Southwire Co.

National Labor Relations Board - Board Decisions

Jun 15, 1965

152 N.L.R.B. 1594 (N.L.R.B. 1965)

1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request , execute with Chris. Paschen Company , Inc., a con-
tract containing the provisions upon which we have reached agreement.
If the Company does not elect to execute the contract mentioned above, WE
WILL, upon request , bargain collectively with the Company, as the exclusive
representatives of all the Company's employees in the unit described above,
concerning rates of pay , wages, hours of employment , and other conditions of
employment and, if an understanding is reached , embody such understanding
in a signed agreement.
BRICKLAYERS AND MASONS ' UNION LOCAL No. 2 OF DETROIT,
MICHIGAN , BRICKLAYERS , MASONS AND PLASTERERS ' INTER-
NATIONAL UNION OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
METROPOLITAN AREA EXECUTIVE COMMITTEE OF BRICKLAYERS,
MASONS AND PLASTERERS' UNION OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------- --------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board 's Regional Office, 500 Book
Building, 1249 Washington Boulevard , Detroit, Michigan , Telephone No. 226-3210,
if they have any questions concerning this notice or compliance with its provisions.
Southwire Company and International Union of Electrical, Radio
and Machine Workers, AFL-CIO. Case No. 10-CA-570f.
June 15, 1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that Respondent had
engaged in certain unfair labor practices within the meaning 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 also found that
Respondent had not engaged in other unfair labor practices alleged
in the complaint and recommended dismissal of those allegations.
Thereafter, the General Counsel and Charging Party filed exceptions
and briefs in support thereof; and Respondent filed cross-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 powers in connection with this case to a three-member
panel [Members Fanning, 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, the exceptions, cross-exceptions, and briefs of
152 NLRB No. 158.
SOUTHWIRE COMPANY 1595
the parties, and the entire record in the case, and finds merit in certain
exceptions of Respondent. Accordingly, the Board adopts the find-
ings, conclusions, and recommendations of the Trial Examiner 1 with
the modification noted.
The Trial Examiner found that Respondent violated Section 8(a)
(1) of the Act as a result of the interrogation of, and certain state-
ments made to, employee Cash by Jerry Johnson. The Trial Exam-
iner found that Johnson was a supervisor under the Act, and that the
Respondent was therefore responsible for his conduct, for the reason
that Johnson performed "practically" the same duties as those of a
setup man, a classification which the Respondent and the Union had
agreed to exclude from the unit as supervisory in a 1963 consent elec-
tion. However, while the earlier agreement of the parties is evidence
bearing upon Johnson's supervisory status, we do not find on the basis
of the record as a whole sufficient evidence to conclude, for the pur-
poses of this unfair labor practice proceeding, that Johnson was a
supervisor within the meaning of the Act. The Respondent, there-
fore, was not responsible for the conduct of Johnson which is alleged
to be violative of Section 8(a) (1). Accordingly, we shall dismiss the
complaint in its entirety.
[The Board dismissed the complaint.]
1 The Trial Examiner found that the April 8, 1964 ( inadvertently referred to by the
Trial Examiner as October 8, 1964 ), discharge of employee Harvel Luallen was motivated
by his infraction of two "major " rules and not by any activities on behalf of the Union.
The circumstances surrounding Luallen 's discharge are suspicious , but we believe that
the complaint 's allegations of unlawful discrimination are not supported by a preponder-
ance of the evidence . Accordingly , we adopt the Trial Examiner 's dismissal of those
portions of the complaint.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on May 7, 1964, by International Union of Electrical, Radio
and Machine Workers, AFL-CIO, Charging Party herein, the Regional Director for
Region 10 of the National Labor Relations Board, herein called the Board, issued a
complaint on behalf of the General Counsel of the Board on June 16, 1964, against
Southwire Company, Respondent herein, alleging violations of Section 8(a)(1), (3),
and (4) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.),
herein called the Act. In its duly filed answer, Respondent, while admitting certain
allegations of the complaint, denied the commission of any unfair labor practice.
Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher on
October 15, 1964. at Carrollton, Georgia, where all parties were present, represented
by counsel, and afforded a full opportunity to be heard, to present oral argument, and
to file briefs with me? Briefs were filed by Respondent and General Counsel on
November 19, 1964.
1 After the close of the hearing , counsel for Respondent and for the Charging Party
joined in a motion, without objection of the General Counsel, that testimony of counsel
for the Charging Party be stricken as being irrelevant to any issue present in the case.
