M. Lowenstein & Son, Inc., 54 (1974)

Docket Number:10-CA-10062
 
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Huntsville Manufacturing Co., a subsidiary of M.

Lowenstein & Son, Inc. and `Communications Workers of America, AFL-CIO Huntsville Manufacturing Company and Communications Workers of America, AFL-CIO, Petitioner.

Cases 10-CA-10062, INCA-10260,10-CA-10287, and TOLRC-9564

May 31, 1974

DECISION, ORDER, AND DIRECTION OF SECOND ELECTION

BY MEMBERS JENKINS, KENNEDY, AND PENELLO

On February 13, 1974, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceeding. Thereafter, the Respondent and the Charging Party filed exceptions and supporting briefs; and the Respondent filed a reply brief.

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 briefs and has decided to affirm the rulings, findings, 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 recommended Order of the Administrative Law Judge, with a modification, and hereby orders that the Respondent, Huntsville Manufacturing Co., a subsidiary of M. Lowenstein & Son, Inc., Huntsville, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as modified below:

IT IS FURTHER ORDERED that the complaint be, and it hereby is dismissed insofar as it alleges that Billy Ray Willbourn was discharged in violation of the Act.

IT IS ALSO FURTHER ORDERED that the election held on May 25, 1973, in Case 10-RC-9564, be, and it hereby is, set aside, and said case is hereby remanded to the Regional Director for Region 10 to conduct a new election.

[Direction of Second Election and Excelsior footnote omitted from publication.] I We disavow the following statement of the Administrative Law Judge appearing in the text of his Decision under the heading 'The Objections' 'Further, Respondent makes no showing that the interrogations were not more widespread than the General Counsel has proven and there is every rea on to believe that they were ' In our view, the burden of proof does not shift to a respondent to prove that it has not violated the Act Instead, the burden remains with the General Counsel to show the extent that violations have occurred DECISION

STATEMENT OF THE CASE

PAUL E. WEIL, Administrative Law Judge: On March 28, 1973, the Communications Workers of America, AFL-CI0, hereinafter called the Union, filed a charge with the Regional Director for Region 10 of the National Labor Relations Board, hereinafter called the Board, alleging that Huntsville Manufacturing Co., a subsidiary of M. Lowenstein & Son, Inc., hereinafter called Respondent, violated Section 8(a)(1) and (3) of the Act by discrimination against Billy Glenn Bogue (Case 10-CA-10062). On April 4, 1973, the Union amended the charge in Case 10-CA-10062 to add an allegation with regard to discrimination against Donald Ray Harris and on April 16, again amended it to add the name of Thomas E. Melton. On June 13, 1973, the Regional Director, on behalf of the Board's General Counsel, issued a complaint alleging various violations of Section 8(a)(1) by Respondent which Respondent duly answered. On July 5, the Union filed a second charge (Case 10-CA-10260) alleging acts in violation of Section 8(a)(1) of the Act by Respondent, and on July 23, another charge (Case 10-CA-10287) alleging a violation of Section 8(a)(3) and (1) by discrimination against Billy Wilbourn.

On March 30, 1973, the Union filed a petition (Case 10-RC-9564) on which an election was conducted on May 25, 1973, pursuant to a stipulation for certification upon consent election. The Union failed to get a majority of the votes cast in the election and filed timely objections which the Regional Director found were in part coextensive with the allegations of violations of Section 8(a)(1) contained in the first complaint (Case 10-CA-10062) theretofore issued.

Accordingly, the Regional Director directed a hearing on the objections and consolidated Cases 10-RC-9564 and 10-CA-10062.

On July 6, Respondent moved the Board to strike the objections on various grounds and on July 20 Respondent's motion was denied. The Board adopted the Regional Director's recommendations that a heanng be held and ordered the issues to be processed pursuant to the order of consolidation On September 4, 1973, the Regional Director then issued a consolidated complaint on all three charges together with the already consolidated hearing on the objections. The consolidated complaint alleges that Respondent violated Section 8(a)(3) by the discharge of employee Billy Ray Wilbourn and by that act and by 24 other acts independently violated Section 8(a)(1) of the Act. Respondent duly filed its answer denying the commission of any unfair labor practices. On the issues thus joined the matter came on for hearing before me at Huntsville, Alabama, on September 25 and 26, 1973.

