Southwire Co.

National Labor Relations Board - Board DecisionsFeb 28, 1979

240 N.L.R.B. 1053 (N.L.R.B. 1979)

SOUTHWIRE COMPANY 1053 Southwire Company and Aluminum Workers Interna- tional Union, AFL-CIO. Case 10-CA-13232 February 28, 1979 DECISION AND ORDER BY CHAIRMAN FANNING ANt) ME MBLRS PNE l.LO ANt) TRt FS)AL On November 28, 1978, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is. dis- missed in its entirety. The General C(ounsel has excepted to certain crediblihty findings made by the Administrative Law Judge. It is the Board's established polic not to overrule an Administrative l.aw Judge's resolutions with respect to crediblhl- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Slandard Dri Wall ProdluctL. Inc. 91 NLRB 544 (1950). enfd. 188 F 2d 362 (3d ('ir. 1951). We have carefulls examined the record and find no basis for reversing his findings Although the Administrative Law Judge found that Respondent's fRre- man. Louis Adams, did not tell Als that AIls would not be promoted to foreman because of his union activity. he also commented that. even if the statement were made. "it would be one minor isolated remark which bh itself would not warrant corrective action." Since we adopt his credlblhlit finding that Adams never made such a statement, it is unnecessary for us to pass on the Administrative Law Judge's additional comments. ' In adopting the Administrative l.aw Judge's conclusion that All, was not discharged because of his union actisit). we do not rel, on h finding that there was no evidence that ('onstruction Manager Baxle uas aware of Alls' union activity Even assuming that he wals the record as a whole fulk supports the conclusion that Alls' union acli.itl did not enter into Respon- dent's decision to discharge himn 240 NLRB No. 159 DECISION STATEMENT OF HE CASE JOHN M DYER, Administrative Law Judge: On Novem- ber 10. 1977,1 Aluminum Workers International Union, AFL-CIO, herein called the Union, Charging Party, or Aluminum Workers, filed a charge alleging that Southwire Company, herein called the Company or Respondent, vio- lated Section 8(a)(1) and (3) of the Act by terminating Jef- frey Alls on November 4. The Regional Director issued a complaint on December 30 alleging that Respondent had violated Section 8(aXI) of the Act when it published and maintained an unlawful no-solicitation rule and by a state- ment made by Supervisor Adams and had violated Section 8(a)(3) and (1) by the termination of AIls. Respondent's answer admitted the service and com- merce allegations, the status of the Union, and the supervi- sory status of Labor Relations Director David L. Jean, Construction Manager James Baxley, and Construction Foreman Louis Adams and that it discharged AIls on No- vember 4 and did not thereafter offer to reinstate him. Re- spondent denied that it had violated the Act by its termina- tion of Als or by any statement made by Construction Foreman Adams and further denied that it had published and maintained an unlawful no-solicitation rule. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearing held in Carrollton, Georgia, on April II11. 1978. Briefs have been received from Respondent and General Counsel and carefully considered. The principal question is whether Respondent terminated AIls, at least in part, because of Alls' union actions and sentiments. After considering all the facts, I have concluded that the evi- dence does not so demonstrate, nor does it show the publi- cation and maintenance of an unlawful no-solicitation rule or that Respondent violated the Act in any other manner. On the entire record in this case, including the exhibits and testimony, and on my evaluation of the reliability of the witnesses, I make the following: FINDINGS OF FACT I. COMMERCE FINDINGS AND UNION STATUS Respondent is a Georgia corporation with an office and place of business at Carrollton, Georgia, where it is en- gaged in the manufacture of rods, wire, and cable for the electrical industry. During the past year it sold and shipped from the Carrollton plant, directly to points outside the State of Georgia, finished products valued in excess of $50,000. Respondent concedes, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent concedes, and I find, that Aluminum Work- ers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. I t nless specificall stated otherwise. all eents herein took place during 1 977 Southwire Company and Aluminum Workers Interna- SOUTHWIRE COMPANY _2 _.......... 1054 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD 11I H A[I(;tlO) tINFAIR LA. BOR PRA('('ES A. Background and Undisputed Facis The Company has a large facility at Carrollton, Georgia. with two main mills and a construction department. It has around 500 employees, with approximately 155 employed in its construction department under Construction Manag- er James Baxley. The construction department employees keep the grounds and buildings in repair, grade sites and build new buildings, etc. Baxley has construction foremen under him, among whom were Willie Dukes, the equip- ment foreman who was directly over forklift driver Jeffrey Alls and the other equipment operators, and Foreman Louis Adams. who was directly involved in construction work. Baxley directs the operations of the construction de- partment through his foremen, giving them assignments as to what is to be done that day and allowing the foremen to make individual work assignments to the employees under them. The three forklift drivers receive