National Phosphate Corp.

NATIONAL PHOSPHATE CORP. 567 National Phosphate Corp . and Local Union No. 393 of the Laborers International Union of North Ameri- ca, AFL-CIO. Case 38-CA-1845 June 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 29, 1974, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 Respondent, National Phosphate Corp., Marseilles, Illinois, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. I 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, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE PAUL E. WELL, Administrative Law Judge: On October 25, 1973, Local Union No. 393 of the Laborers Interna- tional Union of North America, AFL-CIO, hereinafter called the Union, filed with the Officer-in-Charge of Subregion 38 of the National Labor Relations Board, hereinafter called the Board, a charge alleging that National Phosphate Corp., hereinafter called Respondent, violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by the discharge of an employee, Steve Calloway, because of his activities on behalf of the Union and by independent violations of Section 8(a)(1) of the Act. On December 4, 1973, the Officer-in-Charge on behalf of the Board's General Counsel issued a complaint and notice of hearing alleging that Respondent had engaged in various acts of miscon- duct in violation of Section 8(a)(1) of the Act and had discharged Steve Calloway because of his union activity. By its duly filed answer, Respondent denied the commis- sion of any unfair labor practices although it admitted the discharge of Calloway. The matter came on for hearing before me on January 22, 1974, at Ottawa, Illinois. All parties were present, all represented by counsel, and all parties had an opportunity to call and examine witnesses, adduce relevant and material evidence, argue orally on the record, and file briefs. Briefs have been received from the General Counsel and Respondent. Upon the entire record in this case and in consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT It is alleged and admitted that Respondent is a corporation engaged at Marseilles, Illinois, in the manufac- ture of fertilizer which it annually ships from its Marseilles plant to points outside the State of Illinois valued in excess of $50,000. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is admittedly a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Union in the fall of 1973 conducted an organizing campaign among Respondent's employees at the Mar- seilles, Illinois, plant. The campaign culminated in the filing of a petition on October 17 seeking an election in an appropriate unit of Respondent's employees. Pursuant to a stipulation for a consent election signed on November 14, an election was conducted on December 13 which the Union lost by a vote of 68 to 11. These results were certified on December 26.1 Respondent's plant has five departments: maintenance department, acid department, di-ammonium phosphates or D.A.P. department, laboratory, and the blend plant. With the exception of the maintenance department the plant operates 24 hours a day, 7 days a week. Each of the departments has four crews of employees, one working at all times to effect the round-the-clock production. The D.A.P. department shift basically consists of an A I All dates hereinafter are in the year 1973 unless otherwise specified. 211 NLRB No. 82 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Operator who handles the control board in this automated plant, a B Operator who assists the A Operator and makes tests of the product as it runs through the processes, a C Operator, and a D Operator. Apparently the C and D Operators did laboring work. In the D.A.P. department it appears that the leading union adherent was Ronald Halterman , an A Operator, who secured a number of cards from a maintenance man, solicited his fellow employees to sign them , leaving cards on the control console for employees on the other shifts, collecting the signed cards and returning them to the maintenance man from whom he got them. Early in October Donald Strickland, a supervisor in D.A.P., asked Halterman if he had a union card for him . Halterman answered that he did not but Strickland could get one from another employee and Strickland asked where Halterman had gotten the cards. Halterman answered they were there when he got there. On October 10 Strickland was engaged in a discussion which appears to have been somewhat rancorous with Halterman during the course of which Halterman told Strickland that if there was a union he couldn't do some things that Halterman blamed Strickland for doing. According to Halterman's testimony Strickland asked how the Union got started. Halterman answered that as far as he knew it started outside the plant and Strickland answered, "Well I know how it got started, I know a lot of things, I know, for example, when you worked here in March of this year that you were big on the Union." 