Petition for Writ of Certiorari — Uniglass Industries v. National Labor Relations Board
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7 if Supreme Court, US.
. FILED
96-47
| JUL 15 1986
JOSEPH F. SPANIOL, JR.
CLERK
No.
In The
Supreme Court of the United States
October Term, 1986
UNIGLASS iNDUSTRIES,
A DIVISION OF
UNITED MERCHANTS AND MANUFACTURERS, INC.,
Petitioner,
vs.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For The Second Circuit
David C. Hagaman
Clark, Paul, Hoover & Mallard
600 Sussex Place
148 International Blvd., N.E.
Atlanta, Georgia 30303
(404) 522-7500
Counsel for Petitioner
Pandick Technologies, Inc., 1360 Peachtree St., Atlanta, Georgia 30309 404-874-1620
1.
QUESTIONS PRESENTED
Whether the six-month limitations period of
§ 10(b) of the National Labor Relations Act
bars issuance of a compiaint alleging an illegal
refusal to rehire based upon an antinepotism
policy when the sole foundation for the
complaint is an alleged unfair labor practice that
occurred at the time the antinepotism policy was
implemented more than six months before the
charge was filed?
Whether the Court below was correct in
holding the six-month limitations period of
§ 10(b) of the National Labor Relations Act was
equitably tolled until such time as the Company
communicated to the rehire applicants the
precise reason they were rejected for rehire each
month they reapplied?
li
LIST OF PARTIES
Petitioner’s Rule 28.1 list of parent companies,
subsidiaries, and affiliates appears in the Appendix
submitted as part of this Petition at page A-59.
ill
TABLE OF CONTENTS
Page
CQUBSTIOINS PRESTO «wc ssa cnccecencesn i
Fo igs &. | | ere re re ) ii
ey 8 Gf rrr rr eer 1
PE IE v's a von ds ek suc n ee st ee eas 3
gv euii) Bt, Bena aera trae 3
“{e,¥i. 208 de. Se ere 5
REASONS FOR GRANTING THE WRIT ......... 13
I. The Court of Appeals, erroneously and
in conflict with this Court’s decisions,
decided an important § 10(b) question
of law that significantly affects the
administration of the Act ............. 13
Il. This is an important case concerning
equitable tolling issues this Court
should resolve to promote proper
administration and enforcement of
fF ge Serer r er cee 19
ee | ere errr eee eee 22
iV
Page
Delaware State College v. Ricks, 449 U.S. 250
Lo REE AYpad ills city re elite ne eee 10,18
General Marine Transport Corp. v. NLRB,
619 F.20 180 (2d Cir. 1960) ............ 20
Klemens v. Air Line Pilots Association, Int’l,
736 F260 41 Gm Cer. 1986) ............ 20
Local 1104, Communications Workers v. NLRB,
eo ee Fey Le a.) ee 21
Local Lodge No. 1424, International Association
of Machinists (Bryan Manufacturing Co.)
v. NLRB, 362 U.S. 411 (1960) ..... wees 11
Mang v. Blumenthal, 26 FEP Cases 1353
Pe IE nos 4 ooo eb ek aaa kes 9
Nazareth Regional High School v. NLRB,
San TF .se ers Coe Ge. W977) ..........>- 21
Nilsen v. City of Moss Point, Mississippi,
Gzi F.26 117 (5m Cw. 1900) ............. 20
NLRB y. California School of Professional
Psychology, 583 F.2d 1099
ee he ho eek Wk keane 6 20
NLRB vy. Don Burgess Construction Corp.,
S96 F260 378 Cm Cir. 1979) ............. 19
NLRB v. Local 30, International Longshoremen’s
and Warehousemen’s Union,
oan Fae Gee Ge CH. 1977)... 2. 0 oe 20
United Airlines, Inc. v. Evans,
ee RB Be | eae 16
Vallone v. Local Union No. 705,
International Brotherhood of Teamsters,
(oh & be Be Le ae .) Seren 20
Wright Line, Inc., 251 NLRB 1083 (1980),
enforced, 662 F.2d 899 (ist Cir. 1981),
cert. denied, 455 U.S. 989 (1982) ........ 12
Statutes Cited
eo | 3
ee ae 5
90 U.S.C. § 158@)(1) ...................... 3
oe 3,5,6,12
v1
29 U.S.C. § 158(a)(4)
29 U.S.C. § 160(b)
(inves Sek ewe ees 4,5,7,10,11,13,14
15,16,17,18,19
21,22
No.
In The
Supreme Court of the United States
October Term, 1986
UNIGLASS INDUSTRIES,
A DIVISION OF
UNITED MERCHANTS AND MANUFACTURERS
INC.,
Petitioner,
VS.
NATIONAL LABOR RELATIONS BOARD.
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For The Second Circuit
The Petitioner, Uniglass Industries, respectfully prays
that a writ o: certiorari issue to review the Order of the
United States Court of Appeals for the Second Circuit
rendered April 17, 1986.
OPINIONS BELOW
The Court of Appeals issued its Order in a unreported
opinion, affirming and enforcing an Order of the National
Labor Relations Board. The Board’s Order was issued
—
September 24, 1985, and is reported at 276 NLRB No. 35
(1985). This Order affirmed the decision of the
Administrative Law Judge. The unreported Order of the
Court of Appeals, the Board’s Decision and Order, and the
Administrative Law Judge’s Decision appear in the
Appendix submitted as part of this Petition.
~~
JURISDICTION
The judgment of the Court of Appeals was entered
April 17, 1986. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
STATUTES INVOLVED
United States Code, Title 29:
§ 158(a)(1):
It shall be an unfair labor practice for an
employer to interfere with, restrain, or coerce
employees in the exercise of the rights
guaranteed in § 157 of this title... .
§ 158(a)(3):
It shall be an unfair labor practice for an
employer by discrimination in regard to hire or
tenure of employment or any term or condition
of employment to encourage or discourage
membership in any labor organization. .
§ 158(a)(4):
It shall be an unfair labor practice for an
employer to discharge or otherwise discriminate
against an employee because he has filed
charges or given testimony under this
subchapter... .
§ 160(b):
[N]o complaint shall issue based upon any
unfair labor practice occurring more than
six months prior to the filing of the charge with
the Board and a_ service of a copy
thereof upon the person against whom such
charge is made... .
~~
STATEMENT OF THE CASE
I. Nature of the Case and Proceedings Below'
On October 17, 1983, the Union filed an unfair labor
practice charge alleging the Company violated §§ 8(a)(1),
(3) and (4) of the Act; that since January 25, 1982, (a date
almost three months outside of the six-month limitation
period) the Company refused to recall from layoff or
rehire Jeanette Pegram; since March 15, 1982, (a date one
month outside of the limitation period) the Company
refused to recall from layoff or rehire Charles Pegram,
Elaine Honeycutt, and Jesse Levan; and since June 16,
1983, the Company discriminatorily discharged Jeffrey
Smith.2 The charge was later amended by the Union on
December 2, 1983, the same day the Board issued the
Complaint, to allege the refusals to recall or rehire Elaine
Honeycutt and Charles and Jeanette Pegram occurred on
April 20, 1983, (a date exactly one day within the
limitations period in § 10(b) of the Act). The Board
issued a Complaint alleging, inter alia, the Company
discriminatorily refused to rehire Honeycutt and the
' For convenience, the Administrative Law Judge is
hereinafter referred to as the “ALJ”; Petitioner is
hereinafter referred to as the “Company”; Respondent,
National Labor Relations Board, is hereinafter referred to
as the “Board”; and the Amalgamated Clothing and
Textile Workers Union, AFL-CIO, CLC (Charging Party in
proceedings before the Board) is hereinafter referred to as
the “Union”. References to the “Act” are to the National
Labor Relations Act, as amended, 29 U.S.C. § 141, et seq.
2 The allegation oa discrimination against Jesse
Levan was not included in the Complaint, and the finding
that the Company discriminatorily discharged Jeffrey
Smith is not at issue in this Petition.
~~ yo
Pegrams on or about April 20, 1983, and discriminatorily
discharged Jeffrey Smith on June 16, 1983.
The case was tried before Board ALJ Hutton S.
Brandon on April 24, 25, and 26, 1984, and decided by
him on August 3, 1984. The ALJ found the Company had
committed unfair labor practices within the meaning of
§§ 8(a)(1), (3), and (4) by refusing to rehire Elaine
Honeycutt, Charles Pegram, and Jeanette Pegram and by
discharging Jeffrey Smith. The Cornpany filed exceptions
to the ALJ’s decision. On September 24, 1985, the Board
issued its Decision and Order affirming the ALJ’s rulings,
findings, and conclusions and adopted the recommended
Order. The Company petitioned the United States Court
of Appeals for the Second Circuit to set aside the Board’s
Order, and the Board filed a cross-application for
enforcement. On April 17, 1986, the Court of Appeals
denied the Company’s petition for review and enforced the
Board’s Order.
II. Statement of the Facts?
Elaine Honeycutt, Charles Pegram, and Jeanette
Pegram were among a group of approximately 150
employees laid off by the Company in 1982 because of
poor business conditions. After being laid off for more
than six months, they were subsequently terminated
according to Company policy. They immediately
3 Petitioner recites only facts that pertain to the statute
of limitations issues raised in this Petition.
me
submitted new applications, but were not rehired because
the Company had no openings at that time. They updated
their applications :..onthly.
In early 1983 the Company’s business improved, and
the Company was flooded with applications from former
employees and prospective new hires. The Company
received over 1600 applications in 1983, including almost
600 by the end of April. From 271 applications submitted
in January and February of 1983, including 64 applications
from former employees, the Company filled 35 jobs.
Honeycutt, who had an application on file, was not hired
in January or February 1983 because the Company hired
more qualified, former employee applicants into her
former position. Charles Pegram was not hired in January
or February 1983 because he had specifically requested his
old job on second shift, and the only positions filled in his
former job were by rehires to the first and third shifts.
Jeanette Pegram was not hired in January or February
1983 because the Company hired a former employee for
the only job that came open for which she was qualified.‘
During this period of expanding business and
substantial hiring, the Company, for entirely legitimate
business reasons, reimplemented an antinepotism policy
4 Over the Company’s objection, the ALJ allowed
Counsel for General Counsel to introduce evidence that
the refusals to rehire the three alleged discriminatees in
early 1983 violated the Act even though the refusals to
rehire were outside of the § 10(b) limitations period. The
ALJ’s decision, enforced by the Board, states but makes no
specific finding that prior to the reimplementation of the
antinepotism policy the positions for which the Pegrams
and Honeycutt were qualified were filled by rehires who
were better qualified.
~~
that had been dormant for many years.6 Among other
things, the policy prohibited hiring immediate family
members of management. Incumbent employees related
tO management were not discharged but were
“grandfathered” in under the policy. This was the same
approach taken when the antinepotism policy was first
adopted. The policy was reimplemented in the latter part
of February 1983. The policy was communicated to all
Company managers, supervisors, and personnel
representatives. The policy was enforced uniformly
without exception from that point forward.®
Elaine Honeycutt and Charles and Jeanette Pegram
continued to update their applications monthly during early
1983. Elaine Honeycutt was not rehired for openings to
her former job during January or February 1983 because
the Company hired more qualified applicants. She was
not hired after February 1983 because of the reinstitution
of the antinepotism policy since her father was a
supervisor and her hiring would have violated the
reinstituted policy, which was uniformly enforced to deny
jobs to all applicants related to management. Charles and
6 The policy was revived when the increased hiring
began in February 1983 when a manager asked the
Company to hire his son, and the Company decided that
hiring immediate relatives of management created
conflicts of interest, favoritism, discipline problems, and
inconsistent treatment that the Company wanted to avoid.
¢ In addition to the alieged discriminatees, six other
applicants related to management were denied
employment due to the reinstituted antinepotism policy,
three in March 1983 and one each in July, August, and
September 1983.
—
Jeanette Pegram were not hired in January or February
1983 for reasons found by the Board to be
non-discriminatory. They were not hired following the
reinstitution of the antinepotism policy because they were
immediate family members of supervisors Buford Clanton
and Rayford Clanton.
