Phillips Synthetic Fibers, Inc.

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Phillips Synthetic Fibers, Inc., Employer-Petitioner and Textile Workers Union of America, AFL-CIO Phillips Synthetic Fibers, Inc.' and GTA Area Joint Board, Textile Workers Union of America, AFL-CIO-CLC. Cases 10-RM-613 and 10- CA-10305 April 30, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On January 16, 1974, Administrative Law Judge Sydney S. Asher 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 Phillips Synthetic Fibers, Inc., Rockwood, Tennessee, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. IT IS ALSO HEREBY ORDERED that the complaint in Case 10-CA-10305 be, and it hereby is, dismissed, insofar as it alleges that Respondent violated the Act by discharging Roland Wayne Roddy. IT IS FURTHER ORDERED that, in Case 10-RM-613, the challenges to the ballots of Roland Wayne Roddy and Vicky B. Louden be sustained and the challenge to the ballot of Johnny Lester Cromwell be overruled and that the case be, and it hereby is, remanded to the Regional Director for Region 10, who is hereby directed to open and count the ballot cast by Johnny Lester Cromwell and to issue a revised tally of ballots. In the event the revised tally of ballots reveals that the Union has received a majority of valid ballots cast, the Regional Director 3 Ile name of Respondent in Case 10-CA-10305 appears as amended at the consolidated hearing. is hereby directed to issue an appropriate certifica- tion of representative. 210 NLRB No. 56 DECISION SYDNEY S. ASHER, Administrative Law Judge: This controversy stems from the efforts of GTA Area Joint Board, Textile Workers Union of America, AFL-CIO, CLC, herein called the Union, to become the bargaining representative of the employees of Phillips Synthetic Fibers, Inc.,' Rockwood, Tennessee, herein called the Respondent. The representation proceeding was initiated by a petition filed by the Respondent in Case 10-RM- 613 on July 5, 1973, seeking an election . Thereafter, on July 25, 1973, the parties executed a stipulation for certification upon consent election. The election was held on August 15, 1973. Eight votes were cast for the Union and eight votes were cast against the Union; there were three challenged ballots, those of Johnny Lester Cromwell, Roland Wayne Roddy (also referred to in the record as Wayne Roddy), and Vicky B. Louden (also referred to in the record as Vickey B. Louden). The unfair labor practice case was initiated by a charge filed by the Union in Case 10-CA-10305 on July 27, 1973. The Regional Director for Region 10 issued a complaint on August 22, 1973, alleging that the Respondent had discharged Johnny Lester Cromwell and Wayne Roddy, two of its employees, on June 19 and 26, 1973, respectively, because of their membership in, and activities on behalf of, the Union. It is alleged that this conduct violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq. ), herein called the Act. The Respondent filed an answer admitting that it had discharged Cromwell and Roddy on the dates alleged, denying that these individuals were employees within the meaning of the Act, and alleging that these individuals, at the time of their discharges , were supervisors as defined in the Act. On August 28, 1973 , the Regional Director issued his report on challenged ballots in Case 10-RM-613, in which he concluded that the challenged ballots raised substantial and material factual issues which could best be resolved by a hearing. He further ordered Case 10-RM-613 consoli- dated with Case 10-CA-10305. Pursuant to notice, a consolidated hearing was held before me on October 11, 1973, at Rockwood, Tennessee. All parties were represented and participated fully in the hearing. During the hearing, the parties stipulated that the challenge to the ballot of Vicky B. Louden should be sustained. The parties further stipulated during the hearing that both Cromwell and Roddy had been discharged on June 26, 1973. After the close of the hearing the General Counsel and the Respondent filed briefs, which have been carefully considered. Upon the entire record, and from my observations of the witnesses, I make the following: I The name of the Respondent in Case 10-CA-10305 appears as amended at the consolidated hearing. PHILLIPS SYNTHETIC FIBERS, INC. 399 FINDINGS OF FACT A. Preliminary Matters The complaint alleges, the answer admits, and it is found, that the Respondent is, and at all material times has been, an employer engaged in commerce as defined in the Act and its operation meet the Board's jurisdictional standards; 2 and that the Union is, and at all material times has been, a labor organization within the meaning of the Act. B. The Ih.,ues At the consolidated hearing the parties agreed that the Respondent had discharged Cromwell and Roddy because of their union activities. This, plus the stipulation disposing of the challenge to Louden's ballot, narrows the issues. The only remaining issues are (1) whether Cromwell was a supervisor within the meaning of the Act at the time of his discharge, and (2) whether Roddy was a supervisor