Varco Steel, Inc.

VARCO STEEL, INC. 689 Varco Steel, Inc. and International Union of Operat- ing Engineers, Local 382, AFL-CIO. Case 26-CA-2950 June 27, 1968 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On April 10, 1968, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceed- ing, finding that Respondent had not engaged in certain unfair labor practices alleged in the com- plaint and recommending that the complaint be dismissed , as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Respondent filed cross-ex- ceptions.' 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 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, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. alleging that Respondent had violated Section 8(a)(3) and (1) of the Act by the discharge of an employee, Walter Davis, and Section 8(a)(1) of the Act by the conduct of two supervisory employees in engaging in surveillance of union activities of the employees on two separate occasions and by inter- rogation of an employee. Respondent's answer de- nied the commission of any unfair labor practices. All parties were represented at the hearing held in Pine Bluff, Arkansas, on February 16 and 17, 1968, and had an opportunity to present evidence and examine witnesses. The parties waived oral ar- gument; excellent briefs have been received from the General Counsel and Respondent. Upon the entire record in this case and my obser- vation of the witnesses and in consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent is an Arkansas corporation engaged, at its Pine Bluff, Arkansas, plant, in the manufac- ture and erection of preengineered metal buildings. Respondent during the 12 months immediately preceding issuance of the complaint sold and shipped its product valued in excess of $50,000 from its Pine Bluff, Arkansas, plant directly to points located outside the State of Arkansas, and during the same period received at its Pine Bluff, Arkansas, plant goods valued in excess of $50,000 directly from points outside the State of Arkansas. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. ' In view of our Decision herein , we find it unnecessary to consider Respondent's cross-exceptions TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E . WEIL, Trial Examiner: Upon a charge filed December 4, 1967, by International Union of Operating Engineers , Local 382 , AFL-CIO, hereinafter called the Union, against Varco Steel, Inc., hereinafter called Respondent, the General Counsel issued a complaint on January 12, 1968, 172 NLRB No. 85 H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Respondent prefabricates metal buildings in its plant in Pine Bluff.' In the manufacture of these metal buildings Respondent employs some 90 em- ployees, divided, at the time herein concerned, into four departments, each under the supervision of a foreman. The frame department, under Foreman John Johnson, is subdivided into three sections, each in the custody of a leadman as follows: the shear section under Leadman Kentle, the auto-weld under Leadman Haynes, and the welders under Leadman McBee.2 ' Respondent has other plants located in North Carolina and Wisconsin, and since the filing of the charge in the instant case has become a subsidi- ary of Fuqua Industnes. The other plants, and Respondent's ownership by Fuqua Industries, have no bearing on the matters alleged and litigated herein 2 McBee was made a foreman in January 1968 354-126 O- LT - 73 - pt. 1 - 45 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The employees of Respondent are not represented by a labor organization. In mid-Sep- tember 1967, the Charging Party's organizer, H. D. Mayfield, gave employee Walter Davis authoriza- tion cards to sign and to distribute . Davis dis- tributed some to William Davis and some to Lead- man Kentle. In addition Davis himself got two em- ployees named Hale to sign cards. Union meetings were held October 12, 19, and 26 and November 8 and 29, all in 1967. The first meeting was held at Walter Davis' home and at- tended by 12 or 13 employees. The October 19 meeting was announced by distribution of handbills or pamphlets which invited all hourly rated em- ployees to attend the meeting. Foreman Johnson received one of the handbills and together with Robert McBee attended the meeting . Employee Walter Davis arrived late, and , looking inside, noticed McBee and Johnson and returned home without attending the meeting. The meeting of November 8 was held at the Car- penters union hall which is situated diagonally across an intersection from a restaurant known variously as Tommy's Place and the Poplar Street Drive-In. Walter Davis testified that when he ar- rived at the Carpenters hall he saw an automobile belonging to Dale Hendrix, Respondent's vice pres- ident of production and operations, parked in front of