Davis Walker Steel & Wire Corp.

National Labor Relations Board - Board Decisions

Sep 25, 1980

252 N.L.R.B. 311 (N.L.R.B. 1980)

DAVIS WALKER STEEL & WIRE CORP.
Davis Walker Steel & Wire Corporation and Tom
Carter. Case 26-CA-8200
September 25, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 14, 1980, Administrative Law Judge
Robert M. Schwarzbart issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief.
The Respondent filed limited cross-exceptions and
a brief in support thereof and in answer to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I The General Counsel 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 re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Pmducas, Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law
Judge: This case was heard in Memphis, Tennessee, on
April 22 and 23, 1980, on a complaint issued January 28,
1980, based on a charge filed on December 17, 1979, by
Tom Carter, an individual. The complaint alleges that
Davis Walker Steel & Wire Corporation, herein the Re-
spondent, violated Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended, by discharging Carter
because of his support for Highway and Local Motor
Freight Employees Local 667, affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, and its sister union, Local No.
I All dates hereinafter are within 1979 unless stated otherwise.
252 NLRB No. 52
1196, herein jointly called the Union. The Respondent, in
its answer, denies the commission of unfair labor prac-
tices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
filed by the General Counsel and the Respondent, have
been carefully considered.
Upon the entire record in the case and my observation
of the witnesses, I make the following:
FINDINGS OF FACT
i. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation with facilities in var-
ious States of the United States, including an office and
place of business in Memphis, Tennessee, is engaged in
the manufacture and nonretail sale and distribution of
steel wire and steel wire products. Annually, the Re-
spondent, in the course and conduct of its business oper-
ations, sells and ships from its Memphis facility, prod-
ucts, goods and materials valued in excess of $50,000, di-
rectly to points outside the State of Tennessee. The Re-
spondent also annually, in the course and conduct of its
business operations, purchases and receives at its Mem-
phis facility, goods and materials valued in excess of
$50,000, directly from points outside the State of Tennes-
see.
In accordance with the foregoing conceded facts, I
find that the Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The above-named Unions are, and have been at all
times material herein, labor organizations within the
meaning of Section 2(5) of the Act.
Ill1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent, with approximately 13 plants, is en-
gaged at its facility in Memphis, Tennessee, in the manu-
facture of chain link fence and concrete reinforcing
mesh. The Respondent's Memphis plant, which is under
the general supervision of John Kafka, general manager,
and the only facility involved herein, is comparatively
new. The Plant manager, Russ Brasher, arrived there
during the last week in January to help establish the
plant, the first equipment was installed in the first week
of February and the first shipment was made from the
plant in March. Accordingly, while approximately 60 to
65 persons were employed at the plant at the time of the
hearing, there were only about 15 to 20 employees there
in the summer of 1979, when most of the events to be
considered herein occurred.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Facts
1. The discharge of Tom Carter
The General Counsel contends that the Respondent on
July 23 unlawfully discharged Tom Carter,2 a shipping
helper, because he had signed an authorization card for
the Union. Tne Respondent, while conceding knowledge
that Carter had signed a card for the Union at the time
of discharge asserts that Carter was terminated solely for
his excessive absenteeism and tardiness.
Plant Manager Brasher, originally called as an adverse
witness by the General Counsel, testified that he first
learned of the Union's organizational campaign among its
employees on July 19, when a machine operator, one of
the first individuals to be employed at the plant, came to
his office and announced that he wanted to resign as hedid not want to work where there was a union. This em-
ployee then told Brasher that six employees had signed
union cards, identifying by naming Carter and five other
employees as the card signers. Brasher sent the employ-
ees back to work, telling them not to worry, the Union
was not in the plant.
Brasher testified that he had decided to discharge
Carter on the recommendation of Shipping Foreman Ted
Holiday, Carter's immediate supervisor. s Starting in
July, after Carter had been employed for about 6 weeks,
Holiday had spoken to Brasher negatively about Carter's
work performance, his absenteeism, and tardiness on
three or four occasions. When Carter first became a
topic, Brasher had suggested that Holiday talk to Carter
and try to help him. However, on Friday, July 20, Holi-
day recommended that Carter be discharged.
On July 20, Holiday told Brasher that Carter had
punched in 10 minutes late, and had thereafter clocked
out, leaving the building. He later returned, worked for ashort period, and left again for the rest of the day. Holi-
day declared that Carter was no good, was not there,
and that he needed someone on whom he could rely.
After Brasher and Holiday reviewed Carter's record
showing his attendance and punctuality, Brasher told
Holiday that he knew what he wanted to do. When
Holiday said that he wanted to discharge Carter, Brasher
gave his approval. Carter was terminated on Monday,
July 23, the next workday.
