Reeves Brothers, Inc.

REEVES BROTHERS, INC. 51 Reeves Brothers, Inc., Eagle & Phenix Division and Textile Workers Union of America, AFL-CIO. Case 10-CA-9980 November 8, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 29, 1973, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his 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 Administrative Law Judge and hereby orders that Respondent,, Reeves Brothers, Inc., Eagle & Phenix Division, Columbus, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Boards 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 are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (CA. 3). We have carefully examined the record and find no basis for reversing his findings. DECISION FINDINGS OF FACT The Events in Question WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing before me on May 22, 1973, upon a complaint,' issued by the Director of the Board's Region 10, alleging that Respondent Reeves Brothers, Inc., Eagle &' Phenix Division,2 violated Section 1 The principal entries of formal papers herein are as follows: Charge filed by Textile Workers of America, AFL-CIO,(herein called Union), on February 8, 1973; complaint issued March 27,1973; Respondent' s answer filed April 2, 1973; hearing held May 22, 1973; and briefs of General Counsel and Respondent filed June 25, 1973. - - 2 Respondent, admits, and I find, that it is a New York -corporation, maintaining a place of business at Columbus, Georgia, where it is engaged in the manufacture, distribution, and sale of corduroy cloth. During the 8(a)(3) of the National Labor Relations Act by discrimina- torily discharging Eugene Kelly. The complaint also alleged that the Respondent committed various independ- ent violations of Section 8(a)(1) of the Act. Respondent asserts that Kelly was discharged for an accumulation of company .rule infractions, culminating in his sleeping on the job, and denies the commission of any violations of Section 8(a)(1) of the, Act. Upon these contentions, the issues herein were joined.3 Respondent operates a large corduroy cloth manufactur- ing plant at Columbus, Georgia. Its employees are presently unorganized. Late in August 1972, the Union commenced an organizing campaign at this plant, testing to see what employee response might arise from its overtures. It contacted prospective members by leafletting them at or near the plant gates as they changed shifts. It also held a series of meetings at a downtown hall to explain the purposes of the drive. At no time did it distribute authorization cards. One of the employees contacted was the discriminatee herein, Eugene Kelly. He attended several organizing meetings, chatted openly with organiz- ers at the plant gate during shift changes, took union leaflets into the plant to give to fellow employees, and, as hereinafter discussed, posted a union leaflet on the door of the entranceway which leads into his section of the plant. One of the independent 8(a)(1) allegations at issue is ,that Respondent reacted to the organizing campaign by imposing a rule, announced orally by various supervisors to various employees, restricting them to their specific duty stations, forbidding them to leave without special permis- sion of their supervisors, and threatening them with discharge if they disobeyed. In addition Supervisor Matthew Washington allegedly threatened employee Ed- ward Austin and others that anyone would be discharged for talking union in the plant or having 'union leaflets in their possession. Washington denies doing so. As hereinaft- er noted, I credit Austin's account which substantiates the complaint. Kelly was an employee with a mediocre employment record. At various times, he had performed the duties of a 'stitch operator, roll man, floor man, steam doffer, and mercerizer doffer. He started to work for the 'Respondent in May of 1970 as a second-shift stitching operator. He worked 6 months, left, and then returned for another 4- or 5-month tour of duty. He then left to enter the Army, and returned in June of 1972 at the conclusion of his military service. At the time of his discharge on September 29, 1972, he was employed on the third shift (11 p.m. to 7 a.m.) as a mercerizer doffer, working under the immediate supervi- sion of Jerry Upsbaw. Kelly worked with Upshaw's nine- member crew in the bleaching department, in an area familiarly called the "hole." While the stitching department does not fall under the bleaching department, on the third shift Upshaw was also in authority there as he was located preceding calendar year, Respondent sold and shipped from its Georgia location finished products valued at in excess of $50,000. Accordingly, it is an employer engaged in interstate commerce within the meaning of Sec. 2(2), (6), and (7) of the Act.' I also find that Textile Workers International Union, AFL-CIO, is a labor organization within the meaning of Sec. 2(5) of the Act. 3 The transcript herein is corrected [in one particular; emitted from publication.] 