Gestamp South Carolina, LLC, (2011)

Docket Number:11-CA-022595
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Gestamp South Carolina, LLC and David Anthony Kingsmore and Reggie Alexander. Cases 112013 CA201322595 and 112013CA201322628

December 8, 2011

DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS BECKER AND HAYES

On March 2, 2011, Administrative Law Judge Ira Sandron issued the attached decision. The Respondent filed exceptions.

The Board has considered the decision and the record1 in light of the exceptions and has decided to affirm the judge2019s rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3

1 The Respondent has requested oral argument. The request is denied as the record and exceptions adequately present the issues and the positions of the parties.

2 The Respondent has excepted to some of the judge2019s credibility findings. The Board2019s established policy is not to overrule an administrative law judge2019s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

Member Hayes agrees with the judge that the General Counsel established the animus element of his prima facie case under Wright Line, 251 NLRB 1083 (1980), enfd. 663 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), based on Supervisor Fink2019s comment to Kingsmore that 201cyou2019re gone201d if Manager Evola found out about his union activity, the timing of the adverse actions against employees Kingsmore and Alexander, and the Respondent2019s shifting reasons for disciplining Kingsmore. Further, he agrees that the Respondent failed to meet its Wright Line rebuttal burden to show that it would have terminated Kingsmore and suspended and fired Alexander even in the absence of their protected activity. In finding the violations, however, Member Hayes does not rely on the quality of the Respondent2019s investigation, the severity of the Respondent2019s punishments, or the alleged failure to follow the progressive discipline system in finding animus. Nor does Member Hayes rely on the judge2019s finding that it 201cis reasonable to believe that other employees reported Alexander2019s and Kingsmore2019s union activity to management201d in finding that the Respondent knew of the employees2019 union activity. Further, he would not draw an adverse inference based on the failure of General Manager Evola to testify regarding when he learned about Kingsmore2019s inability to access the BMW site.

3 We shall modify the judge2019s recommended Order to provide for the posting of the notice in accord with J. Picini Flooring, 356 NLRB No. 9 (2010). For the reasons stated in his dissenting opinion in J. Picini Flooring, Member Hayes would not require electronic distribution of the notice.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Gestamp South Carolina, LLC, Union, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified by substituting the following for paragraph 2(f).

201c(f) Within 14 days after service by the Region, post at its Union, South Carolina facility copies of the attached notice marked 201cAppendix.201d4 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since February 1, 2010.201d

Dated, Washington, D.C. December 8, 2011

Mark Gaston Pearce, Chairman

Craig Becker, Member

Brian E. Hayes, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

Jasper C. Brown Jr., Esq., for the General Counsel.

John J. Coleman III and Marcel L. Debruge, Esqs. (Burr &

Forman, LLP), of Birmingham, Alabama, for the Respondent.

4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading 201cPosted by Order of the National Labor Relations Board201d shall read 201cPosted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.201d

357 NLRB No. 130

2

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

DECISION

Statement of the Case

IRA SANDRON, Administrative Law Judge. This matter arises out of a consolidated complaint and notice of hearing issued on September 30, 2010,1 against Gestamp South Carolina, LLC (the Respondent or Gestamp), stemming from unfair labor practice (ULP) charges filed by David Anthony Kingsmore and Reggie Alexander, individuals. The complaint alleges that the Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) by suspending and then discharging Kingsmore and by discharging Alexander because they engaged in organizing activities on behalf of the United Steelworkers (the Union). The complaint further alleges that a supervisor committed two independent violations of Section 8(a)(1).

Pursuant to notice, I conducted a trial in Columbia, South Carolina, from December 6201310, at which I afforded the parties full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence.

Issues

(1) Did the Respondent suspend Kingsmore on February 17, and then discharge him on February 24, because he did not disprove the Respondent2019s suspicion that he misrepresented the nature of his separation from prior employer BMW during his September 29, 2009 interview for a supervisory position, or because of his union activities?

(2) Did the Respondent discharge Alexander on February 19 because he deliberately falsified his timesheet by claiming 38 extra minutes of pay for February 9, or because of his union activities?

(3) Is Michael Fink a statutory supervisor and agent of the

Respondent?

(4) Did Fink, in approximately early February, unlawfully threaten Kingsmore with discharge for his union activities?

(5) Did Fink, on February 11, unlawfully interrogate Alexander about his union activities?

Witnesses and Credibility

The General Counsel called Alexander and Kingsmore, Union Organizer Randy Rigsby, and the following employees: Human Resources (HR) Assistant Mary Harper, CMM Technician Jimmy Stewart, Jr., and Forklift Driver Dean Tollison.

The Respondent called the following managers/supervisors: HR Manager Susan Becksted, Maintenance Manager Dennis Blanton, General Manager Carmen Evola,2 Director of Purchasing and Logistics Roger Fuller, Quality Supervisor James Holt (who was an hourly employee at all times relevant), Maintenance Supervisor Daniel Morris, Assembly Shift Supervisor Jason O2019Dell, Shipping and Receiving Manager Michael Sullivan, and Quality Manager Jurgen Weckerman.

1 All dates hereinafter occurred in 2010, unless otherwise indicated.

2 Evola has been the highest management official at the facility at all times relevant. See R. Exh. 10, an organizational chart.

The Respondent also called Quality Engineers Michael Fink and Charles Beasley. The General Counsel alleges Fink to be a statutory supervisor, a contention that the Respondent denies. Although Beasley holds the same position as Fink, he is not named in the complaint, and it is immaterial for purposes of this decision whether or not he is a statutory supervisor.

Further, the Respondent called two employees: Line Technician Dominic Gist, Sr., and IMS Leader Jennifer Meese.

Deciding the issues in this case hinges on credibility resolution, including the plausibility of certain accounts of conversations and actions. Before going into specifics, I cite the wellestablished precept that 201c2018[N]othing is more common in all kinds of judicial decisions than to believe some and not all2019 of a witness2019 testimony.201d Jerry Ryce Builders, 352 NLRB 1262, 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179

F.2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951). The trier of fact must consider the plausibility of a witness2019 testimony and appropriately weigh it with the evidence as a whole. Golden Hours Convalescent Hospitals, 182 NLRB 796, 7872013799 (1970).

Alexander was generally credible. He answered questions readily and with no apparent efforts to embellish or slant them, was appropriately consistent in his answers on direct and crossexamination, and his testimony comported with that of Rigsby, who was also credible.

Kingsmore, on the other hand, was not fully reliable. I do take into account his apparent lack of sophistication and perhaps naïveté. This is reflected in his answer to my question of why he confided in Fink that he was trying to get the Union in. He readily answered that Fink 201ckind of made Alex Keller [Kingsmore2019s supervisor] leave me alone . . . Keller was not a very nice person. . . . I2019d had him throw stuff at me, cuss at me and grab me once.201d3 That...

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