within the meaning of the Act at the time of his discharge. The General Counsel and the Union maintain that Cromwell and Roddy were rank-and-file employees on the crucial date, June 26, 1973. The Respondent, on the contrary, contends that they were both supervisors at that time. C. The Setting At all material times George W. Phillips, III, has been treasurer and principal stockholder of the Respondent. The Rockwood building was acquired by the Respondent in January 1972. In April 1972 the Respondent commenced installing equipment, and continuously since that month John Castile Howard has been plant superintendent. The first line of machines was completed and production started in October 1972. The Respondent is currently setting up a second production line. During most of the time that the Respondent's plant has been in operation it has run on three shifts. The first and second shifts have been in continuous operation. The third shift began in October 1972 and was discontinued in April 1973. It resumed in May 1973 and has been in continuous operation since then. The Respondent's total plant comple- ment has been about 25 employees. D. The Status of Cromwell 1. Facts Johnny Lester Cromwell commenced to work for the Respondent in August 1972 at wages of $2.50 per hour helping to install the machinery. When production started Cromwell was made a foreman, with authority to dis- charge, at a salary of $125 per week. When the third shift 2 The Respondent is, and at all material times has been, a Rhode Island corporation with its office and place of business in Rockwood , Tennessee, where it is engaged in the commission processing of synthetic waste fibers. During the 12 months prior to August 22, 1973, the Respondent received gross revenues of more than $50,000 for services performed for customers located outside the State of Tennessee. 3 There is a conflict as to whether Cromwell had requested this transfer. I deem it unnecessary to resolve this conflict 4 The Respondent relies in part on Phillips' testimony that "Mr. began, Cromwell became its foreman and remained in this capacity until "about a week or two" before the third shift was shut down, when he was transferred to the first shift .3 The foreman of the first shift at that time was Kyle Loy. Cromwell's duties on the first shift were to help install the machinery for a second production line and to fix malfunctioning machines. In May 1973 Cromwell was taken off his weekly salary, put on wages of $2.60 per hour, and required to punch a timeclock. As previously de- scribed, the Respondent discharged Cromwell on June 26, 1973, because he engaged in union activities. Sometime later he received through the mail a separation notice prepared by the Respondent in which his job was described as "shift foreman" and the reason for discharge given as: "Involved in union activities while employed in superviso- ry capacity." 2. Contentions and conclusions All parties agree that while Cromwell was foreman on the third shift his authority was such as to constitute him a supervisor within the meaning of the Act. However, the General Counsel and the Union maintain that this supervisory authority was withdrawn when Cromwell was transferred from the third to the first shift, and was not restored to Cromwell thereafter. In this connection they point out that Loy continued as foreman on the first shift even after Cromwell joined that shift. The Respondent, on the other hand, insists that Cromwell's status and authority as a supervisor continued after his transfer to the first shift. Although the Respondent admits that Loy retained his foreman's authority, the Respondent contends that after Cromwell came into the first shift Cromwell and Loy shared the foreman's position, authority, and duties.4 I cannot agree with the Respondent's position regarding Cromwell for the following reasons : (1) There were only 8 or 10 employees on the first shift. They were supervised by Loy, and Howard also spent some time in the plant during the first shift-under the circumstances there would appear to be little need for an additional supervisor. (2) Shortly after the change of shift, Cromwell sustained a reduction in pay 5-a personnel action consistent with demotion. (3) Neither Loy nor Cromwell was advised that they were co- foremen of the shift and no attempt was made by anyone to allocate authority between them-yet if indeed they were to share the responsibility one would expect them to be so informed. (4) According to Cromwell's credited testimony Loy sometimes assigned Cromwell to fill in for absent operators-conduct consistent with Cromwell's demotions For these reasons I am convinced and find that Cromwell's status changed when he left the third shift and Cromwell wasn't demoted from being foreman ever." This is a self-serving conclusionary statement and I give it little probative weight. 5 Even based on a 44-hour week with time and a half for overtime, at $2.60 per hour Cromwell would earn only $119.60 per week, less than his former salary of $125 per week The Respondent's argument that Cromwell was taken off salary because all other foremen had been put on hourly wages fails to explain the cut in his pay 6 Loy denied that he had done so. Loy did not impress me as a reliable witness and I do not credit his denial in this respect. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he no longer was possessed of any supervisory authority after that.? E. The Status of Roddy 1. Facts Roland Wayne Roddy was first employed by the Respondent in October 1972 as a picker operator on the first shift at wages of $1.65 per hour. Approximately 4 or 5 months later he was assigned to operating the bailer on the same shift, which job he held for about 2 months. While the record is not entirely clear as to when, he apparently received a wage increase to $1.85 per hour sometime during this period. In May 1973, when the third shift resumed operations, Roddy was transferred to the third shift and given a wage increase from $1.85 to $2.50 per hour. For about 3 weeks Loy left the first shift and temporarily went on the third shift to train Roddy how to fix breakdowns in the machines; then Loy returned to the first shift. Roddy remained on the third shift until his discharge on June 26, 1973. At that time the Respondent furnished Roddy with a separation notice describing his job as "picker opr." and giving as the explanation for his discharge: "Involved in union activities when a foreman of a shift." 2. Contentions and conclusions The General Counsel and the Union maintain that Roddy's transfer to the third shift did not carry with it any supervisory authority and that he merely served as a "fixer- trainee," a rank-and-file job. The Respondent, on the contrary, contends that when Roddy went to the third shift he was put in charge of that shift, and cloaked with supervisory authority. I agree with the Respondent regarding Roddy 's status after his transfer. The factors which have persuaded me to this determination are: (1) Howard appeared on the third shift only two or three times each week according to the credited testimony of Rufus Presswood, an employee on the first shift and a witness for the General Counsel. If, as the General Counsel and the Union would have us believe, Roddy was not a supervisor, then the six employees on that shift were largely without effective supervision at all-a situation which I find hard to believe could have existed. (2) All parties agree that Cromwell, Roddy's predecessor on the third shift, was a supervisor while on that shift; no reason appears why there was any less need of supervision after Roddy replaced Cromwell on the shift. (3) At the time of the transfer Roddy received a wage increase of more than 35 percent over his previous wage-a factor indicat- ing promotion. (4) Howard testified credibly that he informed Roddy during his last week on the third shift that if the employees "wouldn't cooperate with him [Roddy] that he [Roddy] could dismiss them." This constitutes a clear grant of supervisory power. In the light of the foregoing I conclude that, at least from the time Loy r There is some testimony indicating that after his transfer to the first shift Cromwell applied to a financial institution for a loan and represented himself as a foreman. (The application itself was not produced in evidence.) Even assuming this to be so, it would not change my decision that he ceased ceased to train him and returned to the first shift, Roddy was in charge of the third shift and possessed supervisory authority over the men on that shift. And in my opinion the fact that the Respondent described Roddy in his separation notice as a picker operator does not require a different result. Upon the above findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Phillips Synthetic Fibers, Inc., is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. GTA Area Joint Board, Textile Workers Union of America, AFL-CIO, CLC, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. On June 26, 1973, Johnny Lester Cromwell was an employee of the Respondent within the meaning of Section 2(3) of the Act. 4. By discriminatorily discharging Johnny Lester Cromwell on June 26, 1973, and thereafter failing and refusing to reinstate him, thereby discouraging member- ship in the above-named labor organization, the Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX3) of the Act. 5. By the above-described conduct, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(axl) of the Act. 6. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce , and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. On June 26, 1973, Roland Wayne Roddy was a supervisor of the Respondent within the meaning of Section 2(11) of the Act. 8. By discharging Roland Wayne Roddy on June 26, 1973, the Respondent did not engage in any unfair labor practices within the meaning of Section 8(aXI) or (3) of the Act. 9. In the election in Case 10-RM-613 held on August 15, 1973, Johnny Lester Cromwell was eligible to vote but Roland Wayne Roddy and Vicky B. Louden were not. THE REMEDY Normally the discriminatory discharge of an employee because of his union activities goes to the very heart of the Act and calls for a broad cease-and-desist order.8 Here, however, the facts concerning Cromwell's authority may well have mislead the Respondent into a sincere, albeit erroneous, belief that Cromwell was a supervisor and that his discharge therefore was not violative of law. Under to be a supervisor after he was transferred to the first shift. 