Sophia Electric Supply Shop, Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1965

150 N.L.R.B. 1735 (N.L.R.B. 1965)

SOPHIA ELECTRIC SUPPLY SHOP, INC. 1735
ent's statement that he was not ready to sign the existing contract would not be the
same as a refusal to bargain for a new, individual, contract. This difficulty is avoided
in the language of the Union's letter of December 17, which does ask for recognition
and negotiation. Respondent's reply was not an outright refusal to negotiation. It
was a questioning of the Union's majority. The evidence is not clear whether
Respondent was questioning the Union's majority because he claimed not to know
which of his employees was a member of the Union or because he believed that
metal workers should be included in the appropriate unit. If either was the case, I
should say that Respondent was justified in putting the Union to proof in a repre-
sentation proceeding. That the Respondent procured its wood patternmakers by
making requests of the Union for new men does not necessarily prove that the
Respondent should have known that such men were members of the Union. If the
Union operated a nondiscriminatory hiring hall, patternmakers other than members
of Respondent might have been referred by the Union.
On the evidence presented, I find no refusal to bargain and I recommend that the
complaint be dismissed.
Sophia Electric Supply Shop , Inc. and District 50, United Mine
Workers of America . Case No. 9-CA-3117. February 120, 1965
DECISION AND ORDER
On October 28, 1964, Trial Examiner George J. Bott issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed, as set
forth in the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed limited exceptions to Trial Examiner's
Decision and a brief in support, and the Respondent filed an
answering brief in opposition to General Counsel's limited exceptions
to Trial Examiner's Decision. •
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated
its powers in connection with this case to a three-member panel
[Chairman McCulloch and Members Brown and Jenkins].
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 the
entire record in this case, including the exceptions and briefs, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts, as its
Order, the Order recommended by the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dismissed.
150 NLRB No. 171.
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a charge of unfair labor practices filed by the Union on February 25, 1964,
against Sophia Electric Supply Shop, Inc., herein called Respondent or Company,
the General Counsel of the National Labor Relations Board issued a complaint and
notice of hearing dated April 21, 1964, alleging that Respondent had engaged in
unfair labor practices in violation of Section 8(a) (1) and ( 3) of the National Labor
Relations Act, herein called the Act. Respondent filed an answer and a hearing was
held before Trial Examiner George J. Bott at Beckley, West Virginia, on May 26,
1964 , at which all parties were represented . Respondent argued orally at the close
of the hearing and subsequently filed a brief which I have considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
Respondent is a West Virginia corporation with a shop and office at Sophia, West
Virginia , where it is engaged in the business of repairing electric motors . During
the 12-month period prior to the issuance of the complaint , which period is a rep-
resentative period, Respondent purchased and received at its place of business in
West Virginia , products valued in excess of $50,000 from other business enterprises
located in the State of West Virginia which had received the said products in inter-
state commerce from directly outside the State of West Virginia.
During the same period Respondent sold and shipped products valued in excess of
$50,000 to other business enterprises located in the State of West Virginia, which
enterprises in turn annually produced and shipped goods in interstate commerce
valued in excess of $50 ,000 to points directly outside the State of West Virginia.
Respondent concedes , and I find, that it is an employer engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
District 50, United Mine Workers of America, is a labor organization as defined
in Section (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of Elwood Matney
1. The facts
Elwood Matney had been employed as a coilmaker by Respondent for about 3 years
when he was discharged by William Callaway, the Company's president and active
manager, on February 10, 1964. It appears from Matney's own testimony that he
and Callaway had an argument on February 6, 1964, during which both became
angry and very annoyed with each other . It is also clear that, although there had
been some general talk about unions at the shop for years , no concrete organizational
activity took place until Elwood Matney went to the Union's' local office after work
on Saturday evening, February 8, 1964, and secured union application cards. Matney,
his brother David, also employed by Respondent , and employee Greco then visited
employee homes and other places where employees might be found and obtained
signed application cards from most of the 15 employees in the bargaining unit. On
Sunday, another card was secured. On Monday, Callaway fired Matney with knowl-
edge of his weekend union activities . The question is, of course , did he fire him
because of the argument or the activities.
Matney admitted that he and Callaway had a heated dispute during the week before
his discharge . His version of the' argument , its cause and circumstances surrounding
it, was developed during his cross-examination , and although it is not fundamentally
in conflict with Callaway's account , it is somewhat disjointed and unclear. Matney
could not remember all that was said in his conversations with Callaway, and I
accept Callaway's version as the most reliable. Because the argument between
Matney and Callaway, and not any intervening union activity, precipitated Matney's
discharge, according to Respondent , some detail about it is necessary.