the restaurant across the street. He did not testify that he saw Hendrix. George Connor testified that when he arrived at the meeting he saw Hendrix's car, and when he left the meeting he saw Hendrix inside the restaurant. He testified also that he was accompanied by Larry Connor arriving at the meeting and by Larry Connor and Ted Rannen- berg when he left the meeting. Larry Connor testified that when he arrived at the meeting with his brother he saw Hendrix's car parked in front of the restaurant and saw Hendrix inside the restau- rant. He testified that when he left the meeting with his brother, he saw Hendrix standing outside the restaurant and apparently alone. Ted Rannenberg testified that he did not see Hendrix when he ar- rived at the meeting but that when he left, im- mediately before the Connor brothers, he saw Hen- drix and Leadman McBee standing outside the restaurant. Organizer Mayfield testified that he was told by "the Connor boys" that Hendrix's car was parked outside, and he went down with them and one of the Connor boys, he did not recall which, pointed out Hendrix and McBee inside the restau- rant. Vice President Hendrix testified that he was in fact in Tommy's Drive-In that evening from some- time before 7:30 until 9 or 9:30, which embraces the times reported by the General Counsel's wit- nesses. Hendrix testified that he was at the restau- rant at the request of a friend, Ferrell Megee, to discuss a hunting trip which Hendrix and Megee were taking for a week commencing the following Saturday. Hendrix testified that he was not aware of the fact that a union meeting was held across the street that evening. Hendrix's testimony is sup- ported by that of Mr. Megee as well as by testimony of Tim Massanelli and Gene Roberts, local merchants who were also present.4 General Counsel would have me find that McBee was present on this occasion and that McBee and Hendrix engaged in surveillance of the union meet- ing at Carpenters' hall. Only Rannenberg and Mayfield testified to seeing McBee. Rannenberg testified that he was outside, Mayfield that he was inside. Larry Connor testified to seeing Hendrix outside alone after the meeting, while his brother George who was with Larry testified to seeing Hen- drix inside the meeting and did not testify to seeing McBee. Further Mayfield testified that one of the Connor boys pointed out McBee, along with Hen- drix, inside the restaurant before the meeting started , whereas neither of the Connor brothers testified to pointing out either Hendrix or McBee to Mayfield before the meeting, and George Connor testified that he did not see Hendrix before the meeting, while Larry Connor testified that he saw Hendrix and could identify no other persons inside the restaurant before the meeting. Under these cir- cumstances I cannot find that McBee was present. Further, in view of the confusion in the evidence adduced by the General Counsel, I cannot reach the inference suggested by the General Counsel that Hendrix was present at the restaurant for the purpose of surveillance over the express denial of Hendrix and the logical and supported assertion of Hendrix that he was in fact there to plan a hunting trip.5 I therefore shall recommend that the com- plaint be dismissed insofar as it alleges surveillance by Hendrix and McBee of the union meeting on November 8. The 8(a)(3) Allegation November 10 was payday. The employees of Respondent are paid by check. When Walter Davis left work he went to a nearby liquor store, where he cashed his check and bought a half pint of whiskey. He testified that McBee was present in the liquor store, cashing his check and buying whiskey at the same time. He went home and, together with two other persons, drank his bottle of whiskey, replenished the supply with another half pint, and ' It appears that all employees under the plant superintendent , including the foremen , are hourly paid ' Hendrix , Megee , Massanellt , and Roberts all concurred in their testimony that Wednesday night in Pine Bluff , Arkansas , is "boys night out," resulting perhaps from the fact that it is "stag night " at the local country club of which Massanelli is the president They testified that generally the men of Pine Bluff gather at various restaurants and night spots as well as the country club on Wednesday evenings to drink, play poker, and converse Their testimony in this regard was not contradicted s General Counsel adduced no evidence to controvert the testimony of Hendrix and Megee that they left the following Saturday morning for a week of hunting VARCO STEEL, INC. drank that. The following morning, Davis testified, he arose around 5:30 and without breakfast or even a drink of water went to the plant where he checked in at 10 minutes to 6 for work. McBee proceeded at 6 o'clock to the shear on which he worked.' After he