Dalton Sheet Metal Co., Inc.

188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dalton Sheet Metal Company, Inc. and Sheet Metal Workers Local # 85. Case 10-CA 9001 November 12, 1973 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On July 18, 1973, Administrative Law Judge Bernard Ness 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 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, Dalton Sheet Metal Company, Inc., Dalton, 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 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 are 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 STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: This case involves the eligibility of three individuals who voted in a Board-conducted election held on December 3, 1970, resulting in the Union's certification. On September 8, 1971, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding' finding that the Respondent had violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by its refusal to bargain with the above-named Union as the exclusive bargaining representative of its employees in an appropriate unit. Accordingly, the Board ordered 1 193 NLRB 70. 2 Case 10-RC-8428 I Respondent to cease and desist from engaging in such activities and to take certain affirmative action to remedy such unfair labor practice. Thereafter, on February 10, 1972, the Board applied to the United States Court of Appeals for the Fifth Circuit for enforcement of its Order. On January 30, 1973, the court denied enforcement and remanded the case to the Board for further hearing on the eligibility of Kenneth B. Parrish, Wilburn F. Norris, and James L. Smith to vote in the election conducted in Case 10-RC-8428 on December 3, 1970. Pursuant thereto, the Board issued an Order on March 8, 1973, directing a hearing before an Administrative Law Judge for the purpose of receiving evidence in accordance with the court's remand, and to prepare and serve upon the parties a Decision containing findings of fact based upon the evidence received, conclusions of law, and recommenda- tions. Hearing was held in Dalton, Georgia, on April 24 and May 31, 1973. Upon the entire record, including my observation of the witnesses, and after consideration of the beefs filed by the General Counsel and the Respondent, I make the following findings of fact, conclusions of law, and recommendations: FINDINGS OF FACT 1. PRELIMINARY STATEMENT AND ISSUES The Respondent maintains two plants in Dalton, Georgia, referred to herein as the Grant Street plant and the 11th Avenue plant. The Union commenced economic strikes at the Grant Street and 11th Avenue plants on August 24, 1970, and on September 8, 1970, respectively. On September 16, 1970, the Union filed its petition for an election with the Board.2 The strike activity and picketing continued until December 3, 1970, the day of the election. Picketing was discontinued on that date. Pursuant to the Regional Director's Decision and Direction of Election, the election was conducted on December 3, 1970. The tally of ballots revealed that of 90 votes cast, 1 was for, and 39 against, the Union, with 50 ballots challenged. Since the challenged ballots were sufficient in number to affect the results of the election, the Regional Director conducted an investigation of the challenged ballots and thereafter issued his Supplemental Decision and Order to Open and Count Challenged Ballots on February 23, 1971, wherein he overruled the challenges to 42 ballots, sustained the challenge to 7 ballots and ordered that the remaining challenge be resolved by record testimony at a hearing in the event the revised tally of ballots showed it to be determinative. On March 19, 1971, the Board denied Respondent's Request for Review of the Regional Direc- tor's Supplemental Decision and Order as raising no substantial issues warranting review. Thereafter the chal- lenged ballots of the 42 voters were opened and counted on March 22, 1971.3 The revised tally of ballots showed that 36 were cast for, 40 against, the Union, and there were 6 remaining challenged ballots. The six challenges were 3 The ballots of Pamsh, Norris, and Smith were included in the 42 counted ballots. 207 NLRB No. 19 DALTON SHEET METAL CO., INC. 189 made by Respondent at the count based upon its contention that the markings on the ballots were unclear and the ballots should be declared void. The Regional Director investigated the six challenged ballots and on March 25, 1971, issued his Second Supplemental Decision and Certification of Representatives, wherein he overruled the challenges to the six ballots, stating that the ballots clearly expressed the intent of the voters in favor of representation. Since the overruling of the challenges to these 6 ballots resulted in a revised tally of 42-40 favoring representation, the Regional Director certified the Union as the bargaining representative of the employees. The Board denied Respondent's request for review of the Regional Director's action as raising no,substantial issues warrantingreview. The Respondent's refusal to bargain with the Union following its certification prompted the filing of the instant unfair labor practice charge, the issuance of the complaint, the resultant grant by the Board of the General Counsel's Motion for Summary Judgment and the remand from the court. The most recent revised tally of ballots which was the predicate for the certification was 42 ballots in favor of, and 40 ballots against, the