North American Fertilizer Company

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 937 (N.L.R.B. 1981)

NORTH AMERICAN FERTILIZER COMPANY
North American Fertilizer Company and Charles
Chilton. Case 9-CA-15148
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 18, 1981, Administrative Law Judge
Lawrence W. Cullen issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and the Respondent each filed exceptions, a sup-
porting brief, and an answering brief.
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.
We agree with the Administrative Law Judge's denial of the Re-
spondent's request that it he awarded costs and fees. The General Coun-
sel's litigation of this case clearly was not frivolous within the meaning of
Tiidee Products, Inc.. 194 NLRB 1234 (1972)
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge:
This case was heard in Louisville, Kentucky, on Decem-
ber 8, 1980.t The charge was filed by Charles Chilton, an
individual (herein called Chilton or the Charging Party),
on April 2. The complaint was issued on May 15, alleg-
ing that North American Fertilizer Company (herein
called Respondent) violated Section 8(a)(l) of the Na-
tional Labor Relations Act, as amended (herein called
the Act), by discharging Chilton on March 10. The sole
issue presented is whether Chilton was discharged be-
cause he engaged in protected concerted activities in-
volved in his complaint to Respondent concerning the
condition of Respondent's customers' trucks which Chil-
ton and other employees were required to load.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the arguments and briefs of the General Counsel
and counsel for Respondent, I make the following:
'All dates are in 1980 unless otherwise stated.
FINDI)INGS O FACT
I. JURISl)ICTION
Respondent is a Kentucky corporation with its princi-
pal office and place of business in Louisville, Kentucky,
and is engaged in the manufacture and sale of fertilizer
and fertilizer products. During the calendar year prior to
issuance of the complaint, Repondent sold and shipped
goods, products, and materials from its Louisville, Ken-
tucky, facility valued in exces of $50,000 to points direct-
ly outside the State of Kentucky. I find that Repondent
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE ALI.EGED UNFAIR l.ABOR PRACTICES
A. The Facts
Chilton was employed by Respondent in April 1979
and worked until March 10 of the following year. His
duties were to load and unload trucks and to assist in the
production and bagging of fertilizer for Respondent.
There were various types of trucks of customers which
he and other employees were required to load. These in-
cluded pickups, horse vans, open-bed trailers, tractors,
and cattle trucks. On March 3, Chilton and another em-
ployee, Sylvester Douglas, went to the office of Re-
spondent and complained to Respondent's accountant,
Steve Beck, with respect to the condition of the cattle
trucks which were filled with manure and which con-
tained racks requiring Chilton and Douglas to walk in
the manure and bend over while loading bags of fertiliz-
er and brush against the manure on the trucks. The farm-
ers who owned the trucks laughed at them when they
were required to do this. Chilton and Douglas requested
that the trucks be cleaned prior to their being required to
load them. These complaints were made in the absence
of Margaret Crady, the president and owner of Respond-
ent.
The condition of the manure on the customers' cattle
trucks continued until March 10 when Chilton went to
the office by himself in the absence of Douglas, who was
not at work that day. He was confronted by Crady, who
inquired as to what he wanted when he asked to see
Beck, and he then explained the matter to her. It ap-
peared to Chilton that Crady became angry when he
told her he was complaining about the condition of the
trucks and being required to work in manure. Chilton
testified that at that time she cut him off and said, "Mr.
Chilton, these farmers pay me, I in turn pay you .... If
you don't like the conditions, punch the clock." At that
time Chilton turned around and went to the office and
asked for his check; Crady told him he would get it on
Thursday (the normal payday) and he left and punched
the clock. He punched the clock shortly after 3 p.m. on
that date, whereas the normal quitting time was 4:30 p.m.
Herman Eastridge, the superintendent in charge of the
employees in the plant, testified that Chilton walked past
him in the plant and said he was going home.' After he
It s as stipulated that Crady als a uperi,or and I find that a',-
tridge Aas al siuperior: I find both to ha.l been ll upcrxlsors litll IhC
meaning of Sec. 2 11) f the Act at all rlc'll t Illo,
258 NLRB No. 122
937
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
left the job that day he talked later that evening to
Douglas and told Douglas that he thought he had lost
his job or had been fired. Douglas told him that he
should go back to work the following morning, that ev-
erything would be all right, and that Douglas would pick
him up for work the next morning.
