Air Reduction Co.

National Labor Relations Board - Board Decisions

Mar 1, 1972

195 N.L.R.B. 676 (N.L.R.B. 1972)

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Airco Industrial Gases-Pacific, a Division of Air Re-
duction Company , Incorporated and Douglas R.
Cupples. Case, 20-CA-5358-2
March 1, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On October 20, 1970, Trial Examiner Maurice M.
Miller issued the attached Decision in this proceeding.
Thereafter, the Respondent and the General Counsel
filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the, Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order, as modified herein.
The Trial Examiner found that Respondent had vi-
olated Section 8(a)(1) and (3) of the Act by discharging
Douglas R. Cupples in reprisal for engaging in the
protected activity of filing grievances.
The Respondent contends that the Board should
honor an arbitration award concerning the discharge.
The Trial Examiner refused to accept the award and-
issued a decision based upon the record before him. We
find that the Trial Examiner was correct in{not honor-
ing the arbitration award.
Cupples was employed by Respondent as a leadman
in the tube trailer maintenance department.' On Janu-
ary 28, 1969,1 Cupples was terminated because of negli-
gence, failure to follow instructions, and his past work
record. Upon receiving notice of the termination, Cup-
ples filed a grievance' alleging that his discharge was
unwarranted by past company practice. On March 27,
the arbitrator held a hearing on this grievance. Both
sides were represented by counsel and were given full
opportunity to present evidence. The parties stipulated
that the issue to be determined by the arbitrator was
whether Cupples had been discharged in violation of
the collective-bargaining agreement, and, if so, what
was the proper remedy. This agreement contains, inter
alia, a provision that the Company agrees not to dis-
criminate against any employee because of union affilia-
tion or activities. The full agreement was placed into
evidence before the arbitrator. During the course of the
arbitration proceedings, Respondent, on direct exami-
nation, questioned Cupples' supervisor, Castleberry, as
to whether he had been out to "get" Cupples. Castle-
berry responded negatively. Evidence was also pre-
sented concerning disciplinary action taken against
cupples in 1968, and the results of.a grievance he filed
over such action. On June 12, the arbitrator issued his
opinion and award in which he concluded that Cupples
had been guilty of negligence, as charged, but that the
penalty of discharge should be reduced to a suspension
without pay, to the date of the award, and that he be
reinstated to his former, position.
At the unfair labor practice proceedings, Cupples
contended that the arbitrator's award should not be
honored because the subject of his prior grievance
filings had not been presented to, or considered by, the
arbitrator. The Trial Examiner agreed and proceeded
to determine the {merits of the unfair labor practice
charge.. -
We agree with the Trial Examiner's findings regard-
ing the arbitration proceedings. The questioning of
Castleberry touched only tangentially upon the issue of
discrimination. The introduction of a 33-page collec-
tive-bargaining agreement does not indicate that the
arbitrator considered each and every provision in arriv-
ing at a decision. In fact, in his opinion and award the
only provision cited by the_arbitrator as pertinent was
that section dealing with discharge or suspension. The
central issues in the arbitration' proceeding appear to
have been whether or not Cupples was negligent in
light of past company practice and, if so, whether the
Respondent had complied with the contract provision
for a warning notice prior to discharge- The introduc-
tion of evidence regarding prior disciplinary action and
the filing of a grievance was directed toward the issue
of 'whether the Respondent ^ was required to issue a
warning letter in the current situation. The introduc-
tion of a single grievance was certainly not representa-
tive of Cupples' prolific grievance activity (approxi-
mately ` 200 grievances in ' the 2 years prior to his
discharge). We do not find any indication in the opinion
and award that the arbitrator considered the issue of a
discriminatory discharge.'
Apparently our dissenting colleague is of the same
view, since he relies not only on the tenuous evidence
that the unfair labor practice was in fact litigated, but
on a wholly new resjudicata doctrine, under which he
would hold that there was a duty to litigate it before the
arbitrator. We do not accept this doctrine, which
amounts to an absolute abdication of the Board's re-
' We would distinguish this case from Local 1522, International Brother-
All dates hereinafter refer to 1969 , unless otherwise noted . hood ofElectrical Workers, AFL-CIO (Western Electric Company, Inc.), 180
On February 14, Cupples filed unfair labor practice charges, which are NLRB 131, where the arbitration panel did consider the unfair labor prac-
the basis for the complaint in this case , alleging that the Respondent had tice issue, but did not receive additional evidence which was later intro-
violated Section 8 (a)(3) and ( 1) when it discharged him duced in the unfair labor practice proceeding.
195 NLRB No. 120
AIRCO INDUSTRIAL GASES
sponsibility4 simply because of a pious protestation in
the contract that the Company will not discriminate
against employees because of their union activities or
affiliation.
In the face of an arbitration award that gives no
indication that the arbitrator ruled on the unfair labor
practice issue, deferral would result in an extension of
the Spielbergs doctrine which we are unwilling to make.
In the recent Kalamazoo Gazette case6 the Board did
not give any weight to an arbitration award, where the
arbitrator explicitly stated that he was not dealing with
the unfair labor practice aspects of the situation.'
Where, as here, the arbitrator writes an elaborate opin-
ion that does not refer to the unfair labor practice issue,
we cannot see any significant difference from Kalama-
zoo. We find that our colleague's dissent would repre-
sent a severe and unfortunate departure from a long
established and equitable precedent.'
We hold that the arbitrator did not consider the
unfair labor practice issue,, that resjudicata is not appli-
cable. We therefore affirm the Trial Examiner and
adopt his Decision.'
"We cannot, in giving effect to arbitration agreements, neglect our
function of protecting the rights of employees granted by our Act."
Raytheon Company, 140 NLRB 883, 886, enforcement denied on other
grounds 326 F.2d 474 (C.A 1, 1964).
' Spielberg Manufacturing Company, 112 NLRB 1080.
6 Kalamazoo Typographical Union, Local No 122, International Typo-
graphical Union, AFL-CIO (Booth Newspapers, Inc, d/b/a Kalamazoo Ga-
zette), 193 NLRB No 159.
' In the recent Terminal Transport Company. Inc., 185 NLRB No 96,
case, the Board majority (Member Jenkins dissenting) stated that the reason
it had not deferred to arbitration in Illinois Ruan Transport Corporation,
165 NLRB 227, was because, "the question of discrimination was not raised
before the arbitrator therein, and hence no evidence was introduced in
support of any claim." Fn. 2
8 Spielberg Manufacturing Company, supra; Monsanto Chemical Com-
pany, 130 NLRB 1097; Raytheon Company, supra; DC International, Inc.,
162 NLRB 1383, enforcement denied on other grounds 385 F.2d 215 (C.A.
8, 1967), Rotax Metals, Inc., 163 NLRB 72, 78; John Klann Moving and
Trucking Company, 170 NLRB 1207, enfd. 411 F 2d 261 (C A. 6, 1969),
cert. denied 396 U S 833 (1969).
" The General Counsel-and the Respondent have excepted to the Trial
Examiner's recommendation that Cupples be awarded backpay from the
date of his discharge to the date when he is either reinstated or placed on
a preferential hiring list. We find merit to these exceptions and therefore
alter the remedy accordingly At the hearing, the General Counsel and the
Respondent stipulated that had Cupples been in Respondent's employ on
May 16, 1969, he would have been included in an economic layoff that
occurred on that date. Cupples is entitled to backpay from the date of his'
discharge, January 28, 1969, to the date of the economic layoff, May 16,
1969. We note, however, that the record dbes not contain sufficient evidence
to indicate whether Cupples would have been recalled after that date, and
if he is entitled to additional compensation for loss of earnings Respondent
will have the opportunity to adduce evidence on this issue during compli.
ance proceedings See Martech Corporation, 169 NLRB 479 We agree with
the Trial Examiner that Respondent should be required to offer Cupples
either immediate and full reinstatement to his former position or, if that
position no longer exists, to a substantially equivalent position, or place his
name upon a preferential hiring list, with due regard to his seniority.