When Elaine Honeycutt came by the plant to update
her application, she was told the Company had no job
openings for her and that she could continue updating her
application.7 In June 1983 Honeycutt requested a meeting
with the Company’s personnel manager to ask why she
had not been rehired when the Company had hired persons
into her former position. The personnel manager told her
the Company had reinstituted its antinepotism policy in
February 1983 and that she would not be rehired because
she was a relative of management. On numerous
occasions when the Pegrams came to the plant to update
their applications in early 1983, they were told by
Company representatives the Company had no jobs for
them. Charles Pegram was told in January, February, and
March 1983,“... [T]here wasn’t no openings; they was
claiming they didn’t have no openings time and again, that
it wan’t (wasn’t) no use to come back.” The Pegrams
nevertheless continued to update their applications until
the Company’s personnel manager saw them in the
personnel department in October 1983 and invited them
7 Company policy permitted all applicants, including
rejected applicants, to update their applications monthly.
The evidence showed the Company never refused to accept
an application or prohibit an individual to update an
application because of efforts to comply with federal civil
rights laws. See, Mang v. Blumenthal, 26 FEP Cases 1353
(W.D. Pa. 1981).
— oo
into his office. He told them they would not be rehired
because the Company had reinstituted the antinepotism
policy which covered them as immediate family members
of management.
III. The Board’s Disposition of the Question Whether the
Six-Month Limitations Period in § 10(b) of the Act
Barred Issuance of the Complaint
Since the critical event--the Company’s promulgation
of the antinepotism policy and later application of the
policy to bar rehiring Elaine Honeycutt and Charles and
Jeanette Pegram--occurred more than six months before
the filing of the unfair labor practice charge, the Company
challenged the timeliness of the Board’s Complaint. At the
start of the hearing, the Company moved to exclude all
testimony regarding promulgation of the antinepotism
policy and evidence on hiring decisions made by the
Company outside of the limitations period. Counsel for
General Counsel argued that the antinepotism rule was
discriminatorily instituted and that the Company
discriminated against the alleged discriminatees by
refusing to rehire them outside of the limitations period
even before the institution of the antinepotism rule.
Counsel! further stated that although no specific finding of
a violation could result from the introduction of evidence
outside the limitations period, the ALJ should admit the
evidence as background. Overruling the Company’s
objection, the ALJ allowed Counsel for General Counsei to
introduce as background evidence that the implementation
of the antinepotism policy and hiring decisions made
outside the limitations period were iliegal. The ALJ
—
qualified his ruling stating although such evidence was
admissible, he would not predicate a finding of an unfair
labor practice within the six-month limitations period on
such background evidence.
The Board found that issuance of the Complaint was
not barred by the running of the six-month limitations
period. In the Board’s view, the Company’s § 10(b)
“procedural” defense and reliance upon Local Lodge
No. 1424, International Association of Machinists (Bryan
Manufacturing Co.) v. NLRB, 362 U.S. 411 (1960), was
misplaced. The Board held that § 10(b) is subject to
equitable tolling and that the six-month limitations period
did not begin to run until Honeycutt and the Pegrams were
put on actual or constructive notice they were not eligible
for rehire. The Board found it was not until June and
October, 1983, dates within the limitations period, that
Honeycutt and the Pegrams were told they would not be
rehired because of the antinepotism policy. Consequently,
the Board held the Union’s charge was timely.
The Court of Appeals found the charge was timely
filed and enforced the Board’s Order. Neither the Board
nor the Court of Appeals addressed the Company’s
arguments, advanced pursuant to Bryan Manufacturing’s
two-situation test, that the ALJ erred as a matter of law in
allowing Counsel for General Counsel to introduce pre-§
10(b) evidence that the antinepotism policy was unlawfully
implemented and then in relying on the time-barred
evidence to prove an illegal refusal to rehire within the
limitations period.
—
IV. The Board’s Ultimate Findings as to the Merits of
the Unfair Labor Practices Alleged
On the mer'ts, the Board found the critical issue raised
by the refusal to rehire allegation was “whether the return
to the [antinepotism] rule or policy was prompted by
Respondent’s desire to avoid rehiring union supporters.” It
observed that, according to the dictates of Wright Line, Inc.,
251 NLRB 1083 (1980), enforced, 662 F.2d 899 (1st Cir.
1981), cert. denied, 455 U.S. 989 (1982), the General
Counsel established a prima facie case that the union
activity of Elaine Honeycutt and Charles and Jeanette
Pegram was a motivating factor in the Company’s refusal
to rehire them. Accordingly, the Board concluded the
burden shifted to the Company to demonstrate that it
would not have rehired the three alleged discriminatees
even in the absence of their protected conduct.
The Board first examined whether the Company’s
antinepotism policy was discriminatorily implemented
inasmuch as the policy was the sole basis for refusing to
rehire Honeycutt and the Pegrams within the limitations
period. While initially concluding the Company’s
antinepotism policy was based upon “some very obvious
and legitimate purposes,” the Board concluded it was
discriminatorily implemented in late February 1983. Thus,
finding illegality in the February 1983 promulgation of the
antinepotism policy even though outside of the § 10 (b)
period, the Board concluded the Company violated
§§ 8(a)(3) and (4) of the Act by enforcing the policy
against Elaine Honeycutt and Charles and Jeanette Pegram
when they updated their applications each month within
the limitations period or since April 20, 1983.
—_— en
REASONS FOR GRANTING THE WRIT
I.
The Court of Appeals, erroneously and in conflict
with this Court’s decisions, decided an important
§ 10(b) question of law that significantly affects
the administration of the Act.
1. The decision below conflicts with this Court’s
holding in Bryan Manufacturing. In Bryan Manufacturing, a
union committed an unfair iabor practice by entering into
a collective bargaining agreement containing a union
security clause when it did not represent a majority of the
employees in the appropriate unit. Ten to twelve months
after the execution of the agreement charges were filed
with the Board. The Board contended that the execution
and continued enforcement of the bargaining agreement
constituted independent unfair labor practices. The Board,
while conceding that § 10(b) barred any complaint based
upon the execution of the alleged illegal agreement,
contended that evidence as to the execution was
admissible and relevant as background to determine
whether conduct within the limitations period was
unlawful. This Court disagreed holding that the General
Counsel’s complaint was time-barred. This Court held that
continued enforcement of the contract was not an unfair
labor practice without reference to the unlawful execution
that occurred more than six months prior to the filing of
the charge. This Court also rejected the Board’s position
that § 10(b) is a statute of limitations and not a rule of
—"
evidence and fashioned a two-situation test to determine
the admissibility of events outside the limitations period as
bearing upon alleged violations within the limitations
period:
The first is one where occurrences within the
six-month limitations period in and of
themselves may constitute, as a substantive
matter, unfair labor practices. There, earlier
events may be utilized to shed light on the true
character of matters occurring within the
limitations period; and for that purpose, § 10(b)
ordinarily does not bar such evidentiary use of
anterior events. [Footnote omitted.] The second
situation is that where conduct occurring within
the limitations period can be charged to be an
unfair labor practice only through reliance on
an earlier unfair labor practice. There, the use
of the earlier unfair labor practice is not merely
“evidentiary,” since it does not simply lay bare
a putative current unfair labor practice. Rather,
it serves to cloak with illegality that which was
otherwise lawful. And where a complaint based
upon that earlier event is time-barred, to
permit the event itself to be so used in effect
results in reviving a legally defunct unfair labor
practice.
Id. at 416-417.
The facts of this case fall squarely within Bryan
Manufacturing’s second situation. The controlling
time-event in this case is the Company’s implementation
of the antinepotism policy in February 1983, two months
| =
outside of § 10(b)’s limitations period. This time-barred
event is the entire foundation for the refusals to rehire that
occurred within the limitations period. Absent that fact,
the Company’s enforcement of a facially neutral and
otherwise valid antinepotism policy was wholly legal, for
the Board never concluded the policy itself was
discriminatory, only that it was promulgated for unlawful
reasons. Nevertheless, the Board relied upon its conclusion
that the antinepotism policy was illegally implemented not
as mere background, but as the sole evidence upon which
it found a refusal to rehire violation within the limitations
period. The time-barred event was given exclusive
significance by the Board since an unfair labor practice
based upon the Company’s refusal to hire could not be
made out within the limitations period except by reliance
on, the policy’s original unlawful promulgation. Even
assuming the Board correctly found the antinepotism rule
was unlawfully promulgated, the finding has no legal
effect because the rule was promulgated outside the §
10(b) period. Moreover, all the evidence showed it was
applied neutrally within the § 10(b) period. Thus, the
policies underlying § 10(b) and the rule of evidence
established by this Court in Bryan Manufacturing have been
violated by the Board’s reviving a defunct unfair labor
practice and converting an otherwise legal refusal to rehire
into something illegal.
8 In fact, at the beginning of his analysis on the merits
of the unfair labor practice allegations, the ALJ clearly
indicated his intent to rely on time-barred evidence to find
a violation within the period when he stated, “The issue
here is whether the return to the rule or policy was
prompted by Respondent’s desire to avoid rehiring of
union supporters.”
a tx
2. The Board’s decision the Company illegally
refused to rehire the alleged discriminatees within the
limitations period pursuant to an illegally promulgated
antinepotism policy in effect holds that the Company’s
continued enforcement of the antinepotism policy was a
continuing violation, a result proscribed by this Court’s
decisions. The Board concluded the Company’s sole basis
for refusing to rehire the alleged discriminatees was
because they were relatives of management and not
eligible for rehire under the antinepotism policy. In this
context, the three were refused reemployment each month
they updated their applications. The Board’s holding in
effect invokes a doctrine of continuing violation. As this
Court stated in Bryan Manufacturing, even though the
Board’s ruling did not rest on a formal finding that the
execution of the policy amounted to an unfair labor
practice, were that not in fact the case, enforcement of the
policy would carry no taint of illegality. Thus, the Board’s
vice herein is the “particular use of the pre-limitations
facts” at which § 10(b) is aimed to find a continuing
violation within the limitations period contrary to this
Court’s holding in Bryan Manufacturing.
The effect of the Board’s holding in this case creates
an erroneous precedent and conflicts with this Court’s
holdings in Delaware State College v. Ricks, 449 U.S. 250
(1980), and United Airlines, Inc. v. Evans, 431 U.S. 553
(1977), which rejected claims of continuing violations. In
both cases, complainants advanced a claim, similar to the
allegations advanced herein, that time-barred illegal
conduct and its effects caused them harm within the
limitations period. The reasoning in United Airlines is
particularly applicable to this case. There, this Court found
that United’s seniority system, though giving some present
—
effect to a past act of discrimination, was neutral in its
operation. Finding United was entitled to treat its past act
as lawful after complainant failed to pursue a claim within
the limitations period, this Court reasoned as follows:
A discriminatory act which is not made the
basis for a timely charge is the legal equivalent
of a discriminatory act which occurred before
the statute was passed. It may constitute
relevant background evidence in a proceeding
in which the status of a current practice is at
issue, but separately considered, it is merely an
unfortunate event in history which has no
present legal consequences.
Id. at 558.
The Board found the Company’s reimplementation of
the antinepotism policy outside the § 10(b) period was
discriminatory, then proceeded to rely on this finding to
support its conclusion that, within the § 10(b) period, the
Company illegally refused to rehire Honeycutt and the
Pegrams pursuant to the policy. The Board’s giving legal
significance to the reimplementation of the policy, a
time-barred event, directly contravenes this Court’s dictate
in United Airlines that such an event is “merely an
unfortunate event in history which has no _ legal
consequences.” The Board’s decision and the Court of
Appeals’ affirmation of the Board’s decision thus directly
conflict with a prior decision of this Court.
3. | The Company concedes it did not specifically
inform Honeycutt and the Pegrams until within the
limitations period that their applications were being
«<a
rejected each month they reapplied due to the antinepotism
policy. The Board, however, never accurately focused on
the actual “unlawful employment practice” charged in the
Complaint as required by Delaware State College v. Ricks,
449 U.S. at 257. The original unfair labor practice charge
filed by the Union, not by the alleged discriminatees,
charged the Company with “refusing to recall from layoff
or to rehire” Elaine Honeycutt and Charles and Jeanette
Pegram. The Board’s Complaint alleged the Company’s
unlawful employment practice was a refusal to rehire. At
trial, Counsel for General Counsel stated she intended to
prove the Company discriminated against the three
applicants in January and February 1983 (outside the
limitations period and prior to the institution of the
antinepotism rule) when they were passed over for job
Openings in their former classifications. In its Brief to the
Court of Appeals, the Board argued that “Substantial
evidence supports the Board’s finding that the Company
retaliated against this known protected activity by refusing
to rehire the three when positions first became available
for which they were qualified.” Much of the testimony in
this case was offered by Counsel for General Counsel to
prove the Company discriminated against the three
applicants prior to the institution of the antinepotism rule
and outside the limitations period. Counsel for General
Counsel was allowed to admit evidence, including a list of
Company hires back to 1982, to prove her stated position
there was discrimination which preceded the § 10(b)
period. The Company spent a substantial portion of the
trial and in its brief to the ALJ defending against that
~—
allegation.® All parties to this case agree that the three
alleged discriminatees applied for rehire each month
outside the limitations period, but were not rehired into
jobs for which they were otherwise qualified, arguably an
unfair labor practice within the plain meaning of the
“refuse to rehire” Complaint allegation. In sum, these
facts show that the initial “unlawful employment
practice”--the refusal to rehire as alleged in the
Complaint--occurred in January and February 1983
outside of the limitations period. Therefore, either the
three were arguably discriminated against outside of the
limitations period by an illegal refusal to rehire as alleged
in the Union’s charge, the Board’s Complaint, by Counsel
for General Counsel, and the Board, or they were not. If
they were, then the charge alleging a refusal to rehire was
untimely, and the Complaint should have been dismissed.
