Southwire Co.

National Labor Relations Board - Board Decisions

Mar 6, 1970

181 N.L.R.B. 549 (N.L.R.B. 1970)

SOUTHWIRE COMPANY
Southwire Company and International Union of
Electrical , Radio and Machine Workers,
AFL-CIO. Case 10-CA-7484
March 6, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On October 31, 1969, Trial Examiner Myron S.
Waks issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision 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.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, 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
Recommended Order of the Trial Examiner, and
orders that the Respondent, Southwire Company,
Carrollton, Georgia, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MYRON S. WAKS, Trial Examiner: This case, tried at
Carrollton, Georgia, on June 10, 1969, pursuant to a
charge and amended charges filed on September 10 and
20, 1968,' and January 30, 1969, and a complaint issued
on April 7, 1969, presents the question whether
Respondent Company's issuance of a major warning
notice to employee Jerry McColley, Sr., was because of
his union adherence and activities and therefore violative
of Section 8(a)(3) and (1) of the Act.
' In its exceptions , the Respondent alleges bias and prejudice on the part
of the Trial Examiner . Upon a careful analysis of the whole record, we
find nothing to support Respondent 's allegations . Accordingly , they are
rejected , as lacking in merit
' Unless otherwise indicated all dates referred to herein occurred in 1968.
549
Upon the entire record in this case including my
observation of the witnesses, and after due consideration
of the briefs filed by the parties, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The pleadings establish, and I find, that Respondent is
engaged in the manufacture, sale, and distribution of wire
cable and related products at its principal place of
business at Carrollton, Georgia; that during the calendar
year preceding the issuance of complaint (a period
representative of all time material herein), the Company
sold and shipped finished products valued in excess of
$50,000 to customers located outside the State of Georgia.
Upon these admitted facts, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings further establish , and I find , that the
International Union of Electrical , Radio and Machine
Workers, AFL-CIO, herein called the Union , is, and has
been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
As background evidence bearing on the animus of
Respondent toward the Union and employee McColley, I
have taken official notice pursuant to the request of the
General Counsel of the following unfair labor practice
cases involving the Respondent : 133 NLRB 83, enfd. 313
F.2d 638 (C.A. 5); 145 NLRB 1329, enfd . as modified 352
F.2d 346 (C.A. 5); 159 NLRB 394, enfd . as modified 383
F.2d 235 (C.A. 5); 164 NLRB No. 135, enfd . 393 F.2d
106 (C.A. 5). These cases demonstrate that from at least
1959 the Respondent has openly opposed any attempt by
its employees to be represented by a union , and in so
doing Respondent has repeatedly and flagrantly violated
the law by coercively interrogating its employees
concerning their union activity , threatening to close the
plant rather than deal with the Union , threatening to
discharge employees for engaging in union activity and
discharging employees for exercising their Section 7 rights
under the Act More particularly , the Respondent has
twice discriminatorily discharged McColley and has
reinstated him only pursuant to court order .' McColley
who was first employed by the Company in October 1961,
was discharged for union activities on October 5, 1962. He
was returned to work in January 1966 pursuant to court
decree issued in November 1965.' On July 15, 1966, some
6 months following his reinstatement, McColley, who
'In the most recent case involving the discriminatory discharge of
McColley, Trial Examiner Weil noted that "while a number of employees
were found to have been discriminatorily discharged in the various cases
involving Respondent , it appears that only McColley has accepted
reinstatement" (164 NLRB No 135 )
'In 164 NLRB No 135, the Trial Examiner noted that McCulley's
employment between his first reinstatement and second discriminatory
discharge was marked by the additional charges of unfair labor practices in
that
On May 31 (1966] McCulley was given a warning notice for five
181 NLRB No. 79
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued to actively seek union representation was again
discriminatorily discharged Pursuant to court decree
issued April 8, 1968, McColley was again reinstated July
15, 1968, some 2 months before the conduct complained
of in this case. I have considered Respondent's history of
past violations to the extent that Respondent's past
conduct in the furtherance of its antiunion policy amply
establishes Respondent's animus to union representation
for its employees and to McColley because of his efforts
toward this end.'
