Elkton Die Casting Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elkton Die Casting Company, Inc. and International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America, UAW. Case 9-CA-10864 September 28, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 8, 1977, Administrative Law Judge Michael O. Miller issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge, except as modified herein,3 to modify his remedy, 4 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 the Respondent, Elkton Die Casting Company, Inc., Elkton, Kentucky, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I On July 28, 1977, Respondent filed a "Motion for Judgment on the Pleadings and to set Aside the Order of Reinstatement for William Adrian Stokes." In its motion, Respondent contends that, because the Charging Party has not filed a bnef in answer to Respondent's exceptions, "the Order of Reinstatement for William Adrian Stokes must be set aside and held for naught." Respondent's motion is hereby denied as lacking merit. The General Counsel's motion to strike Respondent's motion is also denied. 2 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. Additionally, Respondent asserts that the Administrative Law Judge's findings are the result of bias. After a careful examination of the entire record, we are satisfied that this allegation is without merit. There is no basis for finding that bias and partiality existed merely because the Administra- tive Law Judge resolved important factual conflicts in favor of the General Counsel's witnesses. As the Supreme Court stated in N.LR.B. v. Pittsburgh S.S. Company, 337 U.S. 656, 659 (1949), 'IT]otal rejection of an opposed view 3 The Administrative Law Judge found, and we agree, that the discharge of William Adnan Stokes violated Sec. 8(a)3) and (1) because it was motivated by Stokes' union activities and not by the reasons advanced by Respondent. However, we find it unnecessary to consider or pass upon the Administrative Law Judge's alternative finding that the discharge indepen- dently violated Sec. 8 (aXl) under the principle of N.LRB. v. Burnup & Sims, Inc., 379 U.S. 21 (1964). 232 NLRB No. 82 4 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge: This case was heard on April 28, 1977, in Hopkinsville, Kentucky, upon a charge filed on December 3, 1976, and a complaint which issued on January 26, 1977. The com- plaint alleged that Respondent violated Section 8(a)(3) and (I) of the National Labor Relations Act (herein the Act) by discharging William Adrian Stokes on November 24, 1976, because of his union activity. Respondent admitted discharging Stokes but denied that the discharge was motivated by his union activity. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally. All parties waived filing of briefs. Based upon the entire record, including my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. THE RESPONDENT'S BUSINESS; UNION'S LABOR ORGANIZATION STATUS; PRELIMINARY CONCLUSIONS OF LAW Jurisdiction is not in issue. The complaint alleged and Respondent admitted that Respondent satisfied the Board's standards for the assertion of jurisdiction over nonretail business enterprises. I therefore find and con- clude that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint alleged, Respondent admitted, and I find and conclude that International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America, UAW, herein the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICE A. The Facts On November 24, 1976,1 an NLRB representation election was conducted among Respondents' employees. The Union was chosen as the employees' collective- bargaining representative by a vote of 41 to 20. William Adrian Stokes (herein Stokes) had been active on the Union's behalf and had handbilled for the Union on the day of the election. At the end of the second shift on November 24, Stokes was called into Plant Manager Dan Rogel's office and discharged. He was given a letter setting forth the following reasons for that discharge: 1. In the tool crib on the second shift on November 23, 1976, your assigned work station, you were All dates hereinafter are 1976 unless otherwise specified. 500 ELKTON DIE CASTING COMPANY engaging in union activities and threatening another employee on his vote in the impending election. 2. Later in the evening you left your assigned station, the tool crib, and you went to another portion of the plant in violation of your assigned duties. There you engaged in union activity. 3. In another portion of the plant, you were observed by your supervisor engaging in union activi- ties and threatening an employee as to his vote in the impending election. 4. Later in the evening and toward the end of the shift you again threatened an employee as to his vote in the impending election. Stokes was the second-shift toolcrib attendant, having assumed that position about 5 weeks earlier upon recall from a short layoff from a different position. He admitted leaving the toolcrib on the night in question, but asserted that to do so was a regular part of his work. He denied that he had ever been told that he was not to leave the toolcrib without permission. David Long, his foreman, testified that he initially instructed Stokes that he was to remain in the toolcrib and that he repeated that instruction to him about 2 days prior to the discharge. The employee allegedly threatened by Stokes was Hershel Latham, second-shift janitor. According to Lat- ham's somewhat confusing testimony, he had a series of four conversations with Stokes on November 23. The first, it appears, was in the lunchroom before work. Stokes asked Latham how he was going to vote, Latham replied that his vote was no one else's business, and Stokes attempted to persuade him that if he was going to vote against the Union he should mark his ballot in such a way as to void it. Latham replied that that would not be right. Stokes denied speaking to Latham in the lunchroom on November 23. Shortly after this first alleged conversation, Latham went to the toolcrib to pick up some gloves. He and Stokes engaged in some conversation which touched upon the subject of Latham's religion and Stokes allegedly told him that if he did not vote for the Union, Stokes