Il.
This is an important case concerning equitable
tolling issues this Court should resolve to
promote proper administration and enforcement
of § 10(b) of the Act.
The Act’s limitations period in § 10(b) is subject to
equitable tolling as are virtually as statutes of limitations.
As a general rule, federal statutes of limitations begin to
run “when the claimant discovers, or in the exercise of
reasonable diligence should have discovered the acts
constituting the alleged violation.” NLRB v. Don Burgess
Construction Corp., 596 F.2d 378, 382 (9th Cir. 1979).
Courts construing Title VII's limitations period have held
® Approximately 30 percent of the record testimony was
devoted to pre-§ 10(b) allegations.
= yn
that in a refusal to hire context filing periods begin to run
when facts supportive of a charge are or should be
apparent to a reasonably prudent person similarly situated
or upon the happening of events which should have alerted
the average lay person to act to protect his rights. Nilsen v.
City of Moss Point, Mississippi, 621 F.2d 117, 121 (Sth Cir.
1980).
Conceding none of the alleged discriminatees were
told until within the limitations period they were barred
from employment because of the antinepotism policy, the
Company contends equitable tolling was not appropriate in
this case for a number of compelling reasons. The Board
did not find the Company fraudulently concealed the
implementation or application of the antinepotism policy.
Each month the three individuals reapplied, they were
refused employment. They were specifically told there
were no jobs available. The Company communicated to
them a refusal to rehire each month they reapplied.
Therefore, the three individuals could have filed an unfair
labor practice charge to protect their interests each month
the Company refused to rehire them. The record is clear
they knew as early as January 1983 jobs for which they
were qualified were given to other applicants. That is when
they discovered or should have discovered the acts
constituting the alleged violation, i.e. an illegal refusal to
rehire. See, Vallone v. Local Union No. 705, International
Brotherhoed of Teamsters, 755 F.2d 520, 522 (7th Cir.
1985); Klemens v. Air Line Pilots Association, Int’l, 736 F.2d
491, 500 (9th Cir. 1984); General Marine Transport Corp. v.
NLRB, 691 F.2d 180, 188-189 (2d Cir. 1980); NLRB v.
California School of Professional Psychology, 583 F.2d 1099,
1101 (9th Cir. 1978); NLRB v. Local 30, International
Longshoremen’s and Warehousemen’s Union, 549 F.2d 698,
—~—
701 (9th Cir. 1977); Local 1104, Communications Workers v.
NLRB, 520 F.2d 411, 416 (2d Cir. 1975); Nazareth Regional
High School v. NLRB, 459 F.2d 873, 882 (2d Cir. 1977).
Equitable tolling is not appropriate in this case
because the discriminatees’ agent, the Union, as charging
party in this case, had actual knowledge the first alleged
refusals to rehire occurred outside of § 10(b)’s six-month
limitations period. The Union’s first unfair labor practice
charge filed on October 19, 1983, alleged that since
January 25, 1983, the Company refused to rehire Jeanette
Pegram and that since March 15, 1983, it refused to rehire
Elaine Honeycutt and Charles Pegram. Obviously, both
alleged illegal refusal to rehire dates are outside the
limitations period. Significantly, the dates alleged by
charging party prove it knew the first alleged illegal
refusals to rehire occurred outside of the § 10(b) period.
Why else would the charging party Union declare in
writing pre-§ 10(b) dates if it did not believe the initial
illegal refusals to rehire occurred then?° Subsequently,
however, charging party must have realized the statute of
limitations problem because it amended the charge on the
same day the Board issued its Complaint to allege the
refusals to rehire occurred on April 20, 1983,
coincidentally one day within the six-month period from
October 19. April 20, 1983, has no factual significance
other than it is exactly six months prior to October 19.
10 The charge form signed by the Union states “[T}he
statements therein are true to the best of my knowledge
and belief,” and false statements on the charge can be
punished by fine and imprisonment.
Hence, charging party's own documents conclusively
establish it had actual knowledge the unlawful refusal to
rehire occurred outside of the limitations period. This
knowledge should be imputed to the discriminatees.
Charging party’s expedient charge amendment is nothing
more than a subterfuge to mask its actual knowledge that
the initial illegal refusals to rehire occurred outside § 10(b)
and should not defeat the limitations period’s application
to bar issuance of the Complaint.
CONCLUSION
For the foregoing reasons, a writ of certiorari should
issue to review the judgment of the Court of Appeals for
the Second Circuit.
Respectfully submitted,
CLARK, PAUL, HOOVER & MALLARD
By:
David C. Hagaman
600 Sussex Place
148 International Blvd., N.E.
Atlanta, Georgia 30303
404/522-7500
Counsel for Petitioner
APPENDIX
~~
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a stated Term of the United States Court of
Appeals for the Second Circuit, held at the United States
Courthouse in the City of New York, on the 17th day of
April, one thousand nine hundred and eighty-six.
Present:
HONORABLE WALTER R. MANSFIELD
HONORABLE RICHARD J. CARDAMONE
HONORABLE LAWRENCE W. PIERCE
Circuit Judges
UNIGLASS INDUSTRIES, A DIVISION OF UNITED
MERCHANTS & MANUFACTURERS, INC.,
Petitioner-Cross—Respondent,
ORDER
Docket No.
—against- 85-4182(L)
85-4188
THE NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross-Petitioner.
Uniglass Industries, a Division of United Merchants &
Manufacturers, Inc. (Uniglass), brought this action
ow XY, ae
pursuant to § 10(f) of the National Labor Relations Act
(Act), 29 U.S.C. § 160 (1982), to set aside a
September 24, 1985 Order of the National Labor Relations
Board (Board) finding that Uniglass had committed unfair
labor practices in violation of §§ 8(a) (1), (3) and (4). 29
U.S.C. § 158(a)(1), (3), and (4). The Board affirmed the
Administrative Law Judge’s (ALJ) findings. It has filed a
cross-application for enforcement of its Order.
Uniglass operates a plant in Statesville, North Carolina
where it manufactures synthetic fibers. The Amalgamated
Clothing & Textile Workers Union (Union) commenced an
Organizational campaign at Uniglass in early 1980. This
culminated in an election on July 24, 1980, which the
Union lost. Employees Elaine Honeycutt, Charles Pegram,
Jeanette Pegram, and Jeffrey Smith engaged in union
activity at the Uniglass plant in 1980. In early 1981 the
Board conducted a hearing on unfair labor practice
charges arising out of the organizational campaign. Elaine
Honeycutt and Charles Pegram testified at the hearing as
witnesses for the Union. Between January and July 1982
Uniglass laid off the Pegrams and Elaine Honeycutt, and
the employees were terminated pursuant to company
policy after their layoffs. Jeffrey Smith was notified on
June 15, 1983 to meet with his department head to explain
recent absences. Honeycutt came to the meeting to verify
Smith’s illness. Smith’s employment subsequently was
terminated.
The Board found that Uniglass violated § 8(a)(3), (1)
of the Act by refusing to rehire the Pegrams and
Honeycutt, in retaliation for their protected union activities
and by discharging Smith, in retaliation for association
with a union supporter. The Board also found that
Uniglass violated §§ 8(a)(4), (1) by refusing to rehire
Honeycutt and Charles Pegram in retaliation for their
oe
testimony at a Board hearing. Finally, the Board
concluded that Uniglass violated § 8(a)(1) by informing an
employee, Arlene Smith, that Jeffrey Smith would not have
been discharged had he not sought Honeycutt’s assistance,
and by informing Honeycutt that she would not have been
laid off and would have been rehired but for her
involvement in Union activities.
First, we reject Uniglass’ argument that the Board’s
finding of unlawful refusal to rehire is time-barred by the
six-month limitation of § 10(b) of the Act, 29 U.S.C.
§ 160(b). Under the Act, the six-month limitation period
“does not begin to run until the aggrieved party knew or
should have known that his statutory rights were violated.”
Metromedia, Inc. v. NLRB, 532 F.2d 1182, 1189 (8th Cir.
1978); accord NLRB vy. Don Burgess Const. Corp., 596
F.2d 378, 382-83 (9th Cir. 1979); Wis. River Val. Dist.
Council, Etc. v. NLRB, 532 F.2d 47, 53 (7th Cir. 1976).
Here, Uniglass failed to show that Honeycutt or the
Pegrams had actual or constructive knowledge outside the
six-month period that they were barred from
reemployment. The Board found that Honeycutt did not
discover that she was not subject to rehire until June 1983,
when she inquired of Assistant Industrial Relations
Manager Carl Sharpe why she had not been rehired. The
Pegrams learned that they would not be rehired on
October 12, 1983, when they also were notified by Carl
Sharpe. On October 19, 1983 the union filed its charge
aileging a discriminatory refusal to hire. The fact that
other individuals were being hired for positions these
employees had previously held did not serve to put them
on notice that they would never be hired.
Finally, substantial evidence on the record as a whole
supports the Board’s findings that Uniglass violated
§§ 8(a)(3), (1), and in two instances 8(a)(4) of the Act by
ontitllinn
refusing to rehire Honeycutt, and the Pegrams because of
their protected union activities and by discharging
employee Jeffrey Smith because of his association with
Honeycutt. Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951).
Uniglass’ petition for review is denied and
enforcement of the Board’s order is granted.
N.B. Since this
statement does not Walter R. Mansfield, U.S.C.J.
constitute a formal
opinion of this court and
is not uniformly available
to all parties, it shall Richard J. Caradmone, U.S.C.J.
not be reported, cited or
otherwise used in
unrelated cases before
this or any other court. Lawrence. W. Pierce, U.S.C.J.
_S
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS
BOARD
UNIGLASS INDUSTRIES, DIV. UNITED
MERCHANTS & MFRS.
and Case 11--CA--11089
AMALGAMATED CLOTHING AND TEXTILE
WORKERS UNION, AFL--CIO, CLC
DECISION AND ORDER
On 3 August 1984 Administrative Law Judge Hutton
S. Brandon issued the attached decision. The Respondent
filed exceptions and a supporting brief.
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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
‘ The Respondent has excepted to some of the judge’s
credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect,
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing the findings.
a
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law judge and
orders that the Respondent, Uniglass Industries, Div.
United Merchants & Mfrs., Statesville, North Carolina, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Dated, Washington, D.C. 24 September 1985
Donald L. Dotson, Chairman
Patricia Diaz Dennis, Member
Wilford W. Johansen, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
_
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS
BOARD
DIVISION OF JUDGES
BRANCH OFFICE
ATLANTA, GEORGIA
UNIGLASS INDUSTRIES, DIV. UNITED
MERCHANTS & MFRS.
and Case 11--CA--11089
AMALGAMATED CLOTHING AND TEXTILE
WORKERS UNION, AFL--CIO, CLC
Janet M.'Holland, Esq., for the General Counsel.
David C. Hagaman, Esq., (Clark, Paul, Hoover &
Mallard), of Atlanta, GA, for the Respondent.
Mr. Robert E. Freeman, of Kannapolis, NC, for the
Charging Party.
DECISION
Statement of Case
HUTTON S. BRANDON, Administrative Law Judge.
This case was tried at Statesville, North Carolina,
April 24-26, 1984. The charge was filed on October 19,
1983,' by Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC, herein called the Union, and
All dates are in 1983 unless otherwise specified.
wifiiiion
amended on December 2. The complaint and an amended
complaint in the case issued on December 2 and 13,
respectively. The complaint, as amended, alleges that
Uniglass Industries, Div. United Merchants & Mfrs. also,
herein called Respondent or the Company, violated
Section 8(a)(1),(3), and (4) of the National Labor
Relations Act, herein called the Act. The primary issues
are whether Respondent, (a) violated Section 8(a)(3) and
(1) of the Act in discharging its employee Jeffrey Smith
because of his involvement in union or concerted activities,
(b) violated Section 8(a)(4),(3), and (1) of the Act by
refusing to rehire Elaine Honeycutt, Charles Pegram, and
Jeanette Pegram because of their union activities and/or
because they gave testimony under the Act in a prior
proceeding before the Board involving Respondent, and (c)
independently violated Section 8(a)(1) of the Act through
statements of two supervisors to employees to the effect
that the alleged discriminatees were discharged or were
not rehired because of their involvement in union activities
or activities otherwise protected under the Act.
