Hardwicke Chemical Co.

Hardwicke Chemical Company and International Union of Operating Engineers, Local 465, AFL- CIO. Case 11-CA-7540 March 15, 1979 witnesses, and upon consideration of the briefs o the par- ties, I hereby make the following: FINDINGS ()F A('I 1. TIlE FA(IS DECISION AND ORDER BY CHAIRMAN FANNING AND IMEMBERS JENKINS AND MURPHY On November 29, 1978, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief, and Respondent filed cross-exceptions. 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 brief and has decided to affirm the rulings,' findings, and conclusions 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 Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibil- ity unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: This pro- ceeding involves allegations that two individuals were dis- charged by the above-named Respondent because of their union activities in violation of Section 8(a)(1) and (3) of the Act, and that Respondent engaged in independent 8(a)(1) conduct. The proceeding was initiated by a charge filed by the above-named Union on March 24, 1978,1 pursuant to which complaint issued on May 5. Hearing was held in Columbia, South Carolina, on September 20 and 21. Upon the entire record, including my observation of the I Unless otherwise indicated, all dates are in 1978. Respondent is a Minnesota corporation with facilities in Elgin, South Carolina, where it is engaged in the manufac- ture of organic chemicals? Respondent employs about 110 employees who are not represented by any labor organiza- tion. Since 1970, according to Pickett Sutton, Jr., an alleged discriminatee, three attempts have been made to organize the employees. In May 1977, when Respondent had sub- stantially fewer employees, an election was held wherein 18 votes were cast for union representation and 20 against. Sutton testified that in January 1978 he initiated a new organizational campaign, obtaining cards from the Union and soliciting signatures from employees. John Seward. an- other alleged discriminatee. who had been active in the 1977 campaign, was one of the employees who signed. Sutton began working for Respondent in May 1970 and was employed as a chemical operator on the third shift at the time relevant herein. On March 16. Sutton left work about 45 minutes early, that is, about 6:15 a.m. He had received permission to leave early from his supervisor, John Hayes, to whom he had represented, falsely, that he was going to a doctor. The following day as Sutton was prepar- ing to leave work in the morning. he was summoned to the office of production manager Harris Williamson who asked him what had happened the day before. Sutton told him he had been to the doctor and Williamson told him to bring in a doctor's slip showing he had been to the doctor. Sutton refused, and Williamson said that he would call the doctor. Sutton walked out. Later that day Sutton went to the plant pursuant to a call from then Personnel Manager Jerry Whitley. There he was told that he was fired assertedly for falsifying records. John Seward began working for Respondent in June 1973. He was terminated on March 20, 1978. On Saturday. March 18, Seward was scheduled to work overtime. begin- ning at 7 a.m. He testified that he arrived at 7:45 a.m., and his timecard was missing from the card rack. He went to see production manager Clifford Adolphson to ask him where his card was, and Adolphson told him that he was late and that he would have to let him go or suspend him for a couple of days. Adolphson told him the Company was hir- ing new employees, and if he let Seward get away with coming in late the new employees would want to do like- wise. He said foremen had been coming in late and Sew- ard's own foreman had been suspended for I week. Accord- ing to Seward. since he was dressed for work. Adolphson asked him if he was going to work: Seward asked if he would be paid time-and-a-half wages and Adolphson said no. Seward refused to work and left.' Seward did not report for work on Monday, March 19. Jurnsdiction is not in issue. Respondent admits that it meets the Board's direct inflow and outflow standards for the assertion ofjurisdiction 'Adolphson denied offenng to let Seward work. I credit Adolphson. I can see no logic in Seward's version. 241 NLRB No. 8 HARDWICKE CHEMICAL CO. DECISIONS OF NATIONAL LABOR RELATIONS BOARD He received a call to come to the plant on Tuesday, and on that day he was told he was terminated for being late and for absenteeism. According to Seward, Whitley told him he was a bad influence on the Company and the employees. 