Conchemco Inc.

CONCHEMCO INCORPORATED Conchemco Incorporated and Loretta Waggoner. Case 16-CA-5420 October 30, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On June 11, 1974, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and the Respondent 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 Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. ' The General Counsel 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 credibili- ty 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 (1950), enfd. 188 F 2d 362 (CA 3, 1951 ) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge A hearing in the case was held on April 9, 1974, at Wichita Falls, Texas, on complaint of the General Counsel against Con- chemco Incorporated, herein called the Respondent or the Company. The complaint issued on March 11, 1974, upon a charge filed by Loretta Waggoner, an individual, on Jan- uary 14, 1974. The issue of the case is whether the Respon- dent refused to employ Waggoner at her request, and thereby violated Section 8(a)(3) of the statute. Briefs were thereafter filed by the General Counsel and the Respon- dent. 441 Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Conchemco Incorporated, a Delaware corporation, is engaged in the manufacture of mobile homes, with its of- fice and place of business in Wichita Falls, Texas. During the past 12 months it sold and distributed products valued in excess of $50,000 from this place of business, in inter- state commerce directly to States other than Texas. I find that Respondent is engaged in commerce within the mean- ing of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that United Brotherhood of Carpenters and Join- ers of America, Local Union No. 2572, herein called the Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A Picture of the Case Loretta Waggoner worked for this Company from No- vember 1970 to February 1973, when she left voluntarily and moved with her family to another town upwards of 500 miles away. She returned to Wichita Falls very early in August for reasons unrelated to this case. In her search for employment she telephoned the then production manager of the Respondent, Albert Hart, to inquire whether there were any openings; he said there was nothing for her then. While working for this Company over a 2-year period Waggoner had been very active as a union member; she was a trustee, she was the principal one of four stewards, she processed grievances, and she acted as a member of the Union's negotiating committee. She worked openly among the employees to defeat a decertification election petition in August and September 1972 and sat in at the bargaining in September and October which led to successful conclu- sion of a new collective-bargaining agreement In her work performance she was a competent and satisfactory employ- ee. There is no question about management's knowledge of both her work competence and marked prounion activities. Waggoner found employment elsewhere and worked for another company from August 22 to October 25. She said that upon returning to Wichita Falls, on or about August 3 she also talked to an office girl who said she knew of no openings, and left an employment application form with her. Again in January-fearful, as she said, that her first application might be lost in the confusion of the Company just at that time moving its plant from one location to an- other-Waggoner returned and spoke to the accountant; he too said there were no openings for her so far as he knew, and she left another application form with him. The Respondent has 90 to 100 employees at a time, and the uncontradicted testimony is that "We've got stacks of 214 NLRB No. 73 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them." The Respondent on its own initiative did not take the affirmative step of calling Waggoner in for an interview or offer her a job. The complaint alleges that on "September 2" the Re- spondent "refused to rehire" Waggoner because of her known union activities and thereby violated Section 8(a)(3) of the Act. The defense, articulated by three management representatives who testified, is that they never saw Waggoner's written applications until after she filed an un- fair labor practice charge in January, when they made a search through their files. Archie Tudor, who was produc- tion manager from October 1, 1973, to February 1, 1974, said he never saw her application until the day before the hearing in April. And because, as will appear more clearly below, the General Counsel argued essentially a hypotheti- cal case, the Respondent's witnesses also explained in de- fense that had they needed a person with Waggoner's expe- rience and had they been aware of her application they in all probability would not have taken the trouble to call her in. To explain this position-which, according to them, never did materialize-they produced the regularly kept separation record of the lady made out back in February 1973, and which had at that time marked her as a departing employee not qualified for reemployment. Section 8(a)(3): Two questions of Fact The critical language of Section 8(a)(3) makes it unlaw- ful for an employer "by discrimination in regard to hire .. . to encourage or discourage" union activities. This means that two basic facts must be proved affirmatively before it can be found an unfair labor practice has been committed in violation, of that section: (1) the employer denied employment to the employee-either took him off the job or rejected his request for a job, and (2) its reason