DSL Mfg., Inc.

970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DSL Mfg., Inc. and Bettie Oleta Stribling. Case 26-CA-4228 April 6, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On September 15, 1972, Administrative Law Judge George L. Powell issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed an answering 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. reasons set out below, I find that the General Counsel has not established by a preponderance of the evidence: (1) that Stribling was discharged for her union activity; and (2) that there were independent violations of Section 8(a)(1). Accordingly, the complaint will be dismissed in its entirety. This proceeding is based upon a Complaint and Notice of Hearing issued against DSL Mfg., Inc. (Respondent) by the Regional Director for Region 26 of the National Labor Relations Board (Board), on March 7, 1972, founded upon a charge filed by Bettie Oleta Stribling (Stribling) on January 31, 1972, and amended on Februar y 28, 1972. Respondent, participating throughout by counsel, denied the commission of any unfair labor practices. Briefs were set for filing on June 16, 1972, but at request of Respondent the time for filing was extended to June 30, 1972. The General Counsel filed a brief on June 30, 1972, but Respondent's brief was untimely filed on July 5, 1972.1 Upon the entire record, my observation of the witnesses as they testified, and the brief filed by the General Counsel, I make the following: FINDINGS AND CONCLUSIONS II. PARTIES 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 Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety, I 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 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 his findings. DECISION 1. STATEMENT OF THE CASE GEORGE L. POWELL, Administrative Law Judge: This case was tried before me on May 16 and 17, 1972, in Oxford, Mississippi, under Section 10(b) of the National Labor Relations Act,las amended, 29 U.S.C. 151, et seq. (Act.) The issues are whether employee Bettie Oleta Stribling was discharged for her union activity in violation of Section 8(a)(1) and (3) of the Act or whether she was discharged,, for cause, and whether certain alleged inde- pendent violations of Section 8(a)(1) were proved. For the ' I assume that the brief filed by Respondent related to this case although it was numbered as "6-CA-5664." This brief was read but was not considered in the decision. Respondent, a Mississippi corporation engaged in the manufacture of wearing apparel at Bruce, Mississippi, during the 12-month period before issuance of the complaint, sold and shipped goods valued in excess of $50,000 directly to points outside the State of Mississippi. I find that at all material times Respondent has been, and is, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I find that at all material times Teamsters Local Union No. 891, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union), is now, and has been at all times material herein, a labor, organization within the meaning of Section 2(5) of the Act. There was no issue concerning the jurisdiction of the Board over the parties. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleged that Supervisor James DeVall interrogated an employee about her union membership, activities, and desires in the first part of November 1971; interrogated an employee concerning a location where a union meeting was to be held; and created the impression of surveillance of the employees' union activities by telling an employee that Respondent already knew what city the union meeting was to be held in, but did not know the location of the meeting in that city. In support of these allegations, the General Counsel adduced evidence supporting the fact that Stribling instigated a union organizational drive among Respon- dent's employees in October 1971: She began this activity by telling Mr. and Mrs. James Huckaby that she wanted to get in touch with someone to try to get a union in Respondent's plant. The Huckabys contacted Henry DSL MFG., INC. 971 Henderson, president of Local 7706, United Steelworkers of America, and set up a meeting at their home in late October 1971. Stribling attended this meeting (along with some union member employees of Ram Tools) and she invited four other employees of the Respondent to come with her to this meeting. One of the employees Stribling invited to accompany her to the meeting at the Huckaby's home was witness Shirley Ann Hughes, but Hughes declined the invitation. The invitation to attend had been given at night over the telephone. According to Hughes, the -next day at work, Plant Manager James DeVall came up to Hughes at her machine and asked her if she had received a telephone call the night before. Hughes did not understand what DeVall was talking about, but when he came back she asked if he was talking about Jan Mahan, an employee. DeVall said, "No, another girl that works here." Later on she called Supervisor Robert Baker over to her machine and asked him what DeVall was talking about. Baker, who had not overheard the DeVall-Hughes conversation, said DeVall wanted to know where the meeting was. To this Hughes replied that all she knew was that the meeting was in Water Valley. Baker replied that DeVall knew the meeting was in Water Valley, that he just wanted to