Steel-Tex Manufacturing Corp.

National Labor Relations Board - Board Decisions

Oct 17, 1973

206 N.L.R.B. 461 (N.L.R.B. 1973)

STEEL-TEX MANUFACTURING CORP. 461
Steel-Tex Manufacturing -Corp . and International
Union, United Automobile , Aerospace and Agricul-
tural Implement Workers of America (UAW). Case
7-CA-10115
October 17, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On June 22, 1973, Administrative Law Judge Paul
E. Weil issued the attached Decision in this proceed-
ing. Thereafter, counsel for the General Counsel filed
exceptions and a supporting brief, and Resondent
filed a 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
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
On the issues thus joined, the matter came on before me
at Detroit, Michigan, on April 24 and 25, 1973. All parties
were represented by counsel and had an opportunity to call
and examine witnesses, to introduce relevant and material
evidence, to argue on the record, and to file briefs. Oral
argument was waived by all parties. A brief has been re-
ceived from Respondent. Upon the entire record in this
matter and in contemplation of the brief, I make the follow-
ing:
FINDINGS OF FACT
I JURISDICTION
The Respondent is a Michigan corporation engaged at a
plant in Farmington, Michigan, in the manufacture, sale,
and distribution of automotive parts and related products.
Respondent annually purchases and causes to be transport-
ed to its Farmington installation goods and materials valued
in excess of $75,000 of which goods and materials valued in
excess of $50,000 were transported and delivered directly
from points located outside the State of Michigan. Further,
Respondent annually manufactures and distributes its
products valued in excess of $50,000 directly to points locat-
ed outside the State of Michigan.
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On February
1, 1973, International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America
(UAW), hereinafter called the Union, filed a charge with the
Regional Director for Region 7 of the National Labor Rela-
tions Board, hereinafter called the Board, alleging that
Steel-Tex Manufacturing Corporation, hereinafter called
Respondent, violated the Act by the discharge of six em-
ployees because of their union or concerted activities.
Thereafter on March 8, 1973, the Charging Party amended
the charge by dropping the name of one employee and
adding the names of two others. On March 14, 1973, the said
Regional Director (then Acting) issued a complaint and
notice of hearing alleging that Respondent discharged the
seven employees named in the amended charge, one on
Jamuary 30, the rest on January 31, 1973. By its duly filed
answer Respondent demes the commission of any unfair
labor practices.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent conducts its manufacturing operation in two
adjacent buildings in which, at the time of the occurrences
herein, about 27 employees operated a large number of
machines. The corporation is owned primarily by Elmer
(Al) Hanaway and his sons Ronald and John. Ronald is the
president of the corporation. All three Hanaways are them-
selves machinists and toolmakers and apparently do much
of the millwright work involved in the operation. Gary Grif-
fith is the general manager and has under him a number of
leadmen. He directly supervises one of the two buildings
and assigns work in the other. Fifteen or 16 of the employees
work in building 1, the remainder in building 2.
The turnover at the plant is fairly high. The employees
who appeared before me were for the most part young men
without machinist experience gained prior to their employ-
ment with Respondent. The normal workweek at
Respondent's plant is 58 hours.
On January 19 I three of the employees, Moss, Dasey and
Gallagher made contact with the Charging Party with the
hope of organizing the plant. They each signed cards at that
time and were given additional cards to distribute among
1 All dates hereinafter are in 1973 unless otherwise specified.
206 NLRB No. 54
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees. With the exception of talking to one or two
other employees nothing was done about organizing until
Monday, January 29. In the intervening time, because of an
epidemic of flu, various of the employees were off work.
However, on January 29, they were all present and they
agreed to commence organization. This was accomplished
before and after work, during lunch and break periods.
Organization was completed by Tuesday, January 30: That
evening one of the original organizers, Dasey was called at
his home and told that he was discharged because of his
absenteeism. The next day apparently no further organizing
activities took place. The remaining employees worked the
full day and immediately after they returned home employ-
ees Gallagher, Tomey, Curd, and Livy received telephone
calls from Griffith informing them that they were dis-
charged. Employee Brown received a similar telephone call
from Ronald Hanaway and Moss a similar call from John
Hanaway.
The General Counsel contends that all the above dis-
charges resulted from the union activity of the employees.
Respondent contends that they were all discharged for
cause.
Discussions and Conclusions
The General Counsel would have me infer that all seven
of the named employees were discharged for union activity,
basing such findings almost entirely on the timing of the
discharges, which surely raise suspicion. Respondent con-
tends that it had no knowledge that any union activity was
taking place at the time the discharges were consummated
and that all seven of these employees had, prior to their
discharge, been marked out for ultimate discharge because
of their unsatisfactory work habits or performance. Respon-
dent showed that Dasey, who was shipping clerk, was more
frequently absent and tardy, allegedly for reasons of sick-
ness, than any other employee. Dasey himself testified that
Griffith had told him one time when he took off sick that
he was "the sickest guy he ever knew." Griffith admitted
that he had been "sickly." On January 30 Dasey took off,
leaving a large accumulation of material that was supposed
to be shipped before the end of the month. Griffith com-
plained to the Hanaways and was told to ship it himself. At
this point Elmer Hanaway suggested that he fire Dasey and
Griffith called him at his home and fired him. The following
day at about 5 o'clock the three Hanaways and Griffith met
and decided to "clean house." They decided to discharge
Gallagher because of his bad absenteeism and tardiness
record. They decided also to discharge Tomey, who was a
janitor or cleanup man. Respondent had recently had a
warning from its insurance company that its rates would be