for such denial of employment was the employee's union activities. And, as in every proceeding under this statute, the burden of proving the basic facts in support of the complaint rests upon the General Counsel. In this case he must prove by a preponderance of the substantial evidence on the record as a whole that the Respondent in fact said "No" in response to Waggoner's application-which in- cludes, of course, also proving the hiring authority of the Company was aware of the application when the services she offered were needed. He must also prove that the rea- son for its conscious action was retaliation for past support of the Union. The evidence must be definitive and positive; it is not enough that the related or tangential facts may give rise to a suspicion. Nor will it satisfy the primary bur- den of proof if only one or the other of the two essential elements be established. Conceded union animus will not prove a violation of Section 8(a)(3) if no one was refused employment-i.e., if there was no discrimination in fact. Nor will outright discharge alone suffice, absent evidence of illegal motive.' On careful consideration of this record in its entirety, I do not believe all the necessary elements of the case against the Respondent have been proved, and I shall therefore recommend dismissal of the 8(a)(3) allegation of the com- plaint. The Evidence Waggoner communicated only once with any person in a hiring position, and that was when very early in August she spoke to the then production manager on the telephone. He told her there was no job open for her at the time. She then tried to bait him by asking him "if my past union activities would keep him from hiring me." Hart answered "no," but he had said nothing to warrant that comment from her. In fact, her testimony about this first communi- cation starts lending support to the Company's notation, on her February 1973 separation record, as a person not to be rehired because she was too bossy and could not get along with people. In any event, there is no indication, or claim, that at that time, in the beginning of August, there was work available for her at all. Waggoner continued her testimony that she left written applications at the Company's office, once in August and again in January; the first with an office girl and the sec- ond with an accountant. Each told her there was no work for her, so far as they knew, but neither was shown to be an agent of the Respondent who had anything to do with hir- ing To cast this case into the mold of conventional direct application and refusal situations, the General Counsel then placed into evidence the names of all employees hired by the Respondent from September 1, 1973, through March 21, 1974, with the dates of employment. The list is long, and the classifications are many, including such crafts as electrical, metal, cabinet shop, and welder. Wag- goner said her experience qualified her for what was called trim and finish among the departmental classifications. The list shows that throughout this entire period, from among approximately 100 persons hired, only 3 were taken on in her classifications-I on September 11, 1 on October 1, and 1 on October 8. The argument is that Hart and Tudor, his production manager replacement on October 1, saw Waggoner's Au- gust application in their office and intentionally hired other persons in her classifications with the deliberate ob- ject of denying her a job The suggested inference, more a matter of speculation than fact, amounts to no more than a suspicion, a possibility, and is greatly weakened by other no less persuasive probabilities. For one thing, there is no way of knowing how other applications-either simply on file or made in person at the time the pertinent openings occurred-compared in terms of desirability with that of Waggoner. It may even be true, as Waggoner also testified, that on the telephone in the beginning of August Hart told her he would call her if any openings materialized; Hart ' Radio Officers' Union v N L R B, 347 U S 17, 42-43 (1954) discouragement of membership in labor organizations, only such as is accomplished by discrimination is prohibited Nor does this section The language of §8(a)(3) is not ambiguous The unfair labor practice outlaw discrimination in employment as such, only such discrimination is for an employer to encourage or discourage membership by means of as encourages or discourages membership in a labor organization is discrimination Thus this section does not outlaw all encouragement or proscribed CONCHEMCO INCORPORATED 443 could not recall whether he did or did not tell her this. But no one was hired in her classification until a month later, and in the interval, what with moving the entire operation from one location to another, Hart had many things on his mind. Moreover, Tudor and Marvin Staab, his superior and general manager, testified directly that they never saw Waggoner's written applications until after the charge in this proceeding was filed. Tudor admitted that when he needed people he did at times look through whatever appli- cations were in his office in the course of his search. From all of this the General Counsel suggests that the manage- ment witnesses ought not be believed when they say they did not know Waggoner had placed applications in the hands of the office subordinates. It would be very difficult to discredit either Tudor or Staab on this critical element of their direct testimony. It is true their assertions are self- serving, and that they cannot be contradicted