On the entire record, including my observation of the
demeanor of the witnesses and after consideration of the
oral argument at the hearing by the Union and the post
hearing briefs filed by the Generali Counsel and
Respondent, I make the following:
Findings of Fact
I. Jurisdiction
Respondent is a corporation operating a plant in
Statesville, North Carolina, where it is engaged in the
manufacture of synthetic fibers. During the 12-month
period preceding issuance of complaint, Respondent, at its
Statesville plant, received goods and raw materials valued
a, Meprray
ae
in excess of $50,000 directly from outside the State of
North Carolina. During the same period, Respondent
manufactured, sold, and shipped goods valued in excess of
$50,000 from its Statesville plant directly to points outside
the State of North Carolina. On these admitted facts, the
complaint alleges, Respondent admits, and I find, that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. The
complaint also alleges, Respondent admits, and | further
find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
A. Bac und
The union activity alleged to provide the impetus for
Respondent’s actions in the refusals to rehire and the
discharge in this case began among Respondent's
employees sometime in early 1980. All of the alleged
discriminatees herein testified to various activities in
behaif of the Union, and Respondent through Carl Sharpe,
its assistant director of industrial relations, admitted to
knowledge of the Union inclinations and sympathies of
Honeycutt and Charles Pegram. Moreover, both
Honeycutt and Charles Pegram had given testimony
against Respondent in a prior unfair labor practice hearing
before the Board in early 1981. That case was settled by
the parties during the hearing and prior to any decision on
the issues involved.
Respondent’s knowledge of Jeanette Pegram’s union
inclinations could be inferred from the fact that she was
married to Charles Pegram and likely shared his views on
—A-10—
the Union. However, such an inference is unnecessary
because Rayford Clanton, Jeanette’s brother and a
department manager and supervisor for Respondent,
admitted to remarks related in more detail below revealing
Respondent's knowledge that Jeanette in fact shared in her
husband’s union support.
Jeffrey Smith testified that he was active in the union
campaign to the extent of passing out union leaflets,
attending meetings, and wearing a union T-shirt in the
plant. Respondent does not admit to any knowledge of
Smith’s union activity which in any event would have
antedated his most recent period of employment by
Respondent beginning on March 14. However, as detailed
infra, the General Counsel primarily relies upon Smith’s
involvement with known union adherent Honeycutt to
supply the basis for Respondent’s knowledge of his likely
union support and the predicate for retaliatory action
against him.
The record indicates that the Union’s campaign
culminated in an election on July 24, 1980, and the Union
lost. The record does not establish that the old union
campaign was continuing during the period when
Respondent took the alleged discriminatory action herein
or that a new campaign had started at any relevant time.
B. The Refusals To Rehire
1. The material facts
a. Honeycutt
Elaine Honeycutt’s first period of employment by
Respondent began in about 1973. On three separate
occasions she quit. Her fourth and last period of
i eal — ee oe
—A-11—
employment began in September 1978. At the time of her
layoff in July 1982, she was a weaver. Neither the layoff
nor Honeycutt’s selection for layoff was discriminatory.
Under Respondent’s policies in effect at the time of
Honeycutt’s layoff laid off employees retained recall rights
for a period of 6 months.2 Under this policy, Honeycutt’s
recall rights expired in January, and it then became
necessary for her to reapply for c.aployment with
Respondent. She did so in January. Moreover, as
required under Respondent’s policies, Honeycutt
“updated” her application monthly by advising
Respondent’s offices of her continued interest in
employment. Honeycutt testified herein that upon visits or
calls to Respondent to update her application she was told
by Judy Lamberth, then Respondent’s assistant personnel
manager, to rest assured that when a job became available
for which she was qualified she would be called.
Honeycutt was not recalled to work, however, in spite
of the undisputed fact that beginning in February,
Respondent began to hire new employees including six in
Honeycutt’s weaver classification. Additional weavers
were hired in March. Further, seven new employees were
2 Respondent changed this policy July 1983, to extend
recall rights for a full year.
—A-12—
hired in February in the loom fixer classification, a
position in which Honeycutt had received 13 weeks of
training in 1980.3
Honeycutt testified that after becoming aware that
Respondent had employed a large number of employees
she arranged a meeting with Sharpe in June. At the
meeting she asked Sharpe why she had not been recalled.
Sharpe replied that it was because Respondent had decided
to enforce a previously existing policy against hiring
applicants with relatives in Respondent’s management or
supervision. It is undisputed that Honeycutt’s father,
George Honeycutt, was at all material times employed by
Respondent in a position qualifying him as supervisor
within the meaning of the Act. Honeycutt asked Sharpe
why Randy Gardner, a son of a weave room supervisor,
had been hired in February, and Sharpe indicated that the
return to the old policy did not take effect until March 1.5
3 Honeycutt conceded that it takes approximately 26
weeks of training to become proficient in loom fixing. She
was bumped back from the position prior to completion of
her training due to an economic layoff.
4 The policy, appearing in the Employee Handbook
generally distributed to employees, is as follows:
To avoid misunderstandings, no member cf
management shall employ and/or supervise any.
member of his or her immediate family. The
immediate family is defined as a parent, brother,
sister, spouse, child, grandparent or corresponding
in-laws. (This policy does not affect any situations
existing when this policy was established.)
5 When it was decided that the old policy would be
enforced, relatives of management who were already
employed were “grandfathered” in and not discharged.
aii 3—
The remarks attributed to George Honeycutt by his
daughter mark the development of a deep familial rift
caused by Elaine Honeycutt’s union support. Thus, she
testified that prior to her testimony in the earlier Board
proceeding her father asked her not to testify, told her he’d
rather she stay out of the matter, and told her if she
testified she would lose her job and would have to leave
the State to find another one. The day following her
testimony, he told her that she had disgraced him, that
Respondent was going to close its doors, that neither he,
Elaine, nor her sister Wanda, also an employee of
Respondent who worked against the Union, would have a
job. According to Honeycutt, her father repeated these
remarks and made similar remarks on severai subsequent
occasions. More specifically, about 3 weeks following her
layoff, he told her after what she had done and the shame
she had put on him Respondent would never recall her to
work. He further told her that if she hadn’t “run” her
mouth and had not testified, she would still have been
working at Respondent, that her actions had put a black
mark on his name, that she wasn’t worth much, and
probably wouldn’t get another job in town.
The General Counsel contends that Respondent’s
failure to rehire Honeycutt during February when it rehired
other employees and Respondent’s subsequent decision to
enforce its “anti-nepotism” policy were discriminatory
actions designed to avoid reemployment of Honeycutt.
This contention is supported by further uncontradicted
testimony of Honeycutt concerning conversations with
herfather about the union campaign and Honeycutt’s
efforts to be reemployed.
The last remark on this subject attributed by
Honeycutt to her father was made in a telephonic
conversation between the two a month or two prior to the
ttt
hearing herein. Upon her question as to whether she
would be recalled by Respondent, George Honeycutt
ambiguously replied that he didn’t think she would be
called back, not because of the Company but because of
the Union.
Further evidence of Respondent’s animosity toward
Honeycutt due to her union activity was revealed in the
testimony of employee Arlene Smith. She testified about a
conversation she had with Raymond White, Respondent’s
weave division manager, around June 28, regarding the
discharge of Jeffrey Smith, another alleged discriminatee
and Arlene’s son. According to Mrs. Smith, White
reported to her at her work station concerning his post
discharge efforts in behalf of Jeffrey Smith undertaken at
Jeffrey Smith’s request. White told here there was nothing
he could do about the discharge but if he had known about
it before it happened, he could have stopped it. However,
he added that “they were saying” that Jeffrey made an
implied threat to Respondent when he brought Honeycutt
with him when he came to see his supervisors just prior to
the discharge. Mrs. Smith replied that the only purpose
for Honeycutt’s presence was verification of Jeffrey
Smith’s illness which occasioned the absences which in
turn precipitated Smith’s discharge interview. Mrs. Smith,
Jeffrey’s mother, added that her son had initially asked her
to come and verify his illness to his supervisors rather than
Honeycutt but she had declined, and Honeycutt who lived
with the Smiths volunteered. White replied that had
Mrs. Smith come or had Jeffrey come alone he would still
be employed. White added that if one had an argument
one would not go out and get one’s worst enemy to
arbitrate. Mrs. Smith asked White if Honeycutt was his
worst enemy and White answered, “The way she dragged
our ass through court/?7,” and the conversation ended.
—A-15—
Arlene Smith testified regarding two additional
conversations she had with White concerning Honeycutt.
The first was in January when she asked White if
Honeycutt would be hired back. On that occasion, White
said he thought a lot of Mrs. Smith,* and of Honeycutt’s
father, and he would do his best but he had a lot of
opposition from “across the street,” a reference to the
personnel office. Subsequently in March, White reported
to her that he and Wendell Cook, superintendent of
weaving, had “tried” hard to get Honeycutt back but just
weren’t going to be able to do it.
Respondent’s explanation for not recalling Honeycutt
in early February, as related through Sharpe, was that
Respondent hired other former employees in preference to
Honeycutt since they had better work records.
Specifically, in this regard, Sharpe testified that during her
employment, Honeycutt had received 12 “talk sheets” and
4 written reprimands while the others rehired did not have
disciplinary records as bad as Honeycutt. Sharpe’s
explanation for the subsequent failure to recall Honeycutt
was based on Respondent’s decision to reinforce its
“anti-nepotism” policy. In this regard, Sharpe testified
that his attention was called to the “anti-nepotism” policy,
Or more specifically, the failure to enforce it, when
supervisor Doug Gentle requested him in February to hire
Gentle’s son. Sharpe, then the personnel manager,
resisted but learned that Randy Gardner, son of a
department manager in weaving, had just been hired. He
concluded that it was time to correct the problem by
6 It appears to have been common knowledge that
Honeycutt lived in Mrs. Smith’s home. Further, Honeycutt
identified Mrs. Smith as being the grandmother of
Honeycutt’s daughter.
—A-16—
enforcing the existent policy. Accordingly, after
conferring with Bob Rogers, Respondent’s general
manager, the decision was made to enforce the
anti-nepotism policy, and the decision was communicated
to Bob Foster, employee relations director, and Lamberth.
Sharpe confirmed the determination to enforce the policy
with a memo to Rogers dated March 1. He testified that
since reinstitution of the policy, Respondent has made no
exceptions in its application and pointed out that in
addition to Honeycutt, Respondent has, since March 1,
declined to hire six relatives of management officials
including the son of Doug Gentle.
Sharpe admitted talking to Honeycutt about the
decision not to rehire her because of reinstitution of the
anti-nepotism policy. However, 1e placed their
conversation in late March or early April rather than June
as Honeycutt had testified.
White, called as a witness by Respondent,
acknowledged that he talked to Arlene Smith about Jeffrey
Smith’s discharge. He generally denied the remarks
attributed to him vy her on that occasion and conceded
only that he told her that if she had come to see him
before the events had taken place he possibly could have
helped Jeffrey.
b. Charles and Jeanette Pegram
Charles Pegram was employed by Respondent for
approximately 20 years. He worked as a loom cleaner
prior to his layoff about March 15, 1982. His wife,
Jeanette Pegram, was also a long time employee of
Respondent having started work there in 1964. Like
Charles, Jeanette, a banker in the preparation department,
had prior layoffs, one lasting from September 1976 to
—A-17—
November 1979. Her last period of employment ended
with her layoff on January 25, 1982.
Under Respondent’s policy already noted, the Pegrams
lost seniority and recall rights 6 months following their
layoffs. However, they put in new applications and
monthly thereafter updated their applications by visits to
the plant personnel office. They were never rehired
although Respondent, beginning in late January and
continuing over the next several months, rehired a number
of loom cleaners and bankers. Moveover, it is undisputed
that the Pegrams were never told by Respondent they were
not going to be rehired or the reason they were not until
October 12, when Sharpe observed them during their visit
to the plant to “update” their applications and called them
to his office. ' There he explained to them, in effect, that
they were wasting their time, that they would not be
rehired because Respondent had on March 1, reinstituted
its policy against hiring close relatives of supervisors or
management. It is undisputed that Jeanette Pegram’s
brothers Rayford and Buford Clanton were employed by
Respondent as supervisors at all material times.