B. The Disciplinary Warning Issued to McColley
When McColley was reinstated by the Company on
July 15, Foreman Brown' assigned McColley to work as a
second class mechanic doing maintenance work on the
first shift under the supervision of Clarence R. Harrison,
supervisor of mechanical work in the reclamation and
morgan mill area . Harrison , who has been in his present
position for more than 3 years, was aware of McColley's
previous discharge by the Company, and was told by
Foreman Brown before McColley reported for work that
McColley was being reinstated pursuant to court order.
McColley was first assigned to work in the furnace area,
and in August, upon his request, was assigned to the scrap
area where he had previously worked. In the scrap or
reclamation department there are '14 or 15 employees.
McColley is one of five mechanics on the first shift
working directly under the supervision of Harrison, who in
turn reports to Foreman Brown; in charge of all
maintenance and a vice president of the Company is
Frank Holloday. As an employee in the reclamation
department McColley is also responsible to Foreman
Shealy who is in overall charge of that department.
Following his return to work on July 15 and continuing
to date McColley has continued his support for the
Union. McColley has overtly declared his active interest
in the union by wearing daily on the job an IUE badge,
the legend of which states he is a "volunteer •Union
organizer." McColley is the only employee in the
department wearing an IUE badge and so far as disclosed
by the testimony of witnesses at this hearing, McColley is
the only employee in the plant 'wearing a union badge.
Harrison testified and Respondent admits that at the time
material herein it knew McColley continued to actively
support the Union.
As a mechanic assigned to the reclamation department
McColley is responsible for the repair of the mechanical
equipment in the scrap area, including the Moseley
Shearer and adjoining conveyors, if they break down
during his shift. The shearer is used to chop up scrap wire
and feeds out to conveyor belts which lead to a pulverizer
and ultimately to a furnace where the scrap is melted.
Thus the operation in which the shearer is involved is
alleged infractions of Respondent's rules A charge was filed alleging
that Respondent' s action was discriminatory and the investigation
resulted in the removal of the warning notice from McColley's file and
the withdrawal of the charge.
'Contrary to the contention of the Respondent it is settled law that
official notice may be taken of prior Board proceedings involving the same
employer , and both the Board and Court have so indicated in prior cases
involving successive violations of the Respondent While the cases thus
noted herein establish the hostility of the Employer to unionism, it does
not necessarily follow that all subsequent conduct is prompted by union
animus However , p--,or findings of unfair labor practices and particularly
those directed against McColley are considerations in determining the
motivation underlying the conduct alleged as unlawful in this case See
Sourhwire Co. 159 NLRB supra at 395; Kellwood Co. 175 NLRB No
79, fn. 4
'When McColley was first employed by the Company in 1961 he worked
under the supervision of Frank Brown
unconnected with the wire production of the Company,
but is necessary to the disposal of scrap wire. The shearer
and adjoining conveyors during the time relevant herein
were shut down each week on Tuesday and on Saturdays
during the last half hour of the second shift for
maintenance. It is the responsibility of employee Jackson
Chambers, who does mechanic's work on the second shift'
not only to grease the machine and take care of the
bearings, but also-if anything is wrong with the machine,
to repair it during the downtime.
Following McColley' s assignment to the scrap area in
August, he noticed that the bolt in the adjustment
mechanism of the conveyor for the Moseley Shearer was
bent between'45 to 90 degrees; this made it impossible to
turn the bolt and thereby adjust the belt on the conveyor
if it became necessary. McColley brought this to the
attention of Foreman Shealy as well as other employees in
the area. When McColley asked Shealy if he wanted the
adjustment bolt fixed, Shealy told McColley that he would
decide when to shut the machine'down'to fix the bolt.