SOPHIA ELECTRIC SUPPLY SHOP, INC. 1737
Matney was working on an emergency job involving generator coils on February 6.
Callaway testified that the work Matney was doing was difficult and important, but
that he went into the shop , approached Matney, and asked him not to forget to make
a set of armature coils when he finished the generator coils. Matney rose from his
chair and retorted that he wished that supervision would leave him alone , tell him
what it wanted , and stay out of the department . He said in that way he would get
his job done and that he needed no one to remind him how to do it.
Callaway said Matney 's reaction "shook" him and that he turned away from the
employee, saying that he did not mean to make him "mad," but that it was unfor-
tunate that he could not talk with Matney . Matney became angry , clenched his fist,
and, according to Callaway , Matney 's brother-in-law , who was working nearby, tried
to calm him. During the flareup, Matney asked Callaway if he thought his work was
unsatisfactory and told Callaway he could give him his check if he did. Callaway
replied that when he could not ask the employee a question it was time to give him
his check.
Callaway testified that he decided to discharge Matney and immediately told Mrs.
Eye, office manager and secretary , to prepare a salary check for him . About 15
minutes later he saw Mrs. Eye again and asked her if she had made out the check.
Informed that she had not because of other work , Callaway told her to let it go
because he was emotionally upset. ' He said he had not changed his mind about dis-
charging Matney, however, and that not only did he tell Mrs . Eye about it, but he
also told employee Greco so later in the week . In addition , he told Greco that he
was bringing a qualified coilmaker into the shop on Saturday to "look the place over."
Callaway testified that he fired Matney because of the argument the two had had
and for that reason alone . He said he postponed the discharge until Monday because
he was upset on Wednesday and also because he wanted Matney to finish the job he
was working on because of its emergency nature . Elwood Matney had testified that
Callaway had said something to him on the day he was discharged "... to the effect
that I would be allowed to go back to work if I would withdraw the activities that 1
was now participating in ...." Matney added , however, that Callaway did not say
what he was participating in. Callaway denied making such a remark to Matney and
gave a different version of their conversation which took place at the time he gave
Matney his final check on Monday morning, February 10.
Callaway testified that , although his decision to discharge Matney was firm, he
would have considered rehiring him if he could have reached an understanding with
him about his disposition . He said he told Matney before he gave him his check
that he would take him back if he could control his temper, but that Matney admitted
it was difficult for him to do so . Callaway urged Matney to try to control himself,
but Matney said he would make no promises. Callaway told Matney that if he had
merely made an effort to apologize , perhaps they could have "worked things out."
Matney replied , however, that he had "never been one to apologize " and would prob-
ably lose his temper again . At that time Callaway told him he had no choice but to
pay him off, and he did so.
I credit Callaway 's testimony, and find that he did not say or indicate to Matney
that continued employment was contingent on abandonment of his "activities." On
the other hand , I find that Callaway and Matney did discuss the latter's tendency to
anger. In his direct examination Matney volunteered that he and Callaway had
"exchanged a lot of talk" and that he could not recall it all. In addition , not only
was his comment about "activities" obscure and prefaced by the qualification that
Callaway said "something" to that "effect," but he also admitted that Callaway men-
tioned something about his "high temper ," which he could not remember.
It also credit Callaway's testimony that he told employee Greco on Friday, Febru-
ary 8, 1964, that he was going to discharge Matney and that he was bringing in a
new coilmaker on Saturday to "look the shop over ." Matney admitted that he was
told by two employees, and perhaps a third, before his discharge that Callaway had
gone through the shop saying he would have to let Matney go. He also said he saw
a strange man in the coil shop on Saturday morning looking around in Callaway's
company. He inquired about it and was told by someone , he said , that the man was
a coilmaker . Callaway identified the individual as one W . E. Dawson , a coilmaker.
There is also some evidence in the record indicating that Matney 's and Callaway's
incompatibility was apparent before their serious disagreement on February 6, 1964.
Mrs. Eye corroborated Callaway's testimony about Callaway directing her to make
out Matney's check.