207 NLRB No. 1 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nearby and as no other supervisors were regularly present. Accordingly, he would assign Kelly to finish any stitching that needed to be done when the second shift left, and then would place him on different jobs in the bleachery. There is considerable credited testimony that Kelly and others who worked in the "hole" on the third shift had varying amounts of "down" time when they were unoccupied because their particular assigned function was caught up. In such situations, they passed the time by helping others in the bleachery whose jobs were not caught up, or by smoking, going to the snack bar or to other departments, or, on occasion, by simply chatting or sleeping. In order to maintain discipline, Respondent uses a system of written warnings which are given to employees for minor infractions or deficiencies which are not of a nature serious enough to warrant immediate discharge. With respect to minor infractions, it is apparently discre- tionary with a supervisor whether he gives an employee an oral or a written warning. No record of oral warnings is kept. However, if a supervisor elects to give a written warning, he requests the secretary assigned to the depart- ment to prepare a slip which is presented to the employee in question for signature. The employee's signature denotes that he has been made aware of the written warning before it is placed in his personnel file. If any employee receives three written warnings in a 6-month period, he is terminated. On September 18, 1972, Upshaw wrote up a written warning on Kelly for missing work on several occasions without calling in. He presented the slip to Kelly, but Kelly declined to sign it. Kelly does not deny "laying out" without calling, as recited in the warning slip, but does not recall being presented with a warning slip for this infraction. On the night before his discharge, just before the 7 a.m. change of shift, Kelly took a union leaflet which he had obtained from one of the organizers and taped it to the outer side of a plant door leading from the outside of the plant to the entranceway to the bleaching department. Several other third-shift employees were standing at or near the doorway at the time. Unknown to Kelly, First Shift Foreman Bailey Browder was approaching the area as Kelly was posting the notice. Employee Edward Austin called Kelly's attention to the fact that Browder was approaching. Austin observed Browder stop, read the notice, take it down, and carry it away with him. Browder denies seeing Kelly post the notice and denies tearing it down, stating that he only saw a union notice on the floor, which he ignored as his hands were full. He recalls seeing Kelly and others in the vicinity. I credit the consistent and corroborated testimony of Kelly and Austin to the effect that Browder saw Kelly post the notice and that he thereafter removed it from the door. Before reporting to work the following evening, Kelly chatted for about 5 minutes with union organizers who were leafletting at the plant gate. Many others passed them by during this change of shift. Sometime after Kelly reported for work, the supervisor in the cutting department reported to Kelly's foreman, Jerry Upshaw, that Kelly was in that department visiting with a stitcher named Diane Davis. Kelly had previously been given oral warnings by Upshaw about visiting in the cutting department with Miss Davis, but had never received written warning for such conduct. About 3 a.m., Upshaw found Kelly in the snack bar with another employee, told both of them that they were not supposed to be in there, and took them back to the office. He determined to give Kelly a written warning for being in the cutting department with Miss Davis. This written warning was typed sometime after 6:30 a.m., when the department secretary came to work. Sometime thereaft- er it was presented to Kelly for his signature, but Kelly declined to sign it. Kelly returned to the "hole" where he was assigned to work. About 4:30 a.m. he was sitting on a box near the J Box4 with about five other employees who worked in the area. They were taking a break as their jobs were caught up. Both Kelly and fellow employee Otis Baker were sitting with their heads in their hands and were asleep. Upshaw approached Kelly and woke him up. He left the immediate vicinity and returned a few minutes later. Kelly's fellow employee, Clarence France, bumped Kelly in order to reawaken him. Upshaw then told Kelly to come into the office with him. He typed up a warning slip relating to Kelly's sleeping on the job and presented it to him for his signature. Kelly declined to sign it. Upshaw told Kelly to put on his clothes, go home, and return to the plant at 7 a.m. to see William Cawley, the overseer and Upshaw's superior. Kelly asked Upshaw why he did not send Otis Baker home, since Baker was also sleeping. Upshaw said that he did not do so because Baker did not have two written warning slips while Kelly did. There is credited testimony that Baker continued sleeping that evening, and that he frequently, if not regularly, is found sleeping on the job during the early morning hours. On such occasions, Upshaw usually wakes him up, but, as yet, Baker has never received a written disciplinary slip for sleeping. As instructed, Kelly returned to the plant at 7 a.m. and went to Cawley's office. Upshaw presented Kelly with the second