Kent Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kent Corporation and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmith, Forgers and Helpers and John W. Sailors and Thomas E. Roberts. Cases 10-CA-10091, 10-CA- 10272, 10-CA-10099, and 10-CA-10179 April 22, 1977 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On October 15, 1976, Administrative Law Judge Ralph Winkler issued the attached Supplemental Decision in this proceeding.l Thereafter, Respondent filed exceptions and a supporting brief, and motions for oral argument, for reconsideration or to reopen the record, or, in the alternative, an application to take depositions. The General Counsel filed a response in opposition to various of Respondent's motions. 2 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,3 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Kent Corpora- tion, Pinson Valley, Jefferson County, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Board's Decision and Order is reported at 212 NLRB 595 (1974). This Decision was enforced in part and remanded to the Board for further hearing. 530 F.2d 610(C.A. 5, 1976). 2 Respondent's motion for oral argument is denied as the record, exceptions, and briefs adequately present the issues and positions of the parties. Respondent's motions for reconsideration. for reopening the record, or for the taking of depositions are also denied as the issues raised therein are, as the Administrative Law Judge found, not properly litigable at this time. 3 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. SUPPLEMENTAL DECISION RALPH WINKLER, Administrative Law Judge: On April 8, 1976, the United States Court of Appeals for the Fifth Circuit issued its Opinion on enforcement proceedings (530 F.2d 610 (1976)) arising out of a Decision and Order of the Board (212 NLRB 595, 1974). Holding that "the record fully supports the Board's finding that Kent [Respondent] 'engaged in a massive assault on the rights of employees under the Act,' " the court sustained Board conclusions that Respondent had violated Section 8(aX 1), (2), (3), and (4) of the Act. In affirming Board findings that Respondent had unlawfullly discharged Roy Glass and 14 other employees, the court noted that Respondent questioned only 7 of these dischargees in the enforcement proceedings; Glass' discharge was not among the 7. The court enforced the Board's Order that Respondent reinstate and make whole 14 of the employees, but as to Glass' the court stated as follows (530 F.2d at 612: The Board ordered back pay for Roy Glass. There was testimony by former employee Ralph Wilson that Glass had suggested to him that he make bomb threat calls to the plant. Wilson acknowledged having made such a call, and it is stated that he pleaded guilty to a felony for having done so. The ALJ did not make a credibility determination rejecting Wilson's testimony but rather stated his understanding that Wilson's testimony had been offered for a different issue than Glass' eligibility for back pay, that Glass' eligibility for back pay had not been made an issue by Kent, and that the Board had not recalled Glass as a witness to respond to Wilson's testimony. We agree with Kent that the evidence concerning the bomb threat is relevant to Glass' right to back pay. However, the precise positions of the parties are hazy. We are unsure whether the Board claims that Glass' entitlement to back pay has been adjudicated adversely to Kent or that it has not been adjudicated and remains to be determined in a compliance proceeding. We are also unsure whether Kent claims that we are required to decide on this record that Glass is not entitled to back pay and that the back pay issue is then foreclosed, or only that the issue remains open, to be later determined with consideration given to the Wilson testimony. We, therefore, hold that the issue of back pay for Glass remains open to be determined in such procedural context as is appropriate, upon consideration of the Respondent had reinstated Glass in August 1973. 229 NLRB No. 29 214 KENT CORPORATION Wilson testimony and such other evidence as the company and the Board wish to adduce. On June 15, 1976, the Board directed that the record be reopened pursuant to the court's remand concerning Glass' entitlement to backpay, and a further hearing was held in Birmingham, Alabama, on August 25, 1976.2 Respondent has filed a brief and the General Counsel has submitted a letter memorandum in connection with the remanded matter. The bomb threats Glass' discharge on April 17, 1973, is discussed at 212 NLRB 595, 604-606. Respondent recalled Glass on or about August 13, 1973, and Glass voluntarily left Respon- dent's employ in March 1974. Ralph Wilson was in Respondent's employ from 1971 until Respondent discharged him in March 1973 for reasons unrelated to union activities. Wilson was a Respondent witness at the original hearing on October 3, 1973. Wilson testified at that time that shortly before his discharge in March 1973 he had a conversation with Roy Glass and another employee, Richard Holly (or Holland). According to Wilson's testimony, "we [Wilson, Glass, and Holly] was over there working, you know. And they got to talking and said we ought to call down here and make a bomb threat, you know, just as a joke. And after I left them up there, I got to drinking one day and called back up there and made a bomb threat." Wilson went on to testify that he called the plant about a week after his discharge, that one of the plant secretaries answered the phone on this occasion, and that "I just told her there was a bomb planted in there." Wilson testified that he was alone when he made this call and that he made the call from a pay station phone booth and not from a house. Wilson testified that he and Glass thereafter talked at Wilson's house about calling in another bomb threat and that he (Wilson) made a second telephone call to the plant a few days later, this time speaking to Executive Vice President Turner Duke. Wilson testified that he told Duke "there was a bomb in there, I think I did." Wilson also testified that he had been "drinking" that day and "can't remember exactly what I said to him [Duke]." Wilson further testified that, when making the calls, he did not identify himself either to the secretary or to Mr. Duke. Respondent instituted criminal charges against Wilson respecting the bomb threats. (Respondent states in its brief that one of its employees had recognized Wilson's voice during one of Wilson's telephone calls.) Wilson pleaded guilty to the charges on April 27, 1973, and was given a year's probation. Now to take up the evidence received at the reopened hearing. The parties stipulated that Respondent had made an exhaustive, but futile, search for Wilson and was unable to produce him as a witness at the reopened hearing. The General Counsel also stated that he had been informed that Richard Holly (Holland) was in the Navy and out of the United States and was also unavailable to testify; Vice 2 Respondent's motion, dated September 24. 