Holiday, also later terminated by the Respondent, ap-
peared as the General Counsel's principal witness. He
testified that on about March 1, before becoming em-
ployed by the Respondent, he had visited Brasher's
office on behalf of his employer at the time, a security
concern, to discuss providing services for the Respond-
ent's new plant. Holiday recalled having told Brasher
that if his Company supplied guards for the Respondent's
new complex, and if a union thereafter should come in
and strike, his company had a special strike rate that was
higher than the normal guard rate. Brasher had replied
that he did not think that there would be that problem;
they were not going to have any unions "out there."
Brasher then spoke of certain union problems experi-
Carter, hired by the Respondent on May 23, just 2 months before
being discharged, did not testify at the hearing.
I Although Holiday was a supervisor within the meaning of Sec. 2( 1)
of the Act, only Brasher could authorize discharge.
enced at a former place of employment in Birmingham
and declared that the Memphis plant was not going to
have those types of problems.
Holiday testified that he first had learned of the
Union's organizational campaign from Mike Harrell, ashipping employee. 4 When Holiday reported to Brasher
that a union was meeting with employees at lunchtime,
Brasher replied that, as he had told Holiday before, there
were not going to be any union problems at the plant.
He said that the Union could organize all it wanted and
that if he had to fire every "son-of-a-bitch" out there and
start over again with a new crew, they would not have a
union.
In July, approximately 2 weeks before discharging
Carter, Holiday attended a meeting with Riley Savage6
and Brasher, in Brasher's office. Holiday again had re-
ceived word from Harrell that some union cards had
been signed during the lunchbreaks. When he repeated
this to Brasher in Savage's presence, Brasher told him
that he already had heard. Brasher then asked if Holiday
knew that "his boy" had signed a card. When Holiday
asked what was meant by "his boy," Brasher retorted
that he knew who he was talking about, Tommy Carter.
Holiday answered that he had not heard that. All he had
heard was that some signing had been going on, but not
who had signed the cards. Holiday asked what Brasher
would like him to do about this. Brasher told him that he
knew what to do about it. Holiday stated that he knew
what Brasher had said in the past, but again asked what
Brasher wanted done. Brasher then announced that he
wanted Holiday to fire the "son of a bitch," to make one
example of him so that there would not be any more
problems. However, he cautioned Holiday to find a le-
gitimate reason for getting rid of Carter; to make it look
legitimate. When Holiday asked if he also was supposed
to take care of the other people who had signed cards,
Brasher replied in the negative; their own supervisors
would handle them.
Holiday related that, earlier before the above session
with Brasher, Carter had had personal problems at home
affecting his attendance and punctuality, and that he had
4 Although Harrell worked under Holiday, the two men had a broth-
erly relationship, Harrell having been raised in Holiday's home. This con-nection is relevant in a different context, to be discussed below. In the
summer of 1979, Holiday and Harrell shared a residence.
I Brasher denied having told this to Holiday. He did recall telling
Holiday at their meeting before Holiday had come to work for the Re-spondent, that he did not think that there would be a union because heknew what causes unions and thought he knew how to keep them out-
by treating the employees right. He denied ever having threatened to fire
anyone to defeat the Union.
s Savage was supervisor of the chain link division, first shift. The first
shift, on which Holiday and Carter also had worked, generally wasscheduled from 7 a.m. to 3 p.m. Occasionally, overtime would be worked
on this shift, starting at 6 a.m.? Brasher, asserting that he did not learn until July 19 that Carter andthe others had signed union cards, denied that the conference with Holi-
day and Savage, described by Holiday as having occurred in late June orthe beginning of July, had taken place. Contrary to the General Counsel,I find that Brasher denied the event as well as the date. The GeneralCounsel's contention that the Respondent's failure to call Savage, one ofits supervisors who had appeared as a rebuttal witness for the Respond-
ent on another matter, to also testify concerning this conference warrantsthe drawing of an adverse inference against the Respondent, will be con-
sidered below.
312
DAVIS WALKER STEEL & WIRE CORP.
spoken to Carter in an effort to help. However, on July
20, his last day of work for the Respondent, Carter
punched in late. He subsequently went to Holiday and
announced that he had been ill and wanted to go to the
doctor. Holiday gave his consent after reminding Carter
to bring back a doctor's note. However, when Carter did
come back, Holiday was busy and never asked for the
physician's note. A short while after Carter had punched
in and resumed work, he again went to Holiday and said
that he had to go home. Carter then left for the day.
On Monday, July 23, the next regular workday, al-
though expected to report at 7 a.m., Carter did not come
in and was not heard from until he telephoned Holiday
at around noontime. When Carter identified himself on
the phone, Holiday told him that he had been expecting
something from him. Carter stated that he guessed that
he did not have a job anymore after that morning. Holi-
day said that he was right, he did not. Holiday rejected
Carter's offer to come in and talk to him stating that he
would be too busy to discuss anything with him that
day. If Carter wanted to talk to Brasher, that, of course,
was his prerogative. He could arrange to pick up his
check later in the day and to talk to Brasher then. Cart-
er's discharge was completely out of Holiday's hands.
