Blue, John, Company

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John Blue Company and Fay Black. Case 10-CA- 15049 June 9, 1981 DECISION AND ORDER On October 27, 1980, Administrative Law Judge J. Pargen Robertson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed a brief in support of the Administra- tive Law Judge's Decision. 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, find- ings,' 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 be, and it hereby is, dismissed in its entirety. I 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 re- spect 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 F2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge: This case was heard before me on May 19 and 20, 1980, in Huntsville, Alabama. The charge was filed on Septem- ber 24, 1979. The complaint issued on November 19, 1979. The complaint alleges that Respondent violated Section 8(a)(l) and (3) of the Act by discharging em- ployees Fay Black, Ezeikel Fletcher, and Shelby Eliff, on September 18, 1979. Respondent admitted that it dis- charged the aforenamed employees on September 18, 1979, but denied that it engaged in conduct violative of Section 8(a)(1) and (3) of the Act. Upon the entire record, my observation of the wit- nesses, and after due consideration of oral argument by General Counsel and Respondent, and a brief filed by Respondent, I hereby make the following: FINDINGS AND CONCLUSIONS' Counsel for General Counsel submits this case presents a straightforward case of three employees being fired be- ' The allegation regarding commerce are not in dispute. The complaint alleges, Respondent admits, and I find that Respondent is a Delaware corporation with a place of business in Huntsville, Alabama, where it is 256 NLRB No. 83 cause of unio# activities. Basically he submits that two of the alleged discriminatees, Fay Black2 and Ezeikel Fletcher, commenced activities designed to institute a union organizing campaign in 1979. Black and Fletcher had engaged in union activities during the past union campaign. 3 On September 13, 1979, Fay Black was allegedly con- tacted by a representative (an organizer) of the Union. Black was asked by the Union representative, L. B. Bean, to set up a union meeting among Respondent's em- ployees on the evening of September 18. Black testified that he subsequently spoke to about 15 or 20 employees in the plant about the September 18 meeting. Fletcher testified that he talked to 20 or 25 employees about the planned meeting. General Counsel contends that Respondent learned of Fay Black's and Ezeikel Fletcher's union activities be- tween September 13 and 18, 1979. In support of its con- tentions, General Counsel offered evidence regarding two incidents which allegedly occurred on September 17. The first of those incidents allegedly occurred during the September 17 workday. Fay Black testified that he talked to employees Tommy Pickett, Ezeikel Fletcher, and John Matthews outside the timeclock at 12:20 p.m. Black said they were talking about "the Union meeting, about getting the union cards signed up and to get an election." According to Black, Foreman Leo Taylor was standing about "5 feet" away during the conversation which lasted about 5 minutes. Ezeikel Fletcher also testified about the September 17 conversation. Fletcher placed the conversation at or about 9 to 10 a.m. Fletcher recalled that employees Pick- ett, Matthews, and Fay Black were involved in the con- versation. He also placed Foreman Leo Taylor "about 5 feet away" during the conversation. Foreman Leo Taylor, who has a hearing problem, denied being present or overhearing the September 17 conversation. engaged in the operation of a foundry and machine shop. During the past calendar year, Respondent purchased and received at its Huntsville facili- ty goods valued in excess of $50,000 directly from suppliers located out- side the State of Alabama. The complaint alleges, Respondent by stipula- tion during the hearing admitted. and I find that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act Respondent, in its answer, denied the complaint allegation that Interna- tional Molders and Allied Workers Union is a labor organization. How- ever, unrebutted evidence indicates that the aforesaid union exists for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, and working conditions. Therefore I find that the aforementioned Union is a labor organization within the meaning of Sec 2(5) of the Act. 2 Respondent argues that the evidence proves that Fay Black held a supervisory position during the time material herein In view of my find- ings herein, I find it unnecessary to consider that issue. " Black passed out union authorization cards and attended union meet- ings during a 1977 organizing campaign among Respondent's employees. During June 1978, Fay Black testified on behalf of the Union in a hearing on objections. Ezeikel Fletcher also participated in the 1977 campaign. Fletcher served as union observer during the September 1977 election and appeared at the June 1978 objections hearing. On the basis of that evidence I find that Respondent was aware of Black's and Fletcher's prounion position during the 1977-78 campaign. JOHN BLUE COMPANY 461 The second incident allegedly occurred after work on September 17. Fay Black said that, "a little bit after 3:30 in the parking lot he was passing out union cards to em- ployees Larry Bartlet, John L. Teddy, Sam Goode, a few of them," and "talking to them about the meeting," when Supervisors John Hardage, Leo Taylor, and John Black passed within 10 feet. Although none of the super- visors said anything, Fay Black testified that he thought they saw the union cards. Hardage, Taylor, and Black all denied seeing Fay Black's parking lot conversation on September 17. Witnesses of Respondent denied knowing of any union activities during 1979. As to the discharge of the third alleged discriminatee, Shelby Eliff, General Counsel contends that he was dis- charged as a consequence of an incident on September 18. Eliff testified that, after lunch on September 18, he was told by employee Prince