McNeill Industries, Inc.

MCNEILL INDUSTRIES, INC. 343 McNeill Industries, Inc. and Dillard R. Grooms. Case I 1-CA-5775 January 29, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO On October 31, 1974, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions. 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 has decided to affirm the rulings, findings,' and conclu- sions of the Administrative Law Judge and to adopt his recommended Order.2 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, McNeill Industries, Inc., High Shoals, North Carolina, its officers, agents, successors, 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Respondent's request for oral argument is hereby denied, as the record and the briefs adequately present the issues and positions of the parties. DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: Upon a charge filed on June 10, 1974, by Dillard R. Grooms and duly served on Respondent, McNeill Indus- tries, Inc., the General Counsel of the National Labor Relations Board, by the Regional Director for Region 11, issued a complaint on June 30, • 1974, alleging that Respondent had violated Section 8 (axl) of the Act by threatening Grooms with reprisals and discharging him "because he engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection." Respondent's answer denies the alleged violations. A hearing was held before me on September 12, 1974. All parties were represented by counsel and were afforded full opportunity to participate in the hearing. Upon the entire record in this case , including my observation of the demeanor of the witnesses, and upon consideration of the briefs filed by the parties, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent is a North Carolina corporation engaged in the manufacture of synthetic yarns for the carpet and hosiery industry at its High Shoals, North Carolina, plant. During the past 12-month period, Respondent received goods and materials valued in excess of $50,000 directly from outside of North Carolina. During the same period Respondent sold and shipped goods valued in excess of $50,000 directly to points outside of North Carolina. Upon the foregoing admitted facts, I find that Respond- ent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The major issues presented in this case are whether Respondent violated Section 8(a)(1) of the Act by threatening employee Dillard R. Grooms with loss of employment or other reprisals on March 8 , 1974, because Grooms was circulating a petition protesting a change in working hours, and by discharging Grooms on that date because he defied that threat and insisted upon circulating the petition. B. The Facts At 8 a.m. on March 8, 1974, Dillard R. Grooms reported for work at Respondent's High Shoals plant' where he was employed in the nylon filament department, under Super- visor Gerald Thompson. Grooms brought a petition with him that morning with which he hoped to persuade Respondent to rescind its recent change in working hours. The petition read: We the undersigned do hereby petition McNeill Industries to return to the shift changes for which we were hired (6-2- & 10) or as a compromise (7-3-11). A shift for the working person, not just for some damn supervisors, too lazy to get up before the middle of the day. I The employees at Respondent's High Shoals plant are not represented 216 NLRB No. 69 by a labor organization. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Between 8 and 8:20 a.m., that same morning, Grooms asked Frances Bailey, also a nylon filament department employee, to sign his petition. When she refused, he replied with an obscenity and turned away. Frances Bailey became incensed over Grooms' language and promptly reported it both to her husband Don, who was also employed in the same department, and on the same shift as Grooms, and to Supervisor Gerald Thompson. During the same 20-minute period, Grooms observed quality control employee Pinkie Gafney as she walked through his department and unsuccessfully solicited her signature on the petition. Grooms accused Gafney of being "chicken" and also called her a "coward." Gafney immediately reported this encounter to Supervisor Thomp- son. At approximately 8:20 a.m., Grooms handed the petition to fellow employee Beverly "Pud" Jones, and asked him to sign it and pass it on. At 8:30 a.m., Supervisor Thompson directed Grooms to report to his office.2 The conflicts in testimony regarding the conversations immediately preceding and related to Grooms' discharge raise material issues of credibility. Grooms' version of his ensuing exchanges with his superiors is as follows: Thompson told Grooms that he, Grooms, "was going to get into trouble circulating a petition like that." After Grooms parried this and Thompson's further effort to persuade him to withdraw the petition, Grooms returned to his machine. Approximately 5 minutes after he returned to work, Grooms was directed to return to Thompson's office. There, Grooms encountered Thompson and Plant Manag- er Howard Chapman. Thompson renewed his efforts to dissuade Grooms from circulating the petition. Both Thompson and Chapman told Grooms that Respondent could not pay him for circulating the petition when he "was supposed to be running [his machine ]." Grooms denied that he had neglected his work. He also denied their allegation that he was engaged in union organizing activity, adding that his sole objective was to confront "Mr. McNeill" with the petition. Following this exchange, Chapman instructed Thompson to initiate