Jenkins Manufacturing Co.

JENKINS MANUFACTURING CO. 439 Jenkins Manufacturing Company and International Molders and Allied Workers Union, AFL-CIO-CLC. Case 10-CA-10028 March 6, 1974 DECISION AND ORDER BY CIIAIRMAN MILLER AND MEMBERS FANNING AND JENKINS whether respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (Act),4 by discharging an employee, Richard Nelson. Upon the entire record,5 upon my observation of the witnesses and their demeanor while testifying , and having taken into account the arguments made and the able briefs submitted,6 I make the following: FINDINGS OF FACT7 On October 31, 1973, Administrative Law Judge Alvin Lieberman issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief, and Respondent 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. 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 be, and the same hereby is, dismissed. DECISION SIAJEMENT OF THE CASE ALVIN LIEBERMAN. Administrative Law Judge: The trial in this proceeding, with all parties represented, was held before me in Anniston, Alabama, on May I and June 26 and 27, 1973, upon the General Counsel's complaint and amendment to complaint 1 dated, respectively, April 5 and April 6, 1973,2 and Respondent's answer.3 The principal issue raised by the pleadings and litigated at the trial was i Hereinafter these pleadings will he referred tojointly as the complaint 2 The complaint was issued pursuant to a charge filed on March 2, 1973, by International Molders and Allied Workers Union , AFL-CIO-CLC i During the trial the answer was amended to admit par. 6 of the complaint insofar as it alleges that Respondent discharged Richard Nelson on February 27. 1973 4 In pertinent part these sections provide Sec. 8(a) it shall be unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7, (3) by discrimination in regard to hire or tenure of employment to encourage or discourage membership in any labor organization Section 7, insofar as relevant, states I. JURISDICTION Respondent, an Alabama corporation, is engaged at Anniston, Alabama, in the manufacture and sale of prehung doors and windows. During the past calendar year, a representative period, Respondent sold and shipped products valued at more than $50,000 directly to customers located outside the state of Alabama. Accordingly, I find that Respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (Board) is warranted. Siemons Mailing Service, 122 NLRB 81, 85. II. THE LABOR ORGANIZATION INVOLVED International Molders and Allied Workers Union, AFL-CIO-CLC (Union) is a labor organization within the meaning of Section 2(5) of the Act. III. INTRODUCTION Briefly, this case is concerned with Respondent's discharge of Richard Nelson, an employee who was a staunch supporter of the Union, after an organizing campaign mounted by the Union ended in the Union's loss of a representation election. The General Counsel con- tends8 that Nelson's dismissal was motivated by his activity in support of the Union and, therefore, was violative of Section 8(a)(3) and (1) of the Act. Respondent maintains that Nelson was discharged because he was physically unable to do his work. This asserted ground for the termination of Nelson's employ- ment is attacked by the General Counsel as being a pretext to conceal its actual basis, Nelson's union activism. Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing. and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection .... 5 Issued simultaneously is a separate order correcting obvious inadvert- ent errors in the stenographic transcript of this proceeding 6 Although all the arguments of the parties and the authorities cited by them, whether appearing in their briefs or made orally at the teal, may not be discussed in this Decision, each has been carefully weighed and considered. 7 Respondent's motion made at the conclusion of the trial , upon which I reserved decision, is disposed of in accordance with the findings and conclusions set forth in this Decision 8 Although represented, the Union made no opening statement at the trial nor did it submit a brief I assume, however, that its position is the same as the General Counsel's 209 NLRB No. 83 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. PRELIMINARY FINDINGS AND CONCLUSIONS9 A. Respondent's Operations As noted, Respondent makes doors and windows. In assembling its windows Respondent employs crews con- sisting of two and three men. In the latter case one of the crew members is a leadman, whose wage rate during February 1973 was 30 cents an hour greater than the other two. When three men work together two assemble the window frame into which they insert the glazed sash. The completed window is then turned over to the leadman, the third member of the crew, who installs the weather stripping and inspects the unit. After ascertaining that the window is free from defects the leadman staples into the finished product blocks and braces whose function is to prevent the sash from moving while the window is in storage or in transit to its purchaser. Upon completing the foregoing operation the leadman lifts the window and places it on a nearby dolly for movement into a storage area. In the absence of a dolly the leadman carves the window to the storage area, a distance of some 25 feet. When the crew consists of two men, one assembles the frame and inserts the sash. The second man performs the same operation as does the leadman in a three-man crew. Respondent manufactures windows of several sizes. The smallest size weighs 28 pounds and the largest 70. Most of the windows produced by Respondent fall within a weight range of from 35 to 50 pounds. B. The Prior Proceedings 1. The representation proceeding On July 28, 1972, upon the Union's petition, a represent- ation election was conducted among Respondent's em- ployees at which the Union failed to receive a majority of the votes cast. On August 1, 1972, the Union filed objections to the election. 