Respondent, through Sharpe, conceded at the hearing
that the Pegrams had good work records and contended
that the refusal to recall them was based solely upon the
decision to enforce the anti-nepotism policy. Sharpe in his
further testimony explained the failure to rehire the
Pegrams during the period between the beginning of
Respondent’s rehiring of employees in the Pegrams’ work
classifications and the date of the reinstitution of the
anti-nepotism policy. Thus, with respect to the one
banker, Elizabeth Steelman, rehired during that period,
Sharpe testified that Steelman was selected over Jeanette
Pegram because of her need for work and her advanced
age. Further according to Sharpe, while the work records
i 1e—
of the two were about equal, Jeanette Pegram presented a
slightly greater safety risk in view of a back injury which
had caused her to lose work time during her previous
employment.
With respect to Charles Pegram, Sharpe testified that
one vacancy in the loom cleaner classification was filled
on the third shift around February 20, and another on the
second shift sometime later but after the decision had been
made to reinstitute the anti-nepotism policy. Charles
Pegram was not considered for the first vacancy because
he had asked for employment on the second shift (a fact
he admits), and he was ineligible for the second shift
position when it was filled due to the anti-nepotism policy
and his relationship to supervisors Rayford and Buford
Clanton.
To support her contention that the refusal to rehire the
Pegrams was based upon unlawful union considerations, -
the Generai counsel relies upon the testimony of Jeanette
Pegram and Ralph Cianton, another of Jeanette’s brothers.
Ralph Clanton testified about two telephone conversations
he had with Rayford Clanton on September 18, during a
visit to the Pegram home.” He called to inquire when that
“hole” was going to rehire the Pegrams. Rayford Clanton
took offense at the reference to Respondent which he
perceived to be uncomplimentary, and the conversation
between the two brothers went downhill from that point.
More specifically, Ralph Clanton testified that Rayford
explained that the Pegrams had no recall rights and
7 Ralph Clanton initially testified to only one telephone
conversation with Rayford but on cross-examination
explained that Rayford hung up on him at one point but
called him back within a minute or two.
kee en eee, eer ee a ee eee
eee Sor
—A-19—
rejected a suggestion that he could do anything abow
getting them rehired saying that it was up to the personnel
department. Rayford also added that had the Pegrams
“not shown their asses by trying to organize that stupid
union, they might still have been” employed by
Respondent. The brothers concluded their conversations
but not before exchanging uncomplimentary remarks and
discussing a meeting for the purpose of fighting.
Jeanette Pegram attributed a similar remark to
Rayford Clanton about October 12 after being told by
Sharpe she and Charles would not be rehired. She
telephoned Rayford and asked him what he had meant in
the remark to Ralph Clanton about having showed “our
ass.” Rayford replied that it was on account of their
taking part in the damn Union and added that if they had
not showed their asses they would have been back to work
“by now.”
Rayford Clanton in testifying for Respondent admitted
that he had told Ralph that the Pegrams had showed their
asses by being involved with the Union. However, he
related that it was Ralph who asked if Rayford was saying
that the Pegrams would still have been employed if it had
not been for their union involvement. To this, Rayford
responded that he had not said that. Rayford Clanton did
not in his testimony respond to the remarks attributed to
him by Jeanette Pegram, and thus did not contradict them.
While admitting to having an interest in seeing the
Pegrams return to work, Ralph Clanton had _ the
appearance of a dispassionate witness. He impressed me
as being totally unaffected, very straightforward, and
guilelessly honest. Moreover, I find it plausible and
believable that Rayford Clanton, having expressly admitted
to his dissatisfaction with the Pegrams’ union involvement,
—A-20—
would in a heated discussion have attributed their lack of
employment status to such involvement. Finally, Ralph’s
testimony is more probably accurate in view of Jeanette
Pegram’s uncontradicted testimony attributing an identical
remark to Rayford Clanton. I, therefore, credit Ralph
Clanton’s testimony as well as that of Jeanette Pegram
over that of Rayford Clanton who I found less persuasive
as a witness.
2. Arguments and conclusions
Initially, the General Counsel argues that Rayford
Clanton’s statement to Jeanette Pegram was coercive and
violative of Section 8(a)(1) because it conveyed to an
employee applicant that Respondent would not rehire her
because she had engaged in union activities. Further, the
General Counsel contends that White’s statement to Arlene
Smith similarly violated Section 8(a)(1) of the Act because
it implicitedly and coercively threatened an employee that
employees were subject to discharge if they sought
assistance of other employees or individuals who were, or
had been engaged in union activity. Respondent's
arguments in defense of the allegations are predicated
solely on the testimony of its witnesses Rayford Clanton
and Raymond White.
The testimony of Rayford Clanton has already been
rejected herein where it contradicts the testimony of Ralph
Clanton and Jeanette Pegram. I likewise reject the
testimony of White where it differs from that of Arlene
Smith. Arlene Smith’s recollection appeared reasonably
good and her delivery was convincing, and, I am
persuaded, truthful. Furthermore, her version was
reasonable for it is undisputed that White had admittedly
agreed with Jeffrey Smith that he would inquire into
Jeffrey's discharge and report to Mrs. Smith. Lastly, as
—A-21—
the General Counsel's brief points out, Mrs. Smith, as a
current employee of Respondent, was testifying at some
risk to her pecuniary interest so that her testimony was
more likely to be true. Gold Standard Enterprises, Inc., 234
NLRB 618,619(1978). I have considered, however, the
possibility of bias on the part of Mrs. Smith based upon
her relationship with Jeffrey Smith. However, I have
discounted such bias, since it appears that as a long time
employee of Respondent she had more to lose than gain by
false testimony. | White’s testimony in contrast to
Mrs. Smith was more equivocal and his recall less specific
and certain. Accordingly, I credit Mrs. Smith where her
testimony differs from that of White.
Considering the credited testimony of Ralph Clanton,
Jeanette Pegram, and Arlene Smith, I concur in the
arguments of the General Counsel that the remarks of
Rayford Clanton and White tended to be coercive and
conclude that Respondent violated Section 8(a)(1) of the
Act as alleged through such remarks.
With respect to the unlawful refusal to hire the
Pegrams and Honeycutt, the General Counsel contends
that the reimplementation of the anti-nepotism policy was
simply a pretext hit upon as a device to avoid the rehire of
union adherents in violation of Section 8(a)(3) and (1).
Thus, Respondent had not enforced the rule for many
years, and even though during much of that time Sharpe
had served as the plant personnel manager he had not
found the failure to enforce the rule to be a substantial
problem. Even when the rule was reimplemented, current
suggests that the date of reimplementation of March 1 was
—A-22—
fabricated because Sharpe’s March 1 memo refers to the
application of Scott Gentle as a motivating factor for the
action even though Gentle’s application was not submitted
until March 1. Further in this regard, the Generai Counsel
points to the fact that neither the Pegrams nor Honeycutt
were advised of the reimplementation until months after
the claimed reimplementation date. Lastly, and
specifically with respect to Charles Pegram, the General
Counsel asserts that a loom cleaner was hired on
February 28, before the rule was implemented. The rule
could not, therefore, have been a factor in the refusal to
rehire Charles Pegram according to the General counsel.
Yet, clearly it was the only factor relied upon by
Respondent in not rehiring him.
The General Counsel argues that White’s statement to
Arlene Smith clearly establishes the 8(a)(4) violation with
respect to the Pegrams and Honeycutt because it reveals
Respondent’s animosity toward Honeycutt for dragging
Respondent through the court. Such animosity may also
be inferred for Charles Pegram who likewise testified
against Respondent in a prior case.®
¢ The complaint alleged, and the General Counsel
asserted, that the refusal to rehire Jeanette Pegram was
also violative of Section 8(a)(4). However, the General
Counsel appears to have abandoned this position in her
brief. According, and since Jeanette Pegram did not
previously testify against Respondent or, insofar as the
record aon, give any information or affidavit to the
Board in relation to the prior case, and because no
authority or reasonable theory has been advanced upon
which an 8(a)(4) violation by Respondent with respect to
Jeanette Pe can be predicated, I shall recommend that
this allegation of the complaint be dismissed.
hi
Respondent’s initial defense to the refusals to rehire
Honeycutt and the Pegrams is a procedural one. In its
brief and in argument at the hearing, Respondent relied
upon Local Lodge 1424, Machinist (Bryan Mfg. Co.) v.
NLRB, 362 U.S. 411 (1960), contending that any finding of
a violation in the refusals to rehire Honeycutt and the
Pegrams is barred by the 6-month period of limitation set
forth in Section 10(b) of the Act. More specifically,
Respondent argues that the refusal to hire Honeycutt and
the Pegrams can be found to be unfair labor practices only
if the pre 10(b) decision to reimplement the anti-nepotism
policy is found to be discriminatorily motivated.
Respondent asserts that under Bryan, surpa, “where a
complaint based on that earlier event [the decision to
implement the anti-nepotism policy] is time barred, to
permit the event itself to be so used [as evidence to cloak
with illegality that which is otherwise lawful] in effect
results in reviving a legally defunct unfair labor practice.”
In making this argument, Respondent fails to distinguish
the substantial body of Board law, however, which holds
that Section 10(b) is subject to equity principles so that it
may be tolled where a Respondent has fraudulently
concealed unlawful conduct and the person adversely
affected by Respondent’s actions is not put on notice of
such action. See, e.g. Jackson Engineering Co., 265 NLRB
1688 (1982); Drukker Communications, Inc., 258 NLRB 734
(1981); K & E Bus Lines, Inc., 255 NLRB 1022 (1981);
Crown Cork & Seal Company, Inc., 255 NLRB 14 (1981);
V M Construction Co., Inc., 241 NLRB 584 (1979); Safety
Electric Corporation., 239 NLRB 40 (1978).
On the basis of the cited cases the further authority
cited in Respondent’s brief, NLRB v. McCready and Sons,
Inc., 482 F.2d 872 (6th Cir. 1973), and Bowen Products
Corporation, 113 NLRB 731 (1955), is inapposite, for in
Respondent cases, the adversely affected parties had clear
—A-24—
notice of the alleged unlawful actions more than 6 months
before the filing of the charge with the Board.
In the instant case, the 6-month period of limitations
prior to filing the charge, I conclude, runs from the time
that Honeycutt and the Pegrams were put on notice, actual
or constructive, that they were not subject to rehire. Since
the limitation period provided under Section 10(b)
constitutes an affirmative defense, the burden of
establishing the facts upon which the defense rests is upon
the Respondent. St. Mary’s Home, Inc., 258 NLRB 1024
(1981). It is quite clear that the Pegrams were not told
until October that they were not subject to rehire and the
reason they were not, i.e., the reimplementation of the
anti-nepotism rule. The reason expressed for the refusal
to rehire is less important than the communication that
they would not be hired. The fact remains that prior to
October they were not in anyway discouraged from
“updating” their applications. Respondent points to no
substantive evidence to establish actual or constructive
knowledge on the Pegr=iiis’ part outside the 10(b) period
that they would not be rehired. The fact that Respondent
may not have actively concealed its reimplementation of
the anti-nepotism policy does not constitute conveyance of
a notice to the Pegrams of their ineligibility for rehire. See
AMCAR Div., AFC Industries, Inc., 234 NLRB 1063 (1978),
enfd. as mod. 596 F.2d 1344 (8th Cir. 1979).
On the basis of this record until October, the Pegrams
were entitled to believe that they were subject to being
rehired and even that their probability of rehire was good,
in light of their prior work record with Respondent which
Respondent admits was good. Accordingly, I conclude that
the Section 10(b) period did not begin to run with respect
to the Pegrams until they were advised by Sharpe that they
would not be rehired. Since that information was given
—A-25—
them on October 12 and the initial charge herein was filed
on October 19, the charge was clearly timely under
Section 10(b).
Whether Respondent’s 10(b) defense is valid with
respect to Honeycutt’s case depends upon whether one
believes Honeycutt or Respondent’s witnesses, Sharpe and
Judy Lamberth, the assistant personnel manager at the
relevant time. Honeycutt testified it was in June that
Sharpe told her she would not be rehired. If in fact
Honeycutt received such notice any time in June, then the
charge’ with respect to Honeycutt was timely under
Section 10(b). However, Sharpe testified he told
Honeycutt that she would not be rehired and the reason in
late March or early April. Lamberth’s testimony was that
Sharpe told her in late March that he had advised
Honeycutt that she would not be rehired. A March
revelation of this information to Honeycutt would make the
charge untimely in her case. Honeycutt’s testimony on the
time frame of her meeting with Sharpe on the subject of
her rehire was unequivocal if not precise with respect to
the exact date. Notwithstanding the importance of her
testimony on this point, Respondent chose not to
extensively question her on it during cross—examination.