Grooms' dis- charge papers and Grooms was discharged later that morning. In their testimony, Thompson and Chapman denied even mentioning the word "petition" to Grooms in their respective conversations with him. Thompson also denied warning Grooms about circulating the petition. Thompson testified that he told Grooms about the complaints he had received regarding Grooms' "foul language" to the employees because they had refused to sign his petition; that he warned Grooms that Respondent would not countenance such conduct, and that Grooms insisted "that it was right and that he would do it, what he was doing, whether [Thompson] liked it or not." At this, according to Thompson, he suggested that Grooms talk to Plant Manager Chapman. Thompson's and Chapman's testimony is that when Chapman confronted Grooms, he warned Grooms against 2 My findings of fact to this point are based on a composite of the testimony of witnesses Grooms, Frances and Don Bailey , and Gafney. 3 On direct examination, Thompson testified that he wrote this the use of "abusive language" toward other employees. Thompson and Chapman also testified that Grooms again insisted that "he would continue to do what he had been doing whether [Chapman] liked it or not." According to Thompson, he "told Dillard that if he would not interfere with other employees, and would quit using abusive language he could go back on the job." Chapman also testified that he reminded Grooms of Respondent's grievance procedure and urged him to use it. According to Chapman, after he offered Grooms an opportunity to return to work, and Grooms insisted upon continuing "to do just what he was doing," he, Chapman, ordered Thompson to discharge Grooms. In resolving the credibility issues growing out of the recited testimony in favor of Grooms, I have considered two documents received in evidence at the hearing, both of which were written by Thompson. The first, Respondent's employee termination record prepared for Grooms by Gerald Thompson on March 8 recites the following as the "Cause of Termination": "Employee was causing problems in Department due to Company change in shift hours. He insisted on soliciting petition on Company hours and taking it to Company President." On the same day, Thompson wrote the following additional statement on the reverse side of the termination record: This employee, Dillard Grooms was creating dissension on the job. Several employee complained to me about him going into their work area with a petition referring to shift hours. These people would not sign the petition and were angry about being called yellow-bellies, chicken and other insulting things. After hearing these complaints I asked Dillard to come to the office with me. I explained our grievance procedure to him and told him it really did work and if necessary I would go all the way to the top with him on any grievance. I explained to him that it was a violation of company policy for him to leave his work area and go to•the work area of others and interfere with them and that I had had these complaints from many other employee and that I could not allow him to do such and that he must stay with his job. I told him to go back to his job and use our grievance procedure, and he refused to do this. He stated to me he was going to go ahead with the petition whether I liked it or not. When he refused to stay in his work area, I terminated him .3 There is a significant variance between Thompson's and Chapman's testimony and Thompson's written accounts. These documents, drawn up before the filing of the unfair labor practice charge in this case, are much concerned with Grooms' petition, its contents, and his expressed intention to seek out Respondent's president, Alan McNeill. The verbal abuse and harassment of two employees-which Thompson and Chapman testified were the major topics of additional report "Because [he) wanted to get all the fact [sic J in the case that [hel possibly could for Personnel." MCNEILL INDUSTRIES, INC. 345 their March 8 encounter with Grooms-were given little attention. This contrast between their testimony and Thompson's March 8 reports, their uneasiness while testifying about their remarks to Grooms on March 8 and their evasive answers about the petition, Grooms' right to circulate it, and its contents , convince me that as witnesses Thompson and Chapman were much more concerned with exculpating Respondent than with baring the facts. Further, Thompson's written reports largely corroborate Grooms' testimony regarding Respondent's response to his petition on the morning of March 8. Finally, Grooms impressed me as the more straightforward of the three witnesses. C. Analysis and Conclusions Section 7 of the Act provides in pertinent part: "Employees shall have the right . . . to engage in .. . concerted activities for the purpose of . . . mutual aid or protection ...." Here, Grooms' attempt to enlist the support and assistance of his fellow employees for the purpose of correcting what he thought to be an inconsider- ate change in working hours was "as much 'concerted activity' as is ordinary group activity." Owens-Corning Fiberglas Corporation v. N.LR.B., 407 F.2d 1357, 1365 (C.A. 4, 1969), enfg. 172 NLRB 148 (1968). Accord: Hugh H. Wilson Corporation, 171 NLRB 1040, 1046 (1968), enfd. 414 F.2d 1345, 1347 (C.A. 3, 1969), cert. denied 397 U.S. 935 (1970). If, as the General Counsel urges, Respondent discharged Dillard R. Grooms because he was engaged in such activity, Respondent violated Section 8(aXI) of the Act. For