Safety Railway Service Corp.

SAFETY RAILWAY SERVICE CORP. Safety Railway Service Corp. and Truck Drivers and Helpers Local Union No. 728. Case 10-CA-9379 July 24, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY AND PENELLO On May 25, 1972, Trial Examiner Almira A. Stevenson issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Safety Railway Service Corp., Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. 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 of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing her findings TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Trial Examiner: This case was heard at Atlanta, Georgia, on April 12 and 13, 1972. A copy of the charge, filed on January 25, 1972, was served on the Respondent on January 25, 1972; a copy of the amended charge, filed on February 2, 1972, was served on the Respondent on February 3, 1972. The complaint was issued on March 8, 1972. The issues are whether the Respondent (1) threatened its employees with discharge on January 20, 1972, for engaging in union activities, in violation of Section 8(a)(1) of the National Labor Rela- tions Act, as amended; and (2) discharged employee Phenus Head, Jr., on January 20, 1972, and employee Tommie Freeman on January 24, 1972, because of their union activities, in violation of Section 8(a)(3) and (1). As explained below, I find that the Respondent did so violate the Act. 385 Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the Respondent and the General Counsel, I make the following: Findings of Fact and Conclusions of Law 1. JURISDICTION The Respondent is a Delaware corporation engaged at Atlanta, Georgia, in repairing, servicing, and modification of railroad rolling stock. During the past calendar year, which period was representative of all times material herein, the Respondent provided services valued in excess of $50,000 directly to customers located outside the State of Georgia. The Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent also admits, and I find, that the Charging Party, hereinafter referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Phenus Head, Jr. The Respondent hired Head in July 1970 as a welder. He also performed layout repairs and forklift and common labor work. Organizational activity had its genesis at the Respon- dent's Atlanta plant on December 30, 1971, when Head asked President Gobble whether the employees would be off the Friday before or the Monday after New Year's Day. Gobble replied that they would be off neither day as New Year's Day fell on a Saturday. Head asked whether employees would be paid for 48 hours' work, and Gobble replied no, they would work 5 days and be paid for 40 hours' work. Head next asked Vice President Herman the same question, pointing out that one of the employees had a copy of a contract showing that employees were supposed to be off New Year's Day. Herman replied that the employees would not be off New Year's and that the contract referred to covered only electricians. After discussing the matter with several other employees, Head concluded that they needed a union, and the next day several employees indicated that they agreed with him. As a result, on Monday, January 3, 1972, Head contacted the Union and was advised to bring as many employees as he could to a meeting at the union hall on January 6. On Tuesday, January 4, Head "spread the word" among the employees about the meeting. Twelve or thirteen employ- ees attended the first meeting, proceeding directly from the Respondent's premises. There was a meeting at the union hall every week after that-a total of 15 or so-and Head attended them all. Head signed a union authorization card January 8, 1972, and was designated as the employee to receive and deliver to the Union the authorization cards signed by other employees. He solicited seven or eight employees to sign such cards, some in the plant parking lot. Other employees gave him their cards in the parking lot or left them in his locker. He delivered all such cards to the Union. 198 NLRB No. 63 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Head testified as follows regarding his discharge: At 11 a.m. on January 20, General Superintendent Hubert W. Mayo called him away from the shop and told him that Mayo had tried to get him a raise but had been told that all the raises to be given that year had been given, and the best thing for Head to do if he could not get a raise was to quit. Head replied that he would hang around a while because things might get better. After lunch, Mayo called him away from work again. Mayo began talking about the "old days," when the Company first started, how the Company had been good to the employees, and the employees had always been loyal. Then Mayo asked, "You have been working a little over in the parking lot, haven't you?" When Head asked what he meant, Mayo explained, " I seen you out in the parking lot getting those cards signed." When Head failed to reply, Mayo remarked, "The Company feels like you are a little too friendly with the union people," and added, "We don't want any trouble- makers like you in the shop." When Head inquired whether he was fired, Mayo replied in the affirmative and added, "There are a few more I am going to get too." Several days later Head received a separation notice dated January 20, 1972, through the mail. The notice was signed by T. W. Howell, personnel manager, and gave the following reasons for the discharge: After repeated warnings, he continued to start work late. Stopping ther (sic) employees from working, to talk, away from his assigned work area. Head testified that, although he had frequently been late reporting for work, he had never been warned or reprimanded for his lateness, nor for bothering other employees. Head testified that the only time a supervisor spoke to him about coming back late from lunch was on January 14 when Foreman Milton Brown stopped him and employees Roberts, Roseberry, and Burges, on their way in, and told them