Moreover, her testimony generally was not substantially
contradicted. Sharpe’s testimony was no more precise
than Honeycutt’s on the date of their meeting. His
uncertainty as to the date does not preclude the possibility
that his discussion with Honeycutt tool place after
April 21, the earliest date the charge would be timely
under Section 10(b) with respect to Honeycutt’s case.
Lamberth also admitted uncertainty in her testimony
placing the meeting between Honeycutt and Sharpe in
March. Furthermore, Lamberth when pressed was unable
to convincingly explain exactly why she recalled March
was the month that Sharpe told her Honeycutt had been
—A-26—
told she would not be rehired. Under these circumstances
and because Lamberth admitted that Honeycutt continued
to “update her” application after March, and because there
is no evidence that Honeycutt did so after June, I am
convinced that Honeycutt’s testimony as to the date should
be credited. Accordingly, I conclude that Respondent has
failed to affirmatively establish that Honeycutt had notice
that Respondent definitely would not rehire her more than
6 months prior to the filing of the charge.
Turning to the merits of the complaint allegations
regarding Honeycutt and the Pegrams, it must initially be
observed that the General Counsel under the dictates of
Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083
(1980), enfd. 622 F.2d 899 (ist Cir. 1981), must first
prove a prima facie case sufficient to support the inference
that protected conduct was a motivating factor in the
Respondent’s failure to rehire the three employees. Once
a prima facie case is established, the burden then shifts to
the employer to demonstrate the same action would have
taken place even in the absence of protected conduct.oo
The General Counsel’s prima facie case with respect
to Honeycutt and the Pegrams is established, I conclude,
by the statements I have found to have been made by
Rayford Clanton and Raymond White. The uncontradicted
statements of George Honeycutt to Elaine Honeycutt also
support the General Counsel’s case. Thus, the statements
of Rayford Clanton, White, and George Honeycutt
establish Respondent’s knowledge of the union activities
and inclinations of the three alleged discriminatees,
Respondent’s hostility to the three because of such activity
and inclinations, and Respondent’s determination not to
rehire the three specifically due to that hostility. The other
record evidence supporting the General Counsel’s case is
found in the uncontradicted fact that the three were not
-
rehired for positions in which they were qualified even
though they had work records which would not bar their
rehire and Respondent had vacancies in those positions.
Furthermore, Sharpe in his testimony conceded that
Respondent’s decision to reimplement the anti-nepotism
policy was prompted to some extent by a desire to avoid
the family riffs between management officials and
employee relatives occasioned by union organization
issues.
The General Counsel’s prima facie violation with
respect to the 8(a)(4) and (1) allegations concerning
Charles Pegram and Honeycutt is made out by the
resentment of Respondent demonstrated in White’s
Statement regarding Honeycutt is “having dragged”
Respondent through “court.” The resentment to Charles
Pegram for the same reason may reasonably be inferred
since he also testified against Respondent in the same
NLRB proceeding. Accordingly, I conclude that the
burden shifts to Respondent under Wright Line to
demonstrate that it would not have rehired the three
alleged discriminatees even in the absence of their
protected conduct under the Act.
There can be no doubt, as Respondent argues, that its
anti-nepotism policy had some very obvious and legitimate
purposes. Indeed, the policy was initially formulated and
instituted many years prior to the advent of the union
Organization issue in the plant. However, it had been
universally ignored for many years so _ that
reimplementation had the effect of creating a new policy.
The issue here is whether the return to the rule or policy
was prompted by Respondent’s desire to avoid rehiring of
union supporters.
There are several factors pointed to by Respondent
which tends to support its case that the return to the old
—A-28—
policy would have been made without regard to the rehire
issue of the Pegrams and Honeycutt. Thus, there is
Sharpe’s testimony not specifically contradicted, that the
request of supervisor Doug Gentle in February that his son
be hired by Respondent called Sharpe’s attention to the
nepotism problem, not the rehire applications of the
Pegrams and Honeycutt. And, contrary to the contention
of the General Counsel, Sharpe testified with
corroboration from Lamberth and personnel clerk Brenda
White that the decision to return to the old policy was
made in late February even though the memo on the
subject was not written until March 1. Moreover, there is
little evidence to contradict Sharpe’s further testimony that
prior to the reimplementation of the anti-nepotism policy,
the positions for which the Pegrams and Honeycutt were
qualified were simply filled with rehires who were better
qualified. | Accordingly, Respondent asserts that the
General Counsel has failed to establish disparate
treatment.
As further evidence of the lack of disparate treatment
of the three and in support of its argument that it has
rebutted the General Counsel’s case, Respondent points
out that all the new hires placed into the positions for
which the Pegrams and Honeycutt were qualified were
former employees rather than completely new hires. To
the extent such rehires may not have been senior to the
Pegrams and Honeycutt, Respondent asserts that the
Pegrams and Honeycutt like all the rehires who had been
off more than 6 months did not have seniority so that
seniority was not a consideration.
—A-29—
Finally, Respondent argues’ that following
reimplementation of the anti-nepotism policy, the rule has
been rigidly enforced and presented evidence that six other
applicants have been denied employment under the policy
since March 1.9
After careful consideration of the arguments and the
record I am persuaded that the preponderance of the
evidence supports the complaint allegations and
Respondent has not successfully rebutted the General
Counsel’s case. The record initially would suggest that
neither Honeycutt nor the Pegrams so distinguished
themselves in union activities as to make them likely
targets for discrimination. However, one must consider
that at least Charles Pegram and Honeycutt did distinguish
themselves in giving testimony in the prior Board
proceeding before Respondent. Further, one must also
consider that they were distinguished in their union activity
by virtue of their relationship to Respondent’s supervisors.
It was that relationship which served as a particular
embarrassment to Respondent as revealed by the
comments attributed to George Honeycutt by his daughter
to the effect that he felt himself disgraced by her union
activity. A similar embarrassment to Rayford Clanton by
the Pegrams’ union activity may be inferred from
Clanton’s remarks that the Pegrams “showed their ass” in
such activity. Thus, the record clearly establishes not only
the identification by Respondent of the Pegrams and
Honeycutt as union activists and supporters but also their
distinction as probable objects of retaliation for such
® None of these applicants, however, appear to be
rehires as opposed to new hires.
—A-30—
activism. And both George Honeycutt and Rayford
Clanton directly related to the alleged discriminatees as
already set forth herein that it was their union activism
which would preclude their reemployment.
To the extent that Respondent admits that its
reimplementation of the anti-nepotism policy was based
upon its desire to avoid internal family disputes brought
about by union organization issues, Respondent admits a
discriminatory purpose with respect to rehire situations. It
is one thing to return to the anti-nepotism policy and to
apply it to prospectively to new hires in order to avoid
family squabbles over union issues. It is quite another
thing to reimplement the policy and apply it retroactively
to avoid the rehire of former employees because they
unfortunately encountered internal family disputes
involving members of Respondent’s management simply
because they exercised their rights under the Act to engage
in union activity. In the latter case, the discrimination is
clear for it is a direct response too past union activity. A
further intent to discriminate may be inferred from the
result accomplished and the absence of evidence here to
show that rehire applicants who were related to
management but who had supported Respondent against
the Union were similarly denied reemployment after the
implementation of the anti-nepotism policy.
That there was no great urgency or underlying concern
of great moment in the rush to reapply the anti-nepotism
policy to rehires aside from retaliation for union
considerations is demonstrated by the fact that Respondent
“grandfathered” in its current employees. Every argument
Respondent advances for its decision to reinforce the
anti-nepotism policy applies with equa! force to its current
employees so as to logically dictate their terminations.
—A-31—
This includes an argument by Sharpe that a consideration
for reimplementation was the establishment of a
liberalized job bidding procedure’® in the plant in July
which increased the possibility that employee relatives of
supervision would wind up being supervised by their
relatives, a _ situation which would also _ violate
Respondent’s rules. I specifically reject Sharpe’s
testimony that this was a consideration because the
liberalized policy procedure was not initiated unti’
months after the decision to reimplement the
anti-nepotism rule. On the basis of this record, this
defense is pure afterthought.
I do not agree with the General Counsel’s argument
that the record establishes that Respondent decided to
reinstitute the anti-nepotism rule sometime later than
March 1. That argument is based on pure speculation and
goes against the clear weight of the evidence including the
uncontradicted testimony of Sharpe, Lamberth, and White
that the decision was made in the latter part of February.
Nevertheless, based upon the clear evidence of
Respondent’s clear knowledge of the union activity and
inclinations of the three discriminatees, the evidence of
specific union animus against them including comments by
management representatives already discussed which
connects the refusal to rehire with the discriminatees’,
involvement in prior union activity, Respondent’s
concession that an effort to avoid internal family
10 The change in the job bidding in effect allowed on the
basis of plant seniority rather than department seniority as
had previously been the case. At the same time,
Respondent extended recall rights to laid off employees to
one year rather than 6 months. This change was not
applied retroactively and therefore was not applicable to
Elaine Honeycutt.
—A-32—
squabbles between management and employee relatives
due to employee union activity was a consideration in
thereturn to the anti-nepotism rule, and the disparate
application of the anti-nepotism rule to refuse to to rehire
union adherents whose oniy disqualification for
employment was their relationship to management officials
while Respondent retained in its employ employees who
were relatives of management, I conclude that Respondent
has failed to successfully rebut the Genera! Counsel’s
prima facie case. In short, Respondent has not
demonstrated that Honeycutt and the Pegrams would not
have been rehired in the absence of their protected
conduct. I, therefore, find that Respondent violated
Section 8(a)(3) and (1) of the Act in refusing to rehire the
Pegrams and Honeycutt.
I further find, as alleged and argued by the General
Counsel, that Respondent violated Section 8(a)(4) and (1)
of the Act in refusing to rehire Charles Pegram and Elaine
Honeycutt. In reaching this conclusion, I rely specifically
on the remark by White reflecting Respondent’s deep
animosity toward Honeycutt, and inferentially Pegram, for
their temerity in taking Respondent to “court” in the prior
unfair labor practice proceeding.
C. Tre Discharge of Smith
1. The material facts
Jeffrey Smith began working for Respondent on a
summer job at the age of 16 but quit. He was rehired in
December 1978 and worked until he again quit in July
1981. It is undisputed that his job performance and
attendance record during that period of empioyment was
so unimpressive that when he again sought employment by
Respondent in March, it was necessary for Arlene Smith, a
—A-33—
20-year employee of Respondent, to intercede in his
behalf and persuade representatives of management,
including Sharpe, to rehire him. Jeffrey Smith was rehired
on March 14, but conceded herein that he was told upon
rehiring that Respondent had reservations about it, that he
would have to abide by all the rules and regulations on
attendance, and that he would be carefully watched.
Smith agreed that he would be a better employee.
Smith began his 90-day probationary period as a loom
cleaner but subsequently bid into a weaver position. He
missed a day of work on April 13 due to illness. He was
absent on April 16 but was given permission for the
absence"! and Mrs. Smith worked in her son’s place on
that date. On April 29, Smith was given a talk sheet for
poor job performance. Smith was again ill and absent on
May 2, and was given a talk sheet for the absence.'2 On
May 26, he left work due to illness, and on June 14 and
15, he again missed work due to illness. When Smith
reported for his next scheduled shift after June 15, he was
sent home and told to come back the next day to see
weaving superintendent Cook and department head J. C.
Waugh.
11 In spite of the permission to be off work on April 16,
Smith’s absence was not excused under the terms of
Respondent’s attendance control procedures. In short, the
absence was counted against him.
2 A “talk sheet” is a written recording of a critical
supervisory comment to an employee regarding job
performance. Under Respondent’s procedures, three talk
sheets given to an employee within their 90-day
probationary period was basis for an “automatic
discharge.” Attendance policies provided for a verbal
warning rather than a talk sheet for the first absence of a
probationary employee.
=f 34
Suspecting that he might be discharged, and upon
advice of an attorney who was representing him in a
bankruptcy proceeding to take a witness with him to the
meeting with Cook and Waugh to verify that his absence
was due to illness, Smith took Elaine Honeycutt with him
to the plant on June 16. There he met initially with Cook
in Cook's office. Cook refused to allow Honeycutt to
attend even though at the outset of the meeting Smith
explained that he had brought Honeycutt to verify that he
had been ili during his absence on June 14 and 15.