would bring a rock and roll band to his church and disrupt the service. Latham further testified, on cross-examination, that in the course of this conversation Stokes said something to the effect that if he did not vote for the Union, sugar would be put in his gas tank.2 Stokes recalled discussing religion with Latham at the toolcrib but denied both alleged threats. Following his conversation at the toolcrib, Latham went to Long's office and spoke with Long about Stokes "telling me about voting for the union and just making fun of my religion, threatening things that way." He reported the alleged threat to put sugar in his gas tank. Stokes could see Latham in Long's office and could see Latham gesturing toward him. Long placed this conversation at about 9 p.m. Following his observation of Latham in Long's office, Stokes spoke with Latham in the foundry. He told Latham that he did not like Latham talking about him behind his back. Latham testified that Stokes appeared angry and said, "I will get you for that." Long came up to Stokes at 2 Latham recalled this statement, on direct examination, only after being asked a leading question to which an objection was sustained. He did not attnbute it to the second conversation at that time. On cross-examination. he omitted the reference to the rock and roll band. this point and told him to return to the toolcrib. 3 Long did not claim to have heard any threat made by Stokes. Toward the end of the shift, according to Latham, Stokes spoke with him in the men's room. Stokes allegedly said, "That's all right, that's all right." Stokes denied talking to Latham in the men's room on November 23. After he sent Stokes back to the toolcrib, according to Long, he spoke again with Latham. He asked what the conversation was about. Long testified that Latham "reminded me that Stokes had told him that they would put sugar in his gas tank or anybody else's that didn't vote for the union and that Stokes was making fun of his religion and that he was going to bring a rock and roll band into his church .... " Latham told Long that a gospel band would be all right, but not rock and roll. According to Long, this was the first time that Latham mentioned the threat to bring a band to the church. Latham did not testify as to this conversation. Rogel testified that on two occasions about a week before the election he had observed Stokes picking up work material outside of the toolcrib and talking to other employees. He told Stokes that there were other employees to do that work and directed him to return to the toolcrib. On November 22, according to both Long and Rogel, Long observed Rogel go to the tool-and-die area upon checking in and engage in a conversation prior to the start of the shift. Stokes was supposed to start 15 minutes early so as to coordinate with the first-shift toolcrib attendant. Long reported this to Rogel. On the evening of November 23, Rogel came in to the plant "sometime after 7:00, after the lunch hour and David Long then informed" him of a confrontation at the toolcrib and of the alleged threat to bring a rock band to Latham's church and break up the service. However, Rogel did not discharge Stokes until the following night, "because [he] learned of several other instances where [Stokes] had been harassing Hershel Latham." Rogel prepared the discharge letter, previously quoted. The first numbered paragraph, he said, refers to the incident between Stokes and Latham at the toolcrib. The second numbered paragraph was intended to refer to several instances where Stokes "left his work station and went out to Hershel Latham to threaten him." According to Rogel, Stokes "may even have left his work station when he was supposed to be in the tool crib and followed Hershel Latham into the lunchroom and proceeded to harass him there about voting for the union." Respondent maintained no no-solicitation rule which prohibited employees from discussing the Union while on worktime. No evidence was adduced that Stokes' absences from the toolcrib caused any delays in the work or interfered with his assigned duties. Stokes was not questioned by either Long or Rogel about the alleged threats. The record contains no evidence, other than the foregoing, that Respondent harbored any union animus. I Stokes and Latham's version of this conversation are similar except that Stokes' version does not include the "I will get you .. ." statement. That statement was not mentioned by Latham when he repeated the conversation on cross-examination. 501 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Credibility Resolutions Latham testified about two conversations, in the lunch- room before the shift and in the men's room toward the end of the shift, which Stokes denied. As neither alleged conversation contained a threat such as might constitute misconduct warranting discharge, I find it unnecessary to resolve the conflict. Stokes did not deny being in either place and it is likely that he was in one or both places at some time in the course of the night. In regard to the alleged threats by Stokes to Latham, I credit Stokes' testimony. In addition to being more favorably impressed by Stokes' demeanor, I note the inconsistencies between Latham's testimony on direct and cross-examination and his inability to recall the alleged threat to put sugar in his gas tank without being reminded of that threat by a leading question. On the question of whether Stokes had been told that his work station was the toolcrib and that he was expected to remain there, I credit the mutually corroborative testimony of Rogel, Long, and Latham. I note also that Respondent had an employee, other than the toolcrib attendant, whose job it was to pick up such things as dirty gloves. It would therefore be probable that Respondent would have expected the toolcrib attendant to remain in or around the toolcrib area. C. Analysis and Conclusion The question presented is one of motivation: whether Stokes' discharge was motivated by misconduct or union activity. I conclude that Stokes was discharged because of the union activity he had engaged in, including his conversations with Latham, rather than any misconduct on his part. Stokes' conversations with Latham were either