Phillips Synthetic Fibers, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1974

210 N.L.R.B. 398 (N.L.R.B. 1974)

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Phillips Synthetic Fibers , Inc., Employer-Petitioner
and Textile Workers Union of America , AFL-CIO
Phillips Synthetic Fibers, Inc.' and GTA Area Joint
Board, Textile Workers Union of America,
AFL-CIO-CLC. Cases 10-RM-613 and 10-
CA-10305
April 30, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On January 16, 1974, Administrative Law Judge
Sydney S. Asher issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Phillips Synthetic Fibers, Inc.,
Rockwood, Tennessee, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
IT IS ALSO HEREBY ORDERED that the complaint in
Case 10-CA-10305 be, and it hereby is, dismissed,
insofar as it alleges that Respondent violated the Act
by discharging Roland Wayne Roddy.
IT IS FURTHER ORDERED that, in Case 10-RM-613,
the challenges to the ballots of Roland Wayne
Roddy and Vicky B. Louden be sustained and the
challenge to the ballot of Johnny Lester Cromwell be
overruled and that the case be, and it hereby is,
remanded to the Regional Director for Region 10,
who is hereby directed to open and count the ballot
cast by Johnny Lester Cromwell and to issue a
revised tally of ballots. In the event the revised tally
of ballots reveals that the Union has received a
majority of valid ballots cast, the Regional Director
3 Ile name of Respondent in Case 10-CA-10305 appears as amended at
the consolidated hearing.
is hereby directed to issue an appropriate certifica-
tion of representative.
210 NLRB No. 56
DECISION
SYDNEY S. ASHER, Administrative Law Judge: This
controversy stems from the efforts of GTA Area Joint
Board, Textile Workers Union of America , AFL-CIO,
CLC, herein called the Union, to become the bargaining
representative of the employees of Phillips Synthetic
Fibers, Inc.,' Rockwood, Tennessee, herein called the
Respondent. The representation proceeding was initiated
by a petition filed by the Respondent in Case 10-RM- 613
on July 5, 1973, seeking an election . Thereafter, on July 25,
1973, the parties executed a stipulation for certification
upon consent election . The election was held on August 15,
1973. Eight votes were cast for the Union and eight votes
were cast against the Union; there were three challenged
ballots, those of Johnny Lester Cromwell, Roland Wayne
Roddy (also referred to in the record as Wayne Roddy),
and Vicky B. Louden (also referred to in the record as
Vickey B. Louden).
The unfair labor practice case was initiated by a charge
filed by the Union in Case 10-CA-10305 on July 27, 1973.
The Regional Director for Region 10 issued a complaint on
August 22, 1973, alleging that the Respondent had
discharged Johnny Lester Cromwell and Wayne Roddy,
two of its employees, on June 19 and 26, 1973, respectively,
because of their membership in, and activities on behalf of,
the Union . It is alleged that this conduct violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended (29 U.S.C. Sec. 151, et seq. ), herein called the
Act. The Respondent filed an answer admitting that it had
discharged Cromwell and Roddy on the dates alleged,
denying that these individuals were employees within the
meaning of the Act , and alleging that these individuals, at
the time of their discharges , were supervisors as defined in
the Act.
On August 28, 1973 , the Regional Director issued his
report on challenged ballots in Case 10-RM-613, in which
he concluded that the challenged ballots raised substantial
and material factual issues which could best be resolved by
a hearing. He further ordered Case 10-RM-613 consoli-
dated with Case 10-CA-10305.
Pursuant to notice , a consolidated hearing was held
before me on October 11, 1973, at Rockwood, Tennessee.
All parties were represented and participated fully in the
hearing. During the hearing, the parties stipulated that the
challenge to the ballot of Vicky B. Louden should be
sustained. The parties further stipulated during the hearing
that both Cromwell and Roddy had been discharged on
June 26, 1973. After the close of the hearing the General
Counsel and the Respondent filed briefs, which have been
carefully considered.
Upon the entire record , and from my observations of the
witnesses, I make the following:
I The name of the Respondent in Case 10-CA-10305 appears as
amended at the consolidated hearing.
PHILLIPS SYNTHETIC FIBERS, INC. 399
FINDINGS OF FACT
A. Preliminary Matters
The complaint alleges, the answer admits , and it is
found, that the Respondent is, and at all material times has
been , an employer engaged in commerce as defined in the
Act and its operation meet the Board's jurisdictional
standards ; 2 and that the Union is, and at all material times
has been , a labor organization within the meaning of the
Act.