2 Halterman asked him how he came to this knowledge and Strickland answered that he had a good source and that he knew that Terry Navarro, another A Operator, and Halterman were passing out union cards. Halterman answered, "Yeah, but don't forget about Steve Calloway" and Strickland said, "I thought Steve was in on this." Strickland went on and asked Halterman about an alleged secret meeting that had taken place in the laboratory the prior night and Halterman said that the meeting wasn't secret but that some of the employees had gotten together in the lab to air their opinions for and against the Union. Later, on the evening of October 10, Strickland again came to Halterman and engaged him in a conversation concerning the Union. Strickland asked Halterman where he heard about the Union. Halterman told him that he had heard about it in a local bar and called upon his B Operator who was present to substantiate that he had been present when the Union was first discussed with Halter- man? Donald Strickland, who identified himself as the D.A.P. superintendent, testified that he had only one conversation with Halterman in which the Union was mentioned and placed this as the latter conversation of October 10. He testified he didn't recall how the subject of the Union came up but that Halterman said that he had been passing out cards and wanted to know if he was going to be fired. Strickland answered that no one is going to be fired for anything of that nature and no more conversation took place concerning the Union. I found Halterman to be a credible witness, I believe that 2 Halterman had been employed earlier in the year, had left Respon- dent's employ, and returned before October. it is unlikely that he would have asked Strickland if he was going to be fired for passing out cards 2 hours before he resigned. This is especially so in view of the fact that it appears that Halterman had made up his mind prior to this evening to resign, for reasons having nothing to do with the union organization. I credit Halterman's testimony and find that, by the statements in the first conversation reported by Halterman, Strickland interrogated him in violation of Section 8(aXl) of the Act. By the statements in the second conversation reported by Halterman, the first on October 10, Strickland interrogated Halterman and led him to believe that the union activities of the employees were under covert surveillance, again in violation of Section 8(a)(l) of the Act. The third conversation in which Strickland attempted to ascertain where Halterman first learned about the Union is further interrogation in violation of Section 8(aXl) of the Act. William Maurer, a C Operator, testified that in late October Superintendent Strickland engaged him in a conversation when he was picking up his paycheck in the company office. Strickland asked Maurer how he felt about the Union and Maurer answered that he hadn't made up his mind. Strickland then went on to make a comparison between the conditions offered by Respondent and those offered by the Union. With regard to this conversation, Strickland testified that Maurer, during a conversation about a transfer or a pay increase, asked him if he thought the Union was going to get in. Strickland answered that he didn't know and asked Maurer how he felt about it, to which Maurer responded that he was going to the union hall and find out. Strickland said that that would be a good thing for him to do and quoted Maurer as saying he was going to go to the union hall to drink their free beer and was not interested in the Union. I find that this interrogation is no less violative if it was preceded by the question Strickland attributed to Maurer. However, I find difficulty in believing Strickland's story that, after Maurer said he was going to find out about the Union to make his mind up, he then said he wasn't interested and was going to the union hall only to drink beer. I credit Maurer's testimony and find that by this interrogation Respondent, by the actions of its agent Strickland, violated Section 8(a)(1) of the Act. On the night of October 30, the Union held a meeting at its hall in Marseilles to which all employees were invited by newspaper advertising. Roger Prophet, Respondent's personnel manager, and Moody Green, the plant manager, drove together to the union hall about the time the meeting was supposed to open, admittedly, in order to ascertain the extent of employee interest in the Union. They drove back and forth at a slow pace in front of the union hall while the employees were assembling there and departed after the meeting commenced. According to the testimony of employees and the Union's president, they parked on a parking lot beside the union hall at which point one of them got out of the car briefly and got back in the car before they drove away. According to the testimony of Prophet and Green, they could not find the union hall although they admitted driving up and down the street 3 After the close of the shift in which the last two conversations took place, Halterman resigned his employment with Respondent without notice. NATIONAL PHOSPHATE CORP. 569 where they thought it should be and parking in a parking lot along side a lighted building. I find that Respondent, engaged in surveillance of the union meeting in violation of Section 8(a)(1) of the Act. I find that even if Prophet and Green were not aware that they were at the union hall, when they were there, their intention was to engage in surveillance and the impression they left with the employees was that they were engaging in surveillance. I find it difficult to believe that Green, who had been employed at this plant since October 1972, and Prophet, who had been there approximately a year and a half, would have had any difficulty in finding the union hall, the address of which was advertised in