2. The unfair labor practice proceeding On June 16 and July 12, 1972, the Union filed unfair labor practice charges against Respondent . On September 11, 1972, a complaint issued on these charges in which it was alleged that Respondent had violated Section 8(a)(1) and (3) of the Act. 3. The consolidated proceeding Because Respondent's conduct alleged by the Union as the basis for its objections to the representation election was substantially similar to certain allegations contained in the unfair labor practice complaint, the two proceedings were consolidated. The consolidated proceeding was heard by an Administrative Law Judge on November 14 and 15, ' The purpose of these findings is to furnish a frame of reference within which to consider the facts relating to Respondent's alleged unfair labor practices and the conclusions to which they may give rise To the extent that the contentions of the parties relate specifically to the findings made here they will be treated here, although they as well as the findings, may again be considered in other contexts 10 The second election directed by the Board in Jenkins 1 had not yet 1972. At this hearing Richard Nelson, whose discharge on February 27, 1973, is alleged in the instant complaint as having been violative of Section 8(a)(3) and (1) of the Act, appeared as a witness for the General Counsel. On June 21, 1973, the Board issued its decision in the consolidated proceeding finding that Respondent had violated Section 8(a)(1) and (3) of the Act and sustaining some of the Union's objections to the representation election. Accordingly, the Board ordered Respondent to refrain from its unfair labor practices and to take appropriate affirmative action to effectuate the policies of the Act. In addition, the Board set aside the election conducted on July 28, 1972, and directed that a new representation election be held. Jenkins Manufacturing Company, 204 NLRB No. 53 (Jenkins 1).10 C. Nelson's Union Activity As found in Jenkins 1, the Union began its campaign to organize Respondent's employees in May 1972. Toward the end of that month the Union informed Respondent that Richard Nelson, the subject of this proceeding, and two other employees constituted its "In-Plant Organizing Committee." The Board also found in Jenkins I that Nelson "was one of the first and foremost adherents of the Union." As a member of the Union's organizing committee Nelson, as he testified, "wore the Union button [and] represented the union the whole time before the election." In addition to his organizing committee membership, Nelson was an observer for the Union at the representation election conducted on July 28, 1972. Notwithstanding this, Nelson told Clare Draper, Respondent's vice president, as the latter stated, that "[before he voted] he had had a change of mind [and] voted for the Company and .. . against the Union." Nelson continued to wear a union button until 2 or 3 months before his discharge on February 27, 1973, but, apparently, did nothing else to further the Union's cause after the election." Nor does there appear to have been a continuation of union activity in Respondent's plant since the election. As the General Counsel conceded at the trial, during the period between the election in July 1972 and February 27, 1973, the date of Nelson's discharge "union activity was in a state of limbo." Finally, in this regard, the record does not disclose any independent coercive conduct by Respondent since the election which might account for the discontinuance of union activity by Nelson and its other employees. D. Nelson's Physical Condition i2 On January 9, 1973,13 while employed in Respondent's door department, Richard Nelson visited the office of a physician to be treated for an enlarged prostate gland. Medication was prescribed and the physician advised been conducted at the time of the instant trial 11 Nelson's appearance as a witness for the General Counsel in the consolidated proceeding discussed in the previous section of this Decision has already been noted. i2 These findings are made in view of Respondent's assertion that Nelson was discharged because he was physically unable to do his work 1i All dates hereinafter mentioned without stating a year fall within 1973 JENKINS MANUFACTURING CO. Nelson "to go home and take it easy for a while." His physician also informed Nelson that "an enlarged prostate gland didn't heal ... just all of a sudden [and that the healing process] would take a few days." Nelson stayed home for the next 2 days. Upon his return to work on January 12 Nelson presented Walter Lindsey, his then supervisor, with a note from his physician stating that on January 9 Nelson "was ill and in [his ] office for treatment." 