Browning Manufacturing Co.

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Browning Manufacturing Company and Charles-H. Glenn. Case 9-CA-9050- -January 9, 1976 DECISION AND-ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING - AND JENKINS complaint issued by the General Counsel on March 7, 1975, and an answer filed by Respondent, a hearing was held in Maysville, Kentucky, on April 21, 1975. Upon the entire record in the case, including my obser- vation of the demeanor of witnesses and upon consider- ation of briefs, I make the following: ` FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT On August 14, 1975, Administrative, Law Judge Ralph Winkler issued the, attached Decision in this proceeding. Thereafter, Charging Party filed excep- tions and a supporting brief, and- the Respondent filed an- answering brief. - 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 Laboai 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 be, and it hereby is, dis- missed in its entirety. i The Charging Party 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 (C A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. The Administrative Law Judge Sound that Thomas credibly denied telling McCord that he, McCord, could be fired or laid off for union activities While the record testimony does not contain such specific denial, we note that the complaint did not allege this incident as an independent violation of the Act; that the General Counsel stated that the purpose of McCord's testimony in this regard was to show the whole background, and the Gener- al Counsel did not move to amend the complaint to conform the pleadings to the evidence at the conclusion of the hearing Thus Respondent was not placed on notice to defend against this allegation, or to deny McCord's testimony in this regard Therefore, even if the statement was made as Mc- Cord testified, Respondent in these particular circumstances, cannot be found to have thereby committed an unfair labor practice DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: Upon charges filed by Charles H. Glenn on January 13, 1975, a Browning Manufacturing Company is a Missouri corpo- ration-engaged in the manufacture of mechanical power transmission components at Maysville, Kentucky. I find, as.the parties agree, that Respondent meets the Board's jurisdictional standards and that. Respondent is an employ- er within Section 2(6) and (7) of the Act. - II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, herein called the Union, is a labor organization within .Section 2(5)- of the Act. - - - - III. THE UNFAIR LABOR PRACTICES All dates herein are in 1974 unless otherwise indicated. - The complaint alleges that Respondent unlawfully sus- pended and then discharged Charles Glenn on December 10 and'14,'respectively, and that Respondent further-vio- lated Section 8(a)(1) of the Act by specified conduct of Foreman Gayle Thomas. Respondent- concedes that Thomas is a statutory supervisor, and it-asserts that it sus- pended and finally discharged Glenn for quitting early and upon consideration of his entire disciplinary record. The labor organizational context of this case is a repre- sentation proceeding upon a petition of the Union in Case 9-RC-10606, a Decision and Direction of Election issued by the Regional Director for Region 9 on August 9, and an election conducted on September 11. The tally of ballots showed a unit of 1,046 employees and that a majority of employees voted against the Union. The Umon thereupon filed 16 separate objections to the conduct of the election, including coercive interrogation and threats of economic reprisal. In a Supplemental Decision issued on November 13, the Regional Director overruled all the objections and certified that the Union had lost the election. At material - times during the preelection period the Union had an inplant committee of approximately 120 members. The committee members distributed union hter- ature at the plant gate and wore badges openly in the plant, the badges identifying the wearer as "volunteer organizer," and the Umon otherwise publicized the identity of the committee members. Glenn (the alleged discriminatee) was a committee member and the record shows that he was no more active or prominent in the union campaign than any other member of that committee. The election campaign was apparently hard fought by both the Union and the Respondent, and Respondent made no secret then, nor does it now, that it is opposed to the unionization of its employees. Respondent claims in 222 NLRB No. 30 BROWNING MANUFACTURING CO. 103 this connection that the 1974 campaign was the third such organizing-effort by the Union, and that the present case is the first unfair labor practice proceeding brought against it arising out of union attempts to organize the employees. A. Threats and Interrogation Glenn testified that a "lot" of employees openly dis- cussed the Union with supervisors and inquired as to the supervisors' opinion of the Union. Glenn testified that he did not make such inquiry of his own supervisor, Gayle Thomas, and that Thomas nevertheless asked him several times why the employees wanted a union, and that Thomas told him 1 on an occasion when Glenn and other commit- tee members had distributed union leaflets for the first time, "Look what I have done for you and look what you're doing to me 'now." (There was no showing that Thomas had done anything for Glenn.) According -to Glenn, his union discussions with Thomas were "open and frank." Employees Gerald Frodge and Ronald McCord also were members of the aforementioned inplant commit- tee. Frodge testified that early in the union campaign Thomas inquired what the employees' "big_ gripes" were, whether he signed a card, and who had started the Union. And McCord testified that sometime before the election Thomas pointed to the union buttons McCord was wearing (which all 120 -committee members wore) and said, "Why don't you take off that junk and throw it- away" for it "wouldn't do any good." McCord also testified and Thom- as credibly denied that Thomas further told him on this occasion that he, McCord, could be fired or laid off for union activities. Another alleged item concerns a little spiral notebook which the Union had given to all inplant committee mem- bers for use in their organizing efforts. Glenn testified that he jotted matters of interest in his notebook for such pur- pose. Although Glenn testified that his notebook "might" have had the