the paper in this small town in Illinois.4 I find that by this surveillance by its plant manager and its personnel manager Respon- dent engaged in surveillance in violation of Section 8(a)(1) of the Act. B. The Discharge Steve B. Calloway was employed in September 1972 by Respondent as a laborer and worked his way up to A Operator in the D.A.P. plant by October 23 when he was discharged. During the year 1973 Calloway had suffered a lung infection which caused him to miss a considerable amount of work in January and February and, in addition, he had had an automobile accident resulting in his absence for 13 consecutive workdays and had been off sick on various other occasions. He had been given a disciplinary suspension the first 3 days of January because of absenteeism in 1972 and was reprimanded by Superinten- dent Strickland on September 17 for his failure to report on September 15 and for taking off on September 16 allegedly under doctor's orders. On both September 15 and 16 supervisors of Respondent had attempted to reach him at home by telephone and he had not been home. Strickland was informed that Calloway was at another company's picnic on September 16 when he called. On this occasion, Strickland placed in Calloway's personnel file a memoran- dum detailing the above and recommending that one more unexcused absence on Calloway's part should result in his termination. According to Calloway, the following work- day when he came in, Strickland said something to the effect that he should call in, but did not reprimand him. I credit Strickland's testimony that he reprimanded Callo- way on this occasion. On June 11, 1973, Calloway had been given a warning stating that as of that date he had been absent from work a total of 33 days for various reasons and ending with the following language: It is expected that your attendance record will improve immediately or we will assume you do not care about your job and act accordingly regarding your continued employment. Nevertheless, Calloway continued to be absent occasional- ly and by the time of his discharge had racked up 46 days absent during the year, the worst absentee record in the plant according to the testimony of the Personnel Manager Prophet. Because of the round-the-clock nature of Respon- dent's operation, it is necessary when an A Operator is absent that the operator from the preceding shift work overtime or another operator be called in for overtime work. Accordingly, every time an employee is absent his job is covered at a time-and-a-half rate. For this reason Respondent has been attempting for a lengthy period of time to cut down on absenteeism. The supervisor who preceded Strickland, Donald Planchard, on August 23, 1973, wrote a memorandum to the employees stating that absenteeism had reached proportions that would not be tolerated and warning employees with excess absentee records that continued poor attendance would result in strict disciplinary action. When Strickland replaced the former superintendent, he reissued the same policy, warning the employees that it would be adhered to strictly. The policy requires that employees who miss regularly scheduled work without notifying the plant promptly would be disciplined. During the week preceding his discharge Calloway was engaged in the purchase of a new car in Marseilles. During this week he was working on the evening shift. According to his timecard he worked from 6 p.m., on Sunday night, October 14, until 2:30 the next morning. The next day he clocked in at 12:44, which is to say shortly before 1 p.m., and worked until 2:49 on Tuesday morning. During this time he asked for 2 hours off in order to attend to the details of buying a new car and was granted it. According- ly, he came in at 4:34 on Tuesday and worked until 4:12 Wednesday morning. Because he thought it was necessary to go to the bank again he called Wednesday afternoon and asked for the night off. He thought that, because he had worked 3-3/4 hours overtime the night before, he had been promised a night off by Strickland. He called Strickland and asked him for the night off and Strickland told him that he would not give him the whole night off but he would give him 2 hours and told him to report to work by 6 p.m. Calloway was dissatisfied with this arrangement and sought and received Strickland's permission to call Moody Green, the plant manager. He did so and according to his testimony Green refused to change the hours that Strickland had granted Calloway and pointed out that it was already after 4 o'clock and that the bank was closed so that Calloway could not go to the bank. Calloway testified that after talking with Green he called the bank and found out that they were reopening again at 6:30 p.m. and he could complete his business then. He again called Green and told him that the bank would open at 6:30 and he could finish his business. According to Calloway, Green made no comment other than to tell him to call in if he would be later than 8 o'clock. Calloway was at the bank at 6:30 and found that the transaction had been taken care of and he could pick up his car. He immediately went to the automobile dealer, where he picked up his car, drove to the plant and arrived there at ^ or about 7:15. In the meantime, Strickland had talked to Green. Green told him that he had not changed Strickland's order and that Calloway was to be in at 6 p.m. Strickland left for the day informing Weaver, Calloway's immediate supervisor, that Calloway was supposed to be in 4 According to Rand McNally & Company Publications the population of Marseilles is 4,320. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at 6 o'clock and if he wasn't in shortly thereafter that he should call out another man and send Calloway home when he arrived. On Calloway's arrival at 7:15, Weaver met him at the timeclock and sent him home. The following Monday Calloway came back to the plant and met with Strickland before 8 in the morning. After some discussion with Calloway, Strickland said that inasmuch as Calloway had showed up for work and apparently had made some effort to hold his job he wouldn't fire him but would leave it up to Foreman Weaver what they would do with him. He suggested that Calloway talk to Weaver and come back the following day. On Tuesday Calloway returned to the plant, having been unable to contact Weaver. Calloway again met Strickland about 8 o'clock and told him he had been unable to reach Wear. Strickland told him that Weaver wasn't going to be in that day but that he had talked to him the night before and Weaver didn't want him back on his shift. From thi Calloway assumed that he was going to get a shift"change under a different foreman and started talking about a 3-day suspension. Strickland told him that he wouldn't give him a shift change and shove him on to another supervisor and, according to Calloway's testimony, interjected at this point, "We know you are a union representative and that you are passing out cards." Strickland then asked Calloway how he would vote in the election and Calloway answered that he would vote yes. Strickland asked who was passing out cards and Calloway told him he didn't know. He then quoted Strickland as saying again that Calloway was a union representative passing out cards and that, "We didn't want your type around here." Strickland then left the room, came back in 20 minutes and took Calloway to Prophet's office. On this occasion, Strickland, according to Calloway, asked Proph- et if he would transfer Calloway to another department and Prophet refused to do so and completed the discharge of Calloway. Strickland denied any comments regarding the Union alleged by Calloway to have been made by him on this occasion. Other than that, his account of the discharge was approximately the same as that of Calloway. Strickland testified that he would have permitted Calloway to remain if Weaver had agreed but that in the face of Weaver's refusal to keep Calloway on his shift he would not keep Calloway in his department. He agreed that he took Calloway to Prophet and suggested to Prophet that Calloway might be used in another department but that Prophet had refused to permit Calloway to remain in Respondent's employ. This is corroborated by Prophet. The General Counsel contends that Calloway was discharged because of his union activities or because of Respondent's suspicion of his union activities and that this is disclosed by the remarks made by Strickland to Calloway at the time of the discharge. I do not credit Calloway's testimony that Strickland made these state- ments about the Union attributed to him by Calloway. Strickland testified that it was pretty well known who was passing out cards in the plant and he testified that he had a conversation with Calloway before his discharge in which the Union came up and Calloway complained that a fellow employee had squealed on him for passing out cards and asked whether he would be fired. Strickland answered that Calloway would not be fired for this. Calloway testified that he engaged in no union activities prior to his discharge. He first went to a union meeting the night after he was discharged and he himself did not pass out any cards, although he did not disturb the cards that had been left on the console by Halterman but left them there for the other shift. I believe that, under all circumstances of this case, it is a fair inference that Respondent indeed knew who the leading union organizers were in the plant. The only evidence Respondent had that Calloway was an organizer was in the statement made by Halterman to Strickland 2 weeks before the discharge. How this came to the attention of Calloway does not appear on the record. I am not convinced that Calloway's account of his terminal interview with Mr. Strickland is accurate, nor am I convinced that Calloway was dis- charged because of his alleged union activities. There is no question that his absentee record was very bad and that he had been warned that he would be discharged if he continued being absent or late to work. There is no evidence that Moody Green ever informed Strickland that he had countermanded Strickland's order and given Calloway until 8 p.m. to come to work. I believe on the contrary that the most that Green said to Calloway was that he should be in by 6 p.m., and that if he was going to be later he should call in. Strickland having no word to the contrary from Green was prepared to discipline Calloway if he did not get in by 6 o'clock and accordingly left word that he was to be sent home if he came in after that time. Thereafter, Strickland obviously was prepared to adminis- ter some discipline less than discharge except that Weaver refused to accept Calloway back on his shift and Strickland was not prepared to put