warning slip relating to absence from his depart- ment, and asked Kelly to sign it. Kelly declined to do so. Cawley also asked Kelly to sign the second warning slip and Kelly still declined, so they called in two supervisors to witness the fact that the slip had been exhibited to Kelly. Kelly waited until about 9:30 a.m., at which time Cawley told him that John Sauls, the plant manager, said that it would be best to let Kelly go, whereupon Kelly left the plant. Discussion and Analysis The General Counsel alleges that the Respondent violated Section 8(a)(1) of the Act by announcing a rule restricting the movement of employees within the plant to their respective departments for the purpose of interfering with their union activities and right of self-organization. He further alleges that they implemented the rule by threatening employees with discharge, and unlawfully invoked it against Kelly. In support of this allegation, three employees, including the discriminatee, testified that, before the Union began its organizing drive late in August 1972, employees were free to leave their respective 4 The J Box is a machine which bleaches cloth. REEVES BROTHERS , INC. 53 departments and go to the cafeteria, the snack bar, or other departments whenever their jobs were caught up, without specific permission of their foreman. Both these witnesses and two of the Respondent's three witnesses agree that the Company never had a written rule requiring employees to obtain specific permission to leave their department, and no such written rule was produced in evidence. According- ly, I find that the Company did not, and does not, have a written rule restricting employees to their departments unless they have specific permission to leave. The next question arises as to whether the Respondent, prior to the advent of the union organizing drive, had any orally announced rule or practice in this regard, and if so, what was the extent of the rule or practice and what was the penalty for violating. Respondent's Counsel stated, by way of argument, that a rule has always been in existence that employees were not supposed to leave their departments, and that they certainly were not supposed to visit girlfriends working in other departments. He further stated that employees were and are permitted to take breaks but normally were restricted to remaining in their department. He also stated that they were permitted to smoke, to get a drink of water, or to go to a break area for such purposes, but that they were not permitted to wander at will throughout the mill. Foreman Upshaw's understanding of the restriction was that smoking was limited to certain areas because of safety considerations, that an employee was not supposed to go to another department without permission, and that the normal practice with respect to asking and receiving permission to go to the cafeteria or elsewhere is that an individual might simply leave word with a nearby employee that he was at lunch, or in the bathroom, if the foreman was not present, rather than personally checking with the foreman in advance of each absence. Supervisor Matthew Washington stated that there has been a company policy that an individual was and is supposed to stay in his particular area and refrain from wandering into other departments. He said nothing about use of the toilets or going to the snack bar without specific permission. Both denied that any change had taken place in the rule, or the enforcement thereof, after the commencement of the union organizing drive. Foreman Bailey Browder said that he had never seen any written rules but that he had given his subordinates a general instruction that they were supposed to stay in their own area and refrain from wandering throughout the plant when they are needed by their foreman. In light of these varying descriptions and understandings of a plant rule, it is impossible to find that any hard and fast regulation existed prior to the advent of the union's organizing campaign which forbade an employee from leaving department without specific authorization. Indeed, it is clear that the converse was true. Accordingly, I find that, prior to this event, employees were, as some of them testified, free to leave their departments without specific 5 Neither Parrish, Cawley, or Sauls testified at the hearing . Respondent urges that I draw a similar adverse conclusion from the failure of the General Counsel to call witnesses to corroborate Austin's testimony relative to ForemanWashington's misconduct- The situations are inapposite for two reasons. First of all, Supervisors Parrish, Cawley, and Sauls are under the control of the Respondent and available to it for testimony. Indeed, at least authorization of a foreman provided their work was caught up. Even if the restriction asserted by the Respondent had been precisely formulated prior to the organizing drive, the warnings given thereafter to various employees added an element not previously attached to leaving one's depart- ment without specific permission, namely that absence from one's department without authorization of the foreman in each instance would now be treated as an infraction warranting termination. After the advent of