Because of the illness of a key witness for Respondent, the hearing was then continued until December 18, 1973, on which date it was closed. At the hearing on all 3 days all parties were represented by counsel and had an opportunity to call, examine, and cross-examine witnesses, to adduce relevant and material evidence, to argue orally at the close 211 NLRB No. 8

HUNTSVILLE MANUFACTURING CO.

of the hearing, which argument was waived by all parties, and to file briefs. Briefs have been received from counsel for the General Counsel, the Respondent, and the Union.

On the entire record in this case, and in consideration of the briefs, I make the following:

FINDINGS OF FACT

  1. THE BUSINESS OF THE RESPONDENT Respondent is a corporation engaged in the manufacture and sale of unfinished textile materials at a plant in Huntsville, Alabama. Respondent annually ships goods from its Huntsville plant valued in excess of $50,000, directly to customers located outside the State of Alabama.

    The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

  2. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act.

  3. THE UNFAIR LABOR PRACTICES A. Background Respondent's Huntsville plant makes thread, using over 1,000 employees who have not heretofore been represented by any union. Early in the year 1973, Billy Ray Wilbourn contacted organizer Roshto of the Union urging him to organize the employees of Respondent .' With Wilbourn's help, Roshto commenced an organizing campaign in which Wilbourn took a large part, making housecalls on employees, handbilling at the plant, and ultimately acting as an observer at an election conducted on May 25,2 pursuant to a petition filed by the Union on March 30. The Union did not receive votes from a majority of the employees who voted and objections were filed alleging substantially the same actions on the part of Respondent that are alleged as unfair labor practices in violation of Section 8(a)(1) in the instant case.

    On July 19, Billy Ray Wilbourn was discharged by the Respondent under circumstances which will be discussed below.

    During the organizing campaign, Respondent, through its managerial staff and supervisors, conducted an active campaign against the Union, during the course of which it is alleged many instances of interference with, restraint and coercion of, employees by supervisors and managerial persons took place. These and the discharge of Billy Ray Wilbourn comprise the issues to be resolved in the instant case.

    i Wilbourn was acquainted with Roshto through his wife's participation in a union organizing campaign in another plant nearby.

    2 Hereinafter all dates are in the year 1973 unless otherwise specified 3 According to the testimony of Wilbourn, he had been employed in this capacity for about 2 years prior to his discharge . However, Phillips testified that he had been assigned to this job about a year before his discharge but had worked on it only the 2 months immediately preceding his discharge.

    While this is directly contradictory to the testimony of Wilbourn, it is not material to the issues herein. Were it so I would have no hesitation in crediting Wilbourn. Phillips' testimony was characterized by a haziness of recollection in a number of respects and much of the material portion of his B. The Discharge of Billy Ray Wilbourn 55

    Billy Ray Wilbourn had been employed by Respondent for about 12 years. At the time of the union campaign he was assigned to the job of bobbin stripper under the supervision of John A. Phillips. He was classified as a utility man and his duties, according to his testimony, included stripping bobbins, which is to say, taking tangled or defective thread from bobbins, cleaning up bad work, and sweeping lint out of some windows where lint accumulated during the day on the windowsills.3

    On July 19, about 2 p.m., an hour before quitting time,

    Wilbourn was caught up with his work and was assisting some other employee who was learning a new job when, according to Wilbourn's testimony, Phillips walked up to him and said, 'I want three creels of drawing put in these frames.'4 Wilbourn stepped back thinking that Phillips was addressing the learner, Cooper, who had been hauling the drawing that day, but Phillips turned to Wilbourn and said that he was addressing him. Wilbourn asked when that was put on his job and Phillips told him it had been in his job all the time but he had not been doing it. Wilbourn told Phillips that he did not have time to do that work at that time because he had other duties on his job. Phillips then said, 'You're refusing to do it so come down to the office and get your time,' and turned and walked off. Wilbourn followed Phillips to the office where Phillips...

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