that section makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed" in Section 7 of the Act. The facts supporting the General Counsel's contention are to say the least persuasive. Thompson's warning that Grooms' insistence upon circulating his petition would result in trouble for Grooms was not only, as I find, a threat violative of Section 8(axl), but also strong evidence of hostility toward the petition. Further evidence of animus toward Grooms' petition is provided by the timing of Respondent's decision to discharge him. Plant Manager Chapman's direction that Grooms be discharged came but 20 minutes after circulation of the petition began, about 10 minutes after Thompson's threat, and immediately after Grooms reaffirmed his intentions to continue circulating his petition. Finally, strong evidence of unlawful motive is provided by the admissions written by Supervisor Thomp- son on Grooms' termination record form. In its brief (p. 1), Respondent claims that Grooms was discharged because of the disturbance he caused in soliciting employee support for his petition, and "using profanity . . . which added to the disturbance" and that therefore his discharge was lawful. However, this defense is cast in doubt by the shifting and inconsistent reasons previously offered by Respondent in explanation of Grooms' discharge. Thus, according to Thompson on March 8, he filled out two termination reports regarding Grooms' discharge. The first, not available at the hearing, listed "profane language to other employees . . . dissen- sion in the department, or words to that effect," and "causing problems in the department." Upon further examination, Thompson testified that the first termination record covering Grooms' discharge gave as reasons "foul language to others; or profane language to other employ- ees, and causing dissention on the job and that he was not pleased with the Company." The front side of the surviving termination record, gave as the cause of the termination: "Employee was causing problems in Department due to Company change in shift hours. He insisted on soliciting petition on Company hours and taking it to Company President." On the reverse side of this same termination record, also prepared on March 8, Thompson reported that Grooms ,.was creating dissension on the job," violating Respond- ent's policy by going into employee work areas, insulting employees who refused to sign his petition, and failing to use Respondent's grievance procedure. Thompson's March 8 report finally declares that when Grooms "stated he was going to go ahead with the petition, whether [Thompson] liked it or not (sic) when [Grooms] refused to stay in his work area, [Thompson] terminated him." When Respond- ent's counsel asked Supervisor Thompson why he had written the additional statement, Thompson answered: "Because I wanted to get all the fact [sic] in the case that I possibly could for Personnel." However, on cross-examina- tion, Thompson admitted that the statement on the front side of the record termination "gives the cause of termination." In a separation notice prepared by Respondent on March 8 for the North Carolina Employment Security Commission, the reason for Grooms' discharge is given as follows: EMP. causing problems in dept due to company change in shift hrs., suggested soliciting petition on hrs. and taking it to comp. president. Finally, a report to the commission submitted by Respond- ent in June 1974 contained the following explanation of Grooms' discharge: This employment ended because ... employee was interfering with other employees on their jobs. This is a violation of company policy. He was asked to stop and return to his job by dept. head, [sic] he refused. He was then discharged. This kaleidoscope of explanations and the unfounded reference to Grooms "going into employee work areas" strongly suggest that Respondent has attempted to camou- flage an unlawful discharge. A further infirmity in Respondent's defense is its unconvincing excuse that its omission of any reference to profanity in the "Cause of Termination" section of the second termination record and in its March 8 separation notice to the State were acts of benevolence toward Grooms. According to the testimony of Personnel Manag- er Barbara McDonald and Timothy Helms, the then industrial relations director at the High Shoals plant, Thompson was instructed to redraft his termination record without reference to profanity as a cause of discharge 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because such a disclosure would endanger Grooms' eligibility for state unemployment benefits. However, I fmd this explanation unacceptable in light of Respondent's declaration in the March 8 separation notice filed with the State showing that Grooms was: "Discharged for miscon- duct (connected with his work)." Surely this declaration would not advance his cause before the North Carolina Employment Security Commission any more than a reference to profanity would. Nor was Respondent's explanation in its June 1974 report to the State likely to help Grooms. For there again, Respondent asserted that Grooms was discharged for misconduct at work. Finally, Respondent has not provided any regulation, decision, or precedent to show any ground for its asserted belief that the State would view alleged profane language as worse than a general allegation of misconduct in considering Grooms' claim for unemployment benefits. Thompson's threat and his admissions on the reverse side of the second termination report