14 Nelson also told Lindsey what his physician had said about his "tak[ing] it easy" and about the length of time recovery would consume Nelson received further treatment from his physician on January 16. At that time the physician stated to Nelson that his condition was "improving," advised Nelson to continue "taking it easy." and suggested that Nelson "come back to see [him in ] about ten days." On January 26 Nelson paid his final visit to his physician. At that time, after examination, the physician "dismissed" Nelson, but told him to return "if [he] got to having any more problems." Nelson's prostate gland "problems" returned during the following month. Thus, in about mid-February, while Nelson was working in Respondent's window depart- ment,15 he "got to hurting so bad in [the lower part of his stomach that he] felt like [he] was going to faint." A similar situation developed on February 27, the day Nelson was discharged.16 V. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Concerning Respondent's Alleged Violations of Section 8(a)(3) and (1) of the Act Richard Nelson was originally employed by Respondent in 1967. He was dismissed in June 1969 for refusing to follow instructions given him by his supervisor. Some 10 days later Nelson was rehired. He continued in Respon- dent's employ until his discharge on February 27, 1973, under circumstances alleged in the complaint as having been violative of Section 8(a)(3) of the Act. Shortly after his rehire in June 1969 Nelson was assigned to Respondent's door department. In February 1972 he was promoted to leadman and received a $10 a week wage increase. 14 Resp Exh 3 11 Nelson's transfer from the door department to the window depart- ment will be discussed below 16 My findings concerning Nelson's physical condition are based on, and the unattributed quotations appearing in the text are taken from, testimony given by Nelson 17 There is some dispute as to the date of Nelson 's transfer Nelson testified that it occurred on February 15 However, Nelson's testimony as to this appears to be contrary to the weight of the other evidence on the point Thus, Mack Smith , an assistant foreman and Nelson's supervisor in the window department, stated that Nelson came into that department "around the first or second week of February" and worked there for "approximately a month " Lowell Owens, who appears to be Respondent 's chief foreman, related that Respondent's records showed that Nelson was transferred on February 1. Although the records referred to by Owens were not introduced into evidence. Owens' and Smith's testimony as to the date of Nelson's transfer is corroborated by two wntten warnings (Resp Exhs I and 2) received by Nelson while he was in the window department . Resp. Exh I is dated "2-6-73" and shows that Nelson was then working in the window department Resp Exh 2 is dated "2-9-73" and also shows that Nelson was then working in the window department . Although Nelson testified that both Resp Exh I and Resp. Exh 2 were given to him on February 22 and 441 On January 30, 1973, Nelson was asked to work overtime. Upon his refusal to do so he was given an oral warning. On about February 1, 1973, Nelson was transferred to Respondent's window department to occupy the position of leadman.17 Upon Nelson's transfer another employee was given the job Nelson had in the door department. Before Nelson was shifted to the window department the leadman's work there was performed by Mack Smith, an assistant foreman. Smith also had to oversee the employees in the window department as well as employees in other sections of Respondent's plant. To relieve Smith of his leadman work, thereby permitting him to perform his supervisory duties more efficiently, Nelson was put into the leadman position in the window department. Although he was the leadman, Nelson's first assignment in the window department was the building of frames, a function not ordinarily performed by a leadman.18 "The reason for this," as Smith explained, was "that if [Nelson] built a good many [window] units, he could know the sizes real well and what material would pass and what wouldn't pass [and learn] how [the windows] should be put together" The knowledge thus acquired, Smith continued, would enable Nelson to "do a better job on inspection." On February 6 Nelson was again asked to work overtime and again refused to do so.19 For this he was given a written warning. Continuing his program of teaching Nelson to perform the functions of a leadman, on February 8 Smith, Nelson's supervisor, told Nelson, who was then building window frames, that when he got "enough [frames ] up" to move to another position and there insert sash in completed frames, inspect the windows, and then staple on the blocks. Nelson refused to do this, telling Smith that he "was already behind over here on frames now" and that there was "no way [for him to] build frames and get over there and shoot blocks too." 20 Smith reported Nelson's refusal to follow his instruction to Lowell Owens, Respondent's chief foreman, who, together with another supervisor, discussed the matter with Nelson and Smith on February 8 and 9. After hearing Smith and Nelson, Owens told Nelson as the former testified, "to go back on the job and follow [Smith's] 23, his testimony concerning this is believed by what he, himself, wrote on Resp. Exh. 1. On that document, under the heading "EMPLOYEE'S REMARKS RE- VIOLATION," appears a version of the incident giving rise to the issuance of the warning wntten and signed by Nelson. as he admitted Alongside Nelson's signature on Resp. Exh. I is a date "2-8-73." Nelson testified that he did not remember writing that date and that he did not "think" the date is in his handwriting I have carefully compared the date with what Nelson admitted he wrote. Based on this comparison it is my belief that the date was also written by Nelson . Accordingly, it is my conclusion, upon consideration of all the evidence bearing on the subject, that Nelson was transferred to the window department on or about February 1, 1973. is The work of a leadman in the window department, as I have found, consists of installing weather stripping, inspecting the window , stapling blocks and braces into the unit, and, finally, lifting and placing the completed window on a dolly or carrying it to a storage area. 19 As I have already recounted, Nelson's previous refusal to work overtime occurred on January 30. 