Although Cook allowed Smith to bring a tape recorder into
the meeting, he declined Smith's request to use it. Cook
began the meeting inquiring of Smith about any problems
he was having on the job, and Smith replied that he had
none adding the one he had had previously with the loom
fixers had improved. At about this point, according to
Smith's testimony, Waugh entered the meeting and the
discussion turned to Smith's absences. Smith protested
that one of those days he had been off with permission,
but White responded that he didn’t care and asked Smith
what he thought ought to be done. Smith replied that he
would do better if he was given a chance. White ended the
meeting saying that he wanted to talk the matter over with
Waugh.
Smith returned to the plant lobby and waited. White
and Waugh thereafter came and got him and took him to
the personnel office where the three met with Sharpe.
Sharpe advised Smith that his services were no longer
needed because he had been out too many days during his
probationary period. Sharpe offered some suggestions to
Smith regarding changes he might make before looking for
other employment, but Smith curtly responded with his
own suggestion that Sharpe mind his own business. The
meeting ended after an argument over whether Smith was
—A-35—
entitled to his paycheck on the spot and Sharpe’s threat to
call the police if Smith did not leave.
Still according to Smith, about a week after his
discharge, he returned to the plant to clean out his locker
and talk to White. While there he saw Waugh and asked
him if Waugh thought he had been belligerent in his
discussion with Cook and Waugh. Waugh refused to
comment saying only that Smith was trying to catch him in
the middle of things. Subsequently, Smith talked to White
and explained that his absences were occasioned by illness
and he could not understand why he had been treated as
he was particularly since his last 2-day illness had come
beyond the completion of 90-calendar day probationary
period. White's response was that his hands were tied and
there was nothing he could do, but added that if Smith had
come and talked to White before talking to Cook and
Waugh on the day of the discharge, Smith would not have
lost his job. Nevertheless, White told Smith he would look
into the matter and see if anything could be done and
would thereafter communicate with Mrs. Smith. White's
subsequent report to Arlene Smith has already been
related.
Respondent's version of the discharge of Smith was
related through Cook and Sharpe. Cook testified that
Smith was rehired for his last period of employment only
with some reluctance in view of his earlier attendance and
attitude problems. Cook testified that after each absence
during Smith's last employment he talked to Smith about
the absence, and after the May 2 absence told Smith that
he was exceeding the absentee guidelines and not living up
to his commitment on better attendance he made when
rehired. When Smith missed June 14 and 15, Cook
discussed the matter with Sharpe and it was decided that
he should be called in to talk with Cook and Waugh. Cook
we =
concedes that there was no decision to discharge Smith at
that point and that that decision was only made after the
meeting with Smith when Smith flippantly told Smith there
was no need of talking, that they should go ahead and do
whatever they wanted, that whatever Smith had to say
would make no difference, that Smith was not going back
out and work for supervisor Clint Billings, that all the
supervisors wanted was to push employees without any
concern for why employees have to be absent from work.
Further, Smith added, according to Cook, that there were
certain supervisors he could not and did not plan to work
for and complained of the treatment of specific
supervisors. Cook sent Smith back to the lobby and then
proceeded with Waugh to see Sharpe. Cook testified that
he recommended to Sharpe that in view of Smith’s attitude
to the effect he didn’t need to be corrected and also
because of his absentee record Smith should be
discharged. More particularly with respect to Smith’s
absences, Cook testified it was not the basis for the
absences which concerned him but rather the number of
absences. Sharpe agreed with the recommendation and
Smith was called in and discharged.
Sharpe’s testimony generally corroborated that of
Cook. Further, according to Sharpe, the reason for the
discharge decision which he, Waugh and Cook arrived at
was Smith's failure to live up to his commitment on rehire
and their belief that it would be putting off the inevitable if
he was not discharged at the point of leaving his
probationary period and before becoming a regular
employee. Moreover, Sharpe pointed out that Respondent
had grounds for automatically discharging Smith after his
May 2 absence. In this regard, Sharpe pointed out that
under normal procedures, Smith should have received a
talk sheet after his April 16 absence so that after his
May 2 absence, he would have had a total of three talk
fp St—
sheets rather than two. Smith’s failure to receive a talk
sheet after the April 16 absence was simply due to the
oversight of the attendance clerk according to Sharpe.
2. Arguments and conclusions
The General Counsel argues regarding Jeffrey Smith
that he was discharged simply because he antagonized and
provoked Respondent by bringing a known union adherent,
Honeycutt, to assist him on June 16. This was
demonstrated, according to the General Counsel, by
Cook’s admission that no discharge decision was made
until Smith reported to the plant on June 16, and by
White’s statement to Arlene Smith to the effect that the
presence of Honeycutt constituted an implied threat to
Respondent and had it not been for that, Jeffrey would still
have had his job. Further, the General Counsel argues
that Cook, in effect, admitted to Arlene Smith that Jeffrey
Smith had not said anything in his meeting with Cook to
demonstrate a bad attitude. Arlene Smith’s testimony in
this regard was that on June 16 after Jeffrey’s discharge,
Cook explained to her that he had intended to put him
back to work but that he had come in with a “mistrustful
attitude.” When she asked him what Jeffrey Smith had
said or told him, Cook replied, “Well, you can have a bad
attitude without saying or doing anything, it is more how
you act.” Finaily, the General Counsel contends that
Respondent’s evidence does not in fact establish that
Jeffrey Smith had a “bad attitude” on June 16 prior to the
time his discharge was announced.
8 Arlene Smith’s testimony regarding Cook’s comments
was not specifically contradicted by Cook. Accordingly,
and because I found Arlene Smith to be a credible witness,
I find Cook made the remarks attributed to him by her.
—A-38—
Based on the factors enumerated above, I find that the
General Counsel established a prima facie violation of
Section 8(a)(3) and (1) of the Act with respect to Jeffrey
Smith’s discharge. Respondent’s evidence and argument
in rebuttal must be considered next.
Respondent’s defense is based essentially upon Cook’s
testimony already set forth regarding Jeffrey Smith’s
“attitude” on June 16. Comparison of the testimony of
Jeffrey Smith and Cook shows relatively little conflict. In
short, much of what each attributed to the other is not
specifically denied on the record. Therefore, I conclude
that Jeffrey Smith did in fact display a less than totally
cooperative attitude in the meeting with Cook and Waugh,
and subsequently in the meeting with Sharpe. The critical
issue to be resolved, however, is whether Smith was
initially contrite and subsequently provoked into
belligerency by actions or remarks by Cook reflecting the
futility of attempting to placate Respondent. That he was
initially provoked was clearly the case in the meeting with
Sharpe for the evidence reflects Smith’s impudent
responses were made after Sharpe announced the
discharge. I am also persuaded this was also the case in
the earlier meeting with Cook. In reaching this conclusion,
I note that Cook admitted that Smith asked him for
another chance. It would be illogical and unreasonable for
Smith to assert that he was not going back out and work
with his supervisors and then shortly thereafter ask for a
second chance. It is more reasonable to believe that the
request for a second chance came first in a spirit of
contrition.
It is beyond dispute that Smith had a poor attendance
record, but Respondent had not seen fit to discharge him
for either that reason or his work performance prior to
June 16. Further, Smith’s last absence occurred outside
=~
his normal probationary employment. Indeed, Respondent
admits that it had no intention of discharging Smith for the
absences when Cook arranged to meet with him on
June 16. In view of this, and in light of Smith’s early
request for another chance, and since Respondent had no
significant “attitude” problem with Smith before June 16,
Cook’s recommendation that Smith be discharged, I
conclude, masks a clear ulterior motivation.
Any doubt as to that ulterior motivation is removed by
White’s remarks to Arlene Smith which unquestionably
established that it was Honeycutt’s accompaniment and
support of Jeffrey Smith and Respondent’s extreme
animosity to Honeycutt as a result of her union
involvement which prompted the discharge decision.
White put it very succinctly in stating that if someone other
than Honeycutt had accompanied Smith he would have
retained his job.
It is true, of course, that White did not participate in
the decision to discharge Smith. Under such
circumstances, one might be inclined to dismiss his
remarks on the subject as simply an opinion, albeit
coercive. See e.g Garrett Flexible Products, Inc. and Plastic
Processors, Inc., 270 NLRB No. 173 (1984). Here,
however, it must be noted that White made his remarks to
Arlene Smith only after he had investigated the matter.
Further, after the investigation, he specifically attributed to
Respondent the basis for the decision by reporting to
Arlene Smith “they were saying” that Jeffrey made an
implied threat when he brought Honeycutt with him on
June 16. That was the “attitude” problem that Respondent
found most distasteful, for White related no other
“attitude” problem to Arlene Smith. Cook himself was no
—A-40—
more specific in his subsequent conversation with Arlene
Smith regarding Jeffrey Smith’s “mistrustful attitude.”
Considering the foregoing, the elements of the General
Counsel’s prima facie case, and upon evaluation of all the
record evidence, I conclude that Respondent has failed to
demonstrate that Jeffrey Smith would have been
discharged without regard to his accompaniment on
June 16 by Honeycutt, an individual who had incurred
Respondent’s animosity due to her earlier protected
activities. Accordingly, I conclude that Smith’s discharge
constituted discrimination under the Act in violation of
Section 8(a)(3) and (1).
Conclusions of Law
1. Respondent, Uniglass Industries, Div. United
Merchants & Mfrs., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC, is a labor organization within the
meaning of Section (2)(5) of the Act.
3. Respondent by it supervisor and agent Rayford
Clanton on October 12, 1983, violated Section 8(a)(1) of
the Act by informing employees that they would not have
been laid off and would have been rehired but for their
involvement in union activities.
4. Respondent by its supervisor and agent
Raymond White on June 28, 1983, violated Section 8(a)(1)
of the Act by informing employees that certain other
employees would not have been discharged had they not
sought the assistance of an employee involved in union or
other protected concerted activity.
~S
5. By refusing to rehire employee applicants Elaine
Honeycutt and Charles Pegram because of their prior
involvement in union activity and because they gave
testimony under the Act, Respondent violated
Section 8(a)(4), (3), and (1) of the Act.
6. Respondent in refusing to rehire Jeanette
Pegram because of her activities on behalf of the Union
violated Section 8(a)(3) and (1) of the Act.
7. Respondent did not violate Section 8(a)(4) of
the Act in refusing to rehire Jeanette Pegram.
8. The aforesaid violations of the Act constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
oie
The Remedy
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily refused
to employ applicants Elaine Honeycutt, Charles Pegram,
and Jeanette Pegram as a result of its reimplementation of
its anti-nepotism rule and application of that rule to the
three, it will be recommended that Respondent be required
to offer these three individuals employment in positions
for which they are qualified and in which they would have
been employed but for the discrimination against them. It
will be further recommended that Respondent be required
to make them whole for any loss of earnings or other
benefits, computed on a quarterly basis from the date that
they would have been employed but for the discrimination
against them to the date of a proper offer of employment,
less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in Florida Steel Corporation, 231 NLRB 651
(1977).'* Because it has also been found that Jeffrey Smith
was unlawfully discharged, Respondent must be required
to offer him reinstatement and make him whole for any
loss of earnings and other benefits, computed on a
quarterly basis, from the date of discharge to the date of
proper offer of reinstatement, less any interim earnings
plus interest under the authorities cited above. Consistent
with the Board’s decision in Sterling Sugars, 261 NLRB 472
(1982), it will also be recommended that Respondent be
required to expunge from its files any reference to the
discharge of Jeffrey Smith or the refusals to rehire Elaine
enerally, /sis Plumbing & Heating Co., 138 NLRB
16 71 -721 ( 962).
~A-43—
Honeycutt, and Charles and Jeanette Pegram and notify
them in writing that this has been done and that evidence
of the unlawful discharge or refusals to rehire will not be
used for future personnel actions against them.
On the foregoing findings of fact, conclusions of law,
and on the entire record, I issue the following
recommended:'5
ORDER
Respondent, Uniglass Industries, Div. United
Merchants & Mfrs., Statesville, North Carolina, its
officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Informing employees that they would have
been rehired but for their involvement in activities on
behalf of Amalgamated Clothing and Textile Workers
union, AFL-CIO, CLC.
(b) Informing employees that other employees
would not have been discharged if they had not sought the
assistance of employees previously involved in protected
concerted activities.
‘6 If no exceptions are filed as provided in Sec. 102.46 of
the Board’s Rules and vy weep the findings,
conclusions, and recommended Order shall, as provided in
Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all
purposes.