Union. Included in these 82 ballots were those of Parrish, Norris, and Smith. The only issue to be resolved is their eligibility to have voted in the election conducted on December 3, 1970. The Respondent contends that Parrish, Norris, and Smith terminated their employment relationship prior to the eligibility cut-off date4 and prior to the election and therefore were not eligible to vote.5 IL THE ELIGIBILITY OF PARRISH, NORRIS, AND SMITH Initially it should be noted that an economic striker is presumed to continue in that status and thus is eligible to vote under Section 9(c)(3) of the Act. In Pacific Tile and Porcelain Co.,6 the Board stated such status may be lost, inter alia, by some action of the striker himself, by which he has evinced an intention to abandon his interest in his struck job regardless of the outcome of the strike. The Board went on to state that in order to rebut the presumption of eligibility, the party challenging the vote must affirmatively show by objective evidence that he has abandoned his interest in his struck job. The Board noted that the, nature of the evidence which might rebut the presumption would be determined on a case-by-case basis. With these considerations in mind, we now examine the status of the three individuals on the date of the election. The General Counsel contends that Parrish, Norris, and Smith did not abandon their interest in their struck jobs prior to the election but maintained their continued interest in the strike. The Respondent on the other hand first argues that no credible evidence was disclosed that Norris or Smith were economic strikers which affords them the rebuttable presumption of continued economic striker status. Respondent contends that neither Norris nor Smith engaged in any picketing after their stated intentions to quit. Respondent argues further that, assuming arguendo, the three individuals enjoyed the status of economic strikers, such presumption of eligibility to vote has been rebutted by objective evidence they had, by their own actions, terminated their employment relationship. A. Kenneth B. Parrish Parrish had worked for the Respondent since the summer of 1966. He was employed at the Grant Street plant at the time the strike commenced at noon on Monday, August 24, 1970. He had signed a union card and attended union meetings before the strike. Being aware that the Union planned to strike the Grant Street plant on August 24, his intention was to take a vacation during that week, hoping that the strike would be settled by the time he returned the following week. Accordingly, on the previous Friday, August 21, he received, at his request, a vacation check from Plant Superintendent Brock.7 Parrish testified he reported for work at 8 a.m. on Monday morning, August 24, and told Brock that morning that if the strike came off, he would take his vacation - hoping it would be over by the time he returned. He punched out at noon when the strike started and departed for the Smokies on his vacations Parrish testified that upon his return from vacation on Saturday, August 29, he received a call at home from Brock. Brock asked if he was coming in to work on Monday and said a majority of the employees were working. Parrish returned to the plant on Monday, August 31, prepared to work, but upon observing a substantial number of employees on strike, he decided not to go in. Later that morning Brock called and asked him if he was coming in. Parrish replied that "I can't come in over my friends."9 The following day he called, Brock to say he was coming in for his paycheck.10 When he appeared, Brock told him to wait while he got the check. Respondent's president, Hawkins then appeared. According to Parrish, Hawkins asked him what he was doing. Parrish replied that he had been offered an insurance job the day before. Hawkins told him he had done a fine job and "if I ever wanted a job back, to come back." Parrish denied saying he had quit. Both Brock and Hawkins testified that it was on Monday, August 31, rather than on Tuesday, September 1, that Parrish appeared at the plant. Brock testified that Parrish came to the plant and told him he wanted the pay due him. Brock asked him if he was coming back to work and Parrish replied that he had quit and had another job. Brock called Hawkins and told him Parrish was there and was quitting. He asked Hawkins to talk to Parrish. Brock was not present during the conversation that ensued between Hawkins and Parrish. 4 Payroll period ending October 28, 1970. 5 The parties are in agreement that the three individuals were included in the bargaining unit. Apart from the issue of whether they abandoned their employment, they otherwise would have been eligible to vote. 6 137 NLRB 1358. 7 This tincontradicted testimony by Parrish is credited. s Brock testified that Parrish did not report for work on Monday, August 24. Company records would have shown whether Parrish had worked that morning but none were produced. Although not critical to the ultimate findings herein, I find that Parrish did work that morning and reported his intentions to Brock, as he testified. The record also discloses that employees receive vacation checks even if they forego their vacations. 9 Brock denied he called Parrish. I credit Parish. 10 A partial paycheck for the week of August 17. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hawkins testified that it was not standard procedure-for him to talk to employees that were terminating their employment but during this particular period (the strike) he "felt that I would like to talk to anyone that I could, so I was called to talk with him, as he had not gone out with the others on the date of the strike." Hawkins' version of his conversation with Parrish is set out below: So I went out and when I got to Mr. Brock's office he did inform me that Mr. Parrish had told him that he was quitting, and that he was getting the last paycheck that he had coming to him. So after Mr. Brock left I was talking to Mr. Parrish and was asking him why he was quitting and he just told-me that he was thinking about going and being an insurance agent, that he felt like from a financial standpoint that he could better himself. Well, with this, then he seemed, you know, fairly determined as to his mind being made up. I just wished him success and he left the plant. Parrish never did take the insurance agent's job.11 Beginning on September 3 and continuously thereafter until the day of the election Parrish engaged in picketing activities and received strike benefits. He did not work elsewhere between August 24 and the day of the election. Parrish impressed me as a witness honestly attempting to reconstruct his conversations with Brock and Hawkins. I find that he told Brock he was there to pick up his paycheck and did not tell Brock he had quit or had another job.12 He had told Brock the day before he did not intend to cross the picket line and before he came to the plant had told Brock he was coming in for his paycheck. It may be that Brock could have assumed that Parrish intended quitting and so reported to Hawkins but such assumption was erroneous because Parrish did not say he was quitting. Although Parrish lacked certitude with respect to the express words used in his conversation with Hawkins, he appeared certain and- definite in his denial that he had told Brock or Hawkins he had quit. Even Hawkins does not claim that Parrish told him he had quit. Hawkins' testimony, as related above, reveals that it was he himself who brought this up when he asked Parrish why he was quitting. In response to this question, Parrish said he was considering the insurance agent's job. There is not that degree of contradiction 'concerning the respective versions that may at first blush appear. Both agree that they discussed the insurance agent's job and that Parrish was only considering whether to accept it. In light of the discussion about that job, what were the words that preceded it? Taking into consideration Parrish's rather hazy recollection of the words used, I am persuaded that Hawkins asked him why he was quitting rather than what he was doing. The only tangible evidence to support a finding that he permanently severed his employment relationship with Respondent is based upon his conversation with Hawkins when, in response to Hawkins' question as to why he was quitting, he replied he was considering taking a position as an insurance agent. I find this to be insufficient proof that Parrish thereby intended to permanently sever his employ- ment relationship with Respondent. He had earlier told Brock he did not intend to cross the picket line and came to the plant to get his paycheck. Parrish did not tell either Brock or Hawkins that he was quitting. Hawkins initiated the conversation by asking Parrish why he was quitting. Parrish's only, response was he was considering the insurance agent position. From the tenor of the conversa- tion it could be reasonably concluded that Parrish' s intent was merely to cease work or temporarily quit during the labor dispute. That Parrish did not intend to permanently abandon his employment is borne out by the fact that, rather than accept other employment which he had only been considering at the time of his conversation, he chose to actively join the picket line. He continued to picket for the 3 months until the election was, held. Under these circumstances, I find that Parrish was and remained an economic striker who had not permanently abandoned his interest in his employment with Respondent and was an eligible voter at the time of the election. B. Wilburn F. Norris On September 8, 1970, the employees at the 11th Avenue plant including -Norris, also went out on strike. Norris had been working at this plant for 8 years. He credibly testified that on September 23 he came to the plant and told his supervisor, McGill, that he had come to pick up his personal tools-that,he was going to look for another job. At McGill's request, Norris then spoke with Respondent's vice president, Feild. Norris told Feild that he wouldn't be on the picket line anymore, that he was going to look for another job. Norris also told Feild that he had enjoyed working for the Respondent and wanted to return "when the mess got straightened out." 13 The following day, September 24, he started working at Dalton Trailer Repair Service, doing substantially similar work that he had performed at Respondent, although at a lower rate of pay. Sometime after the election, he went to work for Fort Mountain Spinners in Chadsworth, Georgia. Norris ceased active picketing when he picked up his personal tools on September' 23. As to his reason, he stated, "I told you, to feed my family, pay my bills and stuff like that, and give them other boys a chance out there on the picket line to make a little extra money out there." After he began working for Dalton Trailer, he visited with the pickets almost every' day.14 He received a check from the