ORDER
677
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner, as modified herein, and hereby
orders that the Respondent, Airco Industrial Gases-
Pacific, A Division of Air Reduction Company, Incor-
porated, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order, as so modified.
MEMBER KENNEDY, dissenting:
Contrary to my colleagues, I would honor the award
of the arbitrator as to the discharge and would dismiss
the complaint in this case.
Donald Cupples was employed by-Respondent as a
leadman in its tube trailer maintenance department. On
-January 28, 1969; Cupples was terminated because of
negligence, failure to follow instructions, and his past
work record. Upon receiving notice of the termination,
Cupples filed a grievance, alleging that his discharge
was unwarranted by past company practice. On March
27, Arbitrator Howard Durham held a hearing on this
grievance. Both sides were represented by counsel and
were given full opportunity to present evidence. The
parties stipulated that the issue to be determined by the
arbitrator was whether Cupples had been discharged in
violation of the collective-bargaining agreement and, if
so, what was the proper remedy. This agreement con-
tains, inter alia, a provision that the Company agrees
not to discriminate against any employee because of
union affiliation or activities. The full agreement was
placed into evidence before the arbitrator. During the
course of the proceedings, Respondent, on direct ex-
amination, questioned Cupples' supervisor, Castle-
berry, as to whether he had been out to "get" Cupples.
Castleberry, responded negatively. Evidence was also
presented concerning disciplinary action taken against
Cupples in 1968, and the results of a grievance he filed
over such action. On June 12, the arbitrator issued his
opinion and award in which he concluded that Cupples
had been guilty of negligence, as charged, but that the
penalty of discharge Should be reduced to a suspension
without pay, to the date of the award, and that he be
reinstated to his former position. -
At the unfair labor practice proceedings, Cupples
contended that the arbitrator's award should not be
honored because the subject of his prior grievance
filings had not been presented to, nor considered by, the
arbitrator. The Trial Examiner agreed with this conten-
tion and proceeded to determine the merits of the un-
fair labor practice charge. I disagree. The record before
the Board indicates at least three instances-the con-
tract, examination of Castleberry, and the prior disci-
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pline grievance-in which evidence regarding this issue
was brought to the attention of the arbitrator.
Additionally, it is implicit in the arbitration process
that an arbitrator determining whether discipline ° or
discharge is "for just cause" must necessarily 'con'sider
whether in fact the discipline was imposed for some
other reason which would not be consistent with the
concept of "just cause." And in this case, such evidence
could, of course, have`been introduced in support of a
claim that the discharge violated the specific antidis-
crimination provision of the governing agreement.
Thus, here, the employee's representative was ,free to
introduce, at the arbitration hearing, any available evi-
dence to demonstrate that the , discharge was not' for
Cupples' negligence, but instead was for his grievance
activities. Arbitrators not infrequently find such evi-
dence convincing, just as do our Trial Examiners who,
in 8(a)(3) cases, are called upon to decide the very same
kind of issue. `
If the parties here, having chosen to have the basic
issue of the justness of the discharge determined by an
arbitrator, failed adequately to present as thorough `a
case as could have been developed on the issue of dis-
crimination, it was not for want of a proper forum in
which such issue could, and should, have been raised.
I do not believe that the Spielberg requirement of fair
and regular procedures should be extended to require
that we refuse to accept an arbitrator's award because
this Board or its General Counsel, with the benefit of
hindsight, can think of arguments or uncover evidence
which might have been, but was not presented in the
course of the arbitration hearing.
It is well established that the Board has considerable
discretion to respect an arbitration award and decline
to exercise its authority over alleged unfair labor prac-
tices if to do so will serve the fundamental purposes of
the Act.'° The Board will defer to arbitration when the
proceedings appear to have been fair and regular, all
parties had agreed to be bound, and the decision of the
arbitration panel is not clearly repugnant to the pur-
poses and policies of the Act." In my view, the arbitra-
tion proceeding in this case clearly satisfied these re-
quirements.
For these reasons, in my opinion, it would effectuate
the policies of the Act to give conclusive effect to the
arbitration award and, on that basis, I would dismiss
the complaint herein in its entirety. -
° International Harvester Company (Indianapolis Works), 138 NLRB
923, 925-926; affd. sub nom Ramsey v N.LR B., 327 F 2d 784 (C.A. 7,
1964), cert. denied 377 U S 1003 (1964)
11 Spielberg Manufacturing- Company, 112 NLRB 1080, 1082.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
MAURICE M. MILLER, Trial Examiner: Upon a charge
filed February 14, 1969, and duly served, the General Counsel
of the National Labor Relations Board caused a complaint
and notice of hearing to be issued and served on Airco Indus-
trial Gases-Pacific, A Division of Air Reduction. Company,
Incorporated, designated as Respondent within this decision.
The complaint issued February 25, 1970; therein, Respond-
ent was charged with unfair labor practices affecting corn-
merce, within the meaning of Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended. 61 Stat. 136, 73
Stat. 519. Within Respondent's duly filed answer, certain
factual statements in General Counsel's complaint were
conceded; Respondent, however, has denied the commission
of unfair labor practices.
Pursuant to notice, a hearing with respect to this matter
was held at San Francisco, California, on July 14, 1970,
before me. The General Counsel and Respondent were repre-
sented by counsel. Each party was afforded a full opportunity
to be heard, to examine and cross-examine witnesses, and to
introduce evidence pertinent to the issues. (General Counsel
has filed a motion to correct transcript in two minor respects.
Together with Respondent's counsel, he has further proffered
a stipulation to amend transcript.-Both submissions seem well
founded; no objections have been noted. The requested
charges are hereby ordered.) Since the hearing's close, briefs
have been received from General Counsel's representative
and Respondent's counsel; these briefs have been duly consid-
ered.
FINDINGS OF FACT
Upon the entire testimonial record, documentary evidence
received, and my observation of the witnesses, I make the
following findings of fact:
I JURISDICTION
Respondent raises no question herein with respect to Gen-
eral Counsel's jurisdictional claim. Upon the - complaint's
relevant factual declarations, which have not been contro-
verted, I find that Respondent was, throughout the period
with which this case is concerned, an employer within the
meaning of Section 2(2) of the Act, engaged in commerce and
business activities which affect commerce within the meaning
of Section 2(6) and (7) of the Act, as amended. Further, with
due regard for presently applicable jurisdictional standards,
I find assertion of the Board's jurisdiction in this case war-
ranted- and necessary to effectuate statutory objectives.
II THE LABOR ORGANIZATION INVOLVED
General Truck Drivers, Warehousement, and Helpers, Lo-
cal No. 315, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of, America, herein
called the Union, is, and at all times material herein has been,
a labor organization within the meaning, of Section 2(5) of the
Act, as.amended, which admits certain of Respondent's em-
ployees to membership.