know where in Water Valley. Hughes has not signed an authorization card, has not attended a union meeting, nor has she engaged in any union activity. The above was Hughes' testimony at the trial. However, on February 25, 1972, Hughes had submitted the following affidavit to Respondent's counsel: I, Shirley Hughes, first being duly sworn depose and say: While I was at work at my job with DSL Mfg. Inc., around Nov 1971 plant manager James DeVall came to me one day and said "Did you get a call last night?" I answered "No, I don't reckon." A little later James DeVall came by again and I asked him if he was talking about Jan Mahan. He said "No". I asked him "Are you talking about another girl?". James DeVall said yes. James DeVall then asked me something about a 2 The General Counsel led the witness by asking her, "In October or November of 1971 did you have a conversation with Stribling about a meeting?" She answered, "Yes." Testimony of Henderson and Stribling puts the meeting in October. 3 Hughes testimony on direct examination, in pertinent part, is: Q. Would you tell us about this conversation. [The "October or November" conversation. See footnote above:] A. You mean about the telephone call? She called one night and asked if I'd go to a meeting in Water Valley with her, and I told her that my husband was on the night shift and I didn't have a babysitter, and I weren't sure at that time whether I wanted to go or not. Q. Did she tell you where it was going to be? A. Yes, sir, she said at Water Valley. Q. A. Q. call? Did she identify it as to a street or house, or location? No, shejust said Water Valley. Did you tell anybody about this conversation or that telephone A. Yes. Q. Who? A. My mother-in-law, for one. I don't know whether I told anyone else or not. Q. What's her name? A. Katie Logan. Q. Where does she work? A. For DSL. Q.' What, if anything, happened at the plant the -next day? meeting. He did not say "Union meeting" or what kind of meeting. Later I called Robert Baker over and asked him what meeting James DeVall was talking about. and he said that James DeVall was just trying to find out where it was going to be. No supervisor or floorlady of the company ever questioned me concerning union [sic I was told by the company attorney that the company is investigating a charge filed with the NLRB and that I was free to discuss or not discuss things concerning that charge with him and that what ever my decision was and whatever I might-say or not say would not be held against me in any way concerning my job or working conditions. I have read the foregoing affidavit and swear that it is true. A. Discussion of Testimony of Hughes Hughes' affidavit is considerably different from her testimony. For example: 1) the affidavit puts the date in November when she had the conversation with DeVall instead of in October; 2 2) it does not link the date with the day after the meeting which was brought out by another leading question of the: General Counsel; 3) it does not identify Water Valley as the place of the meeting; 4) it does not tell that DeVall knew the meeting was in.Water Valley and he only wanted to know where; and 5) the affidavit puts the meeting to take place in the future "where it was going to be" rather than in the past.3 I can only speculate as to why Hughes' affidavit varies so much from her testimony, and speculation does not amount to evidence. But I do find that the affidavit dilutes the later testimony into a gruel too thin to support a finding that DeVall questioned Hughes about her union membership, activities, and desires or that Baker created the impression of surveillance of Hughes' union activities to the extent necessary to find as a matter of law that Hughes was interfered with, coerced, or restrained from A. Mr. DeVall came to my machine and, asked me if I got a telephone call the night before. TRIAL EXAMINER (Interposing): Who? THE WITNESS: Mr., DeVall asked me if I'd got a telephone call the night before. A. (Continuing) I couldn't remember right away, or didn't think right away what he was talking about. He went on by and talked to another lady and then he came back by, and I asked him if he was talking about Jan Mahan, a girl that worked there, that had gone home the day before, or if he was talking about another girl that works there, and he said, "No, another girl that works here." Q. (By Mr. Johnson) What, if anything, happened after that? A. Well, Robert Baker came by-well, I called him by and asked him what Mr. DeVall was talking about , and I believe he-let's see. He said he wanted to know where the meeting was,,I believe, were his words. Q. This was Baker talking? A. Uh-huh. I said I didn't know anything about it, that all I knew was that the meeting was in Water Valley. Q. What, if anything, did Baker say to that? A. He said, well, he [DeVall ] knew the meeting was in Water Valley, but he [DeVall] just wanted to know where in Water Valley. Q. What did you reply, if anything? A. I don't think I made any other reply. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaging in union or concerted activities within the meaning . of Section 8(a)(1) of the Act. Moreover, the denials of DeVall and Baker at the trial convince me that the remarks were not made at all. Accordingly, I will dismiss these allegations of the complaint. The General Counsel also alleged, as an independent violation of Section 8(a)(1) of the Act, that Supervisor Lura Jane Hubbard on or about January 25, 1972, asked an employee of Respondent whether Stribling was still working for the Union . The General Counsel called two .witnesses to establish this allegation of the complaint. The first witness, employee Georgia Campbell, testified as follows: Q. You testified that you know Oleta Stribling. Do you recall the day Oleta Stribling was fired? A: Yes. Q. What, if anything, happened after lunch that day? A. Well, Esther Edwards asked me I know Oleta had been sent home and I told -her no, I didn't. TRIAL EXAMINER : Who asked you that? THE WITNESS: Esther Edwards. Q. (By Johnson) What happened after that, if anything? A. Well, after we went back after lunch, after we started back working, I asked- Lura Jane Hubbard did she know what happened to Oleta. Q. Where did this take place? A. At my machine. Q. A. Q. A. Q. In the plant? Yes. . In what department? Where I work, on side seaming. Side seaming? A. Uh-huh. Q. What, if anything, did Lura Jane Hubbard say? A. Well, when I asked her what happened to Oleta she say, well, she didn't know whether Oleta -quit or what, she didn't know what happened. Q. Was anything said after that? A. Yes. Before I turned around she asked me was Oleta still working for that union. Q. What, if anything, did you say? A. I told her I didn't know anything about that. Q. Was anyone else present? A. Yes. . Q. Who? A. Cora McClora. Employee Cora McClora worked on a machine immedi- ately behind Campbell and testified as follows: Q. Do you recall a conversation between Campbell and Hubbard after Oleta Stribling was fired? A. Yes, I do. Q. Who was present? A. Georgia, Lura Jane and I. Q. Would you tell us about this conversation. A. Lura Jane came up and Georgia asked Lura Jane what happened to Oleta..Lura Jane said she didn't 4 According to Stribling's letter' to Metz (G.C. Exh. 3) there were 253 employees in November 1971. There were approximately 225 women at the date of the trial , according to DeVall. . know that she had been fired, and Georgia asked Lura Jane, "For what?" and Lura Jane said she didn't know. So Lura Jane asked Georgia was Oleta still working for the union, and Georgia said she didn't know. Then Lura Jane walked away.. Q. Is that all that was said? A. That's all I heard. Supervisor Lura Jane Hubbard testified that she did have a conversation with Campbell on the day of Stribling's discharge . Campbell called her back "and asked me what happened to Oleta and I told her I didn 't know if she quit or they fired her."-Hubbard testified that that was the extent of the conversation. Both Campbell and McClora were clear on this testimo- ny as if the incident had been frozen in space and time like "stop action" on television . On the other hand, they knew little about what else took place on those days . This is not unusual in these cases and is not dispositive of credibility. Moreover, there is some question of whether Campbell's and McClora's machines were working during this conver- sation. I' heard the testimony and found that I had difficulty in hearing Miss Campbell in the courtroom with no other sounds being made and with her sitting about 5 feet from me. I find it highly unlikely that McClora, some 42 inches behind her, could overhear Campbell, who was not facing McClora, at the time she was having the conversation with Hubbard even if the machines of Campbell and McClora were not running. There is no question but that the machines of other employees in the immediate vicinity were running. There is no other evidence in the case that links the name of Stribling with union activity. Her activity began in October and ceased no later than around mid-December and her discharge was near the end of January . Without even reaching the question of whether such a question, under all the circumstances, if made , would violate the Act, it is incredible that such a question could be heard in the noise, of the plant. I credit Hubbard and find as a consequence no evidence to support this allegation in the complaint and will dismiss it. B. The Discharge of Bettie Oleta Stribling Henderson obtained authorization cards from James Metz, president of the Union on November 5, 1971, and later the same day gave them to Stribling . Between this date and November 23, Stribling obtained 21 signed authorization cards from Respondent's employees, and other employees obtained 19 signed cards.4 In early December 1'971, Metz set up a meeting for Respondent's employees at a cafe near Bruce, Mississippi . In addition to Metz and Henderson , some 20 employees including Stribling attended. Stribling, along with some others, spoke out. Following this meeting, the employees "slowed down" their organizational activity because of the holiday season. There was no evidence of activity thereafter. Respondent discharged Stribling on January 25, 1972. DeVall called her into his office just before lunch and DSL MFG., INC. 973 discharged her stating that her poor attitude toward her work and her poor quality of work led to her discharge.5 Stribling was a "utility" which is an operator used to work in different parts of the plant to do the various jobs when other employees are absent. Evidence.was adduced tending to prove her quality of work may not have