worked on the shear for about an hour and 40 minutes, Leadman McBee came to him and told him to go to the back of the plant and help Earl Haynes who was welding flanges. Haynes put him to work moving flanges up to the welding machine to be worked on. After a short time McBee called Davis to "come in," and said "Walter, you've been drinking." Davis denied that he had been drinking that morning, but McBee per- sisted saying that he could smell it and stated that Davis was drunk. McBee told Davis to punch out. Davis proceeded toward the timeclock and met Foreman Johnson, and told him what McBee had told him. Johnson said "If that's what he told you to do, go ahead and punch out." Davis punched out and returned the following Tuesday.' On Tuesday morning he found his card had been removed from the rack. He stood there for a few minutes and was called by Johnson into the office where Johnson told him "The man said let you go, this is the second time you have been here drunk." Davis an- swered, "John, you know I haven't been drunk, you know that." Johnson gave him his papers and told him to get his personal possessions and leave. Johnson's testimony regarding the incident was somewhat different. Johnson testified that on the morning of Saturday, November 12, Leadman Ken- tle came to him a little after 6 o'clock and told him that he thought Walter Davis was drinking. Johnson went to the shear where Walter Davis was working and talked to him, but couldn't tell whether or not he was drinking, so he moved him to another de- partment to work with Haynes so that he could ob- serve 'him through the glass window of the fore- man's office nearby. He testified that he observed Davis for some 45 minutes and "then I could tell that he wasn't maneuvering just right so I went to him. I could smell it when I went to him so I told him to punch out." Johnson testified that he fol- lowed Davis to the clockroom, and Davis didn't punch out when he left, so Johnson signed Davis' timecard indicating in pen that he had left at 8 a.m. Johnson identified the timecard, which in fact in- dicates that it was not punched out but bears the notation "8:00 J.J." The General Counsel contends that Walter Davis was discharged because of his union activities. He argues that the evidence shows that Davis was not in fact drunk or drinking and that the alleged reason for his discharge was pretextuous and alter- natively that, assuming that Respondent had reason to believe that he was drinking or was drunk, Davis was the victim of disparate treatment. In support of " The shear is a heavy machine capable of cutting a 20-foot strip of half- inch steel by means of a falling blade 691 this latter proposition, General Counsel placed in evidence a recordbook kept by Foreman Johnson containing notations of all disciplinary actions taken between September 1, 1966, and the end of 1967, among the employees under Johnson's super- vision. It appears therefrom that during the time in- terval September 1, 1966, through the year 1967, only four employees were guilty of any breach of Respondent's rules other than those connected with attendance. Fifty-one employees were guilty of in- fractions with regard to attendance, of whom I I were discharged, 13 quit, and the remainder ap- parently still are employed. Of the four employees who committed other infractions, only one was discharged, the Charging Party herein. The records show the others as follows: On the page dedicated to Willie Harris the following entries appear: December 3, 1966 "Didn't report for work call in said he had business [sic[ to take care of but was drunk. 12-5-66 report for work given `1' one week layoff. 7-15-67 report for work Drunk given `1' one week layoff." On the page dedicated to James D. Norman the following entry appeared: "12-14-66 given 2-1/2 Days Layoff for abused- ment [sic] to company machine." On the page headed with the name Teddy Ranningberg (presumably Rannenberg) commenc- ing with October 24, 1967, appeared notations of 1 1 or 12 items which apparently constitute work in- correctly done and one notation "Went to Bath Room 5 min's til quitting time." The fourth entry dealt with Davis and states: "11-11-67 Report for work Drunk and was sent back home. and later fired. " It appears that during the time covered by Foreman Johnson's notebook the only incidents of an employee being under the influence of liquor, other than that of Walter Davis, were those re- ported with regard to Willie Harris. In both cases he was given a 1-week layoff. Foreman Johnson testified that in neither of those cases did Harris punch in and attempt to go to work. On the one oc- casion he telephoned and on the other he was met by Johnson at the timeclock and sent home by Johnson. Harris testified that he did not ask John- son why he was sending him home "because I