Union's initials on the cover, he was not cer- tain of it, and I do not find that his notebook bore such identification. Glenn testified that his notebook was lying on his workbench one time in July or August and that, when he turned around from a job he was doing, he saw Foreman Thomas reading the notebook at the workbench in the company of Leadman Jay Kalb. Glenn testified that Thomas replaced the notebook with the comment, "You know I can get you fired for this." Glenn testified that Thomas did not explain whether Thomas meant he could have Glenn fired for having a book on the workbench or because it contained information dealing with union mat- ters. Kalb (who, as a leadman, was within the voting unit in the aforementioned representation case) and Thomas both testified in effect that Thomas did pick up and glance through the notebook to see what it was because it did not appear to be company material and that Thomas returned it without making the comment attributed to him by Glenn. (This same notebook incident was one of the objec- tions filed by the Union to the election. The Regional Di- rector, mentioning the evidentiary conflict set forth herein, overruled the objection in his aforementioned November 1 This purported incident was in April, outside the 10(b) period , and is not independently alleged to have violated the Act. 13 Supplemental Decision because "such evidence, even if viewed in a light most favorable to the Petitioner [the Union], involves an incident, which was at most, isolated and did not materially affect the results of the election." ) The remaining alleged item, apart from Glenn's suspen- sion and discharge, involves a statement allegedly made by Thomas to Glenn in connection with Glenn's supporting evidence for the "notebook" objection in the Representa- tion case. Thomas purportedly asked Glenn, according to the latter's testimony, what Glenn hoped to, gain by filing or supporting the objection. Thomas denied interrogating Glenn-and Frodge in all aforementioned respects. B. Glenn's -,Discharge - Glenn began working for Respondent in 1968; he was discharged on December" M, 1974, at-which time he was classified as a class A grinder on the night shift. His super- visor was Gayle Thomas, and the night.superintendent was James Sapp. - - Respondent has had a longstanding rule permitting em- ployees to begin shutting down their machines and towash up 5 minutes before quitting"time. Employees are notified of this 5-minute period' by the ringing of a bell. When, because of operating conditions, employees are unable -to continue their machine operations until the beginning of the mentioned 5-minute period, they are required to sweep up and otherwise straighten up their work area. Although there is some evidentiary conflict concerning employees' quitting time practice, the record does establish that Re- spondent has warned employees about quitting work be- fore the 5-minute bell. Between February and December 1974, Foreman Thomas warned and wrote up at least 10 employees for early quitting and other supervisors took similar disciplinary action respecting more than 19 other employees. Glenn and other machine operators customarily leave a note for operators on the following shifts respecting the status of work. Glenn's quitting time was 3 a.m., and the 5-minute bell rang at 2:55 a.m. On December 7, 1974, Foreman Thomas left the plant at about midnight. Later during that shift, Glenn wrote and left the following note for the operator on the next shift: No. 39 ready for set up. No. 21 on set up. Wheel ready to dress out. I hope by the time you read this I will have consumed as many beers as you did last night. It is now 2:30 and Thomas went hunting at 2:00. So I quit. USWA, 4f. [Glenn customarily signed his notes in this fashion.] Leadman Kalb found Glenn's note later that night while making a routine check to be sure that all such notes were left for the next shift operators. The next workday, Mon- day (December 9), Kalb gave Glenn's note to Foreman Thomas who, in turn, brought the matter to Superinten- dent Sapp's attention. On Tuesday, December 10, Sapp discussed the matter with Thomas and Personnel Repre- sentative Ron Barker, and later that day the three manage- ment representatives met with Glenn. During this meeting, Glenn denied to Sapp that he had quit work at 2:30 a.m. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on December 7. Glenn testified that he had actually shut down his machine at 2:40 a.m. and then cleaned up, and he admitted to Sapp that he had also quit work "five to ten minutes early" the previous day (Monday). Sapp there- upon suspended Glenn for 3 days, purportedly for quitting early. Sapp spoke to Glenn at the end of the latter's sus- pension period on December 13 and inquired whether Glenn had any explanation for , having left early, and Glenn offered none. Sapp thereupon discharged Glenn. Sapp testified that he alone made the decision to sus- pend Glenn and that he also made the decision to dis- charge Glenn after consulting with Thomas and Barker and upon a review of Glenn's personnel file. Glenn had been suspended once before for job deficiencies in 1970; he also had been previously warned about quitting early, in- cluding an occasion a week or two before his discharge, and for other reasons; and Sapp had also reprimanded him respecting an altercation with another employee earlier in 1974. The General Counsel contends that Foreman Thomas' antiunion attitude more than "the quantity or distinctive union activities of Glenn" supplies the answer to why Glenn, was discharged. Superintendent Sapp called the shots here, not Thomas, and I am wholly satisfied that Sapp suspended Glenn for quitting early and that he then discharged him upon con- sideration of his entire work record, including the fact that no employee has ever been retained in the face of two suspensions. This case, in my judgment, warrants no fur- ther discussion, and I am also satisfied that the record does not preponderantly establish that Thomas made any union threats to Glenn respecting the spiral notebook. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) 'of the Act. 3. Respondent has not engaged in any unfair labor prac- tices alleged in the complaint. Upon the foregoing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 It is ordered that the complaint herein be dismissed. 2 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 the 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