Union on December 18, 1970, representing strike benefits given as a Christmas bonus to all striking employees. Respondent argues that because Norris picked up his tools, ceased picketing and accepted other employment, Norris thereby lost his status as an economic striker and no presumption of economic striker status any longer existed to rebut. Respondent further contends that Norris' actions indicated an intent to sever the employment relationship. I find no merit to these contentions. It is obvious that a striker who ceases active picketing to accept interim employment does not thereby lose his status as an 11 His salary as an insurance agent would have been less than his paycheck and was quitting-nothing was said about having another job. earnings at Respondent, taking into account the overtime he had been 33 Corroborated by Fetid. McGill was not called as a witness. regularly receiving 14 On cross-examination, after considerable prodding, Fetid grudgingly 12 Hawkins testified Brock reported to him Parrish had come for his conceded he saw Norris occasionally near the plant with striking employees. DALTON SHEET METAL CO., INC. 191 economic striker. Nor is the removal of his tools to seek other employment during a strike cogent proof that he intended to abandon his interest in supporting the strike or his employment, particularly where, as here, Norris expressed his desire to return to work upon cessation of the strike. Thus it cannot be said that under these circum- stances his employment in the same community at Dalton Trailer Service at a lower rate of pay disclosed an intention not to return. Accordingly, I find that Norris was and remained an economic striker during, the material times herein and in absence of proof that he had abandoned his interest in his struck job, Norris was an eligible voter at the time of the election. C. James L. Smith Smith had been working at the Grant Street plant about 3 years. He had signed a union card at a union meeting prior to the strike. During the first 2 weeks of the strike at Grant Street he continued to work. Finally, on September 4, he decided to leave. At about 1 p.m. on that date he spoke to Brock and Hawkins. Contrary versions were presented at the hearing concerning the conversations about his departure Smith had with Brock and Hawkins. Smith testified that at the time he left the plant he told Brock, "I told him I was going to go out for a while and hunt me a job and try to find me something to do until that blowed over, or something or other. That I didn't like crossing the picket line on account of the boys and men I worked with, and everything." He had no clear recollection of what he then said to Hawkins. Brock and Hawkins agreed that Smith said he wouldn't cross the picket line any longer and that he intended to look for anotherjob. They testified however, that Smith also said he was quitting and did not say for "a while" or indicate that it was temporary. Brock testified that Smith said "for me to get someone to take his place, that he was quitting." Hawkins first testified Smith said, "he felt like that he should leave and get another job." Later in his testimony, Hawkins testified Smith said he was "quitting" not "leaving." Smith was somewhat hazy and uncertain in his recollec- tion of the conversations. On the other hand, I also recognize that Brock and Hawkins understandably had an interest in showing that Smith had completely abandoned his employment with Respondent on that date. I find, as the uncontradicted testimony shows, that Smith told Brock and Hawkins that he would not cross the picket line any longer and that he was going to look for another job. However, the question to be resolved is what Smith said concerning the permanency of his departure. Did he say he was ceasing work until the strike was over or did he flatly say he was "quitting" or "leaving" or state when he was likely to return? After carefully weighing the testimony of the witnesses, observing their demeanor as they testified and considering the likely probabilities, I am persuaded that Smith did not qualify the duration of his quitting or state when he was likely to return. In the context in which he spoke, I perceive no difference in the meaning of "quitting" or "leaving." To be decided, however, is whether this announced expression by Smith, in the context in which it arose, constituted a permanent abandonment of his employment relationship with Respondent . More about this below. Smith credibly testified that on about September 17 he went to Brock's home and spoke to him about returning to work. t5 At the time Smith had intended to return to work the next day. As he testified, "I couldn't find no work that I could make nothing at. I had a family, and I was kind of in distress, and I needed to have a job. I wanted to go back, but I still couldn't go by those boys, I mean them boys, my friends, and everything. I would starve to death before I done it." Brock told him his card would be in the rack the following morning. But Smith didn't report for work. As he stated, "I had intentions of going back to work the next, day. But after I got thinking about it, I still just couldn't do it. And I got up, even that morning, to come in to work, but I still couldn't do it." Smith did not engage in actual picketing but visited with the strikers on the picket line two to three times a week. After he ceased working at the plant, he had several jobs in the Dalton area of short duration up until