B. The Ih.,ues
At the consolidated hearing the parties agreed that the
Respondent had discharged Cromwell and Roddy because
of their union activities. This, plus the stipulation disposing
of the challenge to Louden's ballot, narrows the issues. The
only remaining issues are (1) whether Cromwell was a
supervisor within the meaning of the Act at the time of his
discharge, and (2) whether Roddy was a supervisor within
the meaning of the Act at the time of his discharge. The
General Counsel and the Union maintain that Cromwell
and Roddy were rank-and-file employees on the crucial
date, June 26, 1973. The Respondent, on the contrary,
contends that they were both supervisors at that time.
C. The Setting
At all material times George W. Phillips, III, has been
treasurer and principal stockholder of the Respondent. The
Rockwood building was acquired by the Respondent in
January 1972. In April 1972 the Respondent commenced
installing equipment, and continuously since that month
John Castile Howard has been plant superintendent. The
first line of machines was completed and production
started in October 1972. The Respondent is currently
setting up a second production line.
During most of the time that the Respondent's plant has
been in operation it has run on three shifts. The first and
second shifts have been in continuous operation. The third
shift began in October 1972 and was discontinued in April
1973. It resumed in May 1973 and has been in continuous
operation since then. The Respondent's total plant comple-
ment has been about 25 employees.
D. The Status of Cromwell
1. Facts
Johnny Lester Cromwell commenced to work for the
Respondent in August 1972 at wages of $2.50 per hour
helping to install the machinery. When production started
Cromwell was made a foreman, with authority to dis-
charge, at a salary of $125 per week. When the third shift
2 The Respondent is, and at all material times has been , a Rhode Island
corporation with its office and place of business in Rockwood , Tennessee,
where it is engaged in the commission processing of synthetic waste fibers.
During the 12 months prior to August 22, 1973, the Respondent received
gross revenues of more than $50,000 for services performed for customers
located outside the State of Tennessee.
3 There is a conflict as to whether Cromwell had requested this transfer. I
deem it unnecessary to resolve this conflict
4 The Respondent relies in part on Phillips ' testimony that "Mr.
began, Cromwell became its foreman and remained in this
capacity until "about a week or two" before the third shift
was shut down, when he was transferred to the first shift .3
The foreman of the first shift at that time was Kyle Loy.
Cromwell's duties on the first shift were to help install the
machinery for a second production line and to fix
malfunctioning machines. In May 1973 Cromwell was
taken off his weekly salary, put on wages of $2.60 per hour,
and required to punch a timeclock. As previously de-
scribed, the Respondent discharged Cromwell on June 26,
1973, because he engaged in union activities. Sometime
later he received through the mail a separation notice
prepared by the Respondent in which his job was described
as "shift foreman" and the reason for discharge given as:
"Involved in union activities while employed in superviso-
ry capacity."
2. Contentions and conclusions
All parties agree that while Cromwell was foreman on
the third shift his authority was such as to constitute him a
supervisor within the meaning of the Act. However, the
General Counsel and the Union maintain that this
supervisory authority was withdrawn when Cromwell was
transferred from the third to the first shift, and was not
restored to Cromwell thereafter. In this connection they
point out that Loy continued as foreman on the first shift
even after Cromwell joined that shift. The Respondent, on
the other hand, insists that Cromwell's status and authority
as a supervisor continued after his transfer to the first shift.
Although the Respondent admits that Loy retained his
foreman's authority, the Respondent contends that after
Cromwell came into the first shift Cromwell and Loy
shared the foreman's position, authority, and duties.4
I cannot agree with the Respondent's position regarding
Cromwell for the following reasons : (1) There were only 8
or 10 employees on the first shift. They were supervised by
Loy, and Howard also spent some time in the plant during
the first shift-under the circumstances there would appear
to be little need for an additional supervisor. (2) Shortly
after the change of shift, Cromwell sustained a reduction in
pay 5-a personnel action consistent with demotion. (3)
Neither Loy nor Cromwell was advised that they were co-
foremen of the shift and no attempt was made by anyone
to allocate authority between them-yet if indeed they
were to share the responsibility one would expect them to
be so informed. (4) According to Cromwell's credited
testimony Loy sometimes assigned Cromwell to fill in for
absent operators-conduct consistent with Cromwell's
demotions For these reasons I am convinced and find that
Cromwell's status changed when he left the third shift and
Cromwell wasn 't demoted from being foreman ever." This is a self-serving
conclusionary statement and I give it little probative weight.
5 Even based on a 44-hour week with time and a half for overtime, at
$2.60 per hour Cromwell would earn only $ 119.60 per week, less than his
former salary of $125 per week The Respondent's argument that Cromwell
was taken off salary because all other foremen had been put on hourly
wages fails to explain the cut in his pay
6 Loy denied that he had done so . Loy did not impress me as a reliable
witness and I do not credit his denial in this respect.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he no longer was possessed of any supervisory
authority after that.?