him on another supervisor's shift in view of his bad record. Strickland still was prepared, however, to effect a transfer to another department if Prophet would permit this, but Prophet refused to permit this and made the decision that Calloway must be discharged. I find I cannot reach the inference that Calloway was discharged for union activity in the face of the clear evidence of cause for the discharge. Accordingly, I find that the General Counsel has failed to show a violation by substantial evidence on the record as a whole. I recommend that the 8(a)(3) allegation be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. National Phosphate Corp. is an employer engaged in NATIONAL PHOSPHATE CORP. 571 commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Onion No. 193 of the Laborers International Union of North America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By interrogating its employees concerning their and other employees' union activities, by creating the impres- sion among its employees that their union activities were being kept under surveillance by management, and by engaging in surveillance of its employees' union activities, Respondent interfered with, coerced, and restrained its employees in the exercise of their right guaranteed by Section 7 of the Act in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 5. The discharge of Steve Calloway is not an unfair labor practice within the meaning of the Act. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. Respondent contends that in the event it is found to have violated Section 8(a)(1) of the Act, by the posting of a notice to all employees by Plant Manager Green on December 6, 1973, it has remedied any coercive impact of the unfair labor practices and therefore should not be required to post a notice or take other remedial action. The memorandum states as follows: _ Some apparently feel that, if the Union loses, those who signed union cards or have expressed themselves for the Union will lose their jobs after the election, or that pay rates and benefits will be reduced . THIS IS ABSOLUTELY NOT TRUE! Such an act by the Company would not only be STUPID-it would also be illegal. Employees of this plant are respected as individuals, and are protected in their right to freely express themselves as American citizens. We do not question the right of any employee to be for the Union, although we would seriously disagree with his judgment. We are not concerned about what has happened in the past. The only thing that is of importance is what happens on election day. It is signed by E. M . Green, plant manager. Under some circumstances, the Board has found that unfair labor practices are satisfactorily remedied by actions similar to that taken by Respondent herein . However, in those cases the Board has found that the notice of Respondent specifically disavows the unfair labor practices found and disavows any intention to retaliate . The notice quoted above makes neither such disavowal but merely assures employees that they will not be fired or have their wages reduced because of the union campaign. I find that the notice does not satisfactorily reassure the employees and that the posting of a formal Board notice in the instant case is warranted. Accordingly, upon the foregoing findings of fact and conclusions of law and pursuant to Section 10(c) of the Act I hereby issue the following recommended: ORDERS Respondent, National Phosphate Corp., Mars- eilles, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union activities or the union activities of other employees. (b) Creating the impression among its employees that their union activities were being kept under surveillance. (c) Engaging in surveillance of its employees' union activities. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its Marseilles, Illinois, plant copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Officer-in-Charge for Subregion 38, after being duly signed by Respondent's authorized representative, shall be posted by it immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Officer-in-Charge for Subregion 38, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be dismissed insofar as it alleges violations of the Act not specifically found. S 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. 6 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 After a trial at which all sides had the opportunity to 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and to keep our word about what we say in this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing Dated By To act together for collective bargaining or other mutual aid or protection and To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT coercively interrogate our employees concerning their or other employees ' activities on behalf of Local Union No. 393 of the Laborers International Union of North America, AFL-CIO, or any other labor organization. WE WILL NOT engage in surveillance of our employ- ees' union activities, nor create the impression among our employees that we are engaging in such surveil- lance. NATIONAL PHOSPHATE CORP. (Employer) (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 concerning this notice or compliance with its provisions may be directed to the Board's Office, Savings Center Tower, 10th Floor, 411 Hamilton Boule- vard, Peoria, Illinois 61602, Telephone 309-673-9283.