McCary that Fay Black had been fired because of the Union. Later, Eliff and other employees were told by someone Eliff identified as "William" that Ezeikel Fletcher had also been fired be- cause of the Union. According to Eliff, after learning of Black's and Fletcher's discharges, he argued to the em- ployees that "they had evidently fired a man who had 15 years seniority with the company who apparently hadn't done nothing wrong. Are you guys going to stand here and accept this and not speak up." Eliff testified that Foreman Leo Taylor was standing in the doorway about 8-10 feet away when he made those statements to the employees. Eliff testified that Supervisor John Hardage was walking by and he called Hardage over. Eliff asked Hardage about Fay Black. Eliff said he told Hardage, "I been hearing some pretty disturbing things or ugly things but he was-he and Mr. Ezeikel Fletcher was fired be- cause of the Union." Eliff testified that he told Hardage, "well, if you are going to fire those two guys for going to a union meeting tonight, you might as well fire me too." Hardage denied having the above conversation with Shelby Eliff. Hardage testified that on September 18 "Eliff asked me where Black had gone and I told him I guess he had gone home. That was the extent of our conversation with Eliff." Eliff testified that he was called in and discharged some 10-15 minutes after his conversation with Hardage. Respondent offered considerable testimony regarding the discharges of Black, Fletcher, and Eliff. Basically, Respondent contended that General Manager Ansil Poland precipitated the action which led to the dis- charges with a September 14, 1979, memo. In that memo Poland complained to supervision that their production was down considerably from the past year. Poland com- plained of "deliberate slow down in the coreroom and grinding areas." Poland commented "I can also sympa- thize with your feelings toward old time employees, but deliberate slow down or inefficiencies can not be tolerat- ed. Longevity is not a substitute for lost production, effi- ciency, and business." It was against that background, according to Respond- ent, that they decided to discharge the alleged discrimin- atees. Fay Black, who held the position of junior lead- man, was discharged because he was "unable to attain ef- fectiveness abreast of and parallel with peers. This aspect coupled with employee's attitude and lack of tact has had an adverse affect on production within the past 90 days." 4 Fletcher, a "grinder, Class I" was fired because "employee's productivity and initative did not keep pace with current production goals or methods."5 Eliff was terminated as an "unsatisfactory probationary employee." I find that General Counsel failed to prove that pro- tected activities played a role in Respondent's decision to terminate Fay Black, Ezeikel Fletcher, and Shelby Eliff.e Therefore, the complaint should be dismissed. I make this finding upon my determination that Gener- al Counsel failed to prove that Respondent knew of the union activities of Black and Fletcher during September 1979.7 In reaching that determination, I am unable to credit the testimony of Black, Fletcher, or Eliff. General Counsel has the burden of proving that em- ployees' protected activities played a role in the alleged discriminatory conduct. In endeavoring to carry that burden in the instant case, General Counsel chose to present testimony from only the three alleged discrimina- tees. The testimony of those three alleged discriminatees demonstrates the presence of a number of employees in every one of the critical incidents which forms the foun- dation for General Counsel's contention that Respondent had knowledge of the discriminatees' union activities. Those other employees had no direct interest in these proceedings. Therefore, their testimony would, in all likelihood, have been impressive. Nevertheless, in spite of the fact that Respondent's witnesses denied knowl- edge of the alleged discriminatees union activities, none of the other employees were called by General Counsel.8 Therefore, I am asked to resolve head-to-head credibil- ity issues without the benefit of apparently impartial wit- nesses. Under those circumstances, I am unable to conclude that those other employees would have testified in a manner favorable to the alleged discriminatees. There- fore, I must, and do, find that General Counsel has not presented substantial evidence proving that protected ac- tivities played a role in the discharges of Fay Black, Ezeikel Fletcher, and Shelby Eliff. CONCUSIONS OF LAW 1. Respondent John Blue Company is an employer en- gaged in commerce and activities affecting commerce 4 As per Black's termination notice. s As per Fletcher's termination notice Wright Line, .4 Division of Wright Line. nc., 251 NLRB 1083 (1980}) ? Respondent was aware of Black's and Fletcher's 1977 78 union actis- ities. However, subsequent to that knowledge Black was promoted to junior leadman with a substantial pay increase Black held the junior leadman position for most of 1979 prior to his discharge Moreover, there ,was no eidence demonstrating animus toward Black and Fletcher for the pre-1979 alll ties, nor was an}y connection shown between the pre- 1979 activtlies and their discharges Therefore. I iid that the evidence does not shoss that their pre-197 9 unioln actilities played a part in their discharges Two employees. Sam Goode and Tommy Pickettll, who allegedly par- ticipatled in conversations abhOtL the Union ita ilh Fay Black on September 17 were called by Respondent Both denied hasing such conversations with Black JOHN BLUE COMPANY 46! - 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Molders and Allied Workers Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in any unfair labor practices alleged in the complaint. Upon the foregoing findings, and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER" It is hereby recommended that the complaint be dis- missed in its entirety. 9 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 find- ings, 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.