Upon reconsideration of my original ruling admitting such testmony , a further study of
the testimony , and the agreement of the parties in the matter the motion is hereby granted
and the testimony stricken
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon consideration of the entire record, including briefs of the parties , and upon
my observation of each witness appearing before me and the manner in which he
testified and conducted himself,2 I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Georgia corporation maintaining its principal office and place of
business at Carrollton , Georgia , where it is engaged in the manufacture and sale of
wire, cable , and related products . The Board and the court have on previous occa-
sions found this Respondent to be an employer engaged in commerce within the
meaning of the Act 3 I accordingly conclude and find that it is so engaged for the
purposes of this proceeding.
IT. THE LABOR ORGANIZATION INVOLVED
It is admitted and I accordingly conclude and find that, International Union of
Electrical , Radio and Machine Workers, AFL-CIO, is a labor organization within the
meaning of the Act
III. THE ISSUES INVOLVED
1. Sufficiency of evidence of discharge for cause.
2. The use of earlier Board and court findings as evidence of present discriminatory
motivation.
3. Effect of prior determination of supervisory status.
IV. THE UNFAIR LABOR PRACTICES
A. Background
Organizational efforts among Respondent 's employees commenced in 1959 and
since that time tensions and strains upon both management and its employees in labor
relations matters have been constant . Particularly indicative of this condition are the
several unfair labor practice cases in which Respondent has been found by the Board
to have violated the rights of its employees 4 Of these cases , as requested by counsel
for the General Counsel, I take official notice for the purpose of this proceeding 5 I
do not, of course , consider any finding in any of these previously decided cases to con-
stitute evidence of any unfair labor practice alleged herein . I will, however, where
so indicated , consider such as background evidence relating to such findings as I may
make, but without in any circumstance giving independent and controlling weight
thereto.6
Prominent in the most recent of the labor relations proceedings , the representation
election in Case No. 10-RC-5693 , was employee Harvel Luallen , a wire-drawing
machine operator in Respondent 's employ since January 25 , 1962. Luallen served as
an observer for the Union at the Board-conducted election held on October 25, 1963.
Thereafter , at a Board hearing held on March 20 , 25, and 26, 1964 , to resolve chal-
lenges growing out of the election Luallen sat at the counsel table with counsel for the
Union , advising him and actively assisting him in the preparation and prosecution of
his case.
B. Harvel Luallen's discharge
On October 8, 1964, employee Luallen was sought out at his home by a fellow
employee, Elton Nichols, who had been discharged several days previously from the
shipping department of the plant . Nichols asked Luallen to accompany him to the
plant and to act as a witness to a conversation he proposed to have with Foreman
8 Standard Dry Wall Products, Inc. , 91 NLRB 544 ; Universal Camera Corporation v.
11'.L.R.B ., 340 U.S . 474, 496.
1 N.L.R B v. Southwire Co., 313 F. 2d 638 (C.A. 5 ), enfg. 133 NLRB 83.
' Southwire Company, 133 NLRB 83, 145 NLRB 1329 , and Case No . 10-CA-4546,
wherein an Intermediate Report was issued by Trial Examiner Leo Lightner on Septem-
ber 15, 1961 , exceptions filed and thereafter withdrawn , and an Order entered by the
Board adopting the Intermediate Report of the Trial Examiner as its Decision and
Order in the case , pro forma.
5 The Lawson Milk Company , 143 NLRB 916 ; E V. Prentice Machine Works , Inc, 120
NLRB 1691, footnote 2.
41 News Printing Co., Inc., 116 NLRB 210.
SOUTHWIRE COMPANY 1597
Muse of the shipping department concerning his termination. In accordance with
these arrangements Luallen and Nichols met in the lobby of the plant after Luallen
had left an employee profit-sharing meeting he had been attending. This meeting,
called for 2 p.m., had actually continued for a half hour thereafter and constituted,
so far as Luallen was concerned, a period of authorized overtime following the con-
clusion of his regular workday at 2 p m.
When Luallen met Nichols, the two went directly to the shipping department where
Foreman Muse was engaged in conversation with another employee. Upon its con-
clusion Muse directed his attention to Nichols and Luallen. He interrupted his,
preliminary discussion of the reasons for Nichols' discharge by turning to Luallen and
asking him what he was doing there. Luallen replied that Nichols had requested him
to be present, to which Muse replied by asking, "Are you ready to go home?" Luallen
replied, "I'm on my own time." 7 Whereupon Muse directed Luallen to leave and
Luallen complied As he did so Nichols also left the scene, stating to Muse as he
did so that if Luallen had to go he would leave as well, and he did 8
As the two made their way from the shipping department through the plant lobby
and towards the front gate they came upon Personnel Director Marvin Martin and
his assistant, James E. Beckham, together with at least one other official 9 These
gentlemen, it appears, were made aware of the discharged Nichols' presence in the.
plant and of the fact that Luallen was with him at a spot considerably removed from
his assigned work station. Luallen and Nichols "were far away at that particular
time," and still talking to Foreman Muse when first noticed by the company officials.
