Mandrel Industries, Inc.

MANDREL INDUSTRIES, INC. Mandrel Industries , Inc. and District 37, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 23-CA-2562. June 22,1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On April20^ 1967, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged and recommending that the complaint herein be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed a brief in support of the Trial Examiner's Decision and a reply brief to the General Counsel's exceptions and 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 of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.1 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. The General Counsel's exceptions to the Trial Examiner's Decision are in large part directed to the credibility resolutions of the Tnal Examiner. We will not, however, overturn a Trial Examiner's resolution of credibility issues unless the party excepting to such finding demonstrates by a clear preponderance of the relevant evidence that they are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A 3) The General Counsel, in our opinion, has not satisfied that burden here TRIAL EXAMINER'S DECISION LLOYD BUCHANAN, Trial Examiner: The complaint herein (issued January 27, 1967; charge filed November 21, 1966), as amended, alleges that the Company has violated Section 8(a)(3) of the National Labor Relations Act, as amended, 73 Stat. 519, by discharging Russell D. Buchner and Larry Brown on or about September 27, 1966, and Frank P. Holmes on or about September 30, 1966, and failing to reinstate them, because 785 of their union or other concerted activities; and Section 8(a)(1) of the Act by said alleged acts and by threatening and interrogating employees in connection with union activities. Admitting the allegation that the employees were discharged, the answer as amended denies that the discharges were effected because of concerted activities. A hearing was held before me at Houston, Texas, on February 28, 1967. Pursuant to leave granted to all parties, briefs have been filed by the General Counsel and the Company. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as a Michigan corporation and the nature and extent of its business are admitted; I find and conclude accordingly and also that it is engaged in commerce within the meaning of the Act. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. II. THE ALLEGED VIOLATIONS OF SECTION 8(a)(1) AND (3) At the close of the General Counsel's case, the evidence concerning the alleged discriminatees' union activities was admittedly thin. Buchner, a sheet metal mechanic, had testified that: Immediately after the end of his own day shift on September 26, the day before his discharge, he had received some union cards from a night-shift welder, Everett, who was passing them out; he signed one at his car in the parking lot, and mailed it from home that evening; and the next day Wilson, a machine shop boy, asked him for some cards and he got them from Kronenberger, a day-shift welder, at the locker which the latter shared with Everett. Unlike the other two alleged discriminatees, Brown, another sheet metal mechanic, had worked for the Company a long time, having been hired in 1961. He testified that he signed a card and "gave a few out," getting them he thought from Everett, not from Kronenberger, and on the day of his discharge. When it was pointed out to him that this would have been at the end of his shift and after he had been discharged, he concluded that he had gotten them from Kronenberger or from someone else in the welding shop; he did not remember from whom, but he got the cards. He was not pressed concerning the persons to whom he allegedly distributed cards. Holmes' concerted activities consisted of the following: He saw Everett distributing cards on September 26; he then saw cards "just sitting around" in a locker, helped himself to one, took it home, signed it, but did not send it in; he lost it ! If he signed another card and turned it in, it was quite as privately done. We shall return to his further testimony concerning union cards. The testimony suggests that Everett was the leader in such union activities as occurred, and was known as such to the Company on September 27. Whatever became of him, he was not discharged on that day, nor apparently at any time, because of union activities. 165 NLRB No. 115 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beyond this, it has not been shown that the Company knew or suspected that the alleged discriminatees had engaged in protected concerted activities. The General Counsel left us with the possibility of an inference under the cases based on the timing of the discharges and alleged reference to, questioning concerning, and threat with respect to union activities. We come now to the testimony concerning the alleged interference and concerning the discharges and the reason therefor. Shortly before quitting time on September 27, Buchner and Brown went into Foreman Malone's office and asked (Buchner was spokesman throughout) whether it was true that they were being checked out of the tool crib and were being discharged. Malone replied in the affirmative and told them that it was because of their excessive talking. Buchner questioned this and claimed that they were being discharged for union activities, and he allegedly also referred to union cards which Malone had earlier removed' from the welder's locker after Kronenberger had told him about them and asked him to pick them up. In this testimony Buchner was too obviously attempting to connect the discharges with some element of union activity. There is absolutely no connection between the cards in Kronenberger's locker and Malone's removal of them, on one hand, and Buchner or Brown on the other. Buchner now declared that he wanted to speak with Knight, the