The next morning Chilton he did go to work with
Douglas and another employee, Charles Gordon. On
their arrival at the plant they went to the rack where
their timecards were normally placed, and, although
Gordon's and Douglas' timecards were there, Chilton's
was not. Gordon and Douglas both corroborated Chilton
on his concern as to whether he had a job and also on
the absence of Chilton's timecard from the rack. After
having looked around for his timecard in the rack, Chil-
ton then went to the office of Eastridge. Eastridge was
not there at that time and Chilton left and returned
home. Shortly before 8 a.m., Chilton telephoned Eas-
tridge and inquired whether Eastridge had any knowl-
edge concerning his timecard. Chilton testified that there
was a lull in the conversation and that Eastridge then
told him that he had nothing to do with the matter. Ac-
cording to Eastridge, he suggested that Chilton talk to
Crady concerning the matter. Chilton denies that this
suggestion was made. Eastridge testified that he did not
check to see whether Chilton's timecard was in the rack
although the rack was a short distance from his desk at
the time.
The next contact that Chilton had with Respondent
was on Thursday when he went to the office to pick up
his check. He was paid up to the afternoon of March 10
at 3 p.m. when he had clocked out. Chilton testified that
he did not believe that he was fired for having com-
plained about the manure but that he was fired for leav-
ing work on March 10 instead of loading the truck with
manure on it. Chilton acknowledged that when he left
on the afternoon of March 10 he felt that he could go
back to his job if he were willing to load cattle trucks
with manure on them.
Beck testified that Douglas and Chilton had filed a
complaint with him concerning the condition of the
trucks on March 3 and at that time Douglas had done
the majority of the talking. He testified further that on
March 10 Chilton came into the office and told Crady
that he was not going to work in the trucks, and Crady
explained to him about how the farmers bring their
trucks in and that was the way it was and that he could
either work or punch the clock, whichever he wanted to
do. Beck testified that the timecards were put on his desk
the following Wednesday morning by the night watch-
man (who pulls them on a Tuesday night) and that Chil-
ton's timecard was in the stack of cards.
Crady testified that on March 10 Chilton came into
the office and was complaining concerning having to
load the trucks with manure and that she told Chilton
that "the man whose truck was sitting there paid me and
I in turn paid you," and told him he could do as he
pleased. She denied having told him to punch the clock.
At that point, Chilton turned, walked away, and did not
come back into the office and she assumed that he had
left. Crady testified that she did not know at that point
whether Chilton had clocked out and that she had as-
sumed that he had gone back to work but he, in fact, had
not done so. Crady testified that the next morning
(March 11) when she came to work Eastridge told her
that Chilton had called and was not at work. Crady testi-
fied that when she came to work that morning she did
not know whether Chilton had quit and testified also
that she did not discharge him. Chilton did not return to
the office until the following Thursday when he picked
up his paycheck. There was no discussion at that time.
Chilton has never offered to return to work.:'
B. Contentions of the Parties
Based on the above testimony, the General Counsel
contends that Respondent discharged Chilton because he
engaged in protected concerted activity by complaining
to Respondent concerning the condition of the manure
on the cattle trucks. The General Counsel contends that
Crady's direction to Chilton to punch the clock was the
equivalent of a discharge, and that, if there were any
questions concerning this, Chilton's inability to find his
timecard the following morning and the evasive answers
of Eastridge that he knew nothing about the matter con-
firms the fact of a discharge in this case. Respondent
argues that Chilton was not discharged but left on his
own accord and was not engaged in protected concerted
activity.