Nevertheless both officials, foregoing whatever other missions they were engaged in,
waited at some distance for the conversation to end and for the two employees to
approach them. As the two groups met, Nichols continued on past them toward the
exit of the plant. Luallen, however, was stopped by Beckham who asked him what
he was doing there. Martin interjected with the same question. Luallen replied
that "he had come up there with Nichols." Whereupon either Martin or Beckham
asked him if he had punched out, to which according to Martin he replied, "I punched
the g---d- clock and I'm on my own damn time. I don't owe Southwire
anything." 10
The question was asked of Luallen two more times by these officials and his
answers were substantially the same. Martin closed the conversation by saying to
Luallen, "Just take off." Beckham left the group to get a pair of safety glasses;
Luallen turned back into the plant proper; Nichols had progressed toward the exit;
and Martin appears to have remained stationary, observing the passing scene.
For Luallen's part he realized after he had spoken to Martin and Beckham, accord-
ing to his credited testimony, that he had forgotten to punch out his timecard before
going to the 2 o'clock profit-sharing meeting, and upon the completion of the con-
versation with Martin went to the timeclock to do so. Company policy required
that a foreman initial any timecard that would be punched out in an irregular manner,
and Luallen's was such because it was then long past the 2:30 p.m. time when his
workday (including a half hour profit-sharing meeting) had ended. Luallen sought
out his foreman, Johnson, in his office but not finding him he returned to the time-
clock and deposited the card, still not punched out, in the box attached to the clock
for such purposes. As he did so he noticed Beckham watching him from behind
a nearby partition; and Martin admitted that he too was observing Luallen's actions
as he departed from the plant.
4 Foreman Muse quotes Luallen as stating in answer to a question if he had punched
out, "Yes, I am off the clock and punched out."
8 The foregoing is a synthesis of the credited and, except as to Muse's quote, the unr
denied testimony of Luallen and Nichols.
8 Luallen identified this person as Vice President Sherrer, Martin suggests it was w
leadman named Brice
10 The testimony of Martin which I credit as corroborating the testimony of other
witnesses concerning this incident . Luallen and Nichols both testified to a different ver-
sion of Luallen's reply . Thus Luallen is quoted as having stated meiely that he was
then on his own time, without any flavorful epithet Nichols testified in like manner.
That Martin 's subsequent account of the conversation thus differs from the other two does
not in my estimate of the testimony detract from either Luallen ' s or Nichols' veiacity in
any way. Each testified to their recollection of a cons ersation had 6 months preciously.
The testimony substantially agieed with Martin 's except only as to the explitives That
Luallen and Nichols failed to testify to or to recall these explitives attributed to them by
a witness who followed them on the stand is of minimal significance indeed-
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later on the same afternoon Martin telephoned Luallen at his home and told him
it was the Company 's decision that he be terminated and that he bring in his tools.
When Luallen asked the reason for his discharge Martin deferred , stating that he
would "be glad to sit down and discuss it with him when he brought his tools in."
On the following morning, October 9 , Luallen called Martin and requested that his
check be mailed to him . During this conversation Luallen asked what notation his
separation form would bear as the reason for his discharge . Martin informed him
"it would be intolerable violation of company rules and policies." The paycheck
was sent Luallen upon the return of his tools and he has not since been employed
by Respondent.
C. Respondent's explanation and defense of its discharge of Luallen
Respondent would justify its discharge of employee Luallen as a breach of com-
pany rules directed to the "failure to punch or improper punching of timecard, or
improper filling out of timecard ," and the misrepresentations of his work status made
to Martin and Beckham , both of which were set forth in the employee manual
entitled, "You and Southwire."
The timecard and misrepresentation rules were designated in the manual as
"major" violations , two of which within 18 months would warrant dismissal.11
It is Respondent 's further contention that when Luallen misrepresented the facts
concerning his "punched out" status he used offensive and abusive language. Thus,
as stated by Respondent in its brief "the Company considered the commission of
deceitful timecard practices as cause for discharge ." In support of its defense
Respondent relies upon its published employee manual , "You and Southwire ," intro-
duced into the record in support of its proof of established Company policy.
