McCullough Environmental Services, 345 (1992)

McCullough Environmental Services, Inc. and Teamsters Local Union No. 891, affiliated with the International Brotherhood of Teamsters, AFL-CIO.1 Cases 15-CA-11046 and 15-CA- 11255

February 20, 1992

DECISION AND ORDER

BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT

On March 14, 1991, Administrative Law Judge J. Pargen Robertson issued the attached decision. The Respondent and the General Counsel filed exceptions, supporting briefs, and answering briefs.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge's rulings, findings,2 and conclusions as modified and to adopt the recommended Order as modified and set forth in full below.

The judge found that the Respondent, through Supervisor Bunyard, unlawfully threatened to discharge certain employees because they supported the Union. We disagree.

In June 1989,3 Field Maintenance Supervisor Bunyard asked employee Michael Langston if he would like to work in the field. Bunyard said that ''he didn't feel like he and his crew was going to make it.'' Three or 4 days later, Langston asked Bunyard about the matter, and Bunyard told him that Maintenance Supervisor Eckels ''wasn't going to let me [Langston] go out there because I was a good worker, and there was a lot of stuff going on out there in the field that they didn't want me involved in.'' After the Respondent suspended field crew member Richard Harris, who had been identified by the Respondent as the leading union adherent, Langston talked to Bunyard again, and

Bunyard told him to hold on a couple more weeks and he would be out there.

The judge also related conversations between Supervisor Eckels and employee Wells, and between Bunyard and field crew member Spann. Eckels asked Wells whether Harris had talked to him about the Union the day that Wells worked in the field, and told Wells that he would go out in the field one day and ''they'd change me [Wells] over.'' In addition, Spann testified that Bunyard said that Bunyard ''didn't know if I had anything to do with the union or not, but he was aware that Richard Harris was employed at G.E., and they had a big union over there, and he believed that Richard Harris was probably the man.''

The judge found that the above evidence showed that Bunyard suggested to employees from the time he became supervisor that he would discharge members of the field crew. The judge noted that both Bunyard and his superior, Eckels, were making contemporaneous comments to the employees to the effect that Richard Harris was suspected of being the ''big union man'' and that the other members of the crew, Spann and Collins, also supported the Union because of the influence of Harris. Thus, the judge found that the Respondent threatened to fire the field crew because they supported the Union.

Contrary to the judge, we find that the quoted comments to Langston occurring within days of Bunyard's promotion to supervisor were not sufficiently linked to the field crew's union activity to constitute an unlawful threat to discharge the field crew. It is clear from Bunyard's statements that the Respondent was dissatisfied with certain conduct taking place in the field. Upon assuming his position on June 6, Bunyard viewed it as his responsibility to rectify certain of these poor work practices. In this regard, the record reflects that the field crew engaged in a considerable amount of ''goofing off'' during the work day, and we are not persuaded the ''stuff'' to which Bunyard was referring was other than ''goofing off.'' Accordingly, we shall dismiss this allegation of the complaint.

ORDER

The National Labor Relations Board orders that the Respondent, McCullough Environmental Services, Inc., Jackson, Mississippi, its officers, agents, successors, and assigns, shall

  1. Cease and desist from

    (a) Reprimanding and discharging employees because of their union activities, or because they file charges with the Board and testify at Board proceedings.

    (b) Implementing a rule requiring employees to sign disciplinary actions or be discharged because of their union activity.

    1 The name of the Charging Party has been changed to reflect the new official name of the International Union.

    2 The Respondent asserts that the judge's resolutions of credibility, findings of facts, and conclusions of law are the result of bias. After a careful examination of the entire record, we are satisfied that this allegation is without merit. There is no basis for finding that bias and partiality existed merely because the judge resolved important factual conflicts in favor of the General Counsel's witnesses. As the Supreme Court stated in NLRB v. Pittsburgh Steamship Co., 337 U.S. 656, 659 (1949), ''[T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact.'' Further, it is the Board's established policy not to overrule a judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We find no basis for reversing the judges findings.

    3 All dates are in 1989.

    (c) Promulgating and enforcing a rule prohibiting employees from soliciting on behalf of the Union.

    (d) Interrogating employees about their union activities.

    (e) Creating the impression that the employees' union activities are under surveillance.

    (f) Threatening employees with reductions of working hours, more onerous working conditions, and other unspecified reprisals if they select the Union as their collective-bargaining representative.

    (g) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

  2. Take the following affirmative action designed to effectuate the policies of the Act.

    (a) Offer Richard Harris, L. C. Spann, and Lonnie Collins immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision.

    (b) Rescind the unlawful disciplinary actions issued to Richard Harris, Lonnie Collins, L. C. Spann, Bernard Bennett, and James Varnado and remove from its files any reference to the unlawful discharges and/or disciplinary actions and notify the employees in writing that this has been done and that the discharges or disciplinary actions will not be used against them in any way.

    (c) Rescind the discriminatory rule change regarding signing of reprimands.

    (d) Rescind the unlawful rule prohibiting solicitation for the Union.

    (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, and timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order.

    (f) Post at its facility in Jackson, Mississippi, copies of the attached notice marked ''Appendix.''4 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re-

    spondent to ensure that the notices are not altered, defaced, or covered by any other material.

    (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.

    APPENDIX

    NOTICE TO EMPLOYEES

    POSTED BY ORDER OF THE

    NATIONAL LABOR RELATIONS BOARD

    An Agency of the United States Government

    The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.

    Section 7 of the Act gives employees these rights.

    To organize

    To form, join, or assist any union

    To bargain collectively through representatives of their own choice

    To act together for other mutual aid or protection

    To choose not to engage in any of these protected concerted activities.

    WE WILL NOT reprimand or discharge you because of your union activities, or because you file charges with the Board and testify at Board proceedings.

    WE WILL NOT implement rules requiring you to sign disciplinary actions or be discharged because of your union activities.

    WE WILL NOT promulgate or enforce a rule prohibiting you from soliciting for the Union.

    WE WILL NOT interrogate you about your union activities.

    WE WILL NOT create the impression that your union activities are under surveillance.

    WE WILL NOT threaten you with reductions of working hours, more onerous working conditions, or other unspecified reprisals for selecting the Union as your collective-bargaining representative.

    WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

    WE WILL offer Richard Harris, L. C. Spann, and Lonnie Collins immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, plus interest.

    WE WILL rescind the unlawful disciplinary actions issued to Richard Harris, Lonnie Collins, L. C. Spann, Bernard Bennett, and...

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