Nothing was done to repair the adjustment bolt until
September 13 when it became necessary to use the bolt to
adjust for the shortened conveyor belt which had been
spliced after the accident which occurred ,that day
Sometime after 2 p.m. on the afternoon of September
13, an employee who was working at or near the shearer
and its conveyor got his hand jammed between the roller
and the adjustment mechanism of the belt. McColley and
other employees went immediately to the assistance of the
injured employee, removed the adjustment mechanism
from the conveyor, and cut the belt to free his arm; the
employee was then sent to the hospital. Immediately
following the accident there were no supervisory personnel
present. Shortly thereafter, about 2:40 p in., Foreman
Harrison and Vice President Holloday appeared on the
scene . At this time McColley, who had returned the
adjustment mechanism to its mooring, was completing the
task of tightening the connecting bolts which hold it in
place Vice President Holloday, who noticed that the
adjustment bolt was bent, asked McColley if he was
aware previously, that it had been bent and McColley
replied that he was. Holloday was "pretty well steamed
up" about the condition of the adjustment bolt and told
Harrison to get it, fixed. Harrison then turned to
McColley and told him to fix the bolt. Upon being told to
fix the adjustment bolt, McColley proceeded to again
remove the connecting bolts on the adjustment
mechanism. When Harrison asked him what he was going
to do, McColley told Harrison that he was going to
remove the adjustment mechanism and take it to the
mechanics' crib and repair it. Harrison said "all right"
and walked away. McColley then proceeded to remove the
adjustment mechanism from the machine and took it to
the mechanics' crib where he proceeded to cut through the
adjustment bolt.' Just before 3 p.m., which was the time
the shifts changed, Harrison, who was called by Shealy to
'Employee Chambers, who is 20 years old, has been with the Company
for 22 months. In September 1968 Chambers ' classification was second
class mechanic 's helper, at the time of the hearing he had been reclassified
to third class mechanic
'The foregoing accounts of the conversations which occurred between
Harrison, Holloday, and McColley, including the instructions given
McColley regarding the repair of the bolt, are based on the credited
testimony of McColley Harrison testified that he specifically instructed
McColley to "straighten" the bolt Harrison did not testify as to the
presence of Holloday or any statements made by Holloday, Harrison did
not deny the exchange between McColley and himself following his
instructions to McColley but did testify that after instructing McColley to
"straighten " the bolt he walked away In question is what instructions were
SOUTHWIRE COMPANY 551
discuss the repair of the adjustment bolt, appeared at the
mechanics' crib. When Harrison arrived at the crib
McColley had almost completed cutting through the bolt
where it was bent, approximately 2 inches back from the
head of the bolt ` Harrison asked McColley why he had
not straightened the bolt (an operation which if workable
would have taken only 10 to 20 minutes). McColley told
Harrison that in his opinion this would have required
heating the bolt which would have taken the temper out of
the metal. According to McColley this would have caused
the bolt to snap if pressure was applied; McColley also
was of the view that the heat might have harmed the
threads of the bolt. Harrison disagreed with McColley
about the effect of the heat on the metal but since the bolt
was nearly cut in two, he instructed Chambers, who had
arrived for the second shift, to finish the job. Harrison
told Chambers to take his time and do it right;' he also
told Chambers to let him know how long the job took.
According to Harrison it was necessary to enter in a log
the time spent on all jobs which took in excess of 1 hour.
given McColley and whether the further exchange between McColley and
Harrison occurred I have credited the testimony of McColley rather than
Harrison McColley's demeanor on the stand and the forthright manner in
which he responded to questions put to him convinced me that he was a
truthful witness McColley conceded that the precise language used by
Harrison could have been either to "repair" or to "fix" the bolt but was
certain he had not been told to "straighten" the bolt My observation of
Harrison as a witness as well as the study of his testimony persuades me
that Harrison was less than candid generally in his response to questions,
particularly where it was unfavorable to himself or the Company' s position
in this case Harrison's testimony was at times contradictory, at others
equivocal or evasive, Thus, for example, with regard to his instructions to
McColley, Harrison , on direct examination, testified that he told McColley
to straighten the bolt and gave him no other instructions, later when
pressed on cross-examination he testified he "[was] not sure" whether he
mentioned to McColley that he should use some heat Harrison also
testified he knew it was not lack of proper parts which caused delay in the
repair of the bolt, but later admitted it was Again, on direct examination
Harrison testified he had discussed the matter with his supervisor, Frank
Brown, before issuing a warning slip On cross-examination when again
asked if he had reported the matter to any superior he first replied, "I am
not sure", Harrison then replied to the question whether he had reported it
to Frank Brown - "I guess I did I told him on Saturday morning, I
guess I did I told him I was going to give him a warning slip" When
asked what Frank Brown said in response to his report, Harrison did not
respond directly to the question but answered that Brown did not tell him
whether to give the warning or not When again asked what Brown "said,"
Harrison replied "I don't remember " When the General Counsel pressed