D. Analysis and conclusions respecting the discharge
There is no question but that employee Luallen was active in the Union's behalf
and that Respondent 's officials were quite aware of it . Accordingly , if his ultimate
discharge flows from this activity and the knowledge of it then the discharge is
clearly a discrimination proscribed by the Act.
Intervening circumstances , however, challenge such a ready -made conclusion and
it is to these circumstances that serious consideration must be given.
If, for example , Luallen was actually discharged for cause neither his union
activity nor his employer's knowledge of it would be of consequence, for Section
10(c) of the Act provides in part that "no order of the Board shall require the rein-
statement of any individual as an employee who has been suspended or discharged,
or the payment to him of any backpay, if such individual was suspended or discharged
for cause " The validity of Respondent's reasons for discharge, therefore, are of
prime concern. Thus it is claimed that Luallen (1) failed to punch his timecard, a
"major" offense directed, presumably, to the rule in the employee manual (p 40)
prohibiting "covering up facts about the working conduct of yourself and others."
Clearly, Luallen failed to punch out, as the published rules require , and no amount
of argument or explanation can gainsay this. Nor is it significant that this is the
first time this particular type of timecard irregularity had become the subject of
penalty, albeit other, and perhaps more grievous timecard aberrations had resulted
in the discharge of others. For, as the Court of Appeals for the District of Columbia
observed in an entirely different context, "some things are bound to happen for
the first time." 12 In effect, however. counsel for the General Counsel posits his
case upon Luallen's active participation in union affairs and upon Respondent's
established propensity for violating the Act.13 Assuming, as I must, that upon uncon-
troverted facts Luallen did fail to properly punch out his timecard and that such
failure is included among the punishable "major" Company rule infractions then
General Counsel's premise forces me to conclude that Luallen must be entitled to
some degree of immunity from plant rules and discipline simply by virtue of his
union prominence and/or the Respondent 's past speculations . This I cannot do.
"In this respect Luallen admitted to having received a reprimand a year earlier for
having left his job to visit another work area Although this particular offense was
designated in the manual is merely "minor," Luallen disputed its applicability to him
as a mechanic subject to call from various departments In view of what follows I find
it unnecessary to consider the testimony with respect to this particular reprimand
12 International Brotherhood of Operative Potters (Aztec Ceramics Co.) v. N L R B ,
320 F 2d 757, at 761.
11 See cases cited supra, footnotes 3 and 4.
SOUTHWIRE COMPANY 1599
To begin with I find no direct proof in the record that union activity was the
motivation for Respondent's enforcement here of its rule. True, I am permitted to
draw reasonable inference. But for me to equate company knowledge of and, indeed
its distaste for, Luallen's union membership and activity with its own motivation for
enforcing a normal plant rule would constitute something more in the nature of spec-
ulation rather than reasonable inference. I am not permitted to thus dignify my
speculations as the proof of an unfair labor practice. Moreover, all the Respondent's
employees have the right to be treated alike. Of this they would be deprived if
employee Luallen were so immunized from the rigors of the rule-book; and under
such circumstances discrimination would truly lie but not against Luallen.
Nor is it basically significant that on previous occasions this Respondent has been
found to have violated the Act. Appropriate procedures exist for the enforcement
of outstanding Board orders and violations of them, but I am aware of no rule or
directive that makes of the issuance and prosecution of a new complaint a vehicle
for the enforcement of an order in another case. True, I am obliged to and do take
official notice of the previous actions of the Board and court. In determining, how-
ever, whether Respondent has now violated the Act by these facts, I may not give
independent and controlling weight to the findings of what it did do previously.14
Accordingly, in the absence of other evidence that Respondent was discriminatorily
motivated when it discharged Luallen I cannot now construct such motivation out
of previous intents and dispositions alone.
In the light of the foregoing, therefore, it would be appropriate to review and to
reassess the nature of Luallen's conduct for which he was allegedly dismissed. By
common agreement it may be found that he did not punch out as required. He
neither physically punched the card through the timeclock, nor did he obtain his
foreman's approval, as he knew he should as he sought him out, before he dropped
the unpunched card into the nearby card box. Therefore, as has already been
stated, Luallen has, quite apart from his employer's connection with the incident,
violated one "major" rule.