Accordingly, Carter was terminated.
As will be detailed below, on September 27, Holiday,
too, was discharged.
On or about December 1, Holiday and Carter met by
chance at a grocery store. During their conversation,
Holiday told Carter that he, also, had been fired by the
Respondent and that the Company had discharged
Carter because he had signed a union card.
The record reveals that in the exactly 2 months Carter
worked for the Respondent from May 23 to July 23,8 he
was absent from work for 4 complete days, was away
during parts of 3 other days and was late 13 times. The
Respondent, however, contends these occurrences were
heavily concentrated in Carter's second month of em-
ployment, following the end of his 30-day probationary
period. Accordingly, 3 of Carter's 4 days of total absence
came after the end of his probationary period. Also,
while in Carter's first 30 days he was late only three
times, twice by I minute and once by 2 minutes, in the
second month, he was late 10 times. Four of these laten-
esses were for periods of 19 minutes or less, while the
remaining incidents ranged for periods of from 1-1/4
hours to 5 hours and 43 minutes. Three of the latenesses
in this catergory were for close to or substantially above
2 hours. Of the three instances of partial absence, when
Carter did not work his entire shift, he was away from
work for two periods of 2 hours and 30 minutes, respec-
tively, during probation, while on July 20, he missed 6
hours and 45 minutes under circumstances described
above.
In August or September, following Carter's termina-
tion, the Respondent issued its handbook of policies and
practices for hourly employees, a collection of work
rules since issued to all employees. There, the Respond-
ent codified a system of progressive discipline providing
for suspension or discharge following receipt by an em-
" The first 30 days of employment are a probationary period
ployee of three written warnings within a 3-month
period or one written warning on the same subject
matter within 1 year of a final warning. The handbook
also provides penalties for tardiness and for unexcused
and excessive absenteeism, the latter defined as frequent
or prolonged periods of absence from work, regardless
of whether properly reported. Brasher testified that
under the policies established since issuance of the hand-
book, employees are likely to undergo disciplinary sus-
pension before discharge is considered.
Brasher explained that before issuance of the hand-
book, no written workrules were in effect nor was there
a practice concerning the use of written warnings, even
as prerequisite to more severe discipline. Accordingly, in
this early period in the plant's operation, new supervisors
were instructed to orally warn employees for infractions,
precise standards as to when disciplinary action might
become applicable for absenteeism or lateness did not
exist. It was a matter of judgment left to the individual
supervisors. Employees might be cautioned for taking
too many long weekends or for other types of patterned
absences, whether or not excused. Factors considered in-
cluded the repetitiveness of the absences and latenesses
and the reasons given therefore. The standards applica-
ble, to the extent determinable, were predicated on
Brasher's prior experience, and, admittedly, were then
vague and unevenly applied. While supervisors always
were required t obtain Brasher's consent before dis-
charging an employee, they could independently decide
when to give oral warnings.9 The record establishes that
Carter had been spoken to by Holiday on several occa-
sions with regard to his absenteeism and lateness.
Although Brasher conceded than Carter was the first
employee at the Memphis plant to he discharged for ab-
senteeism and tardiness, the General Counsel, to show
disparate treatment, introduced summaries of the attend-
ance and tardiness records of 13 other employees who
also were terminated after Carter's discharge for frequent
absenteeism and lateness. While the General Counsel
argues that these others had been more tolerantly treated
than had Carter as most of these later discharged em-
ployees had had poorer attendance and punctuality, it is
noted that two of these others had had less severe re-
cords than Carter.
2. The discharge of Ted Holiday
The Respondent contends that Holiday, the General
Counsel's principal witness, was a disgruntled terminated
supervisor who had been let go for various reasons, in-
cluding some that would affect his credibility, and that
his testimony in this matter was but part of a continuing
campaign to embarrass Brasher and General Manager
Kafka, whom he held responsible for his termination. As
a determintion of Holiday's credibility is obviously cru-
cial to a finding herein concerning Carter, it will be nec-
essary to explore the circumstances of Holiday's depar-
ture from the Company and his conduct thereafter.
Holiday testified that on September 27, the day of his
discharge, Brasher called him into the office and told
9 Brasher, himself, did not issue any oral warnings.
313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him that he should not have leased a certain rented trac-
tor without first checking with him. Holiday explained
that he had leased the tractor to make a delivery because
he did not believe that the Company's regular rig would
be back in time. He had thought that Brasher would be
more concerned about the shipment reaching its destina-
tion on schedule than about the money. If money was
that big an obstacle, Holiday offered to have the cost of
the leased rig deducted from his paycheck. If he had
made a mistake, he would be glad to pay for it. Brasher
told Holiday that that would not be necessary.