further and asked whether Brown had referred to McColley's two previous
discharges, Harrison answered "no", when questioned further he replied "I
don't think so" and finally testified "he could have " Finally, I note that
while Harrison's repeated testimony was that he had specifically told
McColley to "straighten the bolt" and that he thought McColley's failure
to attempt to straighten the bolt warranted a major warning, Harrison did
not assign as a basis rule 4 "Refusal or failure to carry out orders" but
selected rule 2 "Improper use and care of company property," a rule never
before invoked by him against any employee
'The point at which it was necessary to sever the bolt in order to remove
the bent portion is in dispute . McColley testified that the bolt was bent 2
inches back from the head of the bolt and that he cut the bolt where it was
bent . Harrison indicated while testifying , and Respondent urges in its brief,
that the bolt was bent only 11/2 inches back from the head of the bolt
Harrison estimated that the bolt extended out 2 1/2 inches to 3 inches
from the flange (Respondent in its brief reduced its estimate to
approximately 2 to 2 1/2 inches) and that the bolt was cut unnecessarily
close to the flange of the adjustment mechanism, making it more difficult
and time consuming to repair Chambers, who testified that the bolt had
been cut next to the flange and behind the washer did not testify where the
bolt was bent . White there was photographic evidence introduced at the
hearing there was no photograph of the bolt in its damaged condition
Thus, although it is undisputed that the bolt was cut next to the flange, a
finding as to where the bolt was bent requires a resolution of the
On the following day, Saturday, September 14,
Harrison was told by Chambers that the job had taken 3
or 3 1/2 hours. While Harrison had the authority in
appropriate circumstances to discipline McColley under
the Company rules, nonetheless that day he spoke with his
superior, Foreman Frank Brown, about the matter. On
the following Monday, September 16, when McColley
reported to work, Harrison issued him a major warning
notice for conduct constituting "Improper use and care of
company property," which is listed as rule 2 under
"Major Infractions Of The Rules" of the Company.
When Harrison asked McColley to sign the notice,
McColley, who felt it was unjustified and at first refused
to do so, signed the notice when assured by Harrison that
he would receive a copy; however, McColley did not later
receive a copy.' °
Under the Company' s rules a major warning notice is
kept in the employee's file for a period of 18 months; if
during the 18 months he receives a second major warning,
or if within any 12 months during that period he receives
two minor warnings, he is discharged." At the time of the
hearing McColley had received no other warnings.
C Contentions of the Parties
The Company admits its knowledge of McColley's
continued union activities; however, it denies that this in
any way contributed to the decision to issue McColley a
major warning notice. It is the position of Respondent
that this decision was made by Foreman Harrison alone
and that McColley's union activity was not a factor in his
decision. According to Respondent the basis for the
warning was the "carelessness " of McColley in following
the procedures he did and the fact that it caused the
shearer to be down an excessive period of time. As noted,
Harrison's testimony that he had instructed McColley to
straighten the bolt is not credited. Harrison testified
further, however, that McColley as a mechanic "should
have knew enough to straighten that bolt." Harrison
repeatedly characterized the procedures followed by
McColley in cutting the bolt to replace it rather than
straightening it as "careless ." Thus according to Harrison
a major warning was warranted ". . . because I thought
the machine had been down that long just for him being
careless in repairing it and cutting the bolt off"; again
Harrison stated "The main reason I gave him the warning
slip so that he wouldn't be careless again ." Later in his
conflicting testimony of Harrison and McColley . For the reasons noted
supra, I credit McColley rather than Harrison and rind that when
McColley severed the bolt he did so where it was bent , approximately 2
inches back from the head of the bolt
'This instruction of Harrison to Chambers is based on the credited
testimony of McColley Neither Harrison nor Chambers denied this
statement and to the extent that their testimony may suggest it was not
made , their testimony is not credited As indicated supra , I fourtl
McColley a more credible witness than Harrison . Based on my observation
of Chambers and his testimony , which on cross -examination I found to be
at times evasive , e g , his testimony regarding his maintenance duties on
the Mosely Shearer and his classification at the time of the bolt incident -
I have concluded that McColley is a more reliable witness than Chambers
"McColley was not given the 2-week suspension which under the
Company's rules may be imposed on an employee who receives a major
warning
"While G.C Exh. 2 contains the list of "Major " or "Intolerable"
offenses it does not set forth what constitutes "Minor " offenses under the
Company 's rules . However , from Harrison's testimony that he had issued
slips for tardiness it may be deduced that this constituted a basis for a
minor warning.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony Harrison stated ". . . I considered it
carelessness " This position was pressed further in
Respondent's brief - i.e., that the major warning was
issued because of the "careless and negligent manner" of
McColley in following the procedures he did in the repair
of the adjustment bolt," procedures which resulted in the
bolt repairs taking about 2 1/2 to 3 hours longer than
straightening the bolt would have required.