that he attempted to persuade Grooms to drop the petition and use Respond- ent's grievance procedure provide further ground for rejecting Respondent's excuse for omitting references to profanity in its existing documentation of Grooms' discharge. Indeed, the more likely explanation arising out of the facts here is that Grooms' use of profanity played no part in Respondent's decision to discharge him. Finally, analysis of Respondent's claim that Grooms' solicitation created a disturbance on March 8 reveals further ground for accepting General Counsel's contention. As of March 8, Respondent did not have a no-solicitation rule. Further, the uncontradicted and credited testimony of employees Dillard R. Grooms, Frances Bailey, and Helen Grooms shows that, as a matter of practice, Respondent has permitted employees to interrupt their work to conduct plantwide solicitation for a variety of other purposes, including the community chest and the sale of bedroom slippers. On occasion, members of Respondent's manage- ment have responded favorably or otherwise encouraged such solicitation. In contrast, however, Respondent was much disturbed by Dillard R. Grooms' March 8 solicita- tion effort, which at the time of his discharge had gone on for less than an hour of worktime, had only involved four other employees, three of whom were employed in his department, and had not interrupted production. This disparate and harsh response to Grooms' brief solicitation, coupled with the admissions in Respondent's documentation of Grooms' discharge, strongly suggest that the content of the petition rather than Grooms' conduct provoked Respondent. In sum, I find from the foregoing that Respondent discharged Grooms because he insisted upon circulating among his fellow employees a petition seeking return to their former work schedule. Accordingly, I also find that by this discharge Respondent violated Section 8(a)(l) of the Act. CONCLUSIONS OF LAW 1. Respondent, McNeill Industries, Inc., is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. By threatening Dillard R. Grooms with reprisal because he was engaged in concerted activity protected by Section 7 of the Act, Respondent violated Section 8(a)(1) of the Act. 3. By discharging Dillard R. Grooms on March 8, 1974, because he was engaged in concerted activity protected by Section 7 of the Act, Respondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices burdening and obstructing commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it be ordered to cease and desist from such conduct and to take affirmative action to effectuate the policies of the Act. I shall recommend that Dillard R. Grooms be reinstated to his former job or, if that job no longer exists, to a substantially equivalent job, and that he be trade whole for any loss of pay he may have suffered by reason of the discrimination against him by the payment to him of a sum of money equal to that which he would have earned but for the discrimination, in accordance with the principles enunciated by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this proceeding and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER4 Respondent, McNeill Industries, Inc., its officers, agents, successors, and assigns, shall: 1. Ce4se and desist from: (a) Threatening employees with reprisals because they are engaged in, or have engaged in, activity protected by Section 7 of the Act. (b) Discharging or otherwise discriminating against any employee in regard to hire tenure of employment or any term or condition of employment for engaging in any activity protected by Section 7 of the Act. (c) In any like or related manner interfering with or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action: (a) Offer Dillard R. Grooms full reinstatement to his former job or, if such former job no longer exists, reinstate him to a substantially equivalent job, without prejudice to his seniority and other rights and privileges, and make him whole for any earnings he may have lost as a result of his discharge in the manner set forth above in the section of this Decision entitled "The Remedy." 4 In the event no exceptions are filed as provided by Sec. 102 .46 of the 102.48 of the Rules and Regulations , be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, the Board's findings, conclusions, and Order, and all objections thereto shall conclusions, and recommended Order herein shall, as provi4ed in Sec . be deemed Waived for all purposes. MCNEILL INDUSTRIES, INC. 347 (c) Post at its High Shoals, North Carolina, plant, the attached notice marked "Appendix." 5 Copies of said notice on forms provided by the Regional Director for Region 11, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof in conspicuous places, including all places where notices to employees are customarily posted, and be maintained by it for 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. S 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 present their evidence , an Administrative Law Judge of 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 To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL NOT threaten employees with discharge or other reprisals for exercising any of these rights. WE WILL NOT discharge our employees because they have exercised one or more of these rights. WE WILL offer to reinstate Dillard R. Grooms to his former job or, if that job no longer exists to a substantially equivalent job and we will make him whole for any earnings lost because we discharged him. MCNEILL INDUSTRIES, INC.