1738 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
Some months before Matney's discharge he refused to make a set of coils with wire
of a size he thought inadequate, according to Callaway. Callaway told' Matney that
he would assume responsibility for the workability of the coil, but Matney protested
that it would be a reflection on his professional craftsmanship to do the job. This
bothered Callaway to the extent that he had a severance check written for Matney
and then destroyed it. Mrs. Eye corroborated Callaway, -in part, by testifying that
Callaway told her to prepare a check for Matney, which'she did, but heard no more
about it from Callaway. She said that Callaway told her at the time that he was
going to discharge Matney because he could not have someone tell him how to run
his business. I credit Callaway and Eye, and find that Matney did refuse .to make
a coil.and that the incident caused Callaway to seriously consider Matney's-severance
at the time.
Callaway said he-also had some complaints from employees about certain disputes
with Matney over work in progress, and that he would try to settle the arguments by
talking to Matney, but the best evidence of the seeds of discord is in Matney's own
testimony. , Matney stated that he objected' to the kind of supervision he was getting
and' had voiced this objection to some, of the other employees. According to him,
Callaway frequently told the men to finish jobs which they could not "possibly get
out in'time to satisfy" Callaway. He said Callaway "would look in the air" and
"walk away mad."- Callaway would occasionally make- a "few smart remarks," the
witness said,,and he'did not like Callaway's tone. On occasion, Callaway would not
speak to Matney for "two or three days," and this aggravated Matney. He felt he
could not do enough work, to suit Callaway, that Callaway was asking too much of
the men, and he told him so. Matney also thought the Company was not run "right,"
because employees were frequently interrupted in their work and put on other assign-
ments. Callaway explained that these were emergency jobs for the mines. Matney's
account of his disagreement with Callaway on the Wednesday before his discharge
is more colorful than Callaway's. He said he was "mad" at the foreman because of
an order he gave him before Callaway arrived, that Callaway was "mad" when he
showed up, and that he (Matney) got "mad" when he,and Callaway were talking.
He said he was ready to take his check and quit, if Callaway wanted it.
Respondent knew that Elwood Matney had engaged in union activity during the
weekend before his discharge. Callaway admitted that Bill Venters 2 came to his
home on Sunday and told him of the activity. Callaway said he telephoned his attor-
ney about it, advising him that he had already decided to discharge Matney.
There is also some testimony in the case indicating that Respondent opposed unions
and Matney's'activities in particular.
Elwood Matney was asked if he had a conversation with Callaway in "early" 1963,
during which David Matney and employee Greco were present.- He said he did and
that the conversation took place in August 1963. He testified that Greco, a truck-
driver, had returned from a trip to the mines and informed Callaway that the men at
a mine had called him "some kind, of scabbing dog." According to Matney, this
information excited Callaway, who said, ". . . unions was no good, and ... he would
eventually fire any man that joins a union." ' David Matney corroborated his brother,
but added some detail to the conversation. He said that Callaway, Elwood Matney,
and Greco were talking about "the union" and he overheard the conversation.
2 General Counsel contends and Respondent denies that Venters is a supervisor under
the Act. Employee witnesses said Venters was their "boss" or "shop foreman," but
the record is not clear about the extent of his authority. It is clear that he assigns jobs
to employees, but Callaway testified that he tells Venters what jobs he wants to get out
and in what order. Venters was asked, for a raise by one employee and immediately
went to see Callaway. The employee subsequently got the raise, but he admitted that
Callaway told him he did not want Venters "to interfere" and that next time he should
come to Callaway directly. I think it a fair evaluation of the record that Venters is a
highly 'skilled, working supervisor who responsibly directs employees, but it is also ap-
parent that Callaway is present most-of the time and also assigns and directs the em-
ployees. If Venters is a supervisor, he is very low on the supervisory scale, and it is
uncontradicted that he is a member of the Union and covered by the labor argeement
which has been negotiated since Matney, was fired. Venters engaged in one act of in-
terrogation only, and, in the circumstances, I find nothing in his conduct which would
tip the Matney case either way. As far as company knowledge is concerned, Respondent
admitted that Venters came to Callaway before Matney was fired and told him about
Matney's activities. .
SOPHIA ELECTRIC SUPPLY SHOP, INC. 1739
According to him, Callaway said that "any man that would try to get a union or sign
up for a union would be fired." He said Greco said a union would be a pretty good
thing for the workingman and that Callaway asked, "Would it be a pretty good thing
for a working man to be fired?"
Callaway said he never told anybody that they would be fired if they joined the
union and that the Matney brothers' account of the Greco conversation was fictional.