they would have to stop coming in late from lunch. After January 14, Head and Roberts testified these employees were not late, as Roberts bought a watch, set it with the timekeeper, and kept track of the lunch period. Respondent's officials testified that they did not know about Head's union activity until January 21, when they received a telegram from the Union notifying them that Head, T. L. Freeman, and others were assisting the Union in its efforts to organize the Respondent's employees. Mayo testified that he made the decision to discharge Head. He stated that Head asked him for a raise about Christmas time 1971. Mayo asserted that Head was a good worker and did an excellent job, and that the Company was trying at that time to get him a raise despite the wage freeze. According to Mayo, by early January, however, Head's tardiness in reporting to work in the morning and from the lunch period became such a problem that General Foreman Brown wrote Mayo notes about it (on January 7 and 14), and Mayo "kind of mentioned it to Head." Finally, Mayo testified, he called Head out of the shop on January 20 to tell him that he could not have the raise and to try to reach an understanding with him that he would do better about his lateness, when Head jumped to the conclusion that he was being fired, so Mayo fired him. Mayo insisted on the stand that Foreman Brown was the only supervisor who complained to him about Head's lateness. His attempts to explain an inconsistent statement in the sworn affidavit he gave to a Board agent before the hearing to the effect that Leadman Cecil Smith, as well as Foreman Brown, had complained about Head's lateness, were, in my opinion, unsuccessful. Similarly, a memo dated January 20, 1972, bearing the signature of Mayo, identified by him and introduced into evidence by the Respondent, indicated that the reason Mayo chose January 20 for Head's discharge was that Mayo observed him returning late from lunch that day. In his testimony on the stand, however, Mayo made no reference to such an occurrence on January 20 and, on the contrary, insisted that he discharged Head about 10 a.m. before lunch. Foreman Brown supported Mayo as to the purported problems with Head's lateness returning from lunch in January. Brown also testified that, on January 20, he made up a list of the days Head had been late in the morning and gave it to Mayo. That list, however, shows that Head was late reporting to work 15 times in December 1971, when the Company presumably was trying to get a raise for him, but only once in January before he was discharged on the 20th. i None of the other reasons given on the separation notice signed by Personnel Manager Howell is supported by the Respondent's witnesses. Howell did not testify. Vice President Herman testified he was not involved in Head's termination and had nothing to do with the separation notice. Neither Mayo nor Brown testified that they issued any "warnings" to Head.2 Moreover, both Mayo and Brown testified that they had no knowledge of Head's "stopping ther (sic) employees from working, to talk, away from his assigned work area," as stated on the separation notice. The record thus clearly shows that Mayo's testimony on the stand was inconsistent on relevant matters, with statements made in his pretrial affidavit; Mayo's and Brown's testimony to the effect that Head's absences and latenesses got worse in January was contradicted by the Respondent's documentary evidence; this contention was timed to coincide with the advent of Head's union activity; and the Respondent failed to explain two of the alleged grounds for discharge given in the separation notice or to contend that they were mentioned to Head at the time of discharge. I therefore do not credit Mayo or Brown as to the events surrounding or the motivation behind the discharge. Head, on the other hand, gave a straightforward account of these events which was not undermined in cross-examination or in any other manner and which conformed with the probabilities. I therefore credit Head. Accordingly, I infer and find that the Respondent considered Head so good an employee that it tolerated his i The Respondent subsequently compiled a list of the tardiness and 2 On the stand, Brown failed to affirm the assertion, in his January 14 absences of all its employees in November, December, and January That note to Mayo, that he told Head "his job depended on" his returning to list states that Head was late 14 times in November, 17 times in December, work on time after the lunch period On the contrary, he testified that he did and 3 times in January not threaten to fire Head SAFETY RAILWAY SERVICE CORP. 387 habitual lateness and even considered raising his pay until it came to management's attention, one way or another, that he was the leader in the activity which began early in January 1972 to bring the Union in to represent the employees. The Respondent then determined to discharge him and did so, using as pretexts his long tolerated lateness (even though his morning lateness had decreased consider- ably, and his noon lateness ceased after he was spoken to by Brown on January 14), along with completely unsup- ported assertions about repeated warnings and interfering with other employees' work, to cover up its real reason which Mayo revealed at the discharge interview. Accord- ingly I conclude that a preponderance of the credible evidence establishes that the Respondent discharged Phenus Head, Jr., on January 20, 1972, because of his union activity, in violation of Section 8(a)(3) and (1) of the Act. I further conclude that Mayo's statement to Head to the effect that he was going to "get" the troublemakers who were too friendly with the union people was a threat and violated Section 8(a)(1).3 B. Tommie Lee Freeman Freeman was hired by the Respondent in October 1970 and performed sandblaster, mechanic, and other duties. He identified a union authorization card dated January 10, 1972, as his own. Before he was discharged