Brasher then walked into the plant area, followed by
Holiday. Shortly thereafter, Holiday saw Brasher talking
to an employee about punctuality. As Holiday ap-
proached, the employee turned from Brasher and began
to explain himself to Holiday. This attention shift by the
employee seemed to aggravate Brasher, who declared
that he and the employee would discuss this matter later.
He then sent the employee back to work and told Holi-
day to come back to the office with him.
As the two men entered the office, Brasher told Holi-
day that he was afraid that he would have to ask for his
resignation. When Holiday asked if Brasher were joking,
Brasher assured Holiday that he was not and was asking
for his resignation. When asked for the reasons, Brasher
replied that there had been discrepancies in Mike Har-
rell's timecards, where Holiday had punched out for
him. Holiday denied this, stating that he did not know
what the timecards showed, but there was no way that
he would falsify company documents. Moreover, it par-
ticularly was impossible that he would do such a thing
with respect to Mike Harrell's cards because he and Har-
rell rode to and from work together each day in Holi-
day's car and Holiday knew exactly when Harrell ar-
rived for and left for work each day. In addition, as he
and Harrell were so close, Holiday knew exactly when
Harrell arrived for and left for work each day. In addi-
tion, as he and Harrell were so close, Holiday knew that
he would be the first to be suspected on any improper
attempt to benefit Harrell. Brasher then stated that Holi-
day did not have sufficient control over the employees.
He was just a little too friendly with them. Brasher re-
peated that he was going to have to ask for Holiday's
resignation. This interview, as described by Holiday,
ended his employment with the Respondent.
Holiday related that in early October he called Dennis
Gates, the Respondent's comptroller and assistant trea-
surer, °0 at Gates' Houston office. He knew Gates slight-
ly having met him briefly during Gates' several visits to
the Memphis plant in the spring and summer of that
year. When Gates acknowledged that he remembered
Holiday, Holiday announced that he was concerned
about a situation that had developed in the plant, which
he hoped Gates could clarify and, in so doing, perhaps
could help Holiday get back his job. When Gates asked
what had happened, Holiday told him that he had been
fired. Gates expressed regret. Holiday told Gates that
l' Gates, who is responsible for the Respondent's accounting systems,
banking relations, and the general safeguarding of the Respondent's
assets., is based at the Respondent's home office in Houston, Texas. He
reports to the vice president and treasurer of the Respondent's parent
corporation in Los Angeles, California.
Brasher had given him instructions on Friday, August
31, that anything shipped from the plant on the follow-
ing Monday afternoon was to be documented as having
been sent out on August 31, rather than in September.
Brasher repeated that he wanted Holiday to ship the first
September load backdated to August 31, rather than as
of the appropriate September date to improve the
August report, explaining that the plant was still in the
red, the books were looking bad, and the homeoffice was
screaming. Also, inventory records were being kept im-
properly as, at the end of each month, goods were being
treated as sold and billable as soon as loaded onto trucks
even though they were not delivered until the start of
the following month. Holiday told Gates that the plant
was doing the same thing every month.
Holiday also told Gates that Brasher had informed him
that General Manager Kafka wanted him to get reject
material, generated in production, onto a truck and out
of the plant before an upcoming visit by the Respond-
ent's board chairman and president. Holiday had been in-
structed to drive the reject material to the concern
where the Respondent leases its trailers and to hide the
material in their parking lot so that the plant would look
better and the chairman would not be upset by the
amount of waste material.
Holiday told Gates that he would not want people en-
gaged in such deceitful practices working for him and
that he wanted to call the board chairman personally in
California and tell him what was going on. Once the
chairman heard what he had to say, maybe he would
give him his job back. Gates told Holiday to let him in-
vestigate first, promising to call back with his findings.
As Gates recalled this initial telephone conversation
with Holiday in early October, Holiday, after the pre-
liminaries, had told him that there were some practices
going on in the plant that he felt were dishonest and de-
ceitful. Inventory was being taken at the end of each
month incorrectly in that the Memphis plant was treating
goods put on trailers at the end of each month as sold
and, therefore, not counted in inventory. Also, a truck-
load of reject material had been removed to artificially
improve the appearance of the plant during a visit there
by the chairman of the board and the president. Holiday
stated that he also felt it necessary to contact someone
higher in the Respondent's organization, even if it meant
going to the chairman.
Gates told Holiday that he appreciated his call and
wanted the opportunity to investigate the two charges as
he ultimately is responsible for these areas. He promised
to get back to Holiday with the results of his inquiry.