figured he knew I was drunk." Walter Davis testified that when on a prior occa- sion some 2 years before, under the supervision of another foreman otherwise identified as Lester Brazeal, he was accused of being at the plant drunk or under the influence of whiskey, he clocked in and was sent home. Respondent contends that the dereliction of Davis was being on the job under the influence of liquor. Respondent distinguishes his circumstance from that of Harris in that Davis punched the timeclock and commenced operating his machine. ' Monday was a plant holiday because of the opening of the deer hunting season 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because of the danger inherent in the machine, Respondent contends , the rule was strictly applied and Davis discharged. Johnson testified that he enforced all the Com- pany 's rules without disparity . The employee hand- book , distributed to all company employees , recites nine rules the breach of which will subject an em- ployee to immediate dismissal . They include steal- ing, willful destruction of property and deliberate abuse of tools, or wasting materials , fighting, timecard falsification , gross negligence or careless- ness resulting in damage to equipment or property or injury to employees , insubordination , garnish- ment, coming to work with or being under the in- fluence of alcohol or drugs, and falsification of ap- plication . There are in addition seven rules re- peated violation of which will be grounds for dismissal . These include engaging in horseplay, making misleading statements in order to protect a fellow employee , inattention to duties or stopping work before quitting time, tardiness or absenteeism, negligence resulting in excessive scrap or breakage of tools , violation of safety and health rules, and leaving workplace without authorization except for health purposes . Foreman Johnson testified that the only employee he has discharge is Walter Davis and that the only breaches of the rules in his depart- ment are those contained in his notebook. I cannot find that the distinction Respondent al- legedly made between Davis actually going to work under the influence of liquor and Harris merely re- porting and being sent home without commencing work is so inherently improbable that it raises an in- ference of disparity . The other rule violations re- ported in Johnson 's notebook appear to be not among the rules a single violation of which subjects an employee to immediate discharge, but rather among those which provide that repeated violation will subject an employee to discharge . There is no evidence of repeated violation . On the whole, I do not believe that the record will support a finding of disparity of treatment except between the two in- cidents involving the alleged discriminatee. I note however that while Davis contends that he clocked in on the earlier occasion some 2 years before, General Counsel did not call for the production of his timecard on that occasion. I am not inclined to place complete credence in Davis ' testimony that he clocked in, in the earlier instance , in view of his testimony that he clocked out in the later instance while his timecard reveals that in fact he did not. The evidence of disparity in this regard is too insub- stantial to warrant a finding. With regard to the contention of the General Counsel that Davis was not in fact under the in- fluence of liquor, it is clear from Davis' own testimony that he smelled of the whiskey that he had drunk . I can reach no other conclusion from his testimony that he did not even drink water from the time he arose in the morning until his discharge. I note also that while Davis testified he worked for an hour and 40 minutes on the shear and thereafter for a period of time with Haynes on the flanges Johnson 's testimony is that he worked very briefly on the shear and was moved to the flanges where Johnson could watch him. Leadman Kentle testified that while he had only 20 or 30 minutes of contact with Davis on that Saturday morning he could smell whiskey on Davis and "well his reaction was dif- ferent." He testified "Well, he had had a drink or so. I couldn 't just say when he had had it." He also testified that Johnson came to him and asked if he knew that Davis had been drinking and he an- swered "Well yes I did know it because , well, I could smell it on him." I do not credit Johnson . He testified that Kentle first told him that Davis had been drinking , whereas Kentle , whom I credit and who, in testifying, ap- peared to be as sympathetic to Davis as possible under the circumstances , testified that Johnson came to him first . However, I credit Kentle, that Davis showed signs of his alcoholic consumption, over the testimony of Davis that he did not, espe- cially in view of Davis ' confusion over whether he had