about the union election or were believed by Respondent to be on that subject. Stokes did not, I have found, threaten to put sugar in Latham's gas tank or to disrupt Latham's church services with rock and roll music. That Respondent may have believed that Stokes threatened Latham is no defense where, as here, it is found that he did not. It is well- settled that an employer violates Section 8(a)(l) by discharging an employee for misconduct arising out of a protected activity, despite the employer's good faith, when it is shown that the misconduct never occurred. N.LR.B. v. Burnup and Sims, Inc., 379 U.S. 21 (1964); Moore Business Forms, Inc., 224 NLRB 393 (1976). Moreover, the evidence establishes that Respondent's assigned reasons for discharge were pretextual. Thus, although it claimed to discharge Stokes for threatening Latham, Respondent was not so concerned with the veracity of Latham's assertions that it felt any need to question Stokes. Rogel's affidavit to the NLRB investigator contained no reference to the alleged threat to disrupt Latham's church services with offensive music, thus belying Rogel's concern with that alleged threat. The testimony of Rogel and Long is inconsistent in regard to how and when he and Long became apprised of the alleged threats. Long testified that Latham reported the "gas tank" threat to him around 9 p.m. and only later mentioned the rock and roll band. Rogel stated that Long told him of the latter when he arrived at or about 7 p.m. Rogel did not decide to discharge Stokes at that time. Rogel waited, he said, until he learned of "several other instances where [Stokes] had been harassing Hershel Latham." The other instances of confrontations between Stokes and Latham, i.e. the lunchroom, foundry, and men's room incidents, as testified to by Latham, even if credited, were not such as to warrant discharge. In regard to Stokes' absenting himself from the toolcrib, the evidence only establishes one incident where Latham was improperly away from the toolcrib area on November 23, the conversation in the foundry. Even then, he was doing some work, picking up gloves. Respondent adduced no evidence to indicate that this absence caused any disruption of work. The other alleged incidents took place either at the toolcrib or in such places as Stokes might be expected to frequent, the lunchroom (before the shift) and the men's room. Both of those places were within eyeshot of the toolcrib. Finally, I note the language of the discharge letter prepared by Rogel. Each numbered paragraph refers to Stokes' union activity. It asserts that Stokes left his work station, later in the evening, to engage in union activities, that he was observed by his supervisor "threatening an employee as to his vote in the impending election," and that he repeated that threat toward the end of the shift. None of the reasons therein are factually accurate. The stress placed upon the union activity in this letter, and the inaccuracies therein, I find, evidence Respondent's actual motivation. ADDITIONAL CONCLUSIONS OF LAW 1. By discharging William Adrian Stokes because of his union activities and/or because of its mistaken belief that he had engaged in misconduct in the course of union activities, Respondent has violated Section 8(a)(1) and (3) of the Act. 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in an unfair labor practice, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the purposes of the Act. Respondent will be required to offer William Adrian Stokes immediate reinstatement to his former position of employment or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, anyone who may have been assigned or hired to perform the work which Stokes had been performing prior to his termination on November 24, 1976. Additionally, Respondent shall be required to make Stokes whole for any loss of earnings that he may have suffered by reason of the discrimination against him, with backpay to be computed on a quarterly basis, making deductions for interim earnings, and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Corpany, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also recommend that Respondent post an appropriate notice. 502 ELKTON DIE CASTING COMPANY Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The Respondent, Elkton Die Casting Company, Inc., Elkton, Kentucky, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging or otherwise discriminating against any employee in regard to hire, tenure of employment, or any term or condition of employment in order to discourage membership or activities in behalf of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, or any other labor organization. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Offer William Adrian Stokes immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position. (b) Make William Adrian Stokes whole for any loss of earnings he may have suffered by reason of his unlawful discharge, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amount of backpay due under this Order. (d) Post at its plant copies of the attached notice marked "Appendix."5 Copies of said notice on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by Respon- dent immediately upon receipt thereof and be maintained by it for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. I 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. I In the event the Board's Order is enforced by a Judgment of the 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 hearing in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice to our employees. The Act gives the employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any such activities. In recognition of these rights, we hereby notify our employees that: WE WILL NOT discharge or otherwise discriminate against any employee because of activity on behalf of International Union, United Automobile, Aerospace and Agricultural Implement Workers, UAW, or any other union. WE WILL offer William Adrian Stokes reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, and WE WILL make him whole for any loss of earnings he may have suffered as a result of his discharge. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. ELKTON DIE CASTING COMPANY, INC. 503