on January 24, 1972, he attended one union meeting, on January 19. The Respondent concedes it was informed, by the Union's January 21 telegram, that Freeman was one of the employees assisting the Union. Freeman testified to the following events during the week preceding his discharge: On January 18, 1972 (a Tuesday), Freeman's father died in Newman, Georgia. Freeman nevertheless worked that day at the Atlanta plant; January 19, 1972, after reporting to Vice President Herman that he would be late because of driving back from Newman, Freeman worked that day also; January 20, 1972, Freeman went to the plant, told President Gobble and Foreman Brown he could not work that day because his father's funeral was to be held the next day, January 21. Both said OK; January 21, 1972, Freeman called Vice President Herman and told him his father was being buried. Herman said Freeman was "mixed up" and told him to bring something the next time he came to work to show his father was being buried; and January 24, 1972, a Monday, Freeman returned to the plant. He did not see Herman, so he showed a copy of his father's printed funeral service and the newspaper obituary to President Gobble and Superintendent Mayo. Foreman Brown then came up to Freeman and told him he was terminated. When Freeman asked what for, Brown replied for drinking "up in Doraville." Neither Mayo nor Brown said anything to Freeman about being absent or tardy. As Freeman was leaving the plant premises, Personnel Director Howell came out and gave him a separation notice. The separation notice was dated January 24, 1972, was signed by Personnel Manager Howell, and gave as reasons for Freeman's discharge: Excessive absenteeism, misrepresentation of reasons for being off and reporting to work and visiting employees on the job stopping them from work and while under the influence of alcohol. Freeman conceded that he had been absent often during the 3 months prior to his discharge, but testified that his absences were excused. He denied he had misrepresented the reasons for his absences. Freeman conceded that he drinks "at night," but testified that he does not drink on the fob. Freeman testified that he worked in Doraville only once, on a Saturday in June or July 1971. He stated that no one spoke to him about drinking on the job then, or at any other time except for one occasion before Christmas 1971, when Mayo told him to "watch your drinking." Foreman Brown testified that he and Mayo decided to discharge Freeman "at the time we were thinking about letting Head go," January 20; that Brown discussed the matter with Vice President Herman beforehand; and that Brown discharged Freeman the next time he came to work, which was January 24. As set forth above, however, Mayo's testimony indicated that he was really not thinking about discharging Head on January 20, but that Head "practically discharged him- self." Mayo also testified that he had nothing to do with the discharge of Freeman, which was handled solely by Brown without conferring with Mayo. Moreover, Vice President Herman testified that when he spoke to Brown about Freeman, Brown told him that Freeman was "already scheduled to go." As for the various reasons advanced for the discharge of Freeman, Brown testified that he told Freeman at the time of the discharge that "there were several reasons that I was letting him go, and some of them, of course, was about being tardy and about the several times about alcohol." Brown testified that although he never saw Freeman drink on the job, he had not been able to depend on him in Doraville because he had been drinking, and that "many times" it was on his breath at work; he was absent a good many Mondays; and Brown had written a memo to the effect that Freeman came in on January 14, his "off day," drinking heavily. The record shows that Freeman worked at Doraville on only one occasion, which was placed in June or July by Freeman, September by Mayo, and November by Brown. In any event, it is clear that this incident, if it occurred, occurred several months before it was resurrected by Brown as a reason for discharging Freeman. Incidently, Mayo testified that he never knew of Freeman's coming to work drunk or drinking on the job; he testified that he did 3 1 find it unnecessary to resolve the conflicting testimony regarding two alleged incidents-whether Foreman Brown appeared in the plant wash- room on one occasion in mid-January when Head and Roberts were discussing the Union, and whether Brown gave Head an antiunion leaflet before Head's discharge-as resolutions would not affect the outcome of the case If necessary, I would credit Head and Roberts and discredit Brown's denial that the washroom incident occurred, I would discredit Head and Union Business Representative Jones and credit Brown 's denial that the leaflet was distributed before Head's discharge Such resolutions would not, however, affect my credibility findings nor my conclusions set forth above 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD speak to Freeman once when he suspected Freeman had been drinking the night before. Brown further testified that although the above factors figured in the decision to discharge Freeman, the "main" reason was his attitude, when Brown remonstrated with him for coming back late from lunch, that he felt the Company was mistreating him and he was not satisfied, and he did not feel he should be "Johnnie on the spot" in getting back to work. Brown reiterated several times that this "attitude" of Freeman's was revealed on January 14. However, the Respondent's records, as well as Brown's memo of that date referred to above, show that Freeman did not work that day. Brown eventually retracted this testimony, but affirmed that Freeman's "attitude" was revealed on some other occasion which Brown was unable to place specifically. The record contains a memo dated January 24, which Brown testified he wrote to Vice President Herman, setting forth Brown's reasons for discharging Freeman