Gates related that he thereafter did check out Holi-
day's charges. He explained that there had been no im-
propriety in the Memphis plant's practice of taking
goods from inventory and treating them as billed once
loaded onto trucks as nothing was loaded until sold. The
Respondent ships directly to its customers rather than to
warehouses and this bookkeeping practice, used at all of
I' Gates, unlike Holiday, did not testify that he had been told during
that conversation that Brasher and Kafka were backdating shipping
papers so as to appear that the relevant loads had gone out during the
preceding month.
314
DAVIS WALKER STEEL & WIRE CORP.
the Respondent's plants, reduces confusion in the flow of
paperwork.
About 7 to 10 days after their first conversation in this
regard, Gates, as promised, called Holiday. At that time,
Gates told Holiday that he had not yet had the opportu-
nity to complete his investigation of Holiday's two points
and that he would try to get back to him on these as
soon as possible. However, Gates did ask if Holiday had
spoken with Kafka or Brasher to try to resolve their dif-
ficulties. Holiday replied that it was too late for that
with Brasher and that he did not believe that it would do
any good to discuss the matter with Kafka.
Within the week that followed, Gates having complet-
ed his inquiry, again called Holiday and explained that
there had been nothing improper in the inventory-taking
method used in the Memphis plant. The practice de-
scribed was used by the Company uniformly at all of its
plants. Secondly, Gates told Holiday that while he did
not appreciate that a truckload of reject material had
been moved from the plant during the chairman's visit
for the sake of appearences,' 2 it had been necessary to
determine the actual weight of the load and this had
been done at that time. 3
Brasher testified that Holiday had insubordinately dis-
regarded his instruction that any expenditure in excess of
$100 be approved in advance by him. This especially re-
lated to any truck or trailer rentals or leases, an area
where the Company had been having difficulties. While
Brasher had been working late during the night before
Holiday's termination, a driver had come in with an ad-
ditional leased truck although there were at least two
brand new trucks already on lease, for which the Re-
spondent then was paying without regard as to whether
they were being used. Holiday's leasing of another vehi-
cle while other trucks were on lease, in disregard of his
instruction to first obtain clearance, had directly precipi-
tated his discharge.
However, Brasher expressed his dissatisfaction with
Holiday for a variety of other reasons, as well, and that
these had caused him to decide in late June or early July
to seek a replacement for Holiday. Such an eventual re-
placement had been on the payroll since mid-July.
Brasher contended that Holiday had been lax in the per-
formance of his duties, had been unable to get along with
an inside salesman who had to work with Holiday, as
shipping foreman, to ensure that loads were timely dis-
patched, and had been unable to get along with employ-
ees assigned from other departments to help when there
were many trucks to load and dispatch. Brasher also ex-
pressed irritation that Holiday, who had been hired to
oversee the shipping department, had asked to be al-
lowed to drive a truckload to Mobile, Alabama, so that
he might be positioned to take a side trip to visit his
mother in Pensacola, Florida. The foremost reason for
the action taken against Holiday, however, was based on
12 Gates conceded that Holiday's charge that the truckload of reject
material had been removed to make the plant look better during the visit
of the Respondent's chief executive was half justified. However, as the
reject material still was valued for its raw steel content, its weight was
needed and taken while away from the plant.
Is Holiday denied having been told by Gates that the load of reject
material had been weighed, and testified from his own knowledge.
Brasher's belief that Holiday as Mike Harrell's supervi-
sor, had been falsifying Harrell's timecards because the
two men were personally close. This had been men-
tioned when Brasher had asked for Holiday's resignation.
Brasher related that he first suspected that something
was wrong with Harrell's timecards when, on Wednes-
day, September 19, he saw Harrell leave the plant for the
day noticeably before 7:26 p.m., the punchout time on
Harrell's card for that day. This caused Brasher to pull
and check cards in Holiday'a department, as supervisors
are responsible for totaling the hours worked each day
and week and for verifying the cards of persons assigned
to them. The work hours thus computed serve as a basis
for employee compensation.
Brasher related that, as a result of this check, he found
that there were a number of discrepancies on Harrell's
cards, all of which had inured to Harrell's benefit. Spe-
cifically, for the weekly pay period ending July 14, Har-
rell, who had worked 6 days, apparently had punched
out only three times on his own. Two additional pun-
chouts had been written in and initialed by Holiday. The
accuracy of those times are not disputed by Brasher. Al-
though there was no punchout shown for the sixth day
of that week, Harrell, nevertheless, was credited with 6
hours of work by Holiday.
On Harrell's card for the pay period ending September
14, Brasher found that Harrell's hours had been miscom-
puted on three of the 6 days worked by him to the effect
that Harrell had put in 45-1/2 hours, rather than the 47-
1/4 hours originally credited by Holiday. For the week
ending August 15, during which Harrell had worked 5
days, Holiday twice had incorrectly credited Harrell
with additional time totaling 1-1/2 hours, and, for the 6-
day workweek that ended on September 21, Harrell's
time, because of two separate computation errors, was
incorrectly totaled at 49 hours instead of the 46-1/2
hours shown by the timestamps. Brasher, during his
review, recomputed Harrell's pay for the weeks ending
September 14 and 21 on the basis of the timestamps and
compensated Harrell accordingly for those weeks.