the organizing drive, Jerry Upshaw warned Kelly and Clarence France that William Cawley, the overseer, had directed that all employees must remain in their department. Shortly after the commencement of the organizing drive, Plant Superintendent Billy Parrish found Edward Austin, a bleaching department employee, in the dye department and directed him to return to his department. Austin had been getting a drink of water, which was conduct still permissible under at least Upshaw's version of the rule. He was later called into the office of Overseer William Cawley who, in the company of Bailey Browder, told Austin that he would be fired if he were again caught in another department Matthew Washington warned Austin, citing the authority of Plant Manager Sauls, that Austin would be fired if he talked union or was caught with a union leaflet in his possession. Such a threat by Washington clearly violated Section 8(a)(1).5 An employer certainly has the right to make and enforce rules of plant discipline, including rules which restrict employees to their duty stations. It is not incumbent upon the Board to evaluate the reasonableness of such rules. However, when an employer pursues a policy or practice of laxity or indifference in this respect and suddenly begins to tighten up when an organizing drive appears on the horizon, the inference is clear that the new rule, policy, or practice is not being invoked for business reasons but in order to discourage intraplant union activities on the part of affected employees. In this case, "the peregrinations of employees whose tasks were temporarily completed had been a matter of little concern to this Respondent. However, immediately after the organizing drive com- menced, various warnings were given to employees about leaving their department. In one instance, another warning of a clearly coercive nature, having the effect of chilling intraplant union activity, was likewise given to an employee. Hence it is my conclusion that, in the context found herein, these warnings constituted an unlawful interference with Section 7 rights, and the general announcement of a rule or policy against leaving, one's department under any circumstances without specific authorization, under penalty of discharge, did under the facts and circumstances of this case, constitute interference with Section 7 rights in violation of Section 8(a)(l) of the Act. It is my further conclusion that the Respondent's reaction to the organizing drive extended to the discharge of Eugene Kelly. As noted from the findings above, Kelly one of them was in the hearing room There is no reason to conclude that Boxton or Bird were or are under the control of the General Counsel and available to hum for giving testimony. Secondly the rule of drawing , adverse inferences from a failure to testify extends to a failure to respond to an accusation, not to a failure to give corroborating testimony. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in union activities and was known to be a union adherent, having been seen by Bailey Browder in the, act of posting a union notice on a plant door. Following the company instructions announced by another supervisor to other employees (Washington to Austin and others) the possession by an employee of union literature in the plant was an infraction warranting discharge, and such policy was effectuated here. Within 24 hours after posting the leaflet, Kelly was gone. He was an employee whose work record, as indicated previously, was undistinguished. However, after having worked for the Company for 1 year in the aggregate, that he should have received three written warnings in 10 days, two of them on a single night after having posted a union notice, is more than merely suspicious. It is a clear indication of an attempt to make a case against him for discharge upon reasons that were quite apart from those asserted. Foreman Upshaw testified that the fact that Kelly had been found sleeping was what actually forced his hand and required that he discharge him. According to Upshaw, he could have let slide the matter relating to Kelly's visitation to the corduroy cutting department,6 but he could not overlook the matter of Kelly's sleeping at or near his machine. However, Otis Baker was sleeping at the same time and place. Not only was Baker not discharged; he was not even given a written warning slip, and, from credited testimony in the record, Baker continues each evening to slumber on with impunity. This represents clearly disparate treatment of union activist Kelly vis-a-vis another employee who can best be described as a complete nonactivist. ' Moreover, Upshaw's efforts to have Kelly sign a second warning slip (relating to absence from his department) after Kelly had in fact been discharged for a subsequent offense (sleeping), makes a mockery of the warning slip system and indicate a studied effort on Upshaw's part to conceal the true motivation of the discharge by a rote compliance with the Company's three-warning-slip policy. Presumably a written warning for a minor offense is given to an employee for the purpose of putting him on notice that his conduct is deficient, and also to afford him an opportunity to rectify