It is the position of the General Counsel, that the
procedures followed by McColley after the instruction to
fix the bolt were neither "careless" nor "negligent" but at
most may have represented a difference in judgment from
that of Harrison as to the method which should have been
followed; that in the circumstances where, as here, a
mechanic in performing a job is left to exercise his own
judgment in the procedures to be followed, McColley's
work would not ordinarily have been viewed by
Respondent as "careless" or as warranting a major
warning; that no major warning would have issued had it
not been for McColley's past and continued union
activity. It is the position of the General Counsel that
while a less direct method than the two previous
discharges, the Respondent is attempting to effectuate the
discharge of McColley by the technique of issuing warning
notices
D. Analysis, Additional Findings, and Conclusions
Simply stated the issue in this case is whether the
Company would have issued a major warning to
McColley if it had not been for his past and continued
activities on behalf of the Union.
The Board's findings in, the prior unfair labor
proceedings against the Company (affirmed by the courts)
establish that the Company over an extended period of
time has been openly opposed to the Union and has
engaged in extensive activities in violation of the Act in its
efforts to defeat the Union's attempt to organize its
employees. More particularly, as noted, it has twice
discharged McColley unlawfully and reinstated him only
after court decrees enforcing the Board Orders were
obtained, the most recent reinstatement having occurred
only 2 months prior to the conduct complained of in this
case. Furthermore, the record establishes that McColley,
following his most recent reinstatement, continued in his
open support of the Union. In view of the Company's
open and continuous opposition to the Union over the
years, it is reasonable to infer that its animus toward the
Union has continued as has its hostility toward McColley,
a hostility which could only have increased when upon his
reinstatement he became the only employee in the
reclamation department and so far as appears in the
record in the entire plant to wear a union button declaring
himself a "volunteer Union organizer." Accordingly, I
find the record in this case sufficient to establish prima
"In its brief, Respondent, in addition to arguing that McColley failed to
follow instructions , urges that McColley was "careless" in the method he
pursued in replacing the bent portion of the bolt Thus, Respondent argued
first that the bolt had been cut too close to the flange so that additional
work and time was required to replace the bent portion of the bolt, a
position which raises a question of fact which I have resolved against
Respondent Respondent also suggests in its brief for the first time that a
more appropriate method of repair would have been for McColley to have
screwed the bolt out of the mechanism rather than cut it, this apparently
had not occurred even to Harrison, himself, either at the time of the
incident or while testifying at the hearing, in the circumstances McColley's
failure to screw the bolt out of the mechanism could hardly be viewed as
"careless "
facie that the issuance of the major warning notice was
discriminatorily motivated "
While an employer in the management of its business is
free to impose whatever discipline on an employee it
wishes and for whatever reason, an employer under the
Act may not make employee discipline turn on whether
the employee is a union adherent. And where, as I have
found in this case, there is sufficient basis to support the
inference prima facie that the discipline imposed was
related to the employee's union adherence and activities, it
becomes necessary to scrutinize the reason for the
discipline advanced by the Respondent to determine
whether that reason is the real reason or whether
Respondent has merely seized on the employee's conduct
as a pretext to mask the Employer's unlawful motivation
In so doing the fact that Respondent's action is other than
what one would expect reasonably to have followed from
the incident out of which it arose, as well as Respondent's
exaggeration of the alleged offense in an attempt to make
the discipline appear reasonable in the circumstances, are
relevant considerations in determining Respondent's
motive in disciplining the employee.
A review of the evidence relating to the incident which
led to the issuance of the major warning to McColley,
thereby placing his employment status in jeopardy under
the Company's rules, persuades me that the penalty would
not have been imposed had it not been for McColley's
past and continued overt support of the Union.