—A-44—
(c) Discharging, refusing to hire, or otherwise
discriminating against any employee because of their
activity on behalf of the the above named Union or any
other labor organization or because they gave testimony
under the Act.
(d) 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 necessary
to effectuate the policies of the Act:
(a) Offer Jeffrey Smith immediate and full
reinstatement to his former job, or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of
earnings and other benefits as a result of the
discrimination against him in the manner set forth in the
Remedy section of this Decision.
(b) Employ Charles Pegram, Jeanette Pegram,
and Elaine Honeycutt into those positions for which they
are qualified and in which they would have been employed
but for the the discrimination against them, or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights or privileges, and make them whole for any loss of
earnings or other benefits suffered as a result of the
discrimination against them in the manner set forth in the
Remedy section of this Decision.
(c) Remove from its files any references to the
unlawful discharge of Jeffrey Smith and the unlawful
refusal to employ Charles Pegram, Jeanette Pegram, and
—A-45—
Elaine Honeycutt, and notify them in writing that this has
been done and that the discharges or refusals to employ
will not be used for future personnel actions against them.
(d) Preserve and, upon request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment
records, timecards, personnel records, and reports, and all
other records necessary to analyze the amount of backpay
due under the terms of this order.
(e) Post at its facility in Statesville, North
Carolina, copies of the attached notice marked
“Appendix.”'® Copies of the notice, on forms provided by
the Regional Director for Region II, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent immediately upon receipt thereof 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
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
ae
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what steps
Respondent has taken to comply.
1¢ If this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice readin
“POSTED BY ORDER OF THE NATIONAL LABO
RELATIONS BOARD” shall read “POSTED PURSUANT
TO A JUDGMENT OF THE UNITED STATES COURT
OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD.”
—A-46—
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found.
Dated, Washington, D.C. August 3, 1984.
Hutton S. Brandon
Administrative Law Judge
wo.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS
BOARD
REGION 11
UNIGLASS INDUSTRIES, DIV. UNITED
MERCHANTS & MERS.
and Case No. 11-—CA-11089
AMALGAMATED CLOTHING AND TEXTILE
WORKERS UNION, AFL-CIO, CLC
COMPLAINT AND NOTICE OF HEARING
It having been charged by Amalgamated Clothing and
Textile Workers Union, AFL-CIO, CLC, herein called the
Union, that Uniglass Industries, Div. United Merchants &
Mfrs., herein called Respondent, has engaged in, and is
now engaging in, unfair labor practices affecting
commerce as defined in the National Labor Relations Act,
as amended, 29 U.S.C. Sec. 151, et seq., herein called the
Act, the General Counsel of the National Labor Relations
Board, herein called the Board, on behalf of the Board, by
the undersigned, hereby issues this Complaint and Notice
of Hearing, pursuant to Section 10(b) of the Act, and
Section 102.15 of the Board’s Rules and Regulations,
Series 8, as amended, and alleges as follows:
1.
The charge was filed by the Union on October 19,
1983, and was served on Respondent on October 19, 1983.
An amended charge was filed by the Union on
—A-48—
December 2, 1983, and was served on Respondent on
December 2, 1983.
2.
Respondent is now, and has been at all times material
herein, a corporation operating a plant in Statesville, North
Carolina, where it is engaged in the manufacture of
synthetic fibers.
3.
During the preceding 12 months, which period is
representative of all times material herein, Respondent
received goods and raw materials from directly outside the
State of North Carolina valued in excess of $50,000.
4.
Respondent, during the preceding 12-month period,
which period is representative of all times material herein,
manufactured, sold and shipped goods valued in excess of
$50,000 directly to points outside the State of North
Carolina.
5.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
6.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Section 2(11) of the Act:
Raymond White Plant Manager
Carl Sharpe Personnel Manager
Rayford Clanton ~ Supervisor
8.
Since on or about April 20, 1983, Respondent failed
and refused and continues to fail and refuse to rehire its
Respondent discharged and thereafter failed and
refused to reinstate its employee named below, on or
about the date set opposite his name:
Jeffrey Smith - June 16, 1983
10.
Respondent failed and refused and continues to fail
and refuse to rehire its employees named in paragraph 8
above, and discharged and failed and refused and
continues to fail and refuse to reinstate its employee
<i
named in paragraph 9 above, because said employees
joined or assisted the Union or engaged in other union
activity or concerted activities for the purpose of collective
11.
Respondent failed and refused and continues to fail
and refuse to rehire its employees named in paragraph 8
above, because said employees gave testimony at an unfair
labor practice hearing before the National Labor Relations
Board in Cases Nos. 11-CA-9076, 11-CA-9258,
11-CA-9546, 11-CA-9605, and 11-CA-9809.
12.
Respondent by the acts described above in paragraphs
8, 9, 10 and 11, and by each of said acts, has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
13.
Respondent, by the acts described in paragraphs 8, 9,
and 10, and by each of said acts, has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
14.
Respondent, by the acts described in paragraphs 8 and
11 above, and by each of said acts, has engaged in, and is
now engaging in, unfair labor practices within the meaning
of Section 8(a)(4) of the Act.
15.
The acts of Respondent described above constitute
unfair labor practices affecting commerce within the
—A-51—
meaning of Section 8(a)(1), (3), and (4) and Section 2(6)
and (7) of the Act.
PLEASE TAKE NOTICE that in Statesville, North
Carolina, at a time and date to be designated, a hearing
will be conducted before a duly designated Administrative
Law Judge of the National Labor Relations Board, on the
allegations set forth in the above complaint, at which time
and place you will have the right to appear in person or
otherwise and give testimony. Form NLRB-4668,
Statement of Standard Procedures in Formal Hearings
Held Before the National Labor Relations Board in Unfair
Labor Practice Cases, is attached.
You are further notified that pursuant to Section
102.20 and Section 102.21 of the Board’s Rules and
Regulations, Series 8, as amended, you shall file with the
Regional Director, acting in this matter as agent of the
National Labor Relations Board, an original and four
copies of an answer to the said complaint within 10 days
from service thereof and that unless you do so, all the
allegations in the above complaint shall be deemed to be
admitted to be true and may be so found by the Board.
Immediately upon the filing of its answer, Respondent
shall serve a copy thereof on each of the other parties.
—A-52—
Dated at Winston-Salem, North Carolina, this 2nd day
of December 1983.
/s/Hugh Frank Malone
Hugh Frank Malone
Acting Regional Director
National Labor Relations Board
Region 11
447 Federal Building
251 North Main Street
Winston-Salem, N.C. 27101
ehd~
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS
BOARD
REGION 11
UNIGLASS INDUSTRIES, DIV. UNITED
MERCHANTS & MFRS.
and Case No. 11-CA-11089
AMALGAMATED CLOTHING AND TEXTILE
WORKERS UNION, AFL-CIO, CLC
AMENDED COMPLAINT AND NOTICE OF
HEARING
It having been charged by Amalgamated Clothing and
Textile Workers Union, AFL-CIO, CLC, herein called the
Union, that Uniglass Industries, Div. United Merchants
and Mfrs., herein called Respondent, has engaged in, and
is mow engaging in, unfair labor practices affecting
commerce as defined in the National Labor Relations Act,
as amended, 29 U.S.C. Sec. 151, et seq., herein called the
Act, and a Complaint and Notice of Hearing having issued
on December 2, 1983, the General Counsel of the National
Labor Relations Board, herein called the Board, on behalf
of the Board, by the undersigned, hereby issues this
Amended Complaint and Notice of Hearing, pursuant to
Section 10(b) of the Act, and Section 102.15 and 102.17 of
the Board’s Rules and Regulations, Series 8, as amended,
and alleges as follows:
1.
The charge was filed by the Union on October 19,
1983, and was served on Respondent on October 19, 1983.
—A-54—
An amended charge ‘was filed by the Union on
December 2, 1983, and was served on Respondent on
December 2, 1983.
2.
Respondent is now, and has been at all times material
herein, a corporation operating a plant in Statesville, North
Carolina, where it is engaged in the manufacture of
synthetic fibers.
a
During the preceding 12 months, which period is
representative of all times material herein, Respondent
received goods and raw materials from directly outside the
State of North Carolina valued in excess of $50,000.
4.
Respondent, during the preceding 12-month period,
which period is representative of all times material herein,
manufactured, sold and shipped goods valued in excess of
$50,000 directly to points outside the State of North
Carolina.
5.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
6.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
—A-55—
Be
At all times material herein, the following-named
persons occupied the positions set opposite their names,
and have been, and are now, agents of Respondent, acting
on its behalf, and are supervisors within the meaning of
Section 2(11) of the Act:
Raymond White - Plant Manager
Carl Sharpe - Personnel Manager
Rayford Clanton - Supervisor
8.
Since on or about April 19, 1983, and continuing to
date, Respondent, by its following-named agents and
supervisors at its Statesville, North Carolina, plant, on or
about the date set opposite their names, has interfered
with, restrained and coerced, and is interfering with,
restraining and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, by the following
acts and conduct:
(a) Informed its employees, by telephone, that
they would not have been laid off or that they would have
been rehired if they had not engaged in union activities:
Rayford Clanton - October 12, 1983
(b) Informed its employees that certain
employees would not have been discharged if they had not
sought the assistance of other employees who had engaged
in union and/or other protected concerted activities:
Raymond White - June 28, 1983
—A-56—
9.
Since on or about April 20, 1983, Respondent failed
and refused and continues to fail and refuse to rehire its
employees named below:
Elaine Honeycutt
Charles Pegram
Jeanette Pegram
10.
Respondent discharged and thereafter failed and
refused to reinstate its employee named below, on or
about the date set opposite his name:
Jeffrey Smith - June 16, 1983
il.
Respondent failed and refused and continues to fail
and refuse to rehire its employees named in paragraph 9
above, and discharged and failed and refused and
continues to fail and refuse to reinstate its employee
named in paragraph 10 above, because said employees
joined or assisted the Union or engaged in other union
activity or concerted activities for the purpose of collective
bargaining and mutual aid and protection.
12.
Respondent failed and refused and continues to fail
and refuse to rehire its employees Elaine Honeycutt and
Charles Pegram named in paragraph 9 above, because said
employees gave testimony at an unfair labor practice
hearing before the National Labor Relations Board in
—A-57—
Cases Nos. 11-CA-9076, 11-CA-9258, 11-CA-9546,
11-CA-9605, and 11-CA-9809.
13.
Respondent by the acts described above in paragraphs
8, 9, 10, 11, and 12, and by each of said acts, has engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
14.
Respondent, by the acts described in paragraphs 9, 10,
and 11, and by each of said acts, has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
15.
Respondent, by the acts described in paragraphs 9 and
12 above, and by each of said acts, has engaged in, and is
now engaging in, unfair labor practices within the meaning
of Section 8(a)(4) of the Act.
16.
The acts of Respondent described above constitute
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1), (3), and (4) and Section 2(6)
and (7) of the Act.
PLEASE TAKE NOTICE that on the 9th day of
January 1984, at 10 a.m., EST, in the Courtroom, United
States Post Office, Statesville, North Carolina, a hearing
will be conducted before a duly designated Administrative
Law Judge of the National Labor Relations Board, on the
-—~ =
allegations set forth in the above complaint, at which time
and place you will have the right to appear in person or
otherwise and give testimony. Form NLRB—4668,
Statement of Standard Procedures in Formal Hearings
Held Before the National Labor Relations Board in Unfair
Labor Practice Cases, is attached.
You are further notified that pursuant to Section
102.20 and Section 102.21 of the Board’s Rules and
Regulations, Series 8, as amended, you shall file with the
Regional Director, acting in this matter as agent of the
National Labor Relations Board, an original and four
copies of an answer to the said complaint within 10 days
from service thereof and that unless you do so, all the
allegations in the above complaint shall be deemed to be
admitted to be true and may be so found by the Board.
Immediately upon the filing of its answer, Respondent
shall serve a copy thereof on each of the other parties.
Dated at Winston-Salem, North Carolina, this 13th
day of December 1983.
/s/Willie L. Clark, Jr.
Willie L. Clark, Jr.
Regional Director
National Labor Relations Board
Region 11
447 Federal Building
251 North Main Street
Winston-Salem, N.C. 27101
—A-59—
List of Parent Company, Subsidiaries and Affiliates:
Sudamtex de Uruguay S.A.
S.C.I. de La Grande Rocade
Polimeros Uruguayos S.A.
Valchem (Australia) Pty. Limited
S.C.I. Barbusse Bobigny
Telmartex C.A.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.