in the cir- cumstances. Uncontradicted they remain, however, and there is also a related fact that tends to give credence to their story. The Company was in the process of moving its entire operation during this very period For 2 months de- partments were shut down and resumed there, the office, of course, with all its records, also had to be transplanted. How many things may have been lost or misplaced in the process is anyone's guess. Superficially, the fact that Waggoner filed two applica- tions tends to make the managers' testimony about having seen neither of them less credible. They might have missed one, but how could they miss two of them" But the last person hired in her classification was taken on early in October, 3 months before her second application; there is nothing to indicate Tudor might have had any occasion to search for trim or finish applications thereafter. Hence the extension of the theory of complaint that if the Respondent had had work for her during the next 3 months, and if the manager had seen her second application, he would not have hired her anyway. There is evidence indicating union animus towards Wag- goner. Charles Bond, Waggoner's half brother, worked as a skilled craftsman for the Company from November 1972 to December 1973. He moved from the old to the new location in mid-August and testified that, before that time in a conversation with Hart, he had occasion to say his sister had returned to town and was looking for work. The burden of his story is that the manager gave him to under- stand he could not rehire her because of her past union activities. Hart testified he knew Bond well, talked with him often about many things, and did once hear him say his sister had returned. As to what he may have said to Bond about that, Hart's position at the hearing was consis- tently that he had no recollection whatever of having said anything. Pressed to say had he in fact ever said her past union activities prevented her rehire, he said, "I do not deny; I do not admit, I don't recall." Waggoner herself was a very poor and unconvincing wit- ness; she was argumentative, pugnacious, evasive, and de- liberately vague. Her attempts to relate an incident of com- pany restraint upon her conduct in helping the Union in the shop during working hours before the 1972 decertifica- tion election were so poor as not to merit mention here at all. But it is not argued that the case in support of the complaint rests substantially upon her story, so far as the alleged antagonism towards her is concerned. In contrast, both Bond and Hart impressed me as very credible wit- nesses; there is no doubt that they were trying to be as honest as witnesses as they possibly could. Hart said he did not remember; therefore Bond's testimony must be taken simply as uncontradicted, and there is no reason not to believe whatever it is he offered as testimony. The difficulty with his story-and this too may be a re- sult of his excessive caution not to fabricate where his rec- ollection failed-is that he was not positive, or clear, as to what Hart really said. However uncontradicted, and there- fore credible, his testimony may be, it cannot support posi- tive fact findings if his own words were ambiguous and indirect. His first recollection of Hart's words was "he didn't believe he'd be able to put her back to work." Bond then added: "He [Hart] did not say directly, but he pointed toward her activities with the union. . . . Q: Did he actu- ally say something about her union activities? A: I don't remember exactly, no, sir . . My best recollection is this; Loretta was too strong with the union for them to hire her back." Again trying to remember, Bond then stated it this way. "Q: What did he say that pointed in that direction, as you put it? A: Well, he and I both knew the circumstances, that Loretta was union steward there and there was too much union activities there. . . . I can't remember the ex- act words; I can't .... I'm sorry, but I cannot remember, sure can't. I don't want to say something that ain't so." Hart is the man who had marked Waggoner's separation papers as "not to be reemployed" back in February 1973. Was he really saying to Bond later in August that he could not rehire her, or Staab would not permit it because of the earlier determination against her? Given Bond's vacilla- tion, indeed even admission here and there that the anti- union concept may have existed in his mind and not have been articulated by Hart at all, this could as well be what Hart was talking about. At the hearing the General Coun- sel finally drew from him an admission that had he had an appropriate opening when Waggoner called on the tele- phone, or had he been aware of her written application later, he would not have taken her on because she had been marked not to be reemployed. As the hearing progressed, the entire issue of the case seemed to change. It was as though the General Counsel had abandoned the attempt to prove Waggoner was denied employment, realized he had to live with the lack of proof of discrimination in fact after Waggoner returned to town, and was basing his case instead upon the allegation that the "not to be rehired" notation made by the Company in Waggoner's record in February 1973 proved an 8(a)(3) vio- lation in itself. His questioning of management witnesses clearly carried the contention Waggoner was not ever an undesirable employee, and that it was the union activity the Company resented as far back as 1972. And it is even possible such a hurt to Waggoner was