that day; i.e., "mainly his attendance record and the fact that his appearing on the property under influence of alcohol last Friday was the clincher." (Emphasis supplied.) The Friday referred to must have been January 21, the day of Freeman's father's funeral. There is no evidence that Freeman came to the plant that day. Vice President Herman testified it was he who approved the separation notice. Herman testified that Freeman told him in a telephone conversation January 21 that his father had died Monday and also told him in the same conversation that his father had died Tuesday; and that Herman then checked Freeman's absentee record with personnel, who reported Freeman had said his father had died on both January 13 and January 14. Herman therefore was responsible for the language "misrepresenta- tion of reasons for being off" on the separation notice. Brown, on the other hand, testified he had no reason to believe Freeman had misrepresented the date of his father's death, and he so informed Herman. The Respon- dent presented evidence that Freeman was absent 3 days in November, 6 days in December, and 6 days in January including the 20th and 21st. According to the Respondent's records, he was tardy seven times in November and four times in December. He was not tardy in January. There is no evidence that Freeman was reprimanded for absences or morning tardiness. It is impossible for me to believe the above inconsistent and contradictory testimony by the Respondent' s witness- es.4 In contrast, Freeman's testimony shines like a beacon of clarity and honesty. I therefore find that the events in connection with Freeman's discharge occurred as Freeman related them. In these circumstances, and in view of my finding that the reasons advanced for Freeman's discharge were false and my unfair labor practice findings above, I infer and find that the Respondent decided to discharge Freeman after learning that his name was on the Union's January 21 list of union advocates because, although Freeman's union activity actually was minimal, the Respondent suspected Freeman had taken a lead in the organizational activities, and the Respondent then set about resurrecting and devising as many justifications as it could think of to disguise the real motive behind it all.5 Accordingly, I conclude that the discharge of Freeman violated Section 8(a)(3) and (1) of the Act. III. THE REMEDY In order, to effectuate the policies of the Act, I recommend that the Respondent be ordered to cease and desist from the unfair labor practices found and , in view of the nature thereof, to cease and desist from infringing in any manner on its employees ' rights guaranteed by the Act. N.L R.B. v. Entwistle Mfg Co., 120 F.2d 532 (C.A. 4). Having found that the Respondent discriminatorily discharged two employees, I also recommend that it be ordered to offer those employees immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earnings suffered by reason of the discrimination against them , plus interest at 6 percent per annum . F. W. Woolworth Company, 90 NLRB 289 ; Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 The Respondent, Safety Railway Service Corp., Atlanta, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for supporting Truck Drivers and Helpers Local Union No. 728, or any other union. (b) Threatening to discharge or discipline employees for their union activities. (c) In any manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Phenus Head, Jr., and Tommie Freeman immediate and full reinstatement to their former jobs, or if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for their lost earnings in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of their 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. 4 See N L R B v Schell Sleet Products, Inc, 340 F 2d 568, 573 (C A 5) conclusions, and recommended Order herein shall, as provided in Sec 5 Accord Shattuck Denn Mining Corporation v. N. L R B, 362 F 2d 466 102 48 of the Board's Rules and Regulations, be adopted by the Board and (C A 3) become its findings , conclusions , and Order, and all objections thereto shall 6 In the event no exceptions are filed as provided by Sec 102 46 of the be waived for all purposes Rules and Regulations of the National Labor Relations Board, the findings, SAFETY RAILWAY SERVICE CORP. 389 (c) Preserve and, upon request, make available to the Board, or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in Atlanta, Georgia, copies of the attached notice marked "Appendix." 7 Copies of the notice on forms provided by the Regional Director for Region 10, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the 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 this recommended Order, what steps the Respondent has taken to comply herewith.8 7 In the event that the Board's Order is enforced by a Judgment of the 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 " 8 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been found that we violated the National Labor Relations Act, as amended, and we have been ordered to post this notice: WE WILL NOT discharge any of you for supporting Truck Drivers and Helpers Local Union No. 728, or any other union. WE WILL NOT threaten to discharge or discipline you for your union activities. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Phenus Head, Jr., and Tommie Freeman immediate and full reinstatement to the jobs they held prior to their discharges on January 20 and January 24, 1972, respectively, or if theirjobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges. WE WILL make whole Phenus Head, Jr., and Tommie Freeman for any loss of pay they may have suffered as a result of their discriminatory discharges, plus interest at 6 percent per annum. Dated By SAFETY RAILWAY SERVICE CORP. (Employer) (Representative) (Title) WE WILL notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of their 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, N.E. Atlanta, Georgia 30308, Telephone 404-526-5741.