At the outset it is noted that the record is devoid of any
suggestion that the procedure followed by McColley in
repairing the bolt was undertaken to willfully impede the
Company's operations; moreover, while Respondent
repeatedly referred to McColley's conduct as "careless,"
the record does not reflect that McColley acted with
negligent disregard for the Company's operations. There
are no procedures set forth by the Company to be
followed by a mechanic in the repair of company
equipment, a mechanic generally is expected to exercise
his own judgment in carrying out the job. Moreover, as
Harrison admitted there had been no prior occasion when
this bolt had to be straightened and he knew of no other
occasion at the plant when a bolt required straightening.
In these circumstances, when McColley had been told
merely to "repair" or "fix" the adjustment mechanism,
the very most that can be said of the procedures followed
by him is that it represented a difference in judgment as
to how the bolt should be repaired. Particularly in the
"I find, contrary to the testimony of Harrison and the contention of the
Respondent , that the final decision to issue a major warning to McColley
was reached only after Harrison discussed the matter with his superior,
Foreman Brown , and further that this action met with company approval
Thus, Harrison , who had the authority to discipline McColley, nonetheless
took the matter up with Brown before any action was taken Moreover,
Harrison 's demeanor while testifying and his equivocation regarding his
discussion with Brown as noted supra, footnote 7, persuades me that
Brown played an active role in reaching this decision and that the prior
discriminatory discharges of McColley were discussed N L R B v Walton
Mfg Co , 369 U S 404, 408
Furthermore , my conclusion would be the same even if I accepted
Harrison 's testimony that no superior directed his decision to discipline
McColley and that the decision was his own Harrison , who was in his
present position and knew McColley at the time of his last discriminatory
discharge was fully aware of the Company' s union animus and its hostility
to McColley because of his union activity He was also aware that
McColley was reinstated only because the Company had been ordered to
do so by court decree and that McColley on his return was a "volunteer
Union organizer " In these circumstances the record would be sufficient to
establish prima facie that a decision by Harrison to issue McColley a
major warning notice was discriminatorily motivated
SOUTHWIRE COMPANY 553
circumstances, the action of McColley in response to the
instruction to repair the adjustment bolt appears
reasonable both in his assessment of what the Company
expected of him as well as in his judgment as a mechanic.
As McColley himself testified, in view of the events
preceding the incident involved herein, when told to repair
the bolt he did not believe that the instruction
contemplated that an attempt be made to straighten the
bolt. The time necessary to straighten the bolt would have
taken only about 10 to 20 minutes. In view of Shealy's
statement in August upon being told by McColley that the
bolt was damaged, that he would decide when to shut
down the machine to fix the bolt, suggesting a problem of
more than a 10 to 20 minute shutdown of a scrap disposal
operation, and the fact that the machine was routinely
shut down for 1/2 hour twice a week during this period
for maintenance, McColley could reasonably conclude, as
he did, that since the bolt had not been repaired during
the preceding month, the Company wanted the bolt
replaced and did not want an attempt made to straighten
it Furthermore McColley also believed, and the matter is
not free from doubt, that any attempt to straighten the
bolt by applying,heat would adversely affect the temper of
the metal or adversely affect the threads causing
irreparable damage to the bolt if pressure were applied to
straighten it. Harrison, himself, while he testified that it
was his belief that this would not have happened conceded
on cross-examination that it might happen, that
straightening the bolt by heat would be "taking a
gambling chance." Harrison's present testimony that the
obvious procedure to have followed was to straighten the
bolt on the machine by using a pipe for leverage seems at
best an afterthought. In the first place it is undisputed
that the bracket was on the machine when McColley had
been told to fix the bolt - yet when McColley was asked
by Harrison what he planned to do and McColley stated
that he planned to remove the bracket and take it to the
mechanics' crib Harrison said nothing ' 4 If, as Harrison
would now have it believed, the obvious procedure would
have been the simple expedient of using a pipe for
leverage without removing the bracket from the machine,
and time was a factor, his failure to instruct McColley to
that effect when told by McColley that he was removing
the bracket puts in question the validity of the method or
that it had occurred even to him at that time. Of even
more significance, however, if the desired method of
repairing the bolt was to straighten it, a matter of 10 to
20 minutes, is the fact, as noted, that the machine was
down for 1/2 hour twice a week for maintenance at the
end of the second shift; this work was the responsibility of
Chambers Yet, although Foreman Shealy who was in
charge of that department had been made aware of the
bent bolt it was not straightened during this routine
downtime. The foregoing circumstances, cast substantial
doubt that straightening the bolt was considered the
desirable procedure by the Company and at the very least
evidences that McColley's response to the instruction to
"repair" or "fix" the bolt could not reasonably have been
viewed by Harrison or the Company as being "careless.""
"While this method could have been applied by placing the bracket in a
vice, Harrison emphasized that this "is the onliest way you could have did
it without taking the whole mechanism up."
"As evidencing that the procedures followed by McColley were
"careless" Harrison emphasized that this route required the shearer to be
down 3 to 3 1/2 hours However, as Harrison admitted the total downtime
was not a necessary consequence of the method itself, but in good part,
was attributable to the lack of replacement parts causing extra time to be
spent machining the parts available to fit the mechanism . Additional time
Further doubt is cast on the Company's asserted reason
for the discipline imposed on McColley by the rule
selected as the basis for the major warning. An
examination of the other rules listed under "Major
Infractions" discloses that the conduct generally
proscribed by these rules contemplates either willful
conduct or conduct which constitutes continued negligence
by an employee. The language of rule 2, "Improper use
and care of company property" particularly in this
context, appears inapplicable to the conduct of McColley.
On its face this rule appears to be aimed at employee use
of company property for purposes other than that for
which it was intended, or its care in a manner which
reflects a disregard for ordinary maintenance. McColley's
conduct would not appear to fall within the scope of this
kind of prohibition. For, contrary to the Company's
characterization of McColley's conduct as "careless," an
obvious effort to fit McColley's conduct to the rule, as
noted, McColley's actions in the circumstances
represented at most a difference in judgment from that of
Harrison. This apparent inapplicability of rule 2 combined
with the fact that this was the first time Harrison had
invoked the rule for any reason in his more than 3 years
as a supervisor, I find, evidences a strained effort to find a
basis for issuing McColley a major warning under the
Company's written rules and thereby cloak its real reason
for imposing this penalty.
Similarly Harrison' s issuance of a major warning to
McColley so that McColley would not be "careless" again
is unpersuasive. In the first place regardless of how
McColley's conduct is characterized, it was not the kind
of "mistake" which could be corrected by inducing greater
attentiveness to his job, rather as indicated supra,
McColley's action represented his judgment as a
mechanic, a judgment which as a matter of practice he
was expected to exercise. Secondly, a major warning was
an unusual disciplinary measure for Harrison to take.
Admittedly there have been other mechanics' "mistakes"
and Harrison admitted he had given "quite a few" verbal
warnings, indeed Harrison testified to only one other
instance of a written warning for job performance (it is
not clear whether this was a major or minor warning) and
this was given for "slipping in the job." Yet although
Harrison purportedly took into consideration errors of
judgment and although McColley had never before
received a written notice (major or minor) for his work
(there is no evidence he had ever received even a verbal
reprimand for his job performance), Respondent imposed
the most severe class of warning provided by its work
rules
Finally, in examining the Employer's alleged reason for
the discipline imposed, I note that McColley - who in
the diligent performance of his job had reported the bent
bolt to Foreman Shealey a month before the accident had
injected any kind of urgency in the situation - was
disciplined in a manner which puts his employment status
in jeopardy under the Company's rules, while employee
Chambers - whose responsibility it was to perform
maintenance during scheduled periods of downtime on the
machine, time which would have permitted straightening
the bolt - appears to have been promoted I find this
result particularly anomalous in light of Vice President
Holloday's apparent displeasure that the bolt had not been
repaired prior to the accident. Yet there appears to have
been no effort made by the Company to fix responsibility
apparently was also taken to shape parts so that a cover later added to
prevent further damage would fit over the mechanism
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the situation the Company found itself in on
September 13, a responsibility which significantly could
not be assigned to McColley.
In sum it is my conclusion that the Employer's asserted
reason for the discipline of McColley does not withstand
close examination. I find rather that that issuance of a
major warning notice to McColley in the circumstances
discussed was because of the Company's long continued
opposition to the union representation of its employees
and McColley's past and continued support of the Union.