Brasher views the fact that these payments were not pro-
tested, although based on fewer hours than originally
credited, to be an acknowledgment of the accuracy of
his computations.
In mid-September, after running the check on time-
cards in Holiday's department, Brasher called Holiday to
his office, showed him some of the relevant cards, and
asked about the discrepancies. Holiday replied that there
had been error on his part and had apologized.
Brasher testified, however, that, subsequently, while
working late on the dock area on the evening of Tues-
day, September 25, he had seen Harrell leave work for
the day at 6 p.m. and, although both men had remained
much later, they did not see Harrell return. Nevertheless,
Holiday had written in and initialed a punchout time of 8
p.m. for Harrell for that night, with the result that Har-
rell was credited with 2 additional hours. 14 The Re-
spondent argues that the discrepancies in Harrell's cards
'4 Harrell's departure time on September 25 as described by Brasher
was corroborated by Supervisor Riley Savage, who testified that he, too,
had seen Harrell leave at 6 p.m. and not return.
315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
traceable to Holiday constituted manipulation of compa-
ny pay records to benefit a personal favorite, and, ac-
cordingly, reflect adversely on Holiday's credibility as a
witness in this proceeding.'
Holiday testified that about 2 weeks before his dis-
charge, Brasher had summoned him to the office and
told him that there were some discrepancies on Harrell's
timecards. Holiday replied that he did not see how this
could be as Harrell rode to and from work with him
every day and he knew the hours that Harrell worked.
Holiday continued that he would not do such a thing in
the first place, but if he was going to falsify a timecard
for somebody, it would not be Harrell. As he and Har-
rell were so close, Holiday felt that he would be the first
one that Brasher would look for under such circum-
stances. Holiday offered to submit to any type of testing
to support his denial of intentionally falsifying any pay
records. Brasher told him that this would not be neces-
sary. He accepted Holiday's representation that the dis-
crepancies in Harrell's timecards were an honest mistake,
sending Holiday back to work with an admonition to be
more careful in the future. 6
At the hearing, Holiday again denied having taken lib-
erties with Harrell's timecards, testifying that there had
been only one occasion during the time that Harrell had
been under his supervision that he had ever left work
without Harrell. ' 7
Accordingly, Holiday admitted that he had punched
out Harrell's card for the disputed date of September 19
at the time shown with personal knowledge as to when
Harrell had left work. As to September 25, another dis-
puted date where Brasher claimed that Holiday had
credited Harrell improperly for 2 hours' work after Har-
rell's 6 p.m. departure time, Holiday explained that he
and Harrell actually had worked to the 8 p.m. punchout
time shown. He and Harrell, on the job that day since
6:30 a.m., had been waiting in Holiday's office to load an
empty incoming trailer that was running late. At or
around 5:45 p.m., at Holiday's suggestion to get some-
thing to eat, they drove to a nearby grocery and brought
back some plate lunches, which they ate in Holiday's
office. The had been away for around 10 minutes, and
were on hand when, around 6:45 p.m., the driver arrived
with the empty trailer. They finished loading the trailer
'6 Brasher explained that he did not take action with respect to irregu-
larities in three timecards of two other employees who did not work
under Holiday, which cards were shown to him the General Counsel, as
he does not usually check through all timecards. He only had pulled the
cards of employees in Holiday's department, having noticed in a particu-
lar instance that Harrell had left work before the punchout time shown
on his card for September 19. He had not checked the cards for the other
departments.
' Holiday originally testified that before his discharge he never had
received oral or written criticism from Brasher or any other member of
management concerning his services.
1i The timecards for Holiday and Harrell for the pay periods ending
June 30 and July 7, however, contradict Holiday's testimony that he and
Harrell consistently traveled together between job and home. For the II
days worked oy Harrell and the 10 days worked by Holiday in those 2
periods, the cards showed substantial differences in their starting and
quitting times on all but 2 days. During the pay periods covered by these
timecards, I find that the differences in their work schedules were too
great to be reconciled by Holiday's partial explanations and conclude that
for the great majority of those workdays Holiday and Harrell did not
travel together.
and left work together at 8 p.m. The next morning,
while punching in, Harrell remembered that he had for-
gotten to clock out before leaving the preceding night.