been all that the Company would like to have desired, but from a study of the evidence it seems clear to me that poor work quality had little to do with the discharge. Her work had not deteriorated from what it had always been, and she had been an employee for some time, so it can only be assumed that if her work were indeed poor her perform- ance was tolerated and in the absence of some other circumstance she would not have been discharged. However, there was good reason for the employer to make the discharge because of Stribling's poor work attitude. Testimony adduced at the trial was that Stribling was a constant complainer. For example, she was constant- ly complaining that DeVall was always assigning her work that he knew she did not like. This complaining, however, like the allegation of poor work quality, had been put up with for some time and in itself may not have been a reason for discharge. The Respondent was making a serious effort to improve its efficiency when on January 24, 1972, Duane Jaggers of .Respondent called the inspectors together and talked to them about the bad quality of their inspections by leaving strings and by folding pants in a manner that caused wrinkles. The inspectors were each shown how to fold the pants properly. One trainee inspector, Tapley, was shown how to fold pants by Beth DeVall, wife of James DeVall. As Beth DeVall was making this demonstration, Stribling interceded in a loud tone that this employee had been instructed at least twice before and now comes Mrs. DeVall to instruct her yet another way. Beth DeVall related this incident that evening to her husband, James, whereupon DeVall wrote up a reprimand note on Stribling and fired her the next day. According to DeVall, the voluntary remark Stribling made to his wife on January 24, made up his mind to dismiss her. DeVall denied any knowledge of union activities in the plant or of Stribling's participation before Stribling was discharged. C. Analysis, some Additional Background, and Concluding Findings The evidence has established that Stribling was active in organizing Respondent's employees for the Union. The evidence also has established that the organizing activity took place in some 18 consecutive days during which time 40 employees out of 253 employees signed authorization cards (Stribling got 21 of them). Finally, the evidence established that no organizing activity took place from mid-December 1971 until January 25, 1972. On the other Stribling's testimony that she was also told on discharge that she was not making production is not credited . The other witness present, Chance, denied she was told this ; DeVall denied this also and his written note made following the discharge does not mention it. DeVall and Chance are credited. s "The side that weighs the less will not be satisfied , but that is the way things are, and it is better than violent death." 55 Georgetown Law Journal 234 (Donald Meiklejohn , Professor of Philosophy and Social Science and hand, the Respondent has not independently violated Section 8(a)(1) of the Act and there is no credible evidence of its knowledge of Stribling's union activity. As the General Counsel has the burden of proof of establishing union animus and employer knowledge of union activity in a pretext discharge case such as here, this burden has not been met and the case must be dismissed. Respondent has no burden to prove why it discharged an employee. Given reasons may be weak and thus create suspicions of discharge, but suspicions do not make out a violation of the Act. Additional "background" evidence was adduced by Respondent in an apparent attempt to throw suspicions as to the discharge on other causes. Stribling's husband had been discharged by DeVall some 11 months earlier for refusing to perform a work assignment . Mr. Stribling credibly testified he did not "like" DeVall, his wife knew it, and he had made.a threat of physical harm to DeVall on the day he was fired. He never talked to DeVall since, yet they crossed each others path often in the little town of 4,000 people in which they lived. But there are many reasons why employees are discharged other than for poor work performance, and so far as the Act is concerned such discharges are legal unless a reason for the discharge is to discriminate in order to encourage or discourage protected union or concerted activities. As it has not been established that a reason for Stribling's discharge was her union or concerted activities, no violation of the Act is made, out and the complaint should be dismissed for failure of proof. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(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. The alleged interrogation by DeVall and statements by Baker was not established by a preponderance of the evidence. 4. The alleged question by Hubbard was not estab- lished by a preponderance of the evidence. 5. The alleged discharge of Bettie Oleta Stribling was not established by a preponderance of the evidence.6 THE REMEDY Upon the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER 7 The complaint is dismissed in its entirety. Director of the Program in Public Affairs and Citizenship, Syracuse University). 7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the 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 be deemed waived for all purposes.