E. The Status of Roddy
1. Facts
Roland Wayne Roddy was first employed by the
Respondent in October 1972 as a picker operator on the
first shift at wages of $1.65 per hour. Approximately 4 or 5
months later he was assigned to operating the bailer on the
same shift, which job he held for about 2 months. While
the record is not entirely clear as to when, he apparently
received a wage increase to $1.85 per hour sometime
during this period.
In May 1973, when the third shift resumed operations,
Roddy was transferred to the third shift and given a wage
increase from $1.85 to $2.50 per hour. For about 3 weeks
Loy left the first shift and temporarily went on the third
shift to train Roddy how to fix breakdowns in the
machines; then Loy returned to the first shift. Roddy
remained on the third shift until his discharge on June 26,
1973. At that time the Respondent furnished Roddy with a
separation notice describing his job as "picker opr." and
giving as the explanation for his discharge: "Involved in
union activities when a foreman of a shift."
2. Contentions and conclusions
The General Counsel and the Union maintain that
Roddy's transfer to the third shift did not carry with it any
supervisory authority and that he merely served as a "fixer-
trainee," a rank-and-file job. The Respondent, on the
contrary, contends that when Roddy went to the third shift
he was put in charge of that shift, and cloaked with
supervisory authority.
I agree with the Respondent regarding Roddy 's status
after his transfer. The factors which have persuaded me to
this determination are: (1) Howard appeared on the third
shift only two or three times each week according to the
credited testimony of Rufus Presswood, an employee on
the first shift and a witness for the General Counsel. If, as
the General Counsel and the Union would have us believe,
Roddy was not a supervisor, then the six employees on that
shift were largely without effective supervision at all-a
situation which I find hard to believe could have existed.
(2) All parties agree that Cromwell, Roddy's predecessor
on the third shift, was a supervisor while on that shift; no
reason appears why there was any less need of supervision
after Roddy replaced Cromwell on the shift. (3) At the time
of the transfer Roddy received a wage increase of more
than 35 percent over his previous wage-a factor indicat-
ing promotion. (4) Howard testified credibly that he
informed Roddy during his last week on the third shift that
if the employees "wouldn't cooperate with him [Roddy]
that he [Roddy] could dismiss them." This constitutes a
clear grant of supervisory power. In the light of the
foregoing I conclude that, at least from the time Loy
r There is some testimony indicating that after his transfer to the first
shift Cromwell applied to a financial institution for a loan and represented
himself as a foreman . (The application itself was not produced in evidence.)
Even assuming this to be so, it would not change my decision that he ceased
ceased to train him and returned to the first shift, Roddy
was in charge of the third shift and possessed supervisory
authority over the men on that shift. And in my opinion
the fact that the Respondent described Roddy in his
separation notice as a picker operator does not require a
different result.
Upon the above findings of fact, and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Phillips Synthetic Fibers, Inc., is, and at all material
times has been , an employer within the meaning of Section
2(2) of the Act, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. GTA Area Joint Board, Textile Workers Union of
America, AFL-CIO, CLC, is, and at all material times has
been, a labor organization within the meaning of Section
2(5) of the Act.
3. On June 26, 1973, Johnny Lester Cromwell was an
employee of the Respondent within the meaning of Section
2(3) of the Act.
4. By discriminatorily discharging Johnny Lester
Cromwell on June 26 , 1973, and thereafter failing and
refusing to reinstate him, thereby discouraging member-
ship in the above-named labor organization , the Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aX3) of the Act.
5. By the above-described conduct, thereby interfering
with, restraining, and coercing its employees in the exercise
of rights guaranteed them in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(axl) of the Act.
6. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce , and constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. On June 26, 1973, Roland Wayne Roddy was a
supervisor of the Respondent within the meaning of
Section 2(11) of the Act.
8. By discharging Roland Wayne Roddy on June 26,
1973, the Respondent did not engage in any unfair labor
practices within the meaning of Section 8(aXI) or (3) of the
Act.
9. In the election in Case 10-RM-613 held on August
15, 1973, Johnny Lester Cromwell was eligible to vote but
Roland Wayne Roddy and Vicky B. Louden were not.
THE REMEDY
Normally the discriminatory discharge of an employee
because of his union activities goes to the very heart of the
Act and calls for a broad cease-and-desist order.8 Here,
however, the facts concerning Cromwell's authority may
well have mislead the Respondent into a sincere, albeit
erroneous, belief that Cromwell was a supervisor and that
his discharge therefore was not violative of law. Under
to be a supervisor after he was transferred to the first shift.