8 A. ! Kralewski Manufacturing Co., Inc., 180 NLRB 1071; Wesim's Shoppers City, Inc., 189 NLRB 234; and Scbrh; Schneider & Satnk Lawshsr Company, 198 NLRB No. 72, fn. 2. PHILLIPS SYNTHETIC FIBERS, INC. 401 these particular circumstances, I believe a narrow cease- and-desist order will suffice adequately to remedy the unfair labor practice committed. It will therefore be recommended that the Respondent cease and desist from the unfair labor practices found herein and from any like or related conduct. Affirmatively, it will be recommended that the Respon- dent offer to Johnny Lester Cromwell immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered by reason of his discharge, by paying to him the amount that he would normally have earned from the date of his discharge to the date of the offer of reinstatement, less his net earnings during this period. The backpay provided for herein shall be computed on a quarterly basis in the manner established in F. W. Woolworth Company, 90 NLRB 289, including 6-percent interest per year as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that the Respondent preserve and make available to the Board , upon request, all records necessary to determine the amount of backpay due hereunder, and post appropriate notices. IT WILL FURTHER be recommended that the complaint in Case l0-CA-10305 be dismissed insofar as it alleges that the Respondent violated the Act by discharging Roddy. IT WILL FURTHER be recommended that in Case 10-RM-613 the challenge to the ballot of Cromwell be overruled, that his ballot be open and counted, that the challenges to the ballots of Roddy and Louden be sustained, and that thereafter a revised tally of ballots be prepared and issued. Upon the foregoing findings of fact , conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Phillips Synthetic Fibers, Inc., Rockwood, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in GTA Area Joint Board, Textile Workers Union of America , AFL-CIO, CLC, or any other labor organization , by discharging or otherwise discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights protected by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Johnny Lester Cromwell immediate and full reinstatement to his former position , or if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, with interest at the rate of 6 percent per year. (b) Preserve until compliance with any order for backpay made by the Board and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports , and all other records necessary to compute the amount of backpay due under this recommended Order. (c) Post at its plant in Rockwood, Tennessee, copies of the attached notice marked "Appendix." 10 Copies of the said notice, on forms provided by the Regional Director for Region 10, after being signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily displayed. 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 this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER recommended that the complaint in Case 10-CA-10305 be dismissed, insofar as it alleges that the Respondent violated the Act by discharging Roland Wayne Roddy. IT IS FURTHER recommended that in Case 10-RM-613 the challenge to the ballot of Johnny Lester Cromwell be overruled, that this ballot be opened and counted, that the challenges to the ballots of Roland Wayne Roddy and Vicky B. Louden be sustained, and that thereafter a revised tally of ballots be prepared and issued. 9 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, 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. 10 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in GTA Area Joint Board, Textile Workers Union of America, AFL-CIO, CLC, or any other union, by discharging or otherwise discriminating against our employees with regard to their job tenure or working conditions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any union, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from such activities. WE WILL offer to reinstate Johnny Lester Cromwell 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD immediately to his formerjob without loss of seniority , This is an official notice and must not be defaced by and will pay him for any wages he may have lost anyone. because we discharged him, with 6 percent interest. This notice must remain posted for 60 consecutive days Our employees are free to belong or not to belong to any from the date of posting and must not be altered, defaced, union. or covered by any other material. Any questions concerning this notice or compliance with PHILLIPS SYNTHETIC FIBERS, its provisions may be directed to the Board's Office, INC. Peachtree Building, Room 701, 730 Peachtree Street, N.E., (Employer) Atlanta, Georgia 30308, Telephone 404-526-5760. Dated By (Representative) (Title)