ITT Lighting Fixtures, Division of ITT Corporation, 229 (1982)

National Labor Relations Board

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ITT Lighting Fixtures, Division of ITT Corporation, 229 (1982)

ITT LIGHTING FIXTURES

rIT 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...

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