his conduct and improve his efficiency. Giving an employee two warning slips in one evening, one of which is tendered after a discharge had been decided upon, serves no conceivable purpose except to permit Upshaw to cover his tracks by making out a paper case after the fact, in order to support the earlier action. In short, the timing, the knowledge by the Company of Kelly's union activities, its animus, Respon- dent's disparate treatment of Kelly in comparison with other employees similarly situated, and its contrived arrangement of Kelly's personnel record to show three written warnings all support a conclusion that Kelly was not discharged for the reasons asserted by the Respondent, but that he was terminated to rid the Company of an active union adherent. I so conclude: Upon the foregoing findings of fact, and upon the entire record considered as a whole, I make the following: 6 In so testifying, Upshaw cast further doubt upon the necessity for issuing a written warning slip and lent support to the conclusion that the slip was issued for the purpose of making out a case against Kelly for totally CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations 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. By discharging Eugene Kelly, as found above, Respondent violated Section 8(a)(3) of the Act. 4. By the acts set forth in Conclusion of Law 3, by threatening employees with discharge for engaging in union activities, and by announcing and enforcing a rule or policy of restricting employees to the immediate area of their work stations for the purpose of interfering with the free exercise of their Section 7 rights, the Respondent herein violated Section 8(a)(1) of the Act. Such unfair labor practices affect interstate commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and to take certain affirmative actions designed to effectuate the purposes and policies of the Act. The recommended Order herein will provide that the Respondent shall offer Eugene Kelly reinstatement to his -fob, and make him whole for loss of earnings in accordance with the Woolworth formulaj with interest at 6 percent per annum. I will also recommend that the Respondent be ordered to cease and desist from engaging in repetition of the conduct found to be illegal, and that it post the attached notice advising its employees of this order and of their rights. Upon the foregoing findings of fact, conclusions of law, and upon the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER Respondent Reeves Brothers, Inc:, Eagle & Phenix Division, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging - or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment, because of their union or protected activities; (b) Threatening employees with discharge for engaging in union activities, or invoking" or enforcing a rule or practice aimed at restricting employees to their duty stations for the purpose of interfering with rights guaran- teed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the purposes and policies of the Act: (a) Offer to Eugene Kelly immediate and full reinstate- ment to his former, position without prejudice to his seniority or to other rights he previously enjoyed, and make him whole for any loss of pay suffered by him by unrelated reasons. 7F. W Woolworth Company, 90 NLRB 289. REEVES BROTHERS, INC. 55 reason of the discrimination found, in the manner described above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agent, for examination and copying, all payroll and other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at Respondent's place of business at Columbus, Georgia, copies of the attached notice marked "Appen- dix." Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted immediate- ly by it upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspic- uous places, including all places where notices to employ- ees are customarily placed. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of receipt of this Order, what steps the Respondent has taken to comply herewith. which we were found to have violated certain sections of the National Labor Relations Act. WE WILL NOT threaten employees for engaging in union activities. WE WILL NOT invoke or enforce a rule or practice which restricts employees to their department for the purpose of interfering with their rights under Section 7 of the National Labor Relations Act. WE WILL offer to Eugene Kelly full and immediate reinstatement to his former position without prejudice to his seniority or to other rights previously enjoyed, and we will make him whole for any loss of pay suffered by him by reason of his termination. All of our employees are free to join or assist Textile Workers Union of America, AFL-CIO, or any other labor organization. REEVES BROTHERS, INC., EAGLE & PHENIx DIVISION (Employer) Dated By APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We are posting this notice in accordance with the recommended Order of an Administrative Law Judge. The recommended Order was issued after a hearing in a case in (Representative) (Title) 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Peachtree Building Rm. 701 - 730 Peachtree Street N.E., Atlanta, Georgia- 30308, Telephone 404-526-5760.