He testified that he complimented Greco on the manner in which he had handled
himself in a difficult situation in which, apparently, he was required to cross a picket
line in making a delivery. Greco, the employee to whom his remarks were allegedly
addressed and who helped Matney organize the employees, did not testify. I do not
believe that Elwood Matney actually remembered what was said or when it happened.
In addition, in my opinion, David Matney did not even hear what was said, or, if he
did, could not remember it and embellished it with words which were never uttered .3
I credit Callaway's version, and find that he did not threaten employees with discharge
if they joined a union.
Employee John Persinger testified that Venters spoke with him on Monday morn-
ing, February 10, 1964, and asked him if Elwood Matney had brought a union card
to him for signature over the weekend. Persinger told Venters that he "couldn't say
anything," and Venters said, "I take it for granted that you don't go for a union."
About a week after this conversation, Persinger approached Callaway and told him
that he was for the Union. Callaway told Persinger that he thought the employee
was "going to be wrong," but added, according to Persinger, that he could say no
more. Persinger tried to tell Callaway that a union might help his business, but
Callaway said he could not talk about the subject any further. Callaway did not
testify about this subject, and I find that it occurred as testified to by Persinger.4
Venters did not testify, and I find that he asked Persinger what he knew about the
men trying to organize a union and if Elwood Matney had approached him.
Also in the area of Respondent's attitude toward the Union, William Ferguson, an
employee, testified that, on the morning of February 10, 1964, Callaway asked him
if he knew "what was going on." Ferguson said he did and Callaway inquired
whether Ferguson "was going to stick with" Callaway or "go with the other guys."
Ferguson replied that he did not know, but that he "wouldn't like it if he fired
Elwood (Matney)." Ferguson fixed the time of these comments as about 8:30 a.m.,
but Callaway said he discharged Matney about 8:05 a.m.
Ferguson had a second conversation with Callaway later in the day in Callaway's
office. He said that Callaway explained that he had discharged Matney "because of
differences they had had" and asked Ferguson if he would "stick with him through
this." According to Ferguson, Callaway promised him a 15-cent-an-hour raise if he
would. In addition, Callaway asked Ferguson to find out how employee Bales stood
and said he too would get a 15-cent raise if he "would stick" with Callaway.
For the next week or so Callaway continued to ask Ferguson if he "would stick
with" him, but Ferguson said he avoided an answer. On one occasion Callaway told
him that Callaway was going to be the boss in any event and to remember "what
happened at Peerless." Apparently, unidentified employees lost their jobs at "Peer-
less," an unidentified employer, during an unidentified labor disputes, at some unfixed
point in the past.
Under cross-examination, Ferguson admitted that he had heard about the "rukus"
in the coil room from other employees on the day it happened, that it was a topic of
general conversation among the men, and that he "drew the conclusion that Bill
Callaway was going to fire Elwood (Matney)." He also added that Callaway told
him that he had discharged Matney because Matney was "trying to take over his
business," and that that was all that Callaway told him about his reason.
8 David Matney's version of other matters was also more elaborate than the accounts
given by other witnesses . His testimony about the Matney-Callaway argument was
different and much more detailed than Callaway's and even his brother's. He said, for
example, that Callaway had asked Elwood Matney more than once how long it would
take him to complete the job he was working on and that Elwood told Callaway "many
times" that It would take 2 or 3 days. David Matney's testimony about what Venters
had asked Elwood, just before Callaway came in, does not jibe with his brother's.
David Matney worked about 40 feet from his brother's bench, and I have considered the
distance, as well as the family relationship, In evaluating his testimony, which, in my
opinion, was exaggerated.
4 There is obviously nothing in this exchange between Persinger and Callaway, Initiated
by Persinger, to support an unfair labor practice finding or even indicate animus.
1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Callaway admitted that he had talked with Ferguson a number of times, asking
the employee if "he was still with me." He said the employee reassured him that
he was, but later he appeared in the shop wearing a union button , and Callaway
never mentioned the matter again. He denied , however , Ferguson's version of their
discussion of a 15-cent raise for Ferguson . According to Callaway , sometime in
January 1964 he offered Ferguson a better job on the night shift with a 15-cent raise,
but he talked only once to Ferguson about the raise and did not mention it again,
as Ferguson had testified , in the context of his other talks with Ferguson about
whose "side" Ferguson was on . Ferguson admitted that there had been an earlier
offer of the night-shift job with a raise, but he insisted that the figure was mentioned
again. I credit Ferguson , and find that Callaway coupled his inquiries about Fergu-
son's loyalty to him with indications of possible reward for continued loyalty.