20 The findings in this paragraph are based upon testimony given by Nelson, from which the quotations appearing in the text are taken, and by Smith 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instructions." In addition, a second written warning was issued to Nelson. During the foregoing discussion Nelson told Owens, as related by Nelson, that he and Smith "ain't getting along so good" and asked for a transfer. Owens suggested that Nelson put his request in writing so that he would not forget about it. Because Smith expected that Nelson would be trans- ferred pursuant to his request and not being willing, under the circumstances, to invest the time and effort involved in training Nelson to perform the work of a leadman, Smith permitted Nelson, following their February 9 conference with Owens, to resume building window frames. This situation continued through February 26. In the meanwhile two events occurred. One resulted in the resumption of Nelson's training to do a leadman's work. The other resulted in Nelson's receiving an addition- al written warning. Regarding the latter, on February 23, during working time, Nelson signed a petition to have a racing car driver participate in a certain automobile race. Also during working time on that day, Nelson asked Smith, his supervisor, to sign the petition. It being against Respon- dent's rules for employees to sign, or solicit signatures to, petitions while they were supposed to be working, Nelson was given a third written warning. Concerning the former, on or about February 20, Owens, Respondent's chief foreman, informed Smith that Nelson would not be transferred out of the window department because there was no available job for him elsewhere in the plant. Accordingly, Smith took advantage of his first opportunity to resume training Nelson to do the work of a leadman. This arose during the morning of February 27. This time Nelson did not resist, as he had earlier done. However, the straining involved in lifting the completed windows apparently aggravated his prostate condition and caused him to suffer pain. Because of this, at or about 10:15 a.m., after doing the work for approximately 45 minutes, Nelson informed Smith that he was unable to continue. Smith reported this to Owens, who directed Nelson to accompany him to the office of Clare Draper, Respondent's vice president. There Nelson told Draper that he had an enlarged prostate gland for which he was being treated by a physician, Dr. Harper; that lifting the windows caused him pain; and that for this reason he was unable to do that kind of work. Upon hearing this Draper sent Nelson and Owens out of his office and tried to reach Dr. Harper on the telephone. Being unsuccessful, Draper directed Owens to permit Nelson to resume building window frames. At or about 2:45 p.m. Draper was able to speak to Dr. Hamer. Draper described to him the kind of work Nelson had been doing earlier that day; informed him of the weight of the windows Nelson was required to lift; and asked him whether, in view of Nelson's physical condition, Nelson could do that work. Dr. Harper replied that based 21 It will be remembered , in this connection, that Nelson was last examined by Dr. Harper on January 26 22 N L R B v. Atlanta Coca-Cola Bottling Company, Inc, 293 F 2d 300, 308 (C A. 5, 1961) upon his last examination of Nelson he saw no reason why Nelson could not do the work.2i After talking to Dr. Harper, Draper sent for Nelson and told him what his physician had said about his being able to lift the windows. Nelson answered, as he testified, "if the doctor says I'm able to do it, I'll go back and do it, but it does hurt me." Nelson having stated that he would do the work despite the pain it caused, Draper instructed Owens, Respondent's chief foreman, to "put him on the job." After Nelson left his office Draper, Respondent's vice president, began having second thoughts about permitting Nelson to lift the windows. As Draper testified, he "started worrying about the liability, the fact that [he] was sending a man out to do a job when he said he was hurting, even though the doctor said he was okay. [He] was afraid it might aggravate it [and that he] might be faced with a workmen's comp and liability suit." Draper also thought about Nelson's having twice refused to work overtime and his having refused to comply with his supervisor's instructions. This, as Draper stated, "was a sort of horns of dilemma thing." However, Draper decided, as he further related that he "couldn't keep [Nelson] in the plant" if he was "hurting" as he said he was even though Nelson had stated he would do the work despite the pain. Accordingly, Draper again sent for Nelson and asked him whether he was still in pain. Receiving an affirmative reply, Draper told Nelson, as the latter testified, that because he was "hurting [Respondent had] no right [to let him] work" and that Respondent was going to "have to let [him] go." Nelson's employment with Respondent was then terminated. B. Contentions and Concluding Findings Concerning Respondent's Alleged Violations of Section 8(a)(3) and (1) of the Act Although guiding principles are not in doubt, "Section 8(a)(3) cases are difficult cases," 22 and the instant one is no exception to this rule. Almost always present in such cases, and present here also, are problems of motive and pretext. "Absent an unlawful motive an employer's judgment in discharging an employee . . . cannot be questioned." 