ITT Lighting Fixtures, Division of ITT Corporation, 229 (1982)
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ITT LIGHTING FIXTURESrIT Lighting Fixtures, Division of ITT Corporation and Harry Merriweather, Jr., Terry B. Williams, and Jo Ann Gray. Cases 26-CA-7792, 26-CA-7781, and 26-CA-7710 April 20, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On December 28, 1979, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, as modified herein. The Administrative Law Judge found, and we agree, that Respondent's refusal to grant employee ' 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. StandardDry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. The Administrative Law Judge found, and Respondent admitted, that Jo Ann Gray was transferred from Respondent's Southaven facility to its Memphis warehouse to curb her union activities. In so finding, the Administrative Law Judge rejected Respondent's defense that at the time of her transfer Gray was a supervisor within the meaning of the Act and therefore unprotected by the Act. Consequently, the Administrative Law Judge found that her transfer violated Sec. 8(aX3) and (1) of the Act as alleged in the complaint. We agree with these findings for the reasons stated by the Administrative Law Judge, and accordingly, find no merit to Respondent's contentions that it had a 'mixed motive' in transferring Gray in that, besides her union activities, Respondent transferred her 'to cross-train' her and another group leader 'so that there would be a qualified person (probably Gray) eventually to fill a new foreman's position.' Thus, in pressing its 'mixed motive' contentions, Respondent limits its argument to its claim that Gray was a supervisor at all times material herein. It does not assert that Gray's transfer would have occurred on December 4, 1978, as it did, even if she had been an employee, or in that capacity she then would have been transferred regardless of her union activity. Consequently, we find that there is no basis for Respondent's assertion that Gray's transfer was motivated by a lawful as well as an unlawful reason. Nevertheless, assuming arguendo that Gray's transfer as an employee was in part motivated by a desire to groom her for a foreman's position in Memphis, we still would find that a violation occurred. Applying our analysis in Wright Line a Divition of Wright Line Inc., 251 NLRB 1083 (1980), we find that the General Counsel has carried his burden of establishing a prima faci case and that Respondent has failed to show that absent Gray's union activities her transfer would have taken place on the day it did. Respondent has conceded that it then transferred Gray to curb her union activities among the Southaven employees, its larger facility. It does not assert that the tranfer, otherwise, would have occurred at that time. Further, Gray's uncontradicted testimony is that when she was transferred she was told it was because of her union activities, and she was not promoted to a supervisory position at Memphis until April 1979, or 4 months after her transfer. In light of Respondent's claim that the nature of Gray's work before and after the transfer did not change, the need for such a long period of training is unexplained. Accordingly, we conclude that if Respondent had argued that even as an employee Gray's transfer was for a dual purpose, that transfer would not have occurred on December 4 absent her prounion sympathies. 261 NLRB No. 34 Terry Williams' request for a representative during an interview which Williams reasonably might have believed would result in his discipline was unlawful. It is undisputed, as the Administrative Law Judge found, that on a Friday in late April 1979, Williams clocked out at 3:30 p.m., a half hour before his regular workday ended, and was thereafter seen by Plant Manager Otto Payonzeck distributing union leaflets on the sidewalk near the main plant.2 Payonzeck confronted Williams and asked what he was doing at Southaven. He called the personnel office at the Memphis facility to see if Williams had permission to be at Southaven. Williams testified that the next workday he was called into a meeting with Supervisors Robert Fisher and Jo Ann Gray and Personnel Administrator Mike Harless. As soon as Williams arrived at the meeting he asked to be permitted to call another employee into the room as a witness but Harless told him it was not necessary since they were only going to ask him some questions and therefore he did not need a witness. Williams asked to use the telephone. This request was also denied. Respondent's officials then proceeded to ask Williams questions about what he did when he left work early the previous workday. The questioning lasted approximately 15 minutes. Williams refused to answer any questions. According to Williams, the only statement he made during the meeting was, 'the majority of them I told him it was none of his business.' He was then permitted to leave the meeting but was told to return at 10 a.m. Williams took a break and called the Board's Regional Office. At 10 o'clock he returned to the meeting as instructed and was told that he was being suspended for 3 days.3 Fisher, who testified for Respondent, stated that on the morning of the day Williams was suspended, he met with Harless, to determine how Williams was to be disciplined. Gray and Harless discounted Gray's suggestion that Williams be terminated and instead it was decided to suspend him for 3 days. Harless then asked Fisher to summon Williams so that they could inform him of their decision. ' Respondent's main facility is in Southaven, Mississippi. Williams worked at Respondent's Memphis warehouse, 8 miles from the main facility. ' The complaint does not allege and the General Counsel specifically disavowed any contention that the suspension was unlawfully motivated. Accordingly, and as the issue was not litigated, we do not adopt the Administrative Law Judge's comments regarding the suspension to the extent that he implies that Respondent disciplined Williams because of his union activity. We note that the Administrative Law Judge inadvertently referred to the date Williams was suspended as April 28. The correct date is April 30. 229 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fisher further testified that after Williams came into the meeting, he asked for a witness. Harless told Williams that it would not be necessary. Williams asked to use the telephone and Harless told him that that too was unnecessary because Respondent was not going to fire him, but suspend him. Fisher also testified that Harless told Williams that they merely wanted to talk to him. Moreover, Fisher testified, without stating that one or two meetings were held with Williams, that shortly after the conversation began Williams was informed of his suspension, and that thereafter he was questioned about his rule infraction but refused to answer the questions. Gray testified consistently with Fisher. Her testimony differed only slightly from Fisher's in that she recalled Harless telling Williams, after denying his request to use the telephone, that he was being suspended for 3 days while Harless investigated the matter further. She also did not indicate whether there was more than one meeting. Harless, who conducted the meeting, did not testify. The Administrative Law Judge did not specifically credit the testimony of Williams over that of Fisher and Gray or vice versa. Nevertheless, in setting forth the events leading to Williams' suspension, it is apparent that the Administrative Law Judge relied heavily on Williams' version, as he found, in accord therewith, that there were two meetings, and the discipline was imposed at the second one. In any event, the Administrative Law Judge found that the case fell within the ambit of N.L.R.B. v. J. Weingarten, Inc.,4 and he thus concluded that by denying Williams' request to have a witness present at the interviews Respondent violated Section 8(a)(1) of the Act. Respondent contends, inter alia, that the interview was not unlawful under the principles set forth in Weingarten, supra, relying on the testimony of Fisher and Gray that the decision to suspend Williams had been made before he was called into the meeting and that the only purpose of the discussion with him was to inform him of his suspension. Respondent contends, therefore, that this was a disciplinary interview and that accordingly under Baton Rouge Water Works Company,5 no Weingarten rights attached to Williams' request. For the reasons discussed below, we find no merit in Respondent's contentions, and in agreement with the Administrative Law Judge find the violation. Under either version of the events, that is, Williams' or Fisher's and Gray's, we find that the decision in Baton Rouge does not sustain Respondent's '420 U.S. 251 (1975). '246 NLRB 995 (1979). position. If Williams' testimony is believed, Respondent's contention, that a final decision to discipline him was made prior to the first interview, is not supported by the evidence. Thus, at that meeting Williams was questioned about his leaving work early the previous workday, but there was no statement made by Respondent that indicated that Respondent already had decided to discipline him. Indeed, the decision to suspend him was not announced until the second meeting. In these circumstances, we find that the initial interview of Williams was investigatory...
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