specific assignments from Dukes to move equipment, load scrap, and perform other jobs around the mills. While performing their assign- ments, other supervisors and employees in training to be supervisors may give them assignments to move materials or equipment without checking with Dukes if the job will take under 30 minutes. If the job will take more than 30 minutes, such assignments are supposed to be cleared with Dukes. After completing an assignment, the forklift drivers are supposed to report back to Dukes at the construction barn in case there are other work assignments. Alls, who had been with the Company more than 12 years, had been active in a union campaign conducted by the Communication Workers during 1974-75 and attended a National abor Relations Board "R" case hearing where Labor Relations Director David Jean was present. AIls tes- tified that thereafter he wore a Communication Workers Union button and that there was a sticker for that union on his personal vehicle. In August 1977, employee John Baker and Ails dis- cussed the prospect of organizing the plant. Baker. who is a mechanic in the construction division, made several tele- phone calls and spoke to Aluminum Workers Representa- tive Rutledge during late September. and a meeting was arranged for mid-October. At a second meeting on Octo- ber 24. union authorization cards were distributed, and Alls signed one. Baker testified that some employees began wearing I-inch union buttons at that time. Ails and Baker and two or three other employees constituted the organiz- ing committee and handed out authorization cards at the plant. AIls testified he distributed around 90 cards, doing so at breaktime or lunchtime and before and after work but not on company time. AIls specifically testified that he understood the company no-solicitation rule to allow him to solicit for the Union on company property except during working time. On October 28. Labor Relations Director Jean sent an interoffice memorandum to all supervisors under the head- ing "Today's Talk." This memorandum states that the Alu- minum Workers Union sent organizers to Carrollton to stir up trouble at Southwire and advised the supervisors to talk to their employees over the next few days about thinking carefully before signing union cards. Part of the memoran- dum stated, "Do not allow employees to loiter about any area of the C(arrollton facility before or after work and do not allow employees to solicit other employees to sign union cards in working areas or during the working time of either party." The General Counsel alleges this part of the memorandum to be the publishing and maintenance of an unlawful no-solicitation rule. Although this communication was addressed only to supervisors, employee Baker testified that he got a copy of it but did not know who gave it to him. He said he read it, put it in his pocket, took it home, and made some copies, which he let several other employees read. There is no showing that this memorandum was ever generally distrib- uted to employees. However. there is testimony that for a number of years the Company maintained on all its bulle- tin boards a published rule which stated that employees were not allowed to solicit funds or support for any indi- vidual, institution, or organization while in established work areas during working time. In essence, the difference between the statement in the memorandum for supervisors and the rule published to and for employees is the word "or." There is no question but that Ails understood the no-solicitation rule to be the rule posted for employees on the bulletin board. There is no evidence to show that the quoted language in the super- visors' memorandum was ever published to employees or made known to them by the Company or that there was any change made in the published rule. Further, there is no evidence to show any enforcement or interpretation of the memorandum statement by imposed discipline or in any other manner. In this situation I cannot find that Respondent. in the words of the complaint, published and maintained an in- valid no-solicitation rule, and accordingly I will dismiss that allegation of the complaint. B. The Events Concerning ,11 Alls testified that in late October Foreman Louis Adams told him he had a pretty good chance of getting his job but he was a union man and Southwire did not like union men to be foremen. Foreman Adams, who was not Ails' super- visor, stated that he knew Alls but denied ever telling Als that he would not be able to become a foreman because he was a union man. He said that occasionally he might be on the same construction job with Ails doing some forklift work but that he had no authority over Ails and did not appoint foremen. Construction Manager James Baxley testified that he ap- pointed all foremen, that only skilled tradesmen who were grade B or A tradesmen were ever appointed to positions as foremen, and that Ails' position as a forklift operator would have precluded his selection as a foreman. Since Adams was a foreman in the construction trades, not in equipment, it is even less likely that Adams would have held out the prospct of his job to forklift operator Als. The situation and the conversation to which Alls testi- fied have inherent problems which make the probability of it low. I do not credit Als that the conversation occurred SOUTHWIRE COMPANY 1055 as he testified. TIhere may have been some lesser remark made about the Company not likely to have union men