support for Rainey's claim of "lack of orders."
8. Finally, lack of merit in the claim of "lack of
orders" as a dismissal reason is further established by
Rainey's testimony at the Representation hearing, given
but a few days before posting of the notice of permanent
layoffs. Without repeating the full quotation, the
substance of the claim on November 4, 1964 , was that the
plant could and would use at least some of the
construction employees in the production line. It is noted
that this testimony was given after the time when Rainey
claimed , he and King had already decided to cut the
working force.
9. Turning to the plant manager ' s claim as to the
reason for the terminations , advanced at the reopened
hearing in October , 1966. His reply to a direct question on
the point from his own counsel is quoted in full in Section
I, above . In substance , he testified that the "reason" was
"twofold ": that lack of orders , reviewed in light of the
fact that "our construction period of installing machinery
to increase our production capabilities ," was "beginning,"
was the basis for the decision to terminate the employees.
10. It has been found and concluded that lack of
credible and convincing proof deprives of merit the
Respondent ' s claim of "lack of orders ." The belated
contention of "twofold " reasons must therefore fail of
acceptance.
11. Rainey's concurrent claim that permanency of the
layoffs was decided "after review" because "of the
beginning of our construction period" is not only
inconsistent with his original claim , but with other
testimony given by him . At the R-case hearing, Ramey
said that such "construction" had been going on for at
least 10 months before the date of such testimony, which
was shortly before the date of the layoffs.
12. In short and in conclusion, I find no merit in the
Respondent's various and several defenses.
VI. FINAL CONCLUSIONS
I herewith affirm the conclusions set forth in my
original Decision , to the effect that the terminations on
November 20, 1964 , were violative of Section 8(a)(3) and
(1) of the Act.
In the event that the Board approves the dismissal of
the 8 (a)(5) issues , as described above , the Recommended
Order appearing in the original Decision, should, of
course, be accordingly modified.