23 Nor does an employee gain immunity "from discharge simply because [, like Richard Nelson, here,] he is a union member or adherent." N.L.R.B. v. Florida Steel Corpora- tion, etc. 308 F.2d 931, 935 (C.A. 5, 1962). Respondent argues that Nelson's discharge was not motivated by a purpose interdicted by the Act. Nelson was dismissed, Respondent contends, not because of his union membership or past union activity, but because he was, in its judgment, physically unable to do the work required of a leadman in the window department, in which position he was needed in order to relieve Mack Smith, the supervisor there, of that rank-and-file work function. Respondent's position appears to be well taken. Unlike the explanation for a discharge offered by an employer in another case,24 which "fail[ed] to stand under scrutiny," the reason given by respondent for discharging 23 Vermeer Manufacturing Company, 187 NLRB 888, 891 24 N L. R B v Dam, Thomas W., d/b/a Dant & Russell, Ltd, 207 F.2d 165,167 (C A. 9). JENKINS MANUFACTURING CO. Nelson is supported by the evidence. Thus, Nelson informed Clare Draper, Respondent's vice president, that lifting and carrying the windows, an integral part of the job of a leadman, caused him pain and made him unable to do that work. Although despite the pain it caused, Nelson agreed to resume lifting and carrying the windows upon being informed of his physician's opinion that he was able to do so, Respondent was unwilling to permit him to continue doing the work because of the possible liability it might incur should he in that manner aggravate his existing prostate condition. Seemingly, then, Respondent had sufficient cause to discharge Nelson. But this does not end the inquiry. There remains for consideration the General Counsel's argument that Respondent seized upon Nelson's physical inability to perform his work as a pretext to rid itself of an employee because he was a union member and had supported the Union during its campaign for recognition. Of course, had Respondent done so it would have violated Section 8(a)(3) and (1) of the Act. However, I am not impressed with the General Counsel's contention that that was the situation here. In the first place, union activity in Respondent's plant and Nelson's participation therein had been discontinued long before Nelson's dismissal. Indeed, the General Counsel conceded that during the period between the representation election conducted in July 1972 and February 27, 1973, the date of Nelson's discharge, "union activity was in a state of limbo." And its moribund status was not the result of unfair labor practices committed by Respondent. Secondly, had Respondent been looking for a pretext to terminate Nelson's employment because he had supported the Union it could have found one before his discharge on February 27. Thus, Respondent could have discharged Nelson on January 30 when he refused to work overtime. It could have discharged him on February 6 when he again refused to work overtime. It could have discharged him on February 8 when he refused to follow his supervisor's 25 In Vermeer as here, there was a dearth of union activity before the discharge there under consideration . Furthermore, in Vermeer, several opportunities arose before the date of the discharge which could have been, but, as in the instant case, were not , availed of by the employer as "an excuse . to remove [the discharges ] from its plant because he was an adherent of the Union " A like situation was present in American Manufacturing There the Board said "Respondent's forbearance in discharging [the employee, whose union adherence and activism was known to the employer for more than a year] until he disregarded . warnings [to 443 instructions. It could have discharged him on February 23 when, contrary to Respondent' s rules, he signed, and solicited his supervisor's signature to, a petition during working hours. However, instead of discharging Nelson on any of these occasions Respondent merely issued warnings to him, none of which is alleged in the complaint as being an unfair labor practice. In American Manufacturing Company, 196 NLRB 875, and in Vermeer Manufacturing Company, 187 NLRB 888, 892, pretext contentions made under very similar circum- stances were rejected.25 For the same reasons I reject it here. Accordingly, I conclude that the General Counsel has not shown that the termination of Nelson's employment was violative of Section 8(a)(3) or (1) of the Act. I shall, therefore, recommend that the complaint be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) or (1) by discharging Richard Nelson on February 27, 1973. Upon the foregoing findings of fact and conclusions of law and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDER26 It is ordered that the complaint be, and the same hereby is, dismissed. refrain from excessive talking and wandering away from his machine] hardly indicates that it was [his] union activity that caused his discharge " zs In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, 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.