Fayette Manufacturing Co.

FAYETTE MANUFACTURING CO. Fayette Manufacturing Company and Amalgamated Clothing Workers of America, AFL-CIO. Case 10- CA-8246 January 11, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On July 29, 1970, Trial Examiner Joseph I. Nachman 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 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 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 brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board, as modified herein, adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Fayette Manufacturing Company, Fayette, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order as so modified: 1. In footnote 12 of the Trial Examiner's Decision, substitute "20" for "10" days. 2. Substitute the attached notice as Appendix for that recommended by the Trial Examiner? I The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were mcoirect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C A 3) We find no such basis for disturbing the Trial Examiner's credibility findings in this case 2 Considering the nature of the violation found, this notice is adequate to effectuate the policies of the Act 775 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We, Fayette Manufacturing Company, discharged Wyleen Hamner on March 19. After a full trial in which all sides had an opportunity to present their evidence, the National Labor Relations Board has found that: 1. Wyleen Hamner's discharge occurred because we believed, in good faith, that she had engaged in misconduct in the course of soliciting membership in the Amalgamated Clothing Workers of America, AFL-CIO. 2. The evidence at the trial failed to demonstrate that Wyleen Hamner had in fact engaged in this misconduct, and therefore the Board has found that her discharge violated the National Labor Relations Act. WE WILL therefore carry out the order of the Board and offer Wyleen Hamner her old job back or, if that job no longer exists, a substantially similar job, with full seniority, and WE WILL make up to her the pay she has lost, with 6 percent interest. Dated By FAYETTE MANUFACTURING COMPANY (Employer) (Representative ) (Title) We will notify immediately the above-named individ- ual, if presently serving in the Armed Forces of the United Staes, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, Peachtree Building, Room 701, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 404-526-5760. 187 NLRB No. 85 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner: This proceeding tried before me at Fayette, Alabama, on June 4,1 with all parties present and represented by counsel, involves a complaint 2 which alleges that on March 19, Fayette Manufacturing Company (herein Respondent), discharged and thereafter failed and refused to reinstate its employee Wyleen Hamner because of her membership in, and activities on behalf of Amalgamated Clothing Workers of America, AFL-CIO (herein the Union), and because she engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection. By answer Respondent admitted certain allegations of the complaint, including the discharge of Hamner, but denied the commission of any unfair labor practice, contending that her discharge was for cause. Decision of the case turns on whether, as Respondent contends but the General Counsel denies, Hamner in a telephone conversation with a fellow employee threatened the latter with injury to her person and property unless she signed a union card. For reasons hereafter stated, I find the allegations of complaint sustained by the evidence and recommend that Hamner be reinstated with backpay. At the trial all parties were afforded full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally on the record, and to submit briefs. Oral argument was waived. Briefs submitted by the respective parties have been duly considered. Upon the pleadings, stipulations of counsel, the evidence, including my observation of the demeanor of the witnesses while testifying, and the entire record in the case, I make the following- FINDINGS OF FACTS In the late fall of 1969, the Union began a campaign to organize Respondent's employees, in which Wyleen Hamner participated. In late December or early January, Hamner, while visiting at her sister's home, telephoned her fellow employee Coleen Everette and asked the latter how she felt about a union in the plant.4 Everette replied that she had not given the matter much thought and would have to discuss it with other employees, but that she was ill with the flu and was in bed. Hamner then apologized for disturbing Everette, expressed the hope that Everette would soon feel better, and concluded the conversation on that note.5 Everette testified that about 8:30 the following morning (January 9), she received another telephone call. On this occasion the caller did not identify herself, but said, "Are you still not interested in the Union." When Everette replied that she did not know what good the Union would i This and all dates hereafter mentioned are 1970, unless otherwise stated 2 Issued April 27 on a charge filed and served March 23. 3 No issue of commerce or labor organization is presented The complaint alleges and the answer admits facts which establish these elements I find those facts to be as pleaded 4 Hamner and Everette had known each other since 1945, when they were in high school together They lived in different sections of the county, and while both had worked in the plant for about 9 years, they had very do her, the caller stated, according to Everette, "I guess you know if you are not for the Union, that something could happen to you or some member of your family, or some of your property." According to Everette, she replied that she was not aware of that fact, and hung up the telephone. Everette also testified that between January 9 and March 22, she received a number of telephone calls "at all hours of the night, especially on the weekends," but when she answered, the caller would say nothing. Although Everette did not affirmatively state that Hamner was responsible for the last mentioned calls, she apparently was desirous of leaving the impression that she considered such to be the fact According to Everette, neither the call on January 9, nor the subsequent calls, were mentioned by her to anyone until March 17, when she told Axilee Davis, her line supervisor: .. . that I was getting tired of these people that was for the Union a-pressing me, and that I had something to tell her that I had been keeping back a long time, and I had to get it off me and let someone else share my load with me.. . When Davis asked what the problem was, Everette told her about the telephone call she had received from Hamner the evening of January 8 and