8 A. ! Kralewski Manufacturing Co., Inc., 180 NLRB 1071; Wesim's
Shoppers City, Inc., 189 NLRB 234; and Scbrh; Schneider & Satnk Lawshsr
Company, 198 NLRB No. 72, fn. 2.
PHILLIPS SYNTHETIC FIBERS, INC. 401
these particular circumstances , I believe a narrow cease-
and-desist order will suffice adequately to remedy the
unfair labor practice committed . It will therefore be
recommended that the Respondent cease and desist from
the unfair labor practices found herein and from any like
or related conduct.
Affirmatively , it will be recommended that the Respon-
dent offer to Johnny Lester Cromwell immediate and full
reinstatement to his former position or, if that position no
longer exists, to a substantially equivalent position , without
prejudice to his rights and privileges previously enjoyed,
and make him whole for any loss of pay he may have
suffered by reason of his discharge, by paying to him the
amount that he would normally have earned from the date
of his discharge to the date of the offer of reinstatement,
less his net earnings during this period. The backpay
provided for herein shall be computed on a quarterly basis
in the manner established in F. W. Woolworth Company, 90
NLRB 289, including 6-percent interest per year as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that the Respondent
preserve and make available to the Board , upon request, all
records necessary to determine the amount of backpay due
hereunder , and post appropriate notices.
IT WILL FURTHER be recommended that the complaint in
Case l0-CA-10305 be dismissed insofar as it alleges that
the Respondent violated the Act by discharging Roddy.
IT WILL FURTHER be recommended that in Case
10-RM-613 the challenge to the ballot of Cromwell be
overruled, that his ballot be open and counted, that the
challenges to the ballots of Roddy and Louden be
sustained , and that thereafter a revised tally of ballots be
prepared and issued.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Phillips Synthetic Fibers, Inc., Rockwood , Tennessee, its
officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in GTA Area Joint Board,
Textile Workers Union of America , AFL-CIO, CLC, or
any other labor organization , by discharging or otherwise
discriminating against employees in regard to their hire or
tenure of employment or any term or condition of
employment.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights protected by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Johnny Lester Cromwell immediate and full
reinstatement to his former position , or if that position no
longer exists , to a substantially equivalent position , without
prejudice to his seniority or other rights and privileges
previously enjoyed , and make him whole for any loss of
pay he may have suffered by reason of the discrimination
against him, with interest at the rate of 6 percent per year.
(b) Preserve until compliance with any order for backpay
made by the Board and, upon request, make available to
the Board or its agents , for examination and copying, all
payroll records , social security payment records , timecards,
personnel records and reports , and all other records
necessary to compute the amount of backpay due under
this recommended Order.
(c) Post at its plant in Rockwood, Tennessee, copies of
the attached notice marked "Appendix." 10 Copies of the
said notice, on forms provided by the Regional Director
for Region 10, after being signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily displayed. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER recommended that the complaint in Case
10-CA-10305 be dismissed , insofar as it alleges that the
Respondent violated the Act by discharging Roland
Wayne Roddy.
IT IS FURTHER recommended that in Case 10-RM-613
the challenge to the ballot of Johnny Lester Cromwell be
overruled, that this ballot be opened and counted, that the
challenges to the ballots of Roland Wayne Roddy and
Vicky B. Louden be sustained, and that thereafter a revised
tally of ballots be prepared and issued.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and order, and all objections thereto shall be
deemed waived for all purposes.
10 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in GTA Area
Joint Board, Textile Workers Union of America,
AFL-CIO, CLC, or any other union , by discharging or
otherwise discriminating against our employees with
regard to their job tenure or working conditions.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of their right to self-organization, to form, join, or assist
any union, to bargain collectively through representa-
tives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from such
activities.
WE WILL offer to reinstate Johnny Lester Cromwell
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately to his formerjob without loss of seniority , This is an official notice and must not be defaced by
and will pay him for any wages he may have lost anyone.
because we discharged him, with 6 percent interest . This notice must remain posted for 60 consecutive days
Our employees are free to belong or not to belong to any from the date of posting and must not be altered, defaced,
union. or covered by any other material.
Any questions concerning this notice or compliance with
PHILLIPS SYNTHETIC FIBERS, its provisions may be directed to the Board's Office,
INC. Peachtree Building , Room 701, 730 Peachtree Street, N.E.,
(Employer) Atlanta, Georgia 30308 , Telephone 404-526-5760.
Dated By
(Representative) (Title)