11. ANALYSIS AND CONCLUSIONS The complaint alleges that Sutton and Seward were dis- charged because of their union activities. According to the evidence, both were present at a representation hearing in April 1977, assisting the Union in the organizational cam- paign then in progress. As noted earlier, according to Sut- ton, he became active in a new campaign in 1978, signing a card and soliciting signatures. Seward signed a card and claimed he was as active as Sutton. Respondent's officials admitted knowing of Sutton's and Seward's prounion senti- ments, but denied any knowledge of their 1978 activities. However, knowledge may be imputed to Respondent from Sutton's undenied testimony that he told supervisor John Hayes (about February 15) that it was about time to start the Union again. Moreover, Vice President Wilhelm Frings admitted hearing a rumor of the resumption of organiza- tional activity and candidly admitted it was reasonable to assume those previously in favor of the Union still were. In the circumstances, the inference is warranted, and I find, that Respondent had knowledge of Sutton's and Seward's renewed union activity at the time they were terminated. Of course, the fact that Sutton and Seward were active on behalf of the Union and that Respondent knew it does not mean that their discharges were therefore unlawful. Em- ployees who engage in union activity are not immune from discharge if they give their employer cause for discharge. In this case, it cannot be disputed that Sutton and Seward gave cause for discharge; Sutton by giving a false reason for leaving work early, and Seward for being tardy. Nevertheless, the discharges of Sutton and Seward may be found to have been violative of the Act if, in fact, the real reason for their discharges is not their misconduct but their union activity. In my judgment, the record contains insufficient evidence to support a finding that the asserted reasons for the discharges were not the real reasons. Apart from the fact that both Sutton and Seward gave cause for discharge by their conduct, there is the fact that there is no evidence that they were treated disparately. To the con- trary, the record indicates that contemporaneously with Sutton's discharge one Thomas Gates was discharged for lying about the reason for his absence, and about 9 months earlier another employee had been discharged for lying about the same thing. In Seward's case, there is the testi- mony of Frings that he did not think there was any em- ployee with a worse record than Seward who was not dis- charged. His testimony was corroborated by Whitley. This testimony was in no way impeached. It is supported by the fact that twice before March 20, 1978, Seward had been disciplined because of his attendance, once by a 2-week layoff and another time by a 5-day suspension. In addition, according to Williamson's recollection, he had spoken twice to Seward after his last disciplinary action regarding attend- ance. Why, then, was he not discharged earlier? Seward was an excellent operator and Frings and Williamson indicated that his attendance was tolerated in the past because Re- spondent was shorthanded. With an increase in work force, albeit not fully staffed, it could afford to discharge him when he continued being tardy. It is noteworthy, in this connection, that according to Seward's own testimony on the day he was late, Adolphson told him if he let him get away with coming in late, the new employees would do likewise. In the final analysis, General Counsel's case is predicated on Respondent's animus against unionization of its employ- ees, an animus admitted by Respondent. However, at most, this would establish that Respondent welcomed the oppor- tunity to discharge Sutton and Seward, and the Board has clearly stated that this is insufficient basis to find a pretext where cause for discharge has been shown and the action is consistent with the employer's policy and practice. Klate Holt Company, 161 NLRB 1606, 1612 (1966). General Counsel's animus argument goes beyond a con- tention of a mere opposition to unionization by Respon- dent. Rather he contends, and the complaint alleges, that Respondent engaged in 8(a)(l) conduct. This contention is predicated on testimony of Sutton that in September 1977, during a periodic job review, Whitley told him that he would be receiving $4.90 an hour, plus shift differential, and added, "If you've got any problems in the plant, you come see me. Don't go see the union man, because he will not have a union here if we have to close the plant down." Sutton testified that Whitley also told him that if he be- haved himself by not taking part in union activity he would be making $5.20 an hour by February 1. 