punched out. There is nothing in the record to reveal that Respondent was aware of Davis' union activities. The only knowledge that I can attribute to Respon- dent stems from the attendance of Johnson and McBee at the meeting of October 19. However, it is clear from Davis ' testimony that Johnson and McBee did not see him at this meeting and there is no other evidence from which I can attribute com- pany knowledge of Davis' union activities. As I have indicated above , I cannot find disparate treatment in the discharge of Davis and I do not be- lieve the evidence preponderates that the reason given for the discharge was pretextual . I shall there- fore recommend that the complaint be dismissed insofar as it alleges a violation of Section 8(a)(3) of the Act. The General Counsel contends that Respondent engaged in surveillance of another union meeting on November 29. The evidence on which General Counsel relies is that Ted Rannenberg , accom- panied by another employee , James Norman, worked until 9 o'clock on the night of the union meeting and thereafter attempted to attend the ,meeting . When they got to the hall they found that it was dark and drove into an ice cream store next door where they purchased ice cream cones after which they drove back toward Norman 's home. As they drove into the ice cream store a truck driven by Leadman McBee, accompanied by Marvin Hester, drove up . As they proceeded down the street away from the ice cream store Rannenberg noticed that McBee 's truck was behind them about 100 yards. It followed them for 15 or 20 blocks when they turned off and they saw it again after proceeding for a block or 2 in a new direction. Marvin Hester testified that he is McBee 's cousin and on the night in question McBee took him to the meeting. When they got to the meeting they found the hall dark and turned around at "the ice cream VARCO STEEL, INC. place " and went back up the street behind Rannen- berg 's car . They turned off Poplar Street after Ran- nenberg did and went by McBee 's father 's house where they slowed down and , seeing no lights, proceeded home . Hester testified that in a conver- sation with Larry Conner he told Conner that they had seen Rannenberg go by and he didn 't stop and that they thereafter followed him. General Counsel contends that McBee was en- gaged in surveillance . It is clear , however, from the testimony of Hester that McBee's presence at the union meeting place after the meeting is accounted for by the fact that he agreed to take his cousin Hester to the meeting . That he saw Rannenberg at that time was clearly fortuitous and that he drove back along the same route was equally so. I can draw no conclusion from Hester's statement that they followed Rannenberg which , in fact, they did, to support an inference of illegality . I do not believe that this constitutes surveillance under any defini- tion of the word . I shall recommend that the com- plaint be dismissed in this regard also. Finally the General Counsel contends that Respondent vio- lated Section 8 ( a)(1) by the action of Robert McBee in asking employee Sammy Thomas, Jr., what he thought about the Union , telling him to check with "the boys in central transformer" and stating that the Company paid good wages but couldn 't pay too much because others would then be able to sell cheaper , and because the material they were building was cheaper . Assuming , without deciding , that McBee is a supervisor , I do not be- lieve that the statements attributed to him con- stitute coercive conduct within the meaning of the 693 Act. The only aspect of the conversation, in my opinion , that falls within the Board 's normal range of disapproval is the inquiry about Thomas' opinion of the Union, the remainder is unexceptionable. The inquiry is not seen against a background of animosity toward the Union and is addressed to only one employee . It is a classic example of an iso- lated incident. I recommend that the allegation be dismissed . In view of my findings above I find it un- necessary to determine whether McBee was a su- pervisor as contended by counsel for the General Counsel or whether he was a rank-and-file em- ployee as contended by the Respondent and found by the Regional Director in his Decision and Direction of Election in the representation case. CONCLUSIONS OF LAW 1. Varco Steel, Inc., is an employer within the meaning of Section 2(2) of the Act and its opera- tions effect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 382, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Varco Steel, Inc., Respondent herein, has not engaged in the unfair labor practices charged within the meaning of Section 8(a)(1) and (3) of the Act. RECOMMENDED ORDER In view of the foregoing findings of fact and con- clusions of law, it is recommended that the com- plaint be dismissed.