III THE UNFAIR LABOR PRACTICES
A. Issues
General Counsel presently charges Respondent with Sec-
tion 8(a)(3) and derivative Section 8(a)(1) unfair labor prac-
tices, bottomed upon the firm's discharge of Douglas R. Cup-
ples because of his membership in or activities on behalf of
the Union, or because he had engaged in other protected,
AIRCO INDUSTRIAL GASES
concerted activity. Respondent challenged this contention
upon two grounds. First, Respondent moves for dismissal.
Respondent's counsel contends that Cupples had, previously,
challenged the propriety of his discharge pursuant to contrac-
tually defined grievance-arbitration procedures; that a defini-
tive arbitration award had been rendered with respect
thereto, that Respondent's disciplinary decision had been,
substantially, sustained therein, and that this Board, there-
fore, should-within its discretion-withhold its process in
deference to such completed arbitration procedures. Sec-
ondarily, Respondent contends that Cupples was, in any
event, terminated for good cause. With matters in this pos-
ture, General Counsel presents two counter contentions.
-First, Respondent's argument, that contractually sanctioned
arbitration proceedings which have been carried to conclu-
sion should be considered sufficient to warrant Board defer-
ence herein, stands challenged as misplaced; General Counsel
currently contends that Respondent's proffered arbitration
award reflects neither testimony taken, consideration given,
nor disposition made, with respect to those matters of statu-
tory concern which purportedly underlie his complaint. Fur-
ther, General Counsel contends that Respondent's presently
proffered reason for Cupples' termination must be consid-
ered, really, pretextual.
B. Facts
1. Background
a. Respondent's plant
Within Respondent's Richmond, California, plant-with
which this case is concerned-the Company produces com-
mercial and cryogenic gases, particularly liquid nitrogen, liq-
uid oxygen and liquid argon. These liquid gases are delivered
to Respondent's customers in large cylindrical tubes; some
30-40 feet long. Numerous tubes (15-60) are carried on
framework trailers-stacked in semi-pyramid fashion and
strapped in place-pulled by truck tractors. (Respondent's
tube carriers are not covered, enclosed trailers; they were
merely open metal framework carriers mounted on wheels.
With Respondent's tubes removed, each carrier is cus-
tomarily designated a chassis; when loaded with completely
assembled tubes, these carriers are considered trailers.) The
tubes in question must be cleaned, reconditioned, and tested,
periodically. For this purpose, Respondent's Richmond plant
maintains a tube trailer maintenance and retest facility.
Within this facility, when trailers and tubes are returned for
necessary maintenance, the tubes are removed from their
carrier, disassembled, and hydrostatically tested for defects.
They are then reassembled, given a primer coat of paint, and
restacked on Respondent's chassis. The completely restacked
trailer is then released or transferred to Respondent's garage
paint shop; there, the tubes receive their final coats of paint,
partially orange and partially white.
b. Respondent's labor contract
Throughout the period with which this case is concerned,
wages, hours and conditions' of work at Respondent's Rich-
mond plant were governed by Respondent's contract with
General Truck Drivers, Warehousemen and Helpers Local
No. 315 and Local No. 70; International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America. That contract, inter alia, proscribed discharge or
suspension without "just" cause, providing further that most
discharges or suspensions for cause must be premised upon
written warning notices, one or more, given the worker con-
cerned no more than 9 months previously. (No prior warning
notice was contractually required, however, for discharges
bottomed upon dishonesty, drunkeness, recklessness result-
679
mg in serious accident while on duty, or gross misconduct.)
Respondent was contractually committed to eschew discrimi-
nation of any kind directed against stewards or workmen
because of their union membership or participation. The con-
tract, further, contained provisions establishing a three-step
grievance procedure. Matters not settled thereby were made
referable to nonbinding Federal mediation. Thereafter, the
parties could refer matters to final and binding arbitration,
should such a step prove necessary.
c. Complainant's work history
Respondent hired Douglas R. Cupples, in September 1965;
for most of his period of employment he worked in Respond-
ent's tube trailer maintenance and retest section. During the
period with which this case is concerned; Cupples was desig-
nated a leadman with respect to his work shift; he worked,
primarily, with another workman, Lyle Elledge.
When first hired, Cupples had been a member of Stationery
Engineers Local No. 39. Thereafter, however, he-together
with some other workers-had mounted a campaign for rep-
resentation by Teamsters Local 315. Following their organi-
zational campaign, this-Board had held a representation elec-
tion during early 1966, which the last-designated
organization had won.
Shortly following the Teamster Local's victory, Cupples
had been elected alternate shop steward at Respondent's
Richmond facility. He had held that position for one year
approximately. Thereafter, he had been elected head shop
steward.
During his year of service as head shop steward, Cupples
had filed some 50-60 written grievances; further, he had pre-
sented some 100-150 informal verbal grievances. Late in
1967, or early the following year, Cupples had been replaced
as head shop steward. Nevertheless, he had continued to file
grievances, both on his own behalf and on behalf of himself
and other workers. Between February 1, 1968, and the date
of his January 1969, termination, Cupples had filed at least
11 written grievances. (While a witness, Cupples testified that
he might have filed more grievances than those produced in
writing for the present record; with respect thereto, however,
he could produce no copies and retained no present recollec-
tion.) Further, so his credited testimony shows, he continued
to present verbal grievances directly to superiors; the present
record, however, provides no reliable clue regarding their
number or content.
2. Cupples' relationship with Castleberry
During July 1968 Cupples was being supervised by John
Anderson; before August 1, Harrelton ' Castleberry, then
designated Respondent's distribution superintendent, super-
vised only garage employees and truck drivers.
Among the workmen under Castleberry's supervision was
Joe Boles, a tire and lube man. Sometime late in July 1968
during a coffeebreak conversation, Boles asked Cupples
whether there was any possibility that he might get into
trouble for performing work in Respondent's garage nor-
mally done by the Machinist's Union members. Cupples re-
sponded-jokingly, so he credibly testified-that Boles might
be subject to disciplinary action should he perform work
within another labor organization's jurisdiction; he added
that Boles "could be taken" before Local 315's executive
board.
The following day, Castleberry stopped Cupples at Re-
spondent's plant, shortly before the latter's second shift tour
of duty was to begin, telling him that he did not want Cupples
"interfering" with his men. When queried regarding his refer-
ence, Castleberry replied that he was referring to Cupples'
conversation with Boles the night before. Cupples declared
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had been joking, merely. Castleberry then commented
-so I find-that he would be taking over supervisory respon-
sibility for Respondent's fill building operations, together
with the plant's tube trailer maintenance and retest functions,
within a short time; he warned Cupples that he knew how to
take care of people who got in his way or made his job
difficult. (Castleberry, while a witness, declared that he had
no specific recollection regarding this conversation. Despite
his conceded failure of recollection, however, Respondent's
distribution superintendent claimed "definitely" that he had
never threatened Cupples. Since Castleberry had testimoni-
ally acknowledged his lack of recollection, regarding this
matter, his pro forma disclaimer can hardly be considered
more than a self-serving statement, not worthy of credence.
Cupples' detailed recital has been credited.)
Upon this note, presumably, their conversation ter-
minated. Shortly thereafter-on August 1 specifically-Cas-
tleberry was, indeed, given supervisory responsibility, inter
alia, for the Richmond plant's fill building, plus tube trailer
maintenance and retest functions. While a witness, Castle-
berry conceded that he had-then-reviewed the personnel
filed of workers newly transferred to his supervision. He had
found-within Cupples' file-copies of grievances previously
filed, together with memos from the workman's former super-
visors dealing with his grievances and complaints. Castle-
berry tacitly acknowledged-during General Counsel's
cross-examination-that he had thereupon "realized" there
had previously been "difficulty" between Cupples and Re-
spondent's management, before the former's August 1 trans-
fer to his supervision.