C. Analysis and Conclusions
I credit Chilton's testimony that he was told by Crady
that he should punch the clock if he did not like the con-
ditions and that his timecard was not in the rack the next
day. Beck also testified that Crady had told Chilton to
work or punch the clock. I also credit Chilton's testimo-
ny that Eastridge stated that he knew nothing about the
matter in response to Chilton's phone call the next day
and that Eastridge did not suggest that Chilton talk to
Crady. I find that Chilton was engaged in protected con-
certed activity on behalf of himself and his fellow em-
ployees when he voiced his complaint to Crady on
March 10. However, I do not find that a violation of the
Act has occurred in this case, as there is no evidence
whatsoever in the record to support the General Coun-
sel's contention that Chilton was discharged. Although I
credit Chilton's testimony that Crady made the statement
attributed to her by Chilton ("Mr. Chilton, these farmers
pay me, I in turn pay you .... If you don't like the
conditions, punch the clock"), this statement did not con-
stitute a discharge. Rather, Crady was informing Chilton
that the conditions (the manure in the trucks) would not
change, and that he must continue to work under those
conditions as he had in the past. Thus, Chilton was given
the opportunity to continue to work under these condi-
tions. There was no evidence of any follow through or
overt act on the part of Respondent to discharge Chil-
ton. Accordingly, I find that Crady's remarks to Chilton
did not constitute a discharge.
' The above is a comllpOsile of the testimrony of Ihe itnesses in the
case Lhich is credited except as hereinafter nolted. he itnexses ere
sequestered with the exception of Chilto and Crady.
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NORTH AMERICAN FERTILIZER COMPANY
When Chilton left at 3 p.m. on March 10, he did so on
his own volition. Moreover, the inability of Chilton to
find his timecard in the rack the following morning and
Eastridge's statement that he knew nothing about the
matter did not constitute a discharge. Although Chilton's
inability to find his timecard may have caused him con-
fusion, Chilton testified that at the time he left the office
he did not consider himself to be discharged for having
complained about the manure on the trucks, and believed
he could have returned to work if he were willing to
accept the condition of the manure on the trucks.
Rather, he felt he was discharged for having left his job.
This case is inapposite to Hale Manufacturing Co., Inc.,
228 NLRB 1011 (1977), relied on by the General Coun-
sel, wherein the employer said, "There just isn't any way
I am paying it; you are all going to have to go home." In
the Hale case, the employees were left no choice but
were given an unconditional direction to go home, and
the Board found a violation. Rather I find the case of
Con-Plex, Division of U.S. Industries, Inc., 200 NLRB 466
(1972), cited by Respondent, to be in point. In the Con-
Plex case the Board found no violation when the em-
ployees walked off the job to protest the refusal of the
employer to allow them to light fires to keep warm.
They returned the next day and were asked whether
they would work without fires; they replied in the nega-
tive and, upon being told again that there would be no
fires, they left. The Board found no violation and found
that the employees were economic strikers who had not
made an unconditional offer to return to work and thus
dismissed the complaint. See also Valley Bakery, 226
NLRB 532 (1976), wherein the Administrative Law
Judge found that the employer had not discharged the
employee by the words "all right, if you're going to be
that way, you better go home" in response to an outburst
by the employee.
Considering all the foregoing, I find and conclude that
the General Counsel has failed to establish a prima facie
case of a violation of Section 8(a)(1) of the Act.4
CONCLUSIONS OF LAW
Respondent North American Fertilizer Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. Respondent did not, by
its president, Margaret Crady, unlawfully discharge
Charles Chilton. Respondent did not violate Section
8(a)(l) of the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 5
The complaint is hereby dismissed in its entirety.
' Respondent made motions to dismiss on the record. I make my deci-
sion herein on the basis of the entire record and not on the basis of any
segment of the evidence. To that extent, Respondent's motions are
hereby denied. Respondent has requested that it be awarded its costs and
fees on the ground that the General Counsel has engaged in frivolous liti-
gation and cites Tiidee Products, Inc., 194 NLRB 1234 (1972), in support
thereof. I find that the issues presented in this case were properly litiga-
ble issues and that the prosecution of the complaint by the General Coun-
sel was not frivolous and, accordingly, I deny Respondent's request that
it be awarded its costs and fees. I also find that there is no evidence that
the General Counsel was not substantially justified in prosecuting the
complaint. (5 U.S.C. §504, et seq.; Public Law 96-481, Oct. 21, 1980.)
' 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 find-
ings, conlclusions, 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.
939