about the call on the morning of January 9, and that Hamner was the person that called on the morning of the 9th. Everette also told Davis about the calls she received in the interim, when the caller would not say anything.6 The following morning (March 18), Supervisor Davis directed Everette to report to the office of Plant Manager Thigpen. There, Thigpen brought up the subject of the two telephone calls, and Everette repeated what she had theretofore told Supervisor Davis. Thigpen admits that in this conversation Everette stated that she "thought" the caller on January 9 was Hamner, or that "it sounded" like Hamner, and that he informed Everette that in a matter of this nature she had to be certain, and that Everette them responded that "she was sure it was Wyleen Hamner's voice." Thigpen asked if Everette would testify to the facts she had related, and when she replied in the affirmative, the conversation ended. The following morning, after first calling his labor counsel and being told to be certain of his facts, Thigpen called Everette back to his office and, according to Everette, asked her if she was certain that the voice of the person that spoke to her on January 9 was that of Hamner, and pointed out that because of the seriousness of the accusation, "I couldn't think, that I would have to say that I was sure, so that I could be sure." 7 Following the second conversation with Everette, Thigpen summoned Hamner to his office where he little contact 5 To this point the testimony given by Hamner and Everette is in accord, except that Everette fixed the time of this telephone conversation as the evening of January 8, rather than just prior to Christmas as Hamner testified I find it unnecessary to resolve this conflict s Davis did not testify 7 Everette fixed the time of this conversation as the afternoon of March 18, rather than the morning of March 19. as Thigpen testified Again, I find it unnecessary to resolve the conflict FAYETTE MANUFACTURING CO 777 informed the latter that it had been reported to him that in a telephone conversation she had threatened Everette 8 Hamner admitted that she had telephoned Everette, but denied that she made the second call, or that she had threatened Everette in any way Thigpen admits that Everette and Hamner gave him basically the same story, except that Hamner claimed there was only one call and denied that she at any time threatened Everette Thigpen also admits that upon the conclusion of his conversation with Hamner he terminated her and that his sole reason for doing so was that she had threatened Everette Following her discharge, Hamner returned to the work area of the plant for her personal belongings and there asked Everette why the latter had made a false charge against her causing her to lose herjob Everette insisted that Hamner had called her Hamner replied that she had called, but had made no threat According to Hamner Everette replied, "Well, I thought you did " Everette admits this conversation, but claims that when Hamner stated she had not threatened Everette, she turned and walked away, and that she (Everette) did not make the statement last above quoted Everette admits that after the January 9 telephone call and prior to Hamner's discharge, a number of her fellow employees, but not Hamner, approached her from time to time about signing a union card, and that this annoyed her When asked to explain why she waited almost 2-1/2 months to report the threatening telephone call, Everette explained that she did not want to stir up any trouble at the plant and felt that if she kept quiet the anonymous calls would die down She admitted, however, that she threatened to punish her teenage daughter for the anonymous phone calls if they did not cease She further explained that the telephone threat made to her on January 9 caused her great anxiety for the safety and well-being of members of her family, particularly her daughter who at times went out at night There is no evidence, however, that she at any time sought to limit her daughter in going out in the evening, or that she took any steps to insure her daughter's safety In NLRB v Burnup and Sums, Inc, 379 U S 21, the Supreme Court held that Section 8(a)(1) of the Act is violated if it is shown that the discharged employee was at the time engaged in protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct [379 U S at 231 The record clearly establishes-indeed Respondent does not question-that Hamner was engaged in soliciting a signature to a union card, plainly an activity protected by Section 7 of the Act, that Respondent was aware of that fact, having been so informed by Everette, that Hamner was admittedly discharged by Respondent solely and only because in the course of such solicitation she threatened Everette with possible injury to her person or property Thus, the only question to be decided is whether Hamner did in fact threaten Everette, for if she did not, as the Supreme Court's decision in Burnup and Stns, supra, makes clear, her discharge for that reason was a clear violation of Section 8(a)(1) notwithstanding Respondent's good-faith belief that Hamner had in fact threatened Everette The problem thus posed is one of evaluating the credibility of the evidence given by Everette that a threat was made to her by Hamner in the telephone conversation on the morning of January 9 against that of Hamner who denies that she telephoned Everette that morning, and hence did not threatene Everette in any respect Unfortunately, in determining credibility issues, a trier of fact does not have the benefit of any test that may be applied with absolute certainty that the result reached will be correct Under our judicial system, all that a trier of the facts can do is to give due consideration to, among other factors, the demeanor of the witnesses, their apparent candor and frankness, their bias or interest, or the lack thereof, the probability of the truth of their testimony, and upon considerations of all relevant factors, give credit where credit appears to be due After careful consideration of the testimony, and without imputing any improper motive to Everette, I have concluded that I must credit the testimony of Hamner that she did not telephone or threaten Everette on January 9, as the latter claims I base this conclusion upon the totality of the following considera- tions 1 In the first telephone conversation on the evening of January 8, Everette admittedly told Hamner that she had not given much consideration to the matter of the Union and would have to discuss it with other employees before reaching a decision, and she was in bed ill with the flu Not only is it highly improbable that Hamner having received that information would have called back early the next