as supervisors, but the allegation of the complaint was not proven, and I will dismiss it. Even if it were to be credited, it would be one minor isolated remark which by itself would not warrant corrective action. During the summer of 1977, Ails and others were spoken to by Baxley on two or three occasions about getting into line early to punch out. Baxley warned that they were wast- ing company time and should be working until it was time to punch out. On July I1, Baxley gave written violation notices to 41 employees, including Alls, who were lined up early to punch out. Under the company rules, this came within the area of minor violations. Company rules, as set out in the company handbook, provide that minor infrac- tions remain active on the employee's personnel file for a specific length of time after discipline is administered. The rules state that punishment for minor violations for the first offense was a written warning: for a second offense within 12 months, punishment was to be 2 days off without pay, but if it occurs within 6 months of the first violation and is of the same type, punishment should be I week without pay. For a third minor violation of the same type of offense within a 12-month period. the penalty is dis- charge. On October 20, a supervisor in the east mill called Con- struction Manager Baxley, complaing that Alls was in the east mill disrupting work of the employees there. After hearing AIls' version of the incident. Baxley checked with foremen in the area and was told that Alls ad been in the east mill talking to his sister on company time but that she had continued to work and there had been no disruption. Baxley called Alls back to his office, discussed the incident and what he had been told, and gave Alls a written warn- ing, saying he was waiving suspension because there had been no interruption of the other person's work. He warned Ails that he was off his job with no reason to he in the east mill, had been off his job previously and had been warned, and, when he was through with an assignment, was to report back to Foreman Dukes for assignment to other jobs. AIls admits being told this by Baxley. Baxley testified, and Ails denied, that previously Baxley had warned Als on several occasions that he had to report back to Dukes for other assignments when he finished a job and not go off on frolics of his own. On November 4, Superintendent Hughey of the rod mill called Baxley and told him a man from the construction department was up in the copper mill twice that morning. wasting time and talking to others. said there was no con- struction in that area, and asked Baxley to get the man out of the area and keep him out. BaxleN called Foreman Lam- inack in the copper rod area and asked about it. Laminack stated that Ails had been there twice that morning for ex- tended periods of time. Superintendent Hughey testified that about 8:15 that morning he saw a forklift operator in the copper rod mill climb up to an operator's position on a platform at the furnace. As he went toward Foreman Laminack's office, he later saw Alls near the scales. He commented to Laminack that the guy in the rain suit was making the rounds talking to employees. Laminack said that he was down there often. Around 10:30 that morning, Hughey was talking to Lami- nack and mentioned the lift driver. Laminack said he was back again and was downstairs in the lab talking and had been there 30 to 40 minutes. Laminack corroborated this testimony. stating that Ails was in the lab sitting on a worktable at 10:30 a.m. After receiving the corroboration from Laminack. Bax- ley pulled Alls' file and, noting the two previous violation slips, realized that company rules called for dismissal on the issuance of a third minor infraction notice and decided to speak to Labor Relations Manager Jean concerning the situation. He said Jean advised him that the company rules called for discharge and that under the circumstances the man should be discharged. Baxley testified he decided to think it over during lunch, did so, and decided to call AIls into the office. He called Foreman Dukes, who reported back that he could not find Ails. He and Dukes took a small vehicle and drove past the scrap pile and on into the mill and finalil saw Ails on a forklift truck coming down through the west mill. Baxley stated that Ails was carrying nothing and that Dukes said he had given him no assign- ment which would put him at that location, and he re- turned to the office and instructed Dukes to bring Alls to see him after noting on their return trip that Alls was work- ing at the scrap pile. Dukes called back shortly and said that Alls was not at the scrap pile. Baxley told Dukes to go find him and bring him to the office. Dukes left, drove around for awhile, and came back by the scrap pile, where he found Ails and told him to report to Baxley. Baxley testified he asked AIls why he had been in the rod mill twice that morning for 30 minutes on each occasion. Ails replied that he had pulled the compressor to the subs- tation. Baxlev said that was 130 feet away from the rod mill and that the trip up there and back should have taken 10 minutes and Ails should have been back to the construc- tion area for assignment, that he had no assignment in the rod mill area. Baxley stated that AIls gave him no reason for being in the rod mill and he told AIls that he was giving him his third warning, which meant that he was dis- charged, and for Ails to clear out his locker and turn in his tools. He said that Ails handed him his safety glasses and a union button and that after looking at the union button he returned it to Alls. Baxley testified he decided after lunch to terminate Ails because Ails was out of his assigned area for extended time for no reason when he was supposed to be loading scrap and also had no business being in or rid- ing around in the copper mill. Alls testified that when he was called into the office Bax- ley told him he was tired of getting complaints from all over the mills, that Ails was hindering people from their work, talking to them, and that Superintendent Hughey had called around 10:30 and complained about Ails' being in the copper mill hindering people. Ails said he told Bax- leI he had moved the compressor up there and had been asked to come back in about 45 minutes to see if they were done and so was back up there later in the morning to do it. Alls. during redirect testimony, testified that Dukes saw him in the mill in the afternoon and that he had gone back to the substation to see if they were through with the com- pressor. His direct testimony contained nothing about a third visit to the substation. He said that on his first trip he SOUTH WIRE COMPANY 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not even get off the forklift and was there only a min- ute or two after the compressor was dropped and went back to the scrap area and loaded scrap. After his break at the construction barn, he went back to see if the compres- sor was ready to be moved and, finding that it was not, went back to the scrap pile where he worked. A welder in the construction crew testified that when Alls brought the compressor up that morning he did not leave immediately but got off the forklift saying he was going to "run his mouth" and walked into the rod mill. Arlin Thompson, a member of the construction crew at the substation who had been subpenaed but not called as a witness by General Counsel, testified for Respondent that twice that morning at the substation he saw Ails' lift-truck. The first time was when Alls brought the compressor up, and on the second occasion he saw the forklift parked for about 30 minutes near the substation, and Ails was not around. C. Contentions and Conclusions The General Counsel notes that Respondent had a prior history of unfair labor practice cases in which the Board made findings of violations. The last such case occurred some 7 to 8 years before this matter. General Counsel states that Ails was the first employee discharged by Baxley for being out of his assigned area. He argues that since Baxley had waived suspension on the sec- ond minor violation and had discretion to decide what penalty should be invoked for the third violation, the pen- alty of discharge was extremely heavy and of necessity must be connected with Ails' union activities, since Re- spondent had an animus towards the Union, as demon- strated by its previous history and by Labor Relations Di- rector Jean's interoffice memorandum. However, there is no evidence that Baxley knew, or was aware, of any union activities by Ails. Ails testified that he was wearing a I-inch union button from October 24 on, but again there is no testimony that Baxley was in the area where Ails worked or had such contact with Ails that he would have seen this button prior to the time that Ails was called into his office on November 4. Certainly All's two previous violations of company rules are clear and admitted, and there is no question as to Re- spondent's intentions in giving him those warnings. The evidence is clear and convincing that Ails was away from his lift truck on at least two occasions and in the rod mill on the morning of November 4. There is no question but that Ails had been guilty of a similar offense only a little more than 2 weeks before. Baxley must have consid- ered whether the previous discipline and warning had done any good. Being called twice by superintendents of other mills concerning one employee in a 2-week span raises questions as to the employee's willingness to observe the rules. Certainly, not finding AIls at his work station twice in the afternoon when Baxley wanted to see Ails did not help Alls' case, nor did Baxley's spotting AIls driving down through the west mill where he apparently had no business being. In essence, there is no reliable evidence that Baxley knew of any union activities of Ails or that such entered into his decision to discharge AIls. It is clear that Alls was not performing assigned work when he was in the copper mill on the two occasions and that Baxley. in acting on the complaint from the superintendent of the copper rod mill, was merely performing his job as a supervisor. This case amounts to suspicion by Ails and the General Counsel, with no adequate proof, that Alls' union activities or sentiments entered into Respondent's decision to dis- charge him. Therefore, I will dismiss this complaint. On the foregoing facts and conclusions, I make the fol- lowing recommended: ORDER 2 The complaint and charge in this matter are hereby dis- missed. In the eent no exceptions are filed as provided bh Sec. 102.46 of the Rules and Regulations of the National ahor Relations Board, the findings, conclusions. and recommended Order herein shall as pros ided in Sec. 102.48 of the Rules and Regulations. be adopted b the Board and become its findings, conclusions, and Order, and all objections thereto shall be deenied waived for all purposes.