the election. He worked at the Calvary Baptist Church for several weeks, where his earnings were less than at Respondent . He also worked at Brock Tire Company for 2-3 weeks, fixing flats, at $100 per week as compared to $2.65 an hour at Respondent. For a short period of time, he worked for H.M.C. Construction Co. at $3 per hour. In January 1971, at least a month after the election, he moved to Marietta, Georgia, to work in that area. After,the election a group of strikers came to the office and asked Hawkins if they could return to work. Hawkins informed them he didn't have work for them. Smith testified he was with this group seeking reinstatement and that James Thomason was the spokesman for the strikers. Smith said he thought this meeting took place on December 3, after the election. Hawkins confirms this meeting took place, that Thomason was the spokesman for the group, about 17-18 in number, and corroborates the substance of the conversation. However, Hawkins testified the meeting took place on Monday, December 7, rather than on December 3. He was less than candid in response to questioning concerning the presence of Smith with the group of employees seeking to return to work . The direct examination by Respondent's counsel: Q. All right. Now was James Smith in that group? A. No. The cross-examination, in pertinent part: Q. And you say Mr. Smith was not in that group? Do you deny he was in that group? A. Oh, it's probable. Oh, he could be there. Q. Oh, he could have been in that group? A. It's possible. Q. It's possible. (Witness nodded affirmatively.) Q. So you can't say, with any definiteness, that he was not in that group. A. No. The question, as I recall, was did I see Mr. Smith in the group and I said no ; I didn't.' 15 Brock confirmed Smith's visit but did not testify as to the substance of the conversation 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. But it was possible he could have been in that group? A. Well, yes. Anything is possible. So he could have been there. I find that the meeting took place on Monday, December 7, and that Smith was with a group of strikers seeking to return to work on that date. I have found above that on September 4, Smith told Brock and Hawkins he had decided to no longer cross the picket line and that he "quit" and was going to look for another job, I am convinced that Smith did not thereby intend to permanently abandon his employment with Respondent. Rather, I am persuaded that he used the word "quit" as an expression to denote that he intended to cease work during the strike. Keeping in mind that Smith had been crossing the picket line for the preceding 2 weeks, I am convinced from my observation of him as he testified and from his testimony that he was in the horns of a dilemma. To work or not to work was a question haunting him as borne out by his visit to Brock's home and his wavering indecision about returning to work during the strike. Under these circumstances, the word "quit" should not be interpreted so narrowly to mean a permanent severance of his employment. Smith ceased work on September 4 because of pangs of conscience and decided to respect the picket line rather than to continue to cross it. The evidence that he worked elsewhere on several jobs during the strike was not in itself sufficient to show abandonment of interest in his struck job. His continued interest in his struck position was evident from his visit to Brock's home 2 weeks after he ceased work, his periodic visits with the pickets at the site and his request to return to work immediately after the election, which was rejected. It was not until approximately 1 month after the election that he left the area for other employment. I find, contrary to Respondent's contention that Smith, during all times material, was in the status of an economic striker. Despite the fact that he did not engage in active picketing, he ceased work because of the labor dispute and because of his sympathies with the striking employees. About two to three times a week he visited with the pickets. I further find and conclude that Smith had not permanently abandoned his interest in employment with Respondent at the time of the election and accordingly was an eligible voter. CONCLUSIONS OF LAW 1. Kenneth B. Parrish, Wilburn F. Norris, and James L. Smith were employees in the appropriate bargaining unit and were economic strikers at all times between October 28, 1970, the eligibility cut-off date, and December 3, 1970, the date of the election. During this same period of time, Parrish, Norris, and Smith did not permanently sever their employment relationship with Respondent. 2. Parrish, Norris, and Smith were eligible voters in the election held on December 3, 1970, and their ballots were properly counted. 3. The Union, having received a majority of the valid ballots cast, was entitled to certification as the exclusive representative of Respondent's employees in the appropri- ate bargaining unit. On the basis of the foregoing findings of fact, conclu- sions of law, and on the entire record before me, I recommend issuance of the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby affirms the certification of Sheet Metal Workers Local # 85 as the representative of the employees in the bargaining unit heretofore found appropriate; and orders that Respondent, Dalton Sheet Metal Company, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Order previously issued on September 8, 1971, reported at 193 NLRB 70.