Accordingly, Holiday accurately wrote in and initialed
an 8 p.m. departure time for the preceding day on Har-
rell's card. 8
Holiday admitted making certain errors in computing
and totaling the hours worked by Harrell, as attributed
to him, and also conceded a certain laxity in not regular-
ly following the Respondent's requirement that when an
employee is paid for working through the otherwise un-
compensated 30-minute lunch period, the words "No
lunch" should be written on the timecard by the supervi-
sor when crediting the employee with the time. Holiday
however, when so crediting employees, including Har-
rell, when they worked through their lunch periods,
often would not make the appropriate notation explain-
ing that his practice in this regard depended on how
busy he was at the time. This failure to make the proper
notations, it is contended had caused certain of the attrib-
uted 30-minute discrepancies on Harrell's cards.
I do not find Holiday to be credible. Shortly after his
discharge, he telephoned Gates, the Respondent's comp-
troller, on slight acquaintance to make his charges
against Brasher and Kafka, the men who had terminated
him. Threatening to repeat his allegations to the Re-
spondent's chairman, he caused Gates to investigate them
and report back to him. Holiday next also contributed to
bringing about the present litigation by telling Carter
during their chance meeting in December that he had
been terminated for having signed a union card. With
this background, Holiday cannot be considered disinter-
ested.
There is no contention that Holiday's termination was
in any way connected with that of Carter, that it had oc-
curred under circumstances calculated to chill employee
support for the Union or that it involved factors other
than the respondent's perception of his supervisory abili-
ties. A major consideration in Holiday's termination was
the controversy surrounding Harrell's timecards. While,
contrary to the Respondent, I do not conclude from the
record that the discrepancies were based on an intention-
al effort to wrongfully benefit Harrell, still, this issue did
reflect adversely on Holiday's dependability. With con-
ceded knowledge that Harrell had been lax in punching
out, Holiday made little effort before leaving with him to
remind Harrell. His errors in totaling the hours worked
by Harrell as reflected on these cards, complicated by
his admittedly frequent failure to write in "No lunch," as
required, when crediting Harrell and others for addition-
al compensation, contributed to the stated confusion and
to the Respondent's negative evaluation. 9 Except for
18 Holiday conceded that he had found it necessary to speak to Harrell
on two or three occasions about his failure to punch out, even telling
Harrell that, if he did not straighten out, he would have to talk to
Brasher. However, Holiday with his awareness of this problem did not
give Harrell any regular reminders to punch out when they left together
at the end of each day, claiming that he was to preoccupied thinking
about shipping matters.
'1 While the General Counsel produced several timecards of employ-
ees from other departments which contained similar errors, Brasher ex-
Continued
316
DAVIS WALKER STEEL & WIRE CORP.
the issue concerning his handling of Harrell's time-
cards, 20 the Respondent's objections to Holiday's work
performance are essentially undisputed. For example, he
did not obtain prior clearance from Brasher, as instruct-
ed, before leasing the extra trailer, the event immediately
leading to his discharge, he did not challenge the attrib-
uted poor relationship with the inside salesman with
whom he had to cooperate and with other employees as-
signed to help out in shipping.
Accordingly, as Holiday had been actively seeking to
penalize the management of the Respondent's Memphis
plant who had fired him; as he was terminated for rea-
sons affecting his dependability herein evaluated, and as
certain aspects of his testimony were inconsistent with
the evidence, Holiday is not credited where his uncorro-
borated testimony conflicts with that of other wit-
nesses.2
Consistent with this finding, I accept the testimony of
Brasher, corroborated by Savage, that on September 25,
Harrell did leave work at 6 p.m. and did not return that
evening, although Holiday wrote in a punchout time for
him of 8 p.m. Any ambiguity concerning Harrell's depar-
ture time that day had been promoted by Holiday's lack
of diligence in enforcing the Respondent's policies con-
cerning use of the timeclock.
I also credit Gates' account of the October telephone
conversations and Brasher's denials that when Holiday
first visited his office, while still employed by the secu-
rity firm and, later, when Holiday first reported Union
organizanional activity, he had made the antiunion re-
marks charged and had threatened, in effect, to fire
every "son-of-a-bitch" in the plant to keep out the
Union.
C. Discussion and Concluding Findings
The General Counsel, relying on Holiday's account of
various conversations with Brasher where the latter as-
sertedly had made antiunion remarks, and the Respond-
ent's conceded knowledge that Carter had signed a union
card, contends that Carter had heen fired at Brasher's in-
struction because he had signed such a card. This direc-
tion from Brasher had come at the time of the meeting in
late June or early July, which, according to Holiday,
also was attended by Savage. The General Counsel justi-
fiably argues that an adverse inference should he drawn
plained that he had specially reviewed only the timecards in Holiday's
department having observed that Harrell was being credited for work
performed after he had been seen leaving.
0o Holiday was obliged to retreat from his original testimony that he
never had been reprimanded or criticized before discharge, as he later
conceded that Brasher had spoken to him earlier about Harrell's time-
cards. Also, contrary to his testimony, during at least the two pay peri-
ods for which the timecards of Holiday and Harrell were compared, the
two men generally did not travel between home and work together and,
in those weeks, Holiday was not always positioned to know just when
Harrell left work.
1 In assessing Holiday's credibility, I have considered Brasher's expla-
nations as to why, while contemplating Holiday's replacement, he had
given him pay raises and, ultimately, salaried status, and why, more than
two months after his replacement had been hired, Holiday was still serv-
ing as a supervisor, and have found Brasher's reasons unconvincing.
Nonetheless, it is the General Counsel's burden to come forward with a
preponderance of credible testimony through creditable witnesses. In the
context of Holiday's testimony, as considered above, Brasher appears to
be the more credible.
from the Respondent's failure to call Savage to testify
concerning that conference. As noted, at the time of the
hearing, Savage was still one of the Respondent's super-
visors, the Respondent had access to him and, in fact,
did call him on rebuttal to testify as to another matter.
As Savage, in these circumstances, was not asked by the
Respondent about this significant meeting, an inference
adverse to the Respondent's position on this point is war-
ranted and made.
However, it has been found in connection with Holi-
day's negative credibility rating, that other antiunion
statements attributed by him to Brasher did not occur. It
is noted that Carter, during his brief employment by the
respondent, did have a poor record for attendance and
tardiness, as charged, with the overwhelming majority of
absences and latenesses occurring, both as to frequency
and magnitude, in the second and last month of his em-
ployment, folowing the end of his 30-day probationary
period. His discharge had been preceded by a day in
which he missed 6 hours and 45 minutes of work asser-
tedly for reasons of health, and by his failure to appear
or to call in on his next day of work following a week-
end, until approximately 5 hours after he was expected
to report. It is undisputed that Holiday had spoken to
Carter in the past about his poor attendance and punctu-
ality at a time when there was not yet in effect a stand-
ardized schedule of progressive discipline or a practice
of giving written warnings.
There is no evidence that Carter in being terminated
was treated disparately. While the attendance and punc-
tuality of most of the 13 other employees who thereafter
were discharged for like reasons were worse than Cart-
er's, at least two of those terminated had records that
were less severe.
Contrary to the General Counsel, I do not find unusu-
al significance in that Carter was the first to be terminat-
ed for frequent lateness and absenteeism. At the time in
question, the plant was still new and in its startup phase
and the staff was much smaller than it later became.
From the number of employees who thereafter were ter-
minated on these grounds, and, as later expressed in the
handbook, it is clear that the Respondent had intended
that frequent absenteeism and lateness constitute grounds
for discipline, and that a policy has been followed of ter-
minating employees for these reasons. While discipline
was unevenly applied in that certain employees were
permitted additional instances of lateness and absenteeism
before being terminated, as noted, some dischargees had
fewer such occurrences than Carter. In establishing a de-
nominator, there is no evidence of anyone with a poorer
record for tardiness and absenteeism than Carter who is
still employed.
While the respondent concededly knew that Carter
and five other employees had signed union cards before
Carter was fired, four of the others were still employed
at the time of the hearing. One of the other card signers
identified to Brasher had been terminated for reasons un-
related to the Act, and of those remaining, whose sup-
port for the Union also was known, one had been made a
supervisor, while another, who later had resigned, was
rehired. There is no discrimination or coercive conduct
317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affecting other employees also known by the Respondent
to have signed cards. Rather, some card signers were
being preferred. In these circumstances, contrary to the
General Counsel, Carter would have been an unlikely
choice as an example for the purpose of discouraging
others from supporting the Union. Except that Carter
signed a card, there is no showing that he was a leader
or otherwise was active during the Union's organization-
al campaign. Carter had been employed for only 2
months, was vulnerable because of the frequencies of his
absences and latenesses, and the discipline afforded came
when these infractions were at a concentrated peak.
Even with the above adverse inference drawn against
the Respondent for not having called Savage to testify,
in the context of the credibility resolutions made herein,
I find that the General Counsel has not established by a
preponderance of the evidence that Carter was terminat-
ed because he had signed a union authorization card or
because he, otherwise, had supported the Union. It,
therefore, is concluded that his discharge was not in vio-
lation of Section 8(aX3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Davis Walker Steel & Wire Cor-
poration, is, and at all times material times has been, an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Highway and Local Motor Freight Employees
Local 667, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehouseman and Helpers of
America, and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
Local No. 1196, are, and at all material times have been,
labor organizations within the meaning of Section 2(5) of
the Act.
3. The General Counsel has failed to establish by a
preponderance of the evidence that the Respondent has
engaged in or is engaging in unfair labor practices within
the meaning of Section 8(aXl) and (3) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2 2
It is ordered that the complaint be dismissed in its en-
tirety.
'1 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
318