1978. Whitley admitted that there was such an interview as Sutton described, and that he told Sutton if he had any problems to come to see him. He denied, however, saying that Sutton was not to go to the union man, or that the plant would close if the Union came in, or that he would get a raise if he did not cause any trouble. I credit Whitley. He appeared to me to be truthful. Insofar as the promise of the raise was concerned, it is clear from Respondent's Ex- hibit I that Sutton would not have been in line for a raise until about April 1. As to Sutton's credibility, there is the undisputed fact that he was given to falsify facts to suit his purposes, as shown by his giving a false reason for leaving work early on March 16 and by his falsification of a work record in Feb- ruary 1977.' Also proffered in support of a finding of discrimination is the testimony of Sutton that in June 1977, then Supervisor Willie Brown told him that he had been in the office with Respondent's president, Dr. Hardwicke, Vice President Wilhelm Frings, and attorney Gignilliat, where he was told that if the Union came in they would fire him. Brown also told Sutton that they knew Sutton was a union man and they were going to fire him, Seward, and others because they were troublemakers. Brown was discharged in Octo- ber 1977, and, according to Sutton, Brown told him that Frings had said that Sutton was the next one in line to be fired because he was a troublemaker, always starting union activities. In April 1978, Brown'gave an affidavit to an agent of the *Resp. Eh. 6. As to the incident to which the exhibit relates, I credit Williamson whose detailed testimony on the subject persuaded me of his credibility. 60 HARDWICKE CHEMICAL CO. Board wherein he stated that in May, Vice President Frings told him they were going to get rid of the employees respon- sible for the Union, but they could not do it right then. Another supervisor, unnamed, assertedly told Brown that Sutton, Seward, and others would be fired. Brown died be- fore the hearing, and his affidavit was proffered by General Counsel as an admission by a party-opponent pursuant to Rule 801(d)(2)(d) of the Federal Rules of Evidence. Inas- much as Brown was not a supervisor when he gave the affidavit, I deem the rule to be inapplicable and, absent a showing of some other ground of admissibility, I hereby reject General Counsel's Exhibit 4. But even were I to re- ceive the affidavit, I would not accord it any probative weight as against the testimony of Frings who denied ever stating that Respondent would fire employees because of their union activities.' As to Sutton's testimony of Brown's statements to him, Frings corroborated it in part because he admitted talking to Brown about union activities, but it was about Brown's union activities. As to that, Frings told Brown that he would be fired if he continued his union activities. Respon- dent could so warn a supervisor. That part of Brown's state- ment to Sutton in June 1977, about Respondent discharging him, does not appear to have been a quote of remarks to Brown by Frings, but an expression of opinion by Brown. In his October 1977 conversation, Brown did state that Frings said Sutton was next in line to be fired; but, assum- ing that Sutton was credited on the point, I would not give weight to Brown's report to Sutton as against Frings' testi- mony. In this connection, it is noteworthy that in or about January 1978, Sutton was involved in an incident where his credibility was in issue; yet, despite the alleged threat at- tributed to Frings, Respondent did not use the incident to fulfill the threat. Seward also had a job review in October 1977. He re- ceived a raise to top rate for his classification. He testified that in the discussion with Whitley, Whitley told him that he did not want a union and if Seward had any grievances to come to him and he would see what he could do about it. Hardwicke did not testify as he was in Europe at the time of the hearing. I draw no adverse inference from his failure to testify, nor do I draw an adverse inference from the fact that attorney Gignilliat did not testify. Whitley also told Seward that he was a bad influence on the employees, and if he changed his ways he would probably be promoted to supervisor. Whitley admitted expressing his opposition to the Union and telling Seward, and other em- ployees, that if they had problems to come and see him. He further stated that he told Seward he had a bad attendance record and a bad attitude toward management; that if he worked out his attendance problems, there was a possibility for promotion. In my judgment, whether Whitley used the term bad influence or bad attendance is immaterial. In ei- ther event, Seward was tardy on Saturday and, as noted earlier, the record does not indicate that in discharging him for such tardiness Respondent was treating him in disparate fashion. For all the foregoing reasons, I shall dismiss the com- plaint in its entirety. CONCLUSIONS OF LAW I. Respondent, Hardwicke Chemical Company, is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 465, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. General Counsel has failed to establish by a prepon- derance of the evidence that Respondent has engaged in conduct violative of Section 8(a)(I) and (3) of the Act, as alleged. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 6 The complaint is dismissed in its entirety. 6 In the event no exceptions are filed as provided by Sec. 10 2.46 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 he deemed waived for all purposes. 61