For a short period thereafter, during late October of early
November 1968 specifically, Cupples and Elledge were tem-
porarily transferred to fill building functions. Together, they
visited Castleberry's office; Cupples declared that he
proposed to file a grievance regarding their transfer. Castle-
berry countered with a declaration that he was getting tired
of Cupples' penchant for filing grievances; he declared that he
would "get rid" of Cupples, if his grievance filings did not
stop. The workman commented, however, that if Respondent
would comply with contractual requirements he would not
have to file grievances. Castleberry, then, declared that if he
wished to "get rid" of Cupples he would. When Cupples
asked whether this meant he would be fired, Castleberryre-
plied that he would get rid of Cupples any way he saw fit,
should that become necessary, and that he could get rid of
anyone he desired. (Regarding this conversation, Elledge cor-
roborates Cupples; Castleberry's testimony reflects no denial.
My factual determinations derive from a synthesis of the
testimony presented.) No specific grievance was mentioned.
So far as the record shows, Castleberry's pique, with respect
to Cupples, derived from generalized considerations merely.
I so find.
Some 2 weeks later-while Cupples, then back at work on
swing shift, in tube trailer maintenance and retest, was work-
ing in Respondent's yard-his supervisor accosted him. Cas-
tleberry declared himself "unhappy" regarding Cupples'
work, adding that he would have to get rid of Cupples if the
latter did not shape up. Further, so Cupples testified, Re-
spondent's supervisor, then:
... made a statement to the affect that he was tired of
me filing grievances all the time; couldn't figure out-he
said I was getting to be a pain in the ass to him and
couldn't figure out what the hell was the matter with me;
that I was always complaining and bitching and grieving
about different things. -
The record, within my view, warrants a determination, con-
trary to Castleberry's testimony, that this conversation
became somewhat loud and heated-so much so that it cap-
tured Elledge's attention while he was passing. Save for a
query, however, regarding what was going on-with respect
to which Cupples vouchsafed an equivocal reply-Elledge
took no part in the conversation.
While a witness, Castleberry first described this conversation
as just a calm, friendly talk, devoted to general topics; the
record considered in totality, however, will not support such
a characterization. First, Castleberry conceded that he could
not, now, recall their conversation fully. Secondly, this trier
of fact notes Elledge's testimony-which I find credible-
that the conversation in question was sufficiently heated to
compel his notice. Finally, Castleberry acknowledged that he
had, next morning, prepared a memorandum regarding the
conversation, for placement in Cupples' personnel file; the
record shows that he did not follow this practice with regard
to casual talks, but that he would customarily prepare file
memos when conversations with workmen related to their
work or work performance. With matters in this posture,
Cupples' recital regarding the substance and tenor of his
conversation with Castleberry is credited; this trier of fact
finds that he was, really, threatened with possible discharge
because of his grievance-filing proclivities.
During the first week' of January 1969, Cupples attended
a grievance meeting in Castleberry's office, together with a
group of union representatives. One of two December griev-
ances which Respondent's leadman had filed, claiming over-
time, was considered. During the discussion, Castleberry
asked whether he had any more grievances to present; Cup-
ples replied that he had one more grievance, regarding over-
time, which was not yet ready. Respondent's supervisor-so
credible testimony shows-then asked, sometimes petulantly,
why he (Cupples) could not get his grievances ready for
presentation at one time; he suggested, facetiously, that Cup-
ples would be well-advised to procure secretarial help to write
up his grievances. Cupples responded, presumably in the
same spirit, that this would not be a bad idea.
3. Cupples' discharge
On January 20, 1969, when Cupples and Elledge reported
for Respondent's swing shift, they found a so-called logbook
lying open near the front end of the company-owned trialer
chassis whose tubes were currently being reconditioned. The
book's right-hand, odd-numbered page contained a series of
handwritten notations, detailing the work which had been
performed during the completed January 20 day shift.
(Generally, Respondent's' tube trailer maintenance and re-
test leadmen were required 'to record, within the logbook,
whatever work had been performed on their shift; presuma-
bly, succeeding shift workers were, thereby, kept advised re-
garding the status of work within the plant's tube trailer
maintenance and retest' section. Though the present record
warrants a determination-consistently with Respondent's
contention-that Respondent's foremen sometimes noted in-
structions or recorded messages , for oncoming shift workers,
within this logbook, such usage of the book does not appear
to have been common. Most instructions were given verbally.
For example: Logbook pages produced for the present record
reveal some written instructions for Respondent's swing shift
dated January 16 and 17, 1969; these were the two working
days which had directly preceded Monday, January 20.
Before that, however, no instructions had been recorded in
Respondent's logbook within the previous 11 pages, covering
the period from December 26, 1968, to January 15, 1969.)
Cupples noted some seven blank lines below the last Janu-
ary 20 day-shift entry; he did not, therefore, turn the page to
determine whether further notations had been made on the
following left-hand page. In fact, however, such notations
had been made; therein, Cupples'and Elledge had been di-
AIRCO INDUSTRIAL GASES
rected, inter alia, to lay some wrapping paper, procurable
from Respondent's garage, over the chassis frame, before
replacing tested and reassembled tubes thereon. (Such paper,
when properly placed, would-so the record shows-serve a
useful purpose. When Respondent's garage paint shop work-
ers were, thereafter, required to spray paint the reloaded
tubes with their final coats of orange and white paint, the
paper would mask Respondent's chassis from accidental
overspray; thereby, the trailer chassis, regularly colored
orange, would be preserved from speckling by sprayed white
paint.) Cupples and Elledge, so the record shows, completed
certain routine tasks and replaced 18 tubes on Respondent's
chassis without first laying down masking paper pursuant to
their foreman's directive. When Respondent's swing shift
concluded, Cupples turned the logbook page, for the purpose
of recording those tasks which he, together which Elledge,
had completed. For the first time-so his credible testimony
shows-he noted his foreman's "instruction" regarding the
laying of masking paper, which appeared at the top of the
logbook's newly turned left-hand page. Since swing-shift op-
erations had been completed, however, with Elledge having
already left the work area, Cupples concluded that nothing
could then be done, and merely recorded their work per-
formed.
When Cupples and Elledge reported for work on January
21, they were summoned to Castleberry's office. Respond-
ent's supervisor queried them regarding their previous day's
failure to lay masking paper before reloading the chassis with
tubes. Cupples replied that this was not considered a normal
part of their work and was not normally done. He was told,
however, that a directive with respect to laying such paper
had been noted in Respondent's logbook. The leadman there-
upon declared that, should Castleberry wish some masking
paper laid, the situation could be rectified very quickly.
With Castleberry's acquiescence, Cupples and Elledge pro-
ceeded to raise the reloaded tubes with jacks, following which
they slid the requisite masking paper over the chassis frame-
work, beneath the tubes. This mask was completed some time
within 10-30 minutes.
Work proceeded normally for the balance of the week. On
January 27, however, Respondent and union representatives
held another grievance panel conference. Some grievances
filed by Cupples, personally, were considered. Respondent's
leadman, further, gave testimony in support of still another
grievance; Elledge, together with another worker holding the
same classification, were requesting leadmen's wages com-
parable with Cupples' rate, since they were doing the same
work.
On the following day, January 28, Cupples received a let-
ter, signed by Castleberry, whereby his services with Re-
spondent were terminated. Therein, Cupples was told that:
This action is based on your negligence and failure to
follow instructions on January 20, 1969, plus your previ-
ous past record.