morning, but it is even more improbable that Hamner would have opened the conversation by asking, "Are you still not interested in the Union", and that Everette would have responded as she admittedly did, that she saw no benefit to her from the Union 2 Everette's delay of nearly 2-1/2 months in reporting the alleged threat to anyone I deem it most improbable that she would have delayed that long in reporting the alleged threat if, as she claimed , she was so concerned about the safety of her family Her explanation for the delay-that she did not want to stir up trouble in the plant and felt the anonymous telephone calls would cease if she remained silent-seems rather weak in view of her admission that such calls continued with some regularity until the Sunday after Hamner's discharge Even her claim that she was in constant fear about the safety of her daughter sounds suspicious in view of her admission that during this period she permitted her daughter to go out at night without taking any precautions for her safety 3 The admission by Plant Manager Thigpen that when he first spoke with Everette about the matter, that the latter stated that she "thought" the person who called on January 9 was Hamner, or that it "sounded" like Hamner When this fact is considered along with Everette's admission that 8 In so stating Thigpen referred to Everette by her given name of was that she assumed that Thigpen was referring to another person named Coleen Hamner at first denied having made such a telephone call but Coleen and not until Thigpen mentioned the name Coleen Everette did later admitted making the first call She testified that the reason for this she fully understand to whom he was referring 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was not until Thigpen told her, "I couldn't think, that I would have to say that I was sure, so that I could be sure," and that it was not until then that she told Thigpen that she was certain that the caller on January 9 was Hamner,9 Everette's identification of the caller on January 9 becomes, to say the least, suspect. Accordingly, and for the reasons stated, I find and conclude that by discharging Hamner because it erroneous- ly believed, albeit in good faith, that she had threatened Everette as above indicated, Respondent interfered with, restrained, and coerced Hamner in the exercise of rights protected by Section 7 of the Act, and thereby violated Section 8(a)(1) of the Act. N.L.R.B. v. Burnup and Sims, Inc., supra. 10 Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: recommended that Respondent be required to preserve and, upon request, make available to authorized agents of the Board, all records necessary or useful in determining compliance with the Board's order, or in computing the amount of backpay due. Because of the character of the unfair labor practices found, which go to the very heart of the Act, I shall recommend 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 by Section 7 of the Act. N. L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4); California Lingerie, Inc., 129 NLRB 912, 915. RECOMMENDED ORDER CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and 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. By discharging Hamner because of her concerted activities for the purpose of collective bargaining or other mutual aid or protection, Respondent interfered with, restrained, and coerced Hamner in the exercise of rights protected by Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found Respondent engaged in certain unfair labor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action found necessary and designed to effectuate the policies of the Act. Having found that Respondent discharged Hamner because she engaged in activity protected by Section 7 of the Act, I shall recommend that Respondent be required to forthwith offer her full and unconditional reinstatement to her former position, or if that is not available, to a substantially equivalent position, without prejudice to her seniority or other rights, privileges, or working conditions, and make her whole for any loss of earnings suffered by reason of her discharge, by paying to her a sum of money equal to the amount she would have earned as wages from March 19, 1970, to the date Respondent offers her reinstatement as aforesaid. Backpay with interest at the rate of 6 percent per annum, shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. It will also be Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Fayette Manufacturing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging any employee for engaging in concerted activities protected by Section 7 of the National Labor Relations Act. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Offer Wyleen Hamner immediate, full, and uncondi- tional reinstatement to her former job, or if that job no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights, privileges, or working conditions, and make her whole for any loss of earnings she may have suffered, in the manner set forth in the section entitled "The Remedy." (b) Notify Wyleen Hamner, if presently serving in the Armed Forces of the United States, of her right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve, and upon request, make available to authorized agents of the National Labor Relations Board, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in determining compliance with this order, or in computing the amount of backpay due. 9 I do not rely on the fact that, according to Hamner, after her 10 Having reached this conclusion, it becomes unnecessary to decide termination, when she accused Everette of making a false charge against whether, as the General Counsel and Charging Party contend, Respondent her, that Everette replied, in effect, that she thought Hamner was the one also violated Sec 8(a)(3) of the Act Burnup and Sims, supra In either who called , because Everette denied that she made such a statement , and I event, the remedy would be the same find it unnecessary to resolve the specific conflict FAYETTE MANUFACTURING CO. 779 (d) Post at its Fayette, Alabama, plant copies of the attached notice marked "Appendix."" Copies of said notice, on forms to be furnished by the Regional Director of Region 10, shall, after being signed by an authorized representative, be posted immediately upon receipt thereof, and 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 to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps it has taken to comply herewith.12 I I 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, recommendations, 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 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" 12 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith "