ASC Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1975

217 N.L.R.B. 323 (N.L.R.B. 1975)

ASC INDUSTRIES, INC.
ASC Industries , Inc. and United Rubber , Cork, Lino-
leum & Plastic Workers Union , Local 703,
AFL-CIO. Case 20-CA-9004
April 10, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On September 30, 1974, Administrative Law Judge
David G. Heilbrun issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
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,' findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
1. The Administrative Law Judge found and we
agree that Respondent violated Section 8(a)(1) of the
Act by Supervisor Roberts' telling employee Henry
Vargas that because of his low seniority his job would
be jeopardized if he joined the Union.'
1 In his separate opinion herein, Member Kennedy states that the Ad-
ministrative-Law Judge erred in denying Respondent's motion to strike the
entire testimony of alleged discrimmatees Weese and Dias because they
refused to testify about their alleged use or sale of marijuana on Respon-
dent's premises on the grounds of self-incrimination We believe that Mem-
ber Kennedy errs in not adhering to the well-established rule of "not
pass[ing] upon a constitutional question although properly presented by the
record; if there is also present some other ground upon which the case may
be disposed of." Brandeis, J, concurring in Ash wander v. Tennessee Valley
Authority, 297 U.S. 288, 347 (1936); accord: Alma Motor Co. v Timken-
DetroitAxle Co., 329 U S. 129, 136 (1946) Inasmuch as we find that Weese
and Dias were not discharged in violation of Sec. 8(a)(3), we find it unneces-
sary to pass on this constitutional issue and we intimate no view on the
propriety of the Administrative-Law Judge's ruling.
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule 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 Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
We note that-several times in sec. II of his Decision, the Administrative
Law Judge refers to pars. 7(a) and 7(b) of the complaint. The context in
which such references appear indicates that he intended to allude to the
alleged 8(a)(1) violations of pars 6(a) and 6(b), respectively, rather than the
alleged 8(a)(3) violations of pars. 7(a) and 7(b)
3 In the absence of exceptions, we adopt pro forma the Administrative
Law Judge's findings that Production Foreman Roberts' asking Assistant
Leadman Tugmon to seek votes for Respondent and Leadman Jerry Dias'
questioning his cousin, Kenneth Dias, regarding his union sympathies did
not constitute violations of Sec 8(a)(1) of the Act. As to the latter finding,
we note that the General Counsel stated on the record that he sought to
323
2. The Administrative Law Judge also found that
Respondent discharged Alva D. Weese, Kenneth
'Dias,' and Dennis L. Pruitt in violation of Section
8(a)(3) and (1) of the Act. We find merit in Respon-
dent's exceptions to these findings. For, we conclude
that in each instance the General Counsel failed to
carry his burden of showing that the discharge was
unlawfully motivated.
The facts are fully set forth in the attached Decision.
The Administrative Law Judge recognized that the evi-
dence showed little concerning Respondent's degree of
opposition to the Union and found that the sole in-
dependent violation of Section 8(a)(1) consisted of the
statement to employee Vargas summarized in para-
graph 1, above. Nevertheless, the Administrative Law
Judge "[found] a thread of discriminatory intent pre-
sent .. ." and stated that he believed this was nurtured
during the Union's organizational campaign which cul-
minated in its loss of the Board-conducted election.
This, in turn, was apparently grounded on the said
coercive statement to Vargas early in January 1974; the
timing of the discharges shortly after the issuance on
February 11, 1974, of the certification of the results of
the election which concluded the proceedings in the
representation case; and the Administrative Law Jud-
ge's disbelief of Respondent's defense to each of the
three discharges. While we have, in appropriate situa-
tions, looked to all of these factors, something more is
required than is present in this case to justify the infer-
ence of unlawful motivation and its continuing influ-
ence on the Respondent's actions. That "something" is
strong animus toward the Union and its adherents.
Here the single coercive statement early in the cam-
paign does not warrant finding the necessary animus,
nor can it show a "thread" which denotes a continuing
course of conduct. Further, there is no indication by
the Administrative Law Judge why he concluded that
the timing of the discharges following the certification
of results was suspicious.
With respect to Weese and Dias, there is little doubt
that on the day of discharge they were performing little
work of any kind and it is not denied that Dias did in
fact leave the plant early and return late (the precise
hour is in issue) without punching his timecard. There
is also no doubt that oral and written complaints had
been made that Weese was standing around idle while
other employees worked. The Administrative Law
Judge "discounted" records of misconduct by these
men because he found them "contrived in origin," but
there is no support in the record for this conclusion and
it does not comport with the undisputed testimony of
introduce this evidence only to show Respondent's knowledge of Kenneth
Dias' union sympathies
4 Weese and Dias were supervised by Leadman Jerry Dias, a cousin of
Kenneth Dias. In order to avoid confusion, Kenneth Dias is referred to
herein as Dias and Jerry- Dias is referred to as Jerry Dias.
217 NLRB No. 53
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 'individuals who wrote the entries and testified to
their authenticity .' Finally, as to Dias, the Adminis-
trative Law Judge-found him an unsatisfactory em-
ployee but concluded that he was discharged "in a
concerted , indivisible action that was designed to strike
primarily at Weese." But there is no evidence in the
record to support even an inference that Respondent
was so motivated in discharging Dias or that the con-
current discharge of the two men was more than coinci-
dental.
Concerning Pruitt , the same general infirmities exist
in the proof' dduced" by the General Counsel. Thus,
in finding pretextual the Respondent's asserted reason
for terminating Pruitt, i.e., his poor attitude and inabil-
ity to work well with others, the Administrative Law
Judge placed great weight on the fact that this em-
ployee had repaired a major equipment defect with
which even more experienced personnel were having
difficulty . This, however , does not rebut Respondent's
claim that Pruitt had an abrasive personality and is
insufficient to warrant a conclusion that Pruitt was
terminated for unlawful reasons rather than the one
advanced by Respondent.'
In sum , we find that the General Counsel has failed
to establish by a preponderance of the evidence that
Respondent was unlawfully motivated in terminating
Weese, Dias, or Pruitt . Accordingly , we shall dismiss
the complaint insofar as it alleges that they were dis-
charged in violation of Section 8(a)(3) and (1) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge as modified below and
hereby orders that Respondent, ASC Industries, Inc.,
Visalia, California, its officers, agents, successor, and
assigns, shall take the action set forth in the said recom-
mended Order as herein modified:
1. Delete paragraphs 1(b) and 2(a) and (b) and relet-
ter remaining paragraphs accordingly.
5 We find merit in Respondent's contention that the Administrative Law
Judge misallocated the burden of proof in implying, in In. 15 of the attached
Decision, that the burden was on it to introduce other employees' written
warnings in order to support the authenticity of these documents
6 As to the absence of evidence of union animus, we note that the Vargas
incident occurred at a different plant from the one in which Pruitt worked,
and there is no basis for attributing to Pruitt's supervisors the statement itself
or the antiunion attitude which it conveyed.
7 The Administrative Law Judge sets forth the fact that at the time of his
discharge Pruitt was told by Plant Foreman Johnson that he was terminated
for not having "a company type attitude for the past two months," and it
is true that reference such as this could well be to union activities and in
many other cases has been found to have that meaning. But in the absence
of some evidence to justify this interpretation, we cannot so find here, and
this fact at best raises a mere suspicion which is not sufficient upon which
to base a finding of unlawful conduct.
2. Substitute the attached notice for the Administra-
tive Law Judge's notice.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations not
found herein.
MEMBER KENNEDY , concurring in part and dissenting in
part:
I concur with my colleagues in their dismissal of the
8(a)(3) allegations regarding Alva Weese, Kenneth
Dias, and Dennis Pruitt . However , as to Weese and
Dias, I dissent from the failure to strike their testimony
because these two alleged discriminatees refused to an-
swer on cross -examination questions which were rele-
vant to Respondent 's defense.
From January 1, 1973, through November 13, 1973,
Respondent reported 68 industrial accidents to its
workmen 's compensation carrier . Injuries ranged from
cut fingers to broken bones. During this same period,
Production Manager Christensen learned from several
employees and supervisors that a number of employees
were under the influence of marijuana while on the job.
One employee told Christensen that the plant was un-
safe because of marijuana being used in the plant and
quit for fear of his safety . The problem was so bad that
Christensen contacted the police department to obtain
information and literature, and the police began inves-
tigation which was still continuing as of the time of the
hearing . In November or early December 1973, Chris-
tensen posted a notice to all employees concerning the
use of drugs . The notice stated that there was a serious
problem concerning the use of drugs in the plant and
that the use of drugs was causing a safety problem. The
notice also repeated a company rule against the use of
drugs and stated that a breach of the rule would be
cause for immediate dismissal.'
On the day of the discharges in question, Christensen
went to speak to Weese and Dias. As he walked in the
shipping and receiving area , Christensen noticed a
large painting of a marijuana leaf on a toolbox . Chris-
tensen was angry since he considered the painting an
affront to the Company's campaign against drugs.
8 The notice read
It has been brought to our attention that we have a serious problem in
both plants regarding the use of drugs.
The company cannot and will not tolerate the use of drugs by em-
ployees while they are on duty or under the influence when reporting
to work.
Company rule #20 posted on all bulletin boards states that:
20 Bringing intoxicating liquors or drugs into the plant, or reporting
to work under the influence of the same
This is a breach of company rules and is cause for immediate dismissal.
We intend to comply with that rule.
In order to combat this serious situation we need the help of all em-
ployees. Remember the use of drugs and machinery do not mix. If you
can save some one from being injured seriously you are doing this
individual a big favor.
We plan to do everything necessary to bung this to a stop
immediately
ASC INDUSTRIES, INC.
Christensen suspected the painting was the work of
Weese and Dias, immediately reviewed their personnel
files, and decided to terminate both of them.9
Dias was asked on direct examination concerning the
marijuana leaf painting on the toolbox. On cross-
examination , Respondent 's counsel asked him if he
ever used or possessed marijuana while working on
company premises. The Administrative Law Judge
overruled the General Counsel's objection on the
grounds of relevancy. Dias declined to answer on the
grounds of the fifth amendment to the United States
Constitution.
Respondent's counsel also asked Weese whether he
or Kenneth Dias ever possessed marijuana on company
premises. Again the Administrative Law Judge over-
ruled the General Counsel's objection on the basis of
relevancy. Like Weese, Dias declined to answer on the
grounds of the fifth amendment to the United States
Constitution.
During the hearing, Respondent requested special
permission from the Board to appeal the ruling of the
Administrative Law Judge denying his motion to strike
the testimony of Weese and Dias. By telegraphic order
dated June 13, 1974, the Board denied Respondent's
motion without prejudice to Respondent's right to
renew its motion in any exceptions filed with the Board.
I dissented stating that I would strike the testimony of
Weese and Dias since I believed that further expendi-
ture of funds on behalf of individuals who refuse to
answer cross-examination questions relevant to Re-
spondent's defense on the ground of self-incrimination
is unjustified.
I believe that the testimony of Weese and Dias
should have been stricken from the record. Had the
motion to strike been granted, then litigation concern-
ing their discharges would have ended at that point
with dismissal of the complaint. Substantial expenses
have been incurred by this Agency and by the parties
because of the failure to strike the testimony of the
dischargees. Previously, my colleagues expressed a
proper concern for the expenditure of this Agency's
funds in Modine Manufacturing Company, 203 NLRB
527 (1973). In that case they stated:
We must, for example, consider the prudent hus-
bandry of the funds appropriated to us for admin-
istering this Act, and also the effect on our
promptness in handling not only the matter before
us but also the handling of the myriad other mat-
ters regularly brought to us for action by citizens
entitled so to do.
The concern for our resources which was articulated
by my colleagues in Modine is also applicable here. I
9 On cross-examination, Dias admitted that he had spent about 2 hours
of working time painting the picture of the marijuana plant on the toolbox
325
perceive no justification for expending our funds and
burdening our decision-making processes where dis-
chargees refuse to answer proper cross-examination
questions relevant to a respondent's defense.
Here, my colleagues avoid deciding what they de-
scribe as a "constitutional" issue" by concluding that
the complaint allegations have no merit. They chide me
for ruling that the testimony of the alleged 8(a)(3) dis-
criminatees should have been stricken at trial. In my
view, this issue should be decided. What guidance do
my colleagues give to our Administrative Law Judges,
to members of the bar, and to witnesses in our trials by
avoiding the issue? How much more unnecessary litiga-
tion and expenditure of funds must take place for my
colleagues to reach the issue and decide it?
However, even without striking their testimony, I
agree with the majority that Weese and Dias were not
discharged in violation of Section 8(a)(3) and (1) of the
Act. To conclude that these discharges were "suspi-
ciously timed" without any evidence of a desire on the
part of the Respondent to rid itself of union adherents
is to engage in bootstrapping which would eliminate
the requirement to prove an illegal motive. Absent a
basis for finding such animus as would warrant the
inference that the Respondent would resort to dis-
charging employees in order to rid itself of union advo-
cates, the Administrative Law Judge's belief that the
reasons given were not the true grounds for termination
is irrelevant.
The Administrative Law Judge also reasoned that,
because Leadman Jerry Dias was aware of the painting
for several months, Weese's painting of a picture of a
marijuana leaf on a company toolbox was not a reason
for Assistant General Manager and Production
Manager Christensen's decision to discharge Weese.
However, it is undenied that Christensen was not pre-
viously aware of the marijuana leaf painting . Leadman
Jerry Dias' inaction does not establish condonation by
Christensen, nor is the Administrative Law Judge's
view that Leadman Jerry Dias was more responsible
than Weese for the continued presence of the painting
entitled to probative weight.
I join my colleagues in their finding that the Ad-
ministrative Law Judge misallocated the burden of
proof by implying that the burden was on Respondent
to introduce other employees' written warnings in or-
der to support the authenticity of those documents.
However, this same finding should also apply to foot-
note 12 of the Administrative Law Judge's Decision to
the extent that it implies that the burden was on Re-
spondent to introduce shipping records to support its
claim that no trucks were loaded by Weese and Dias on
the morning of February 12.
Moreover, I would dismiss the allegation that Super-
visor Roberts threatened employeee Vargas (in the
326 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
presence of Leadman Camp) in violation of Section
8(a)(1) of the Act when Roberts replied to an inquiry
by Vargas about the consequences of unionization by
saying he would assume that , because Vargas was low
on seniority , he might have a seniority problem if he
joined the Union and that he could be laid off. Even
assuming that the statement is a violation of Section
8(a)(1), it is isolated and technical , involving one super-
visor responding to a query by one employee in a unit
complement of 68 employees and therefore does not
warrant a remedy. American Federation of Musicians,
Local 76 AFL-CIO (Jimmy Wakely Show), 202 NLRB
620 (1973).
For the foregoing reasons I would dismiss the com-
plaint in its entirety.
APPENDIX
NOTICE To- EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with loss of
their jobs because of their membership in or activ-
ity on behalf of United Rubber, Cork, Linoleum &
Plastic Workers Union, Local 703, AFL-CIO, or
any other union.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the
exercise of rights under Section 7 of the Act.
ASC INDUSTRIES, INC
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This case
was heard