raised if they did not clean up the plant and specifically
clean oil and grease off the floor. Tomey was supplied with
a large and expensive floor scrubber and was told to scrub
the floor several times but failed to do it. Tomey complained
that the machine was defective because the cord was old
and cracked, however Respondent produced records reveal-
ing that the cord had been replaced in October 1972 and
that the machine had been completely serviced as recently
as December 1972. In addition, John Hanaway testified that
he himself had used the machine in the other building at
about the time Tomey was supposed to have cleaned up
building 1 and that it was in no way defective. At any rate,
the floor was not cleaned and Torrey was marked for dis-
charge. Brown was discharged because of the quality and
quantity of his work, according to Respondent. During the
month of December he had scrapped 238 bushings, which
were badly needed by a customer, by grinding too much
stock off of them so that they were undersized and unusable.
On January 27, he had run 3,500 pins which were to be used
by Respondent in a manufacturing operation. He was to
have ground fifteen ten-thousandths of an inch off of each
pin but ground only five ten-thousandths. This mistake
came to light when Respondent first tried to use the pins on
January 30; all the pins had to be rerun. Accordingly,
Brown was marked for discharge.
Respondent was assembling 12 machines to make a sepa-
rate section to be run by two men, Moss and Fassero. Fasse-
ro, a leadman, was supposed to teach Moss to set up the
machine. During the week before his discharge, Moss was
absent a number of days because he had the flu; Fassero on
the other hand, although he too had flu, came in each day
attempting to assist in assembling the new machines and to
teach Moss to set them up. Since Moss was not present,
Fassero could not teach him. Moss had previously per-
formed at less than the expected rate and, accordingly, Re-
spondent decided that he too should go. Livy and Curd also
were slow to learn their jobs, performed at a slower speed
and did not produce to the satisfaction of Griffith, and they
also were discharged.
At the same time that the seven were discharged an eighth
man, a new floor sweeper who had been hired either 1 day
or 1 week before his discharge, was let go. None of the
employees have been replaced and two more have left
Respondent's employ since January 31 without replace-
ment.
Respondent also produced evidence that on January 24
the four members of the managerial hierarchy got together,
as they do twice a year, to determine whether raises should
be given to the employees. At that time all employees in the
plant were given raises with the exception of the seven who
were later discharged. There is no evidence that any em-
ployees other than Moss, Dasey and Gallagher were at that
time involved with the Union in any respect, and there is no
evidence that on January 24 Respondent had any knowl-
edge that any union was interested in organizing its employ-
ees.
The General Counsel contends that Respondent had
knowledge of the union activities of its employees relying on
the inference of knowledge that the Board sometimes draws
from the fact that organization is taking place in a small
plant. This inference, General Counsel believes, is but-
tressed by evidence that one of the leadmen, McNulty,
might have overheard two employees talking about the
Union. General Counsel attempted to show that McNulty
was indeed a supervisor, but there is no evidence on the
record that he had any supervisory functions. He was a
leadman and setup man and performed the normal func-
tions of those jobs. He and the other leadmen were conduits
for the distribution of work orders from Griffith to the
employees, but there is no evidence that he or any of the
other leadmen had the capacity to assign to any employee
STEEL-TEX MANUFACTURING CORP.
what machine he should use. Since the assignment of work
depended on the machine which could do it, the nature of
the job for the most part dictated the assignment of the
employee who would do the job. There is no evidence that
McNulty had anything to do with hiring, firing or responsi-
bly recommending hiring, firing or the promotion , suspen-
sion, punishment or otherwise of the employees.
Accordingly, I find that whether or not McNulty might
have overheard employees talking about the Union, there is
no inference that can be drawn that the Employer gained
knowledge therefrom.
The other incident upon which the General Counsel relies
is a statement made by Ken Griffith, the brother of the plant
manager, who was himself an employee in the unit, at the
time he was delivering the checks to the discharged employ-
ees, that he thought that management knew that there was
union activity in one of the plants but not in the other.
This statement by Ken Griffith cannot be considered
either an admission by Respondent or evidence that Re-
spondent knew anything of the union organization. There
is no showing that Ken Griffith occupied any position of
trust with Respondent or gave any information to his broth-
er, who was the general manager.
In order to find a violation herein, in the absence of an
admission, an inference would have to be drawn that the
discharges were predicated on union activities of the em-
ployees discharged. Because the reasons given for the dis-
charge of each of the employees are not shown to be
463
pretextual, the inference would have to be very strong to
overcome the evidence that they were discharged for cause.
To reach such an inference it is first necessary to find that
the Company had knowledge of the union activities of the
employees. A finding of company knowledge herein would
require a further inference that the Company must have had
knowledge because it was a small plant or an inference that
the Company achieved knowledge through McNulty, whom
I have found the General Counsel did not prove to be a
supervisor . Of course, decisions of the Board are frequently
based upon inferences, but we are taught by the courts that
inferences must be founded on 'substantial evidence upon
the record as a whole. An inference itself is not substantial
evidence and, accordingly , an inference based on an infer-,
ence goes beyond the Board's power.
In the instant case, in the absence of any showing of
company knowledge and in contemplation of the uncontro-
verted showing by Respondent of a reasonable cause for the
discharge of each of the employees, I find that no unfair
labor practice has been shown to have been committed by
Respondent. Accordingly, I recommend that the complaint
be dismissed in its entirety?
2 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions, and order , and all objections thereto shall be deemed
waived for all purposes.