caused at that time, a year before she filed any charge Certainly Hart's expla- nation of why she could be marked "adequate" or "satis- factory" in most evaluation elements and still be deemed 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undesirable overall sounds like doubletalk, to say the least. "I said I didn't think her interests were in the best of the company." In further explanation, Hart went on to say Waggoner's personality clashed with people, that a number of lower supervisors had threatened to quit before they would ac- cept her under their charge. And even Waggoner recalled how two rank-and-file employees (she volunteered they were nonunion persons) charged her with being bossy: .. two of the employees .. . were allowed to call me, have me called to the office, and they charged me with being bossy. . . . Q: Who were you in the office with? A: ... It was our whole department, actually." Hart insisted this was the reason why her February 1973 record was marked the way it was. Bond also related another incident which occurred some time in November, and which tends to support the General Counsel's contention that the management of this compa- ny was determined to keep her away because she had too strongly supported the Union. Bond left the Company in December. He testified that about 30 days earlier Tudor, then production manager, complimented him and his brother on the good work they were doing and asked: "Say, you haven't got any more kinfolks you want to put to work, have you?" Bond said he had a sister, Waggoner, and asked would Tudor put her to work, but that the man- ager answered "no, . . . that he wouldn't be able to put her to work on account of her union activities. That's the best I can remember . . . . Something to the extent she was the one that started this mess, or something like that, union business." Tudor recalled the incident, but gave a different version. His story is that when he asked did the two men have "any other relatives that want a job here," it was Bond who said "Yes. I've got a sister, but ... They won't let you hire her." Tudor said he made no response whatev- er to this, and just walked away. If Bond's talk with Tudor in November be viewed as a direct employment application on behalf of his sister, and if Bond can be believed-as I think would be right-that Tudor said he "wouldn't be able to put her to work" be- cause of her union activities, the essential element of dis- crimination in fact still remains unproved. Bond talked to Tudor in November, and there is no evidence at all of any openings after October 8. Proof of union animus directed against the person named in an 8(a)(3) complaint is accept- able evidence of a state of mind, and this is true regardless of whether the words revealing animosity were spoken af- ter the discriminatory act, or even long before. Such evi- dence cannot suffice, however, to prove actual denial of employment. It is by no means clear that the decision recorded in Waggoner's separation papers proves an intent in the Re- spondent at that time not to rehire her, because of union activities, should she one day return and ask for a job. But even assuming Hart's denigration of Waggoner in Febru- ary 1973 was a "phony," as the General Counsel calls it in his brief, all he has proved is that long before the events the employer revealed union animus. In discharge cases the Board calls this background evidence shedding light upon a later equivocal act of discrimination . It does not follow from this that General Counsel may prove an actual illegal discrimination committed a year before the filing of the charge. I doubt Section 10(b) of the statute would permit the Board to find a current discharge, or even refusal to employ, was illegal solely upon convincing evidence that more than 6 months before the filing of the charge the employer had fired the man unlawfully. And if the argument in support of the complaint be seen in this light, it is simply that the proof of discrimination today is seen in the proof of discrimination in February 1973. What the General Counsel really tried to prove is that, had the company representatives seen Waggoner's ap- plications among its office papers at a time when there was need of her services, they would not have hired her. Ergo, since they would not have hired her anyway, ignore the fact there is no proof of discrimination in fact and treat the case as though she had applied and been refused. The ap- proach does violence to the true import of Section 8(a)(3) of the Act. Section 8(a)(1) While I find Bond a credible witness, I do not think his testimony about the August conversation with Production Manager Hart, albeit uncontradicted, is sufficiently defini- tive to support a finding that the manager that day violated Section 8(a)(I) by saying Waggoner would not be hired because of her past union activities. As to Bond's testimo- ny in which he quoted Production Manager Tudor in No- vember, I credit him and not Tudor. This is the only inci- dent in the entire record that could warrant a conclusion that the Respondent committed any unfair labor practice. As an isolated expression, articulated to only two men as a passing phrase, I do not think it is of sufficient importance to justify a formal finding of misconduct and issuance of a formal cease-and-desist order by the Board. Accordingly, I shall recommend dismissal of the entire complaint? ORDER It is hereby recommended that the complaint be, and it hereby is, dismissed. 2 Cf Howell Refining Company, 163 NLRB 18 (1967)