The present record warrants a determination, which I make,
that Respondent's termination decision-though com-
municated over Castleberry's signature-had not, really,
been made by Respondent's distribution superintendent; it
followed consultation between the latter, his superiors, and
Respondent's corporate manager of industrial relations.
4. The arbitration proceedings
Cupples promptly filed a grievance regarding his termina-
tion; he contended that his discharge had not been warranted
by past company practice. This grievance, eventually,
reached arbitration. On March 27, a hearing was held, before
Arbitrator Howard Durham, with both Respondent and
Union represented by counsel. The record, herein, shows that
681
Respondent's labor contract-with its discharge and nondis-
crimination provisions-was, then and there, made available
for the arbitrator's consideration . Further, General Counsel
and Respondent have stipulated, herein, that Respondent's
distribution superintendent-when questioned during the ar-
bitration hearing by Respondent 's counsel-did deny any
personal campaign to somehow "get" Cupples ; likewise, he
denied receiving any so-called instruction from superiors to
"get" the complainant herein . While a witness before me,
however , Cupples testified-credibly and without contradic-
tion-that neither the subject of his prior grievance filings,
both on behalf of himself and others , nor his prior conduct
as Union shop steward , were specifically "discussed or men-
tioned" during the arbitration proceeding. I so find.
Arbitrator Durham 's decision-made part of the record
herein-reflects his detailed consideration of Respondent's
contention that "just cause" had motivated Cupples termina-
tion , bottomed upon his purported January 20 negligence
following an earlier May 1968 disciplinary suspension. The
arbitrator concluded that Cupples' had, indeed , been guilty
of negligence . Nevertheless, he rejected Respondent 's conten-
tion that Cupples' negligence had constituted a serious blun-
der. He found , therefore, that-while Respondent had been
given cause to discipline Cupples for his January 20 oversight
-no just cause for termination had been shown; another
disciplinary suspension-so he concluded-would have been
proper . Pursuant to this conclusion, Arbitrator Durham,
within a decision dated June 12,1969 , reduced Cupples' pen-
alty to a suspension without pay from January 28 through the
decision 's date, and directed that Respondent 's former lead-
man be reinstated to his former position , with no loss of
seniority.
General Counsel and Respondent have herein stipulated,
however, that Respondent 's former leadman-had remained
in the firm's employ-would have been terminated May 16,
1969, for business reasons. In practical terms, therefore, Dur-
ham's award , subsequent to that date, would seem to have left
Cupples without any meaningful right . I so find.
Respondent herein , so the record shows, currently ac-
quiesces with respect to Arbitrator Durham 's decision. The
firm's counsel , within his brief, presently characterizes Re-
spondent's January 28 treatment of Cupples , challenged
herein , as merely a disciplinary suspension without pay. Fur-
ther, Respondent contends, herein, that the arbitrator's
award should not be disturbed.
C. Conclusions
1. The arbitration award
Clearly, this Board's unfair labor practice jurisdiction-
pursuant to Section 10(a) of the statute-cannot be consid-
ered "affected" by any other means of adjustment or preven-
tion that has been or may be established by agreement, law,
or otherwise. However, consistent with Congress' policy to
encourage a resort to contracts providing for final arbitration
of grievance disputes, the Board had declared-within its
discretion-that it will, under appropriate circumstances,
withhold its process in deference to arbitration procedures.
Spielberg Manufacturing Co., 112 NLRB 1080, 1082. Within
the cited case, the Board concluded that voluntary settle-
ments with respect to grievance disputes would be most ap-
propriately promoted by Board deference to arbitral deci-
sions where the proceedings appear to have been fair and
regular, where all parties have agreed to be bound, and where
the arbitrator's decision is not clearly repugnant to statutory
purposes and policies.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent contends, herein, that these conditions have
been satisfied with respect to the present case. This Trial
Examiner has been requested therefore, to declare deference
for Arbitrator Durham's decision, and to dismiss the present
complaint.
General Counsel, however, notes cogently, within his brief,
that this Board's so-called Spielberg doctrine has-since its
promulgation-been significantly refined. For example: It has
been held that an arbitral award sustaining the discharge of
two workers would not be considered determinative-when
proffered within a statutory unfair laborpractice challenging
their discharges as discriminatory-since the concerned arbi-
trator had determined, solely, whether the workers in ques-
tion had violated a contractual no-strike clause, but had not,
while so doing, considered whether they had been discharged
for protected union or concerted conduct. Raytheon Com-
pany, 140 NLRB 883, 884-885. Compare Mitchell Transport,
Inc., 152 NLRB 122, 123, 130-131, petition to review denied,
sub nom. Hawkins v. N.L.R.B., 358 F.2d 281, 284 (C.A. 7).
Therein, likewise; the concerned arbitral tribunal had consid-
ered merely whether a designated dischargee had been treated
fairly under contractual standards; no testimony, argument
or discussion had been presented bearing upon the question
of whether the challenged discharge might have been moti-
vated, likewise, by the dischargee's participation in protected
conduct.
The decisional refinement noted-with respect to this
Board's, so-called Spielberg doctrine-has, more recently,
been reaffirmed within a factual context significantly com-
parable with the situation herein presented. DC International,
Inc,, 162 NLRB 1383, 1384-85, enfd. denied on other
grounds 385 F.2d 215, 220 (C.A. 8). The cited case concerned
a workman threatened with reprisal by company officials on
various occasions because of his penchant for filing numerous
contractual grievances. He was subsequently discharged for
a purported dereliction which the Board found pretextual.
Presented with Trial Examiner Stone's recommendation-
that a properly designated arbitration panel's decision
confirming the propriety of the challenged discharge, should
be recognized-this Board declared:
In general, the General Counsel contends that, as the
quesiton of Stanley's statutory rights was neither pre-
sented nor considered in the arbitration proceeding, the
award was inadequate to effectuate statutory policies,
and accordingly, the Board should disregard it in deter-
mining the lawfulness of Stnley's discharge. On the
particular facts of this case, we find merit in the General
Counsel's position ... [The] issue of pretextual dis-
charge was never raised, directly or inferentially, much
less litigated before the Committee. Nor was any evi-
dence offered from which the Committee might, sua
sponte, have considered this issue ... [It] is clear beyond
doubt that the Committee had no reason for even sus-
pecting that Stanley's discharge might have been moti-
vated by conduct protected by Section 7 of the Act.
Accordingly, it is plain that the Committee had no occa-
sion to, and did not explore the issue of concern to the
Board, and that the question of statutory policy raised
by the instant complaint, if it is to be considered at an,
must be presently resolved without regard for the Com-
mittee's decision.
These decisional principles have since been consistently fol-
lowed,, with judicial concurrence. Milne Truck Lines, 171
NLRB No. 25, (TXD); The John Klann Moving and Truck-
ing Company, 170 NLRB No. 133, enfd. 411 F.2d 261 (C.A.
6); Hribar Trucking, Inc., 166 NLRB 745, 754, enfd, 406
F.2d 854 (C.A. 7). Compare IllinoisRuan Transport Corpora-
tion v. N.L.R.B., 404 F.2d 274 (C.A. 8); Associated Retailer
Suburban Delivery Company, 181 NLRB No. 64 (TXD); and
Style Expansion Industries Corporation, 164 NLRB 563, 572-
573, wherein the Board concurred with its Trial Examiners'
determinations that relevant arbitral decisions did not de-
serve deference, but rejected their substantive conclusions
regarding the propriety of challenged discharges.