In addition, Luallen, when asked his working status by his superiors, stated "he
was checked out" or that he had "punched the g-d- clock," depending on
whose version of the conversation we accept. Upon either version, and quite inde-
pendently of the employer's motivation or frame of mind, Luallen then and there
misstated and thereby misrepresented his working status to his superiors,15 another
violation of a "major" rule. True, he testified, and I credit his testimony, that it was
only after speaking to his superiors that he recalled that he had not checked out or
punched out. There is no evidence, however, that this loss of memory was ever
communicated to either of the company officials who had approached to him to
investigate his unexplained presence outside of his regular work area, after hours.
I cannot, therefore, rely upon this lapse of memory, uncommunicated as it was, to
exonerate Luallen or to conclude that the suspicions of the company officials were
unduly aroused as they watched him; little less to excuse these officials from enforcing
a rule that appears to have been properly enforceable.
Quite independently, therefore, of any motivation that might have existed on
Respondent's part (unproven as I find it to be), employee Luallen violated two
"major" rules, the published penalty for which was "Dismissal." As the facts thus
support Respondent's contention that he was discharged for this reason and was so
advised when he asked, and as I can find no evidence of, or draw any inference of
unlawful motivation on Respondent's part in so acting, I conclude and find that
Harvel Luallen was discharged for cause and not for the reasons alleged in the
complaint. I accordingly recommend that so much of the complaint as pertains to
this matter be dismissed.
E. Interference, restraint, and coercion
1. The supervisory status of Johnson
It is alleged that Respondent, through certain conduct of one Jerry Johnson, unlaw-
fully interfered with, restrained, and coerced Respondent's employees. As a thresh-
old defense to this allegation Respondent denies that Johnson was either its agent
or a supervisor.
is News Printing Co., Inc., 116 NLRB 210
15 "Southwire and You," p. 40: "Covering up facts about the working conduct of your-
self and others."
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 25, 1963, Respondent and the Union herein , with the approval of
the Regional Director , entered into an agreement for a consent election to determine
the representative status of Respondent 's employees whom the Union , in its petition
filed in Case No. 10-RC-5693 claimed to represent . Therein all parties agreed,
among other things, that "set-up men" in the employ of Respondent would be
excluded, as supervisors , from participating in the election.
When called as a witness for Respondent , Johnson testified that he occupied the
classification of "lead man." Thereafter on cross-examination he denied that he
called himself , or was called , a "set-up man." He did concede, however, and his
concession is not disputed in the record , that "In previous years, I believe they did
call them Set-Up , men." Continuing, he conceded that his job had not changed
because of the change in title and that he was doing "practically " the same thing as
a set-up man. Upon this undisputed concession I conclude and find Johnson to be a
set-up man and as such to be a supervisor as agreed upon by the parties in their
consent agreement.
2. Interrogation and threats
On the morning of March 24, 1964, as a hearing was in progress in Case No.
10-RC-5693, Jerry Johnson, whom I have found to be a supervisor , approached
employee Buddy Cash and, in Cash 's words "asked me what I was getting out of the
Union and what I was planning to get later, and if the Union, and if we lost the
hearing, was the Union going to get me a job." 16
Johnson 's question to Cash concerning his union membership , coupled as it was
with the implication that if the Union prevailed at the hearing then in session and
thereby won the election Cash would be out of a job, constituted a form of employee
interference , restrain and coercion consistently found to violate the Act. Upon
the foregoing credited testimony I accordingly find that Respondent has violated
Section 8 (a) (1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent found to constitute an unfair labor practice set
forth in section IV, above, occurring in connection with their operations described
in section I, above, has 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.
VI. THE REMEDY
Having found that Respondent has engaged in certain activities proscribed by
Section 8 ( a) (1) of the Act I will recommend that it cease and desist therefrom and
from infringing in any like or related manner upon the rights of employees guar-
anteed them in Section 7 of the Act. Affirmatively, I will recommend that Respond-
ent post appropriate notices of compliance with the Board 's order.
[Recommended Order omitted from publication.]
18 The testimony of Cash. Johnson was called as a witness and denied the conversa-
tion attributed to him. Upon my study of the testimony of each witness and my observa-
tion of them as they testified and while in the hearing room I am inclined to the view
that Cash 's testimony is the more credible and I accordingly accept it and reject John-
son's denial.
Arkansas-Missouri Power Company and Local 1439 , International
Brotherhood of Electrical Workers, AFL-CIO, Petitioner. Case
No. 14-RC-5001. June 15, 1965
DECISION AND DIRECTION OF ELECTION
Upon a. petition duly filed under Section 9(c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
152 NLRB No. 155.