department manager, who was paged and joined them in Malone's office. Asked the reason for the discharges, Knight replied, as Buchner testified, that they were made on Malone's recommendation and because of excessive talking. Whether or not Buchner again claimed that they were prompted by union activities, it being denied that he said that to Knight, is of slight moment. As independent interference and to support the claim of discrimination, Knight is alleged to have said at this point that he did not need union help, there would never be a union in the plant as long as he was there, and he would fire anyone who tried to get a union in; and to have unlawfully interrogated Buchner by asking, when the latter said that he had the wrong man, who the right man was. I credit Knight's denials and his further denial that he told them to return in 30 days if they had learned their lesson. Having observed Knight, and bearing in mind that Buchner and Brown had previously been told by Malone that they were discharged and that this had already been confirmed by Knight, I have no hesitancy in adopting the latter's expression that he would "hardly" have spoken as now claimed, however convenient such interference and admissions of discriminatory purpose (even if misdirected) might be to the General Counsel. I find and conclude that Knight did not threaten or interrogate as alleged. Returning to Holmes, a welder, he saw Buchner and Brown distributing union cards at plant exits on September 28. He talked with Brown about 30 minutes and, after deciding that it would be better to talk down the road, they talked at the parking lot, where Holmes received about 50 cards. He testified that he distributed six or eight and placed the remainder in a bag on his layout desk and then in his locked box overnight; during lunchtime on the 30th a new boy asked for an envelope for his union card (we don't even know whether Holmes had given him the card or had otherwise used any of the contents of the bag); and he went to get one, and spilled about 10 cards and envelopes on the floor. This occurred near the desk of the lead foreman, a rank-and-file employee, "and everybody was standing there." Although Holmes "started to look to see if anybody was looking," as he testified he apparently had before he dropped the cards, there is no evidence that any supervisor observed this. Before quitting time on September 30, Malone called Holmes into his office and told him that he was being discharged because of excessive absenteeism and tardiness, and repeated the reason when Holmes asked whether that was the real reason or whether it was because of union activities. The Company's case did not bolster the General Counsel's with respect to evidence of either union activity by these three or company knowledge thereof. Any suspicion or possible interference based on timing of the discharges was dispelled by evidence that production at the plant had been and was falling off and that employment was being cut down overall in the department, even while there were hirings in some categories. Under such conditions, the explanation that the Company discharges marginal employees who might otherwise be kept on is quite reasonable and credible. Nor has there been any great problem in resolving whatever credibility issues were presented by the charges of excessive talking by Buchner and Brown, and absenteeism by Holmes. The first two, interfering with the work of others and in violation of safety rules, talked to each other and to other employees. It does not appear that any of the others so engaged spent as much time talking. Both Brown and Buchner had been warned, and the latter had been rehired after quitting, with a limiting notation which Malone connected with the reason now given for his discharge, and long before the commencement of union activities. Malone had spoken several times to Brown and many times to Buchner about walking around and talking to each other and to other employees; he did this several times after Knight called his attention to it; he had given them a "final warning" during the preceding week and, when on September 27 they talked more than ever before, he obtained Knight's concurrence that they be discharged. Buchner told us variously that he had not been talking too much and had not talked with Brown on September 27; then that he did talk with Brown during working hours that day and that he "talked to about everybody in the shop during the course of the day." Holmes' attendance record was negatively second to that of one other employee, who had been discharged a few months before. It was very poor and Malone had spoken to him about it several times, the last in August. On the morning of September 30, when Malone checked the timecards for the day before, he noted that Holmes had again been late on the 29th. He spoke to Knight, who concurred that Holmes be discharged. I do not credit Holmes' testimony that he had been in a car wreck and therefore delayed earlier that week and that, without reprimanding him, Malone and Knight had merely told him to be careful. He did not recall that he had been late 1 hour on the 29th although this appears on the Company's record, or that he was late any other day in September although the record shows three latenesses in addition to one half-day absence because of illness. This was of a I This is not claimed to have been violative MANDREL INDUSTRIES, INC. 787 piece with Holmes' attempt in a statement to the Union to RECOMMENDED ORDER embellish his position ; despite striking details, he reversed himself in a subsequent statement. Upon the basis of the foregoing findings of fact and I find and conclude that these discharges were for cause conclusion of law, and upon the entire record in the case, I and not discriminatory. recommend that the complaint be dismissed in its entirety.