2. Analysis and conclusions
Because Elwood Matney and other employees engaged in no meaningful union
activities until after Matney and Callaway had a disagreement and Callaway had
indicated to his secretary and employees in the shop that Matney would be dis-
charged , does not dispose of the case . The real issue, of course , as it always is, is
not what caused the dischargee to join the Union but what motivated his Employer
to discharge him when he did. If Callaway had good cause to discharge Matney on
February 6, 1964 , the day of their dispute , this would not legally absolve him if be
made no firm decision to eliminate the employee until after he heard of his union
activities and if the union activities weighed heavily in the decision . I find and con-
clude, however, that Callaway made a final decision to discharge Matney before he
knew of any union activities on Matney 's part and that he carried that decision to
completion by discharging Matney on Monday , February 10, 1964 , not because of
intervening union circumstances , but regardless of them.
The evidence shows that Callaway's intentions about Matney after their disagree-
ment were not casual and indefinite . Callaway told his secretary to prepare Matney's
check, let employee Greco know that he intended to displace Matney, and brought
in a new coilmaker on Saturday . These actions were sufficiently definite and positive
to come to Matney 's attention and to lead employee Ferguson to conclude that
Matney was going to be fired . The basis for the decision was not fabricated, but,
in fact, was of long standing , indicating that the decision itself was not frivolous.
Callaway testified credibly that Matney had disputed orders before , and Matney
admitted dissatisfaction with the kind of supervision he was getting.
Callaway's asserted decision not to discharge Matney while he was emotionally
upset and , in any event , to wait until Matney had completed the emergency work
he was engaged in, is corroborated by Mrs. Eye 's testimony that Callaway told her
to postpone action on the check , stating that he was upset , and her evidence that the
job Matney was working on was a rush job. In addition , there is no evidence to
contradict Callaway's statement that the work involved was important . Finally, I
have discredited Matney's testimony that Callaway said something to him about his
"activities" when he discharged him and credited Callaway's version , which Matney
admitted in part, that Matney's "high temper" was discussed when Callaway talked
with him before he fired him . Without Callaway 's alleged admission of an improper
motive in Matney's case there is no substantial evidence of union animus to reflect
adversely on Callaway 's asserted reason for discharge . This and the other factors
surrounding the event , as just set forth , convince me that Respondent 's reason is not
pretextual . I find , and conclude , therefore , that General Counsel has not established
by a preponderance of the evidence that Respondent violated Section 8(a)(1) and
( 3) of the Act is alleged.
B. Alleged acts of interference , restraint, and coercion in violation of
Section 8(a)(1) of the Act
The complaint alleged that Callaway told an employee ( Matney) he could go
back to work if he dropped his union activities . I have found that this statement
was not made . The complaint also alleged that Callaway threatened an employee,
"sometime in February 1964 ," which discharge if he tried to get the Union to repre-
sent Respondent 's employees . If this allegation refers to the August 1963 conversa-
tion Callaway had with employee Greco when he came back to the shop after a trip
to a mine which was having a labor dispute , I have discredited the Matney brothers'
version , and, in any case , the event is probably barred by Section 10(b), having
occurred in "August 1963 ." If it refers to Callaway 's reminder to Ferguson not to
forget "what happened at Peerless ," the remark is too obscure to constitute substan-
SOPHIA ELECTRIC SUPPLY SHOP, INC. 1741
tial evidence of a violation. Callaway's questioning of Ferguson, after Matney had
been discharged, about whether he "would stick with" Callaway and Callaway's ref-
erence to a 15-cent raise for Ferguson was not alleged as a violation. I find that
Respondent did not violate Section 8(a)(1) of the Act, therefore, by the conduct of
its agent, Callaway, as alleged in the complaint.
Bill Venters asked employee Persinger if he knew anything about "some of the
men trying to get a union" and whether Elwood Matney had circulated union cards
during the weekend before his discharge. This is the only act of interrogation
alleged for which there is evidentiary support. This isolated questioning by a person
who is a minor supervisor at best, as well as a member of the Union, does not appear
coercive in the circumstances. I find that Respondent did not violate Section 8(a) (1)
of the Act by Venters' conduct, as alleged.
CONCLUSION OF LAW
Respondent did not violate Section 8(a) (1) and (3) of the Act as alleged in the
complaint.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I recommend that the complaint be dismissed in its entirety.
O