1976, to correct transcnpt is hereby granted. President Duke testified that he too had been unable to contact Holly. Duke testified that Wilson came to his office on August 8, 1973, to request a recommendation from Duke for a job with another named employer and that he and Wilson discussed the bomb threat matter during their conversa- tion. Duke testified that he made no threats or promises to Wilson on this occasion. Duke testified that on the basis of what Wilson purportedly told Duke concerning the bomb matter, Respondent president's administrative assistant drafted a statement for Wilson's signature and that Wilson thereupon executed the sworn statement on August 8, 1973, in the presence of a notary public in Respondent's employ. This statement reads, in relevant part, as follows: Mr. Duke asked me about my phone call in which I threatened that a bomb was placed in The Kent Corporation. I explained that Roy Glass and Richard Holland put me up to making the bomb threat and I had been drinking in the day I made it. I made the call from Harvey Wilson, Jr., (my brother) phone at Route one, Pinson, phone number, 681-7004. My brother was aware of the call and told me and the other (Roy Glass and Richard Holland) that we would get into trouble. As a matter of fact, three weeks before, the three of us (me, Glass and Holland) discussed making a bomb threat while the Boilermakers campaign was under way and we were working. This bomb threat was Roy Glass idea. Stating that he gave Wilson the job recommendation requested by Wilson, Duke testified that he advised the other employer that Wilson was a "good worker" who had worked "regularly" for Respondent; Duke further testified that he did not say anything to the other employer about Wilson's bomb threat. Duke testified that the occasion of Wilson's visit to his office on August 8, 1973, was the first he learned of Glass' purported complicity in the bomb threat and that he communicated this information to Respondent President Oztekin. Respondent did not institute criminal action against Glass; it meanwhile recalled Glass on August 13, 1973, and continued to employ Glass until Glass voluntari- ly left in March 1974. Glass denied having suggested or participated in the Wilson bomb threat to Respondent, or having ever discussed such matter with Wilson. He also denied knowing Wilson's brother, Harvey, or having ever been in Harvey Wilson's house. (Harvey Wilson was not called to testify.) Glass testified that Wilson did once mention a bomb in a conversation with him and Holly. According to Glass, this occurred at work long before the Union's organizing campaign on an occasion when Wilson told Glass and Holly that he (Wilson) was thinking of telling his supervisor he was sick so that he might have the day off to go fishing, and Wilson asked Glass to join him. Glass said he couldn't, whereupon Wilson mentioned an incident in public school many years ago when a student wanting to go 215 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fishing had called in a bomb threat to the school with the hope that the students would be excused from classes. In my original decision in this matter I observed that Wilson "was pitiable, as to both appearance and testimo- ny" (212 NLRB at 606). I felt compassion for him because he was, in my opinion, a "beaten" individual, and I could not and cannot accord credence to his testimony on any disputed matter. This judgment was based on demeanor observations as well as on the testimony he gave, including consideration of the leading nature of questions propound- ed to him on direct examination. His affidavit, or what he purportedly told Duke, cannot have greater acceptability. It would serve no useful purpose to speculate whether Wilson had sought to ingratiate himself with Duke by implicating Glass in the bomb threat or whether Wilson thought his "affidavit" might be a quid pro quo for the job reference. Nor do I consider it necessary to discuss variances between Wilson's affidavit and his testimony. Glass, on the other hand, was found to be a "wholly trustworthy" witness in the original proceeding (212 NLRB at 604), and my opinion of his trustworthiness is un- changed. I am fully satisfied and conclude that Glass was in no way involved and had nothing to do with any bomb threat to Respondent by Wilson, and I shall recommend that the Board reaffirm its backpay order as to Glass. Respondent's "managerial" contention An additional item remains. This concerns Respondent's efforts at the reopened hearing to challenge and litigate Glass' "employee" status at the time of his discharge. Citing N.L.R.B. v. Bell Aerospace Company, Division of Textron Inc., 416 U.S. 267 (1974), and Curtis Industries, 3 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. Division of Curtis Noll Corporation, 218 NLRB 1447 (1975), Respondent thus now contends that Glass was a "manage- rial" employee and not within the Act's protection. Respondent thereby seeks, in effect, to reopen and overturn Board and court determinations as to the merits of Glass' discharge. Respondent had not raised such "managerial" issue in the original hearing before me in this case, in its exceptions to the Board, or in enforcement proceedings in the court of appeals. The court's remand, as appears above, was limited to ascertaining Glass' involvement in the Wilson bomb threat and then to determining Glass' entitlement to backpay should he be found to have been involved. I rejected Respondent's efforts to litigate the "managerial" issue, as being outside the scope of the court's remand and thus beyond the Board's and my authority in the premises. Moreover, and as an independent consideration, citation of authority is hardly necessary in the circumstances of this case to hold that the time for initially asserting and then preserving a "managerial" contention has long since passed. For the same reasons I now also deny a motion dated September 27, 1976, in which Respondent seeks to reopen the record in continued pursuit of its "managerial" contention. Upon the foregoing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 It is ordered that Respondent make whole Roy Glass as originally directed by the Board in this matter (212 NLRB 595, 596, 613). 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. 216