While a witness herein, Cupples testified-without contra-
diction-that neither his prior grievances, nor the fact that
such prior grievances had been filed, were "discussed or men-
tioned" during the contractual arbitration proceeding with
which we are now concerned. Respondent's counsel notes
that the relevant collective-bargaining contract was before
Arbitrator Durham; that lengthy document,inter alia, does
contain a clause prohibiting discrimination because of union
activity. Further, Respondent has proffered-for the present
record-that portion of Castleberry's testimony before Dur-
ham wherein Respondent's distribution superintendent de-
clared-responding to leading questions-that neither he,
nor any other management representative, had been trying to
"get" the complainant herein. From this, limited congery of
purportedly relevant circumstances, counsel would have me
conclude that Arbitrator Durham, necessarily, must have
considered whether Cupples' discharge derived, completely
or partially, from participation in statutorily protected con-
duct, and must have decided that no such showing had been
made.
This contention fails to persuade. Lacking, any record
showing, herein, that Cupples' previous union-related or pro-
tected conduct was specifically mentioned during his contrac-
tual arbitration hearing, I cannot conclude that Arbitrator
Durham considered the possible relevancy or materiality of
Respondent's contractual "non-discrimination" commit-
ment, with respect to complainant's termination. Certainly,
Castleberry's testimony during the arbitration hearing-that
neither he nor any management representative had been try-
ing to "get" their former leadman-can hardly be considered
a specific reference to Cupples' history of participation in
statutorily protected activity. (Compare Modern Motor Ex-
press, Inc., 149 NLRB 1507, 1510. Therein, this Board found
Spielberg criteria satisfied, upon a record which revealed that
purported discriminatee had, himself, raised-during a con-
tractually sanctioned arbitration proceeding-the specific
contention that he believed the company concerned had "had
it in" for him since the occasion when he had filed a griev-
ance. Consistently with General Counsel's contention, I find
this factual difference sufficient to "render the cited case inap-
posite, upon the present record.) With matters in this posture,
I conclude that this Board's so-called Spielberg criteria have
not, herein, been satisfied; Arbitrator Durham's decision,
therefore, does not, within my views, presently merit defer-
ence.
Within this brief, Respondent's counsel makes a 'further
contention. Noting that this Board's Regional Office had
withheld a final determination regarding the disposition of
Cupples' charge-which had been filed very shortly following
his termination-while waiting for Durham's arbitral deci-
sion, counsel suggests that the Region's policy of caution
really represented a deliberate deferral to contractual arbitra-
tion processes. And, with matters in this posture, counsel
argues that:
the Region should not be allowed to "change its
mind" some eight months after the' arbitrator's award.
A decision to defer was made, it should be made a bind-
ing decision and the Charge should be dismissed ...
This contention, seemingly, derives from "estoppel" princi-
ples. Well-settled decisional doctrine, however, requires a
determination that so-called estoppel principles can neither
dictate nor confine this Board's judgment, functioning within
AIRCO INDUSTRIAL GASES
its statutory discretion. With respect to previously rendered
contractual arbitration decisions, particularly, no persuasive
rationale dictating agency restraint has, heretofore, been sug-
gested; rather the agency's freedom to proceed has, been
reaffirmed. See Carey v. Westinghouse Electric Corporation,
375 U.S. 361; 'Cast Optics Corporation v. Textile Workers
Union ofAmerica, 75 LRRM 2169, 2170 (D.C. N.Y.). Within
the first cited case, Justice Douglas, speaking for the court,
did note that the "weight" carried by a relevant arbitration
award would "likely be considerable" should this Board be
required, later, to rule on phases of the same dispute. He
concluded, however, that:
Should the Board disagree with the arbiter ... the
Board's ruling would, of course, take precedence.
... The superior authority of the Board may be invoked
at any time.
These considerations, within my view, must be considered
determinative. The-Regional Director's tentative decision to
withhold the present Complaint's issuance-while he waited
to see whether Cupples' arbitration proceeding would, ulti-
mately, meet relevant Spielberg and DC International stan-
dards--cannot, therefore,' control this case's disposition.
2. The discharge
There can be no doubt, upon the present record, that-
throughout most of his,period of service-the complainant
was a prominent union protagonist. Further discussion,
herein, regarding his participation in Local 315's campaign
for representation rights and subsequent stewardship, plus his
relatively frequent grievance filings during the year which
preceded his discharge, would be superfluous. Indeed, Re-
spondent's counsel, within his brief, notes no traverse with
regard to this portion of General Counsel's presentation; Re-
spondent denies, merely, that Cupples' January 28 termina-
tion constituted _Castleberry's so-called revenge for com-
plainant's conceded union activity.
The present record, likewise, fully warrants a specific de-
termination-without regard for counsel's tacit concession-
that Respondent's management, generally, was cognizant of
Cupples' statutorily protected conduct. Naturally, those
management representatives directly concerned with resolv-
ing grievances which Cupples presented-both as Local 315's
head steward and, following his period of stewardship, in his
own behalf-would have been fully cognizant with respect
thereto. (The record reveals Castleberry's concession that
Cupples' former supervisors had left memoranda in his per-
sonnel file regarding grievances which he had previously
filed.) Testifying herein, Respondent's distribution superin-
tendent did declare that-before his designation as Cupples'
supervisor-he had not, personally, shared management's
knowledge regarding the leadman's grievance record. How-
ever, he, did concede that, when he became Respondent's
distribution superintendent, he had reviewed, inter_'alia, Cup-
ples' personnel file. With matters in this posture, I find that
Castleberry, particularly, was-throughout the period with
which this case is directly concerned-fully cognizant of
Cupples" history of participation in protected; concerted ac-
tivity.
General Counsel submits, herein, that Cupples' January
20, failure to lay masking paper on Respondent's trailer chas-
sis, pursuant to his foreman's directive, constituted merely a
pretext for his discharge. 'Respondent counters with a conten-
tion, first, that General Counsel's testimonial presentation-
designed to prove Castleberry's statutorily-proscribed- moti-
vation-merits characterization as sketchy and indefinite.
These contentions present, the basic,factual question which,
when resolved, will be dispositive herein; i.e.-, what was the
"actual motive" for Cupples' termination. Santa Fe Drilling
683
Co. v. ,N.L.R.B., 416 F.2d 725, 729 (C.A. 9). Disposition of
that question will, necessarily require determinations regard-
ing a state of mind, with respect to which direct evidence free
of "self-serving" taint will seldom be available. This Board's
determinations with respect to motivation, therefore, have
frequently been derived-with judicial concurrence- from
circumstantial as well as direct evidence, supportive of infer-
ences "drawn from the entire web of circumstances" which
particular records present. Santa Fe Drilling Co. v. N. L. R. B.,
supra,- N.L.R.B. v. Miller Redwood Co., 407-F.2d 1366,'1369
(C.A. 9); Shattuck Denn MiningCorp v. NL.R.B., 362 F.2d
466, 470 (C.A. 9). In this connection, further, discharges
may, properly, be found unlawful where a dischargee's par-
ticipation in protected, concerted activity was merely a con-
tributing factor. In such cases, shortly, statutory violations
may be considered made out, though a proscribed motive
may reasonably be considered only partially responsible for
the challenged discharge decision.