As noted in reinstating McColley for the second time,
Foreman Brown made it clear to Harrison that
McColley's reinstatement was undertaken only because
the court had ordered it to do so. Harrison, who was
aware of McColley's past discharge and the Company's
opposition to the Union, was also aware that McColley
continued his active support for the Union. In these
circumstances, I conclude that when McColley proceeded
to replace the bolt on the adjustment mechanism, an
operation which Harrison anticipated would cause the
close down of the Moseley Shearer for a substantial
period of time, he recognized that this presented the
Company with an opportunity to discipline McColley.
Harrison who in his testimony emphasized the time factor
and that straightening the bolt just enough so that it could
be turned (even if not fully corrected) would have been
enough, imparted no sense of urgency when discussing the
repair with Chambers. Rather he told Chambers "to take
his time and do the job right," at the same time
instructing him to keep track of the time taken to do the
job. Furthermore Harrison who had the authority to
discipline McColley did not proceed at the time it
occurred to either reprimand McColley or indicate the
possibility that any disciplinary action would be taken. It
was only after Harrison had the opportunity to discuss the
matter with his superior that he issued the warning notice.
For reasons noted supra, footnote 7, I conclude that
Foreman Brown played an active role in that discussion
and that McColley's past and continued union advocacy
was the reason for the decision to issue a major warning.16
In sum , I conclude, that the Respondent, presented with
a situation in which McColley played a part and which
resulted in the loss of operational time, seized the
opportunity to discipline McColley, not because of the
role played by McColley in this matter but because of
McColley's past and continued union activity and the
potential opportunity it presented for his ultimate
discharge. The Respondent's discipline of McColley for
this reason constituted a violation of Section 8(a)(3) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship 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.
"For the reasons noted supra , I did not rind Harrison to be a credible
witness, and do not credit his testimony that McColley's union activities
were not a consideration in issuing him a major warning or that a similar
warning would have been issued if any other mechanic had performed this
job as McColley had
V. THE REMEDY
It having been found that the Company engaged in
unfair labor practices in violation of Section 8(a)(3) and
(1) of the Act, it will be recommended that the Company
cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes of the Act.
It will be recommended that the Company withdraw
the major warning notice issued to employee Jerry L.
McColley, Sr., on September 16, 1968, and that it be
given no force or effect.
In view of the Company's past history of repeated
violations of the Act, the commission of unfair labor
practices generally is to be anticipated. It will be
recommended, therefore, that Respondent be required to
cease and desist from in any manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.
On the basis of the foregoing findings of fact, and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Company has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, which unfair labor practices
affect commerce within the meaning of Section 2(6) and
(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
recommended that the Southwire Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activity in support
of the International Union of Electrical, Radio and
Machine Workers, AFL-CIO, or any other labor
organization, by discriminatorily imposing disciplinary
action on any of its employees or by discriminating in any
other manner in regard to their hire and tenure of
employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist International Union of Electrical, Radio and
Machine Workers, AFL-CIO, or any other labor
organizations, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act,
as modified by the Labor Management Reporting and
Disclosure Act of 1959
2. Take the following affirmative action which will
effectuate the purposes of the Act:
(a) Withdraw the major warning notice issued to Jerry
McColley, Sr., on September 16, 1968, and give it no
force or effect.
SOUTHWIRE COMPANY 555
(b) Post at its plant in Carrollton, Georgia, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's
authorized representative, shall be posted by 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 posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.18
"In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT discipline or otherwise discriminate
against employees to try to discourage them or other
employees from being or becoming members of the
International Union of Electrical , Radio and Machine
Workers, AFL-CIO, or any other labor organization.
WE WILL NOT in any other way interfere with,
restrain , or coerce our employees in their right to
engage in activities on behalf of the International
Union of Electrical , Radio and Machine Workers,
AFL-CIO, or any other labor organization.
WE WILL withdraw the major warning notice issued
to Jerry McColley, Sr., on September 16, 1968, and
give it no force or effect.
All our employees are free to become or remain union
members.
Dated By
SOUTHWIRE COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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
Any questions concerning this notice or compliance
with its provisions may be directed to the Board ' s Office,
730 Peachtree Street, N.E., Atlanta, Georgia 30308,
Telephone 404-526-5760