With due regard for these settled principles, I find General
Counsel's contention, herein, fully supported by the present
record. Castleberry's negative reaction toward Cupples'
seemingly sustained "activism" with respect to grievance
matters-following his acquisition of knowledge with respect
thereto-stands therein plainly revealed. And General Coun-
sel's presentation-despite contending counsel's suggestion
that'it lacks substantiality-warrants ,a determination; within
my view, that Castleberry did threaten Cupples with possible
discharge, three times at least, because he considered Cupples
a protagonist of workers' rights under Local 315's collective-
bargaining contract.
(Respondent's counsel would have me note that Cupples
filed' no grievances during his first 4 months under Castle-
berry's supervision; more particularly, he would have me note
that Cupples filed no grievances requiring Castleberry's at-
tention, before the several purported threats' of discharge with
which we are now concerned. Presumably counsel would
contend, therefore, that Castleberry could not reasonably be
found to have threatened Cupples because of resentment over
the latter's various grievance filings. The suggestion, however
-despite its factual justification-does not, within my view,
vitiate General Counsel's contention. The first threat-re-
flected in Castleberry's July 1968 declaration that he' knew
low to "get rid" of people who got in his way or made his
job difficult-clearly derived from Castleberry's belief that
Cupples, though not then his direct subordinate, had some-
how "interferred" with his managerial right to direct the
work of those subject to his supervision. And both subsequent
threats-during their October-November ' conversations de-
tailed previously within this decision-clearly'followed Cas-
tleberry's reading of Cupples' personnel folder, with its
record of'grievances filed. Further, both threats were made-
so the credible record shows-within conversational contexts
which included references ' by Respondent's distribution su-
perintendent to Cupples' prior grievances and complaints.)
With matters in this posture, General Counsel has-within
my view-made a prima facie showing that Cupples' dis-
charge could reasonably be attributed, completely or par-
tially, to Castleberry's previously declared resentment, which
had been kindled to positive action when the leadman, subse-
quently, filed his December-January grievances.
With respect to Respondent's proffered justification for
Cupples' challenged termination, something less than a per-
suasive,presentation appears. Upon the present record, deter-
mination, clearly seems warranted 'that the placement of
masking paper of trailer chassis frameworks had never previ-
ously been considered "standard operating procedure" for
Tube Trailer Maintenance and Retest crews. (While a wit-
ness, Castleberry did contend-without proffering any cir-
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cumstantially corroborative details-that such a task was
part of Respondent 's normal routine . Cupples and Elledge,
however, both registered strong disagreement . They testified
-without persuasive contradiction from either their foreman
or fellow workers presumptively knowledgeable in this con-
nection-that they had never been given routine supervisory
directives with respect to laying masking paper ; that they had
laid such paper only twice previously ; and that , with respect
to both occasions, they had laid the paper because fellow
workers-not supervisors-within Respondent's paint de-
partment had specifically requested them to do so. Their
testimony in this respect is credited .) My conclusions in this
regard have been , further, buttressed by certain significant
lapses in Respondent 's defensive presentation . Where was the
supply of masking paper-which Cupples and Elledge were
supposedly required to lay-stored? Was such paper regu-
larly made available for placement , within the firm's tube
trailer maintenance and retest work area , or was the plant's
supply -kept in Respondent 's garage? Which department, sec-
tion, or particular worker within Respondent's Richmond
plant was responsible for providing such paper? To whom,
and subject to whose requisition , was it regularly provided?
No testimonial or documentary basis for resolving these ques-
tions can be found within the present record ; Cupples' fore-
man-who , conceivably , could have provided such data from
personal knowledge-was never summoned . Further, with
respect to Respondent's present contention - regarding the
plant's "normal practice" regarding the placement of mask-
ing paper , General Counsel raises a pertinent question:
If such a practice did indeed exist , and if such practice
were in fact normal procedure , why then would it have
been necessary for Castleberry or his foreman to write
instructions in the log book requesting Cupples and El-
ledge to lay the masking paper?
With respect to this quesiton, Castleberry 's testimony pro-
vides no basis for resolution. By way of summary : Respond-
ent's defensive presentation provides no persuasive justifica-
tion for a conclusion that Cupples ' failure to lay the masking
paper represented a deviation from his crew 's normal work
routine.
Respondent , however , further cites Cupples' presump-
tively culpable negligence, demonstrated by his failure to note
his foreman's specific "log book" directive regarding the
placement of masking paper, coupled with his consequent
failure to, lay such paper. This trier of fact has not been
persuaded, however, that-without regard for Cupples'
record of participation in statutorily protected conduct his
claimed "failure of omission" with regard, to Respondent's
logbook would have been considered , still, sufficiently serious
to warrant his termination . Note should be taken , in this
connection, that the firm 's logbook was not 'routinely used for
conveying instructions ;, that comparatively few work direc-
tives can be found therein ; that the specific directive which
Cupplesconcededly failed to note before commencing work
did not follow, directly, the first-shift crew 's immediately
preceding logbook notations ; and that Cupples' foreman had,
nevertheless , given him no clue suggesting that the logbook's
next (not yet visible) page contained relevant instructions,
plus,a message for second -shift workers . (In this connection,
I have been particularly troubled by one question which the
present record leaves unresolved . Assuming , arguendo, that
Cupples '',foreman may have had some reason-which he con-
sidered good and sufficient-for skipping six to seven blank
lines below the concluding portion of first-shift leadman's
report on page 83 of Respondent 's logbook-and for record-
ing his work directive , plus a message , on the following page
-why was the book leaf in question turned back, and why
was the book left open with page 83 rather than page 84
showing?) With matters in this posture, I am satisfied that
Cupples' initial ,failure to turn the logbook 's page-before
beginning work-could reasonably have been considered ex-
cusable, or, at least, understandable . Further , I am satisfied
that Respondent 's management-specifically Respondent's
distribution superintendent-chose to consider Cupples' fail-
ure culpably negligent primarily because of his previously
disclosed resentment over Cupples ' grievance filing practices.
My conclusion, that Respondent 's claimed reliance upon
Cupples' purported negligence-when justifying his termina-
tion-must be considered pretextual , finds further support in
record testimony which establishes that his "error" had de
minimis consequences . As General Counsel notes, within his
brief:
Castleberry testified Cupples was making approximately
$4.00 an hour and Elledge a little bit less at that time.
The testimony revealed that the "mistake" which was
made by Elledge and by Cupples was rectified in from
10 minutes minimum to 30 minutes maximum . In actual
dollars and cents cost to the company , this "mistake"
could not have cost the company more than $4.00. It
could have cost the company as little as $1.50.
Under these circumstances , Respondent 's contention-that
Cupples' oversight constituted such a serious blunder as to
warrant a determination , confirmed at the highest level, that
he deserved discharge-carries no`persuasion . N.L.R.B. v.
Shattuck Denn Mining Co., supra. I conclude '- and`find that
Respondent's proffered ground for his termination was pre-
textual, and that Respondent 's action derived from
statutorily proscribed considerations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent 's course of conduct described in section III,
above-since it occurred in connection with Respondent's
business operations, described in General Counsel's com-
plaint and concededly described correctly therein-had, and
continues to have, a close, intimate, and substantial relation
to trade , traffic, and commerce among the several States;
absent correction such conduct would tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Since I have found that Respondent engaged in and contin-
ues to engage in certain unfair labor practices which affect
commerce, I shall recommend that it be directed to cease and
desist therefrom , and to take certain- affirmative action, in-
cluding the posting of appropriate notices designed to effectu-
ate the policies of the Act, as amended.
Specifically , since I ,have found that Respondent violated
Section 8(a)(3) and (1) of the statute through Douglas R.
Cupples' discriminatory termination , I shall recommend that
Respondent be required to offer him immediate and full rein-
statement to his former position , or, if that position no longer
exists, to a substantially equivalent position , without preju-
dice to his seniority or other rights and priveleges previously
enjoyed . (The record contains a reference to some business-
motivated layoffs following- Cupples' discharge; General
Counsel concedes that, had Cupples still been in Respond-
ent's hire , then , he would have been laid off together with
other workers terminated for business reasons. With matters
in this posture , General Counsel hasconceded, further, that
no question is currently ,presented regarding the necessity or
propriety of Cupples ' reinstatement . Well-established deci-
sional doctrine teaches, however, that reinstatement orders
are normally considered both necessary and proper with re-
spect to discharges found discriminatorily motivated . There-
AIRCO INDUSTRIAL GASES
fore, even assuming, arguendo, that Cupples would have been
terminated sometime following his discharge date for nondis-
criminatory reasons, determination is made herein that statu-
tory policies will be best-effectuated by requiring Respondent
to resinstate or'reemploy Cupples, should he seek future rein-
statement or reemployment, when work becomes available
for him. 'Cf. Pacific Powder Company, 84 NLRB 280, 285-
286. Compare: Colonial Corporation of America, et al., 171
NLRB No. 185; Quick Shop Markets, Inc., 168 NLRB No.
3Q. To dissipate the effects of Respondent's unfair labor prac-
tices, therefore, Respondent should be ordered to given Cup-
ples preference in filling any vacancy for which he may be
qualified, should such a vacancy occur in future.) It will be
recommended, further, that Respondent be required to make
Cupples whole for any pay losses which he may have suffered
because the discrimination practiced against him, by paying
him a sum of money equal to, the amount which he would
have earned as wages between the date of his discharge and
the date of his reinstatement or placement on Respondent's
preferential hiring list, less his net earnings during such
period. Cupples' backpay -should be computed by ca'lender
quarters, pursuant to the formula which the Board now uses.
F. W. Woolworth Company, 90 NLRB 289. Interest thereon
should likewise be paid, computed at 6 percent per year. See
Isis Plumbing & Heating, 138'NLRB"716, in this connection.
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon the
entire record in this case, I make the following conclusions
of law:
1. Airco Industrial Gases-Pacific, A Division of Air Re-
duction Company, Incorporated, is an employer within the
meaning of Section 2(2) of the Act, engaged in commerce and
business activities which affect commerce, within the mean-
ing of Section 2(6) and (7) of the Act, as amended.
2. General Truck Drivers, Warehousemen and Helpers,
Local No. 315, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the
Act, as amended, which admits certain employees of Airco
Industrial Gases-Pacific to membership.
3. Respondent, when it discharged Douglas R. Cupples
because of his membership in or activities on behalf of the
Union above-designated, or because he had engaged in other
protected, concerted activities, discriminated and continues
to discriminate, with regard to the hire, tenure, and terms and
conditions of employment of its employees, thus discouraging
their union membership and their participation in concerted
activities for mutual aid or protection. Thereby, Respondent
has engaged in and continues to engage in unfair labor prac-
tices affecting commerce within the meaning of Sections
8(a)(1) and (3) and 2(6) and (7) of the Act, as amended.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section ' 10(c) of the Act,
I hereby issue the following recommended:
ORDER
Respondent , Airco Industrial Gases-Pacific , A Division of
Air Reduction Company, Incorporated , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging employees from becoming or remaining
members of General Truck Drivers, Warehousemen, and
Helpers, Local No. 315 , International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or
from participating in Union or other protected , concerted
activity for the purposes of collective bargaining or other
mutual aid or protection , by discharging them, or by dis-
685
criminating in any other manner with respect to their hire or
tenure of employment, or any term or condition of their
employment, except as authorized under Section 8(a)(3) of
the Act, as amended.
(b) Interfering with, restraining or coercing employees-by
discharges, or in any other manner-with respect to their
exercise of rights which the National Labor Relations Act, as
amended, guarantees.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act, as amended:
(a) Offer Douglas R. Cupples immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges previously
enjoyed.
(b) If no position is currently available which Douglas R.
Cupples is qualified to, fill, then--upon his application within
a reasonable time-place his name upon a preferential hiring
list of employees temporarily laid off, and offer him employ-
ment, with due regard for his seniority, when a suitable posi-
tion becomes available, before hiring other persons.
(c) Make Douglas R. Cupples whole for any pay losses
which he may have suffered by reason of the discrimination
practiced against him, consistently with the requirements set
forth within the "Remedy" section of this decision.
(d) Notify Douglas R. Cupples, if 'presently serving in the
Armed Forces of the United States, of his right to full rein-
statement under this recommended Order, upon application
in accordance with the Selective Service Act and the Univer-
sal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
(e) Preserve and make available to the Board or its agent,
upon request, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports and all other records relevant and
necessary to analyze and compute the amount of backpay due
under the terms of this recommended Order.
(f) Post at its place of business in Richmond, California,
copies of the attached notice marked "Appendix."' Copies of
the notice to be furnished by the Regional Director for Re-
gion 20, shall be posted, immediately upon receipt, after being
duly signed by Respondent's representative. When posted,
they shall remain posted for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that these notices are not
altered, defaced, or covered by any other material.
(g) File with the Regional Director of Region 20, within 20
days from the date of service of this Trial Examiner's Deci-
sion, a written statement setting forth the manner and form
in which it has complied with these recommendations?
1 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations and Recommended Order herein shall, as
provided in Sec 102.48 of the Rules and Regulations , be adopted by the
Board and become its findings, conclusions, and order, and all objections
thereto shall be deemed waived for all purposes. In the event that the
Board's Order is enforced by a judgment of a United States Court of Ap-
peals, the words in the notice reading "Posted by Order of the National
Labor Relations Board" shall be changed to read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for Re-
gion 20, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing , during which all sides were afforded oppor-
tunities to present their evidence, it has been determined that
this company violated the National Labor Relations Act. In
order to remedy such conduct , we are being required to post
this notice.
WE WILL NOT discourage membership in, or activity
on behalf of General Truck Drivers , Warehousemen
And Helpers Local No. 315, International Brotherhood
Of Teamsters , Chauffeurs , Warehousemen And Helpers
of America, nor will we discourage employees from as-
serting rights or seeking benefits under the provisions of
our collective-bargaining agreement with that labor or-
ganization, by discharging them, or otherwise dis-
criminating against them in regard to their hire , tenure
of employment , or the terms and conditions of their
employment.
WE WILL NOT , in any like or related manner , interfere
with, restrain, or coerce our employees in their exercise
of rights which Section 7 of the National Labor Rela-
tions Act protects.
WE WILL offer Douglas R. Cupples, immediate and
full reinstatement to his former position , or, if that posi-
tioh no longer exists, to a substantially equivalent posi-
tion , without prejudice to his seniority or other rights
and privileges previously enjoyed . If no substantially
equivalent position exists, we will , upon his application
within a reasonable time , place Douglas R, Cupples
upon a list of employees - temporarily laid off and offer
him employment , with due regard for his seniority on
such a list , when suitable employment becomes availa-
ble, before hiring other persons.
WE WILL make whole Douglas R. Cupples for any
pay losses which he may have suffered by reason of the
discrimination practiced against him.
AIRCO INDUSTRIAL
GASES-PACIFIC
(Employer)
Dated By
(Representative) (Title)
We will notify the above-named employee if presently serving
in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act, as amended , after discharge from the Armed
Forces.
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, 13050
Federal Building , 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102 , Telephone 556-3197.