American Creosoting Corp.

National Labor Relations Board - Board Decisions

Feb 13, 1961

130 N.L.R.B. 150 (N.L.R.B. 1961)

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not the least of which is the presumptive appropriateness of single-
plant units." Thus, it cannot validly be maintained that "extent of
organization" is the controlling factor. To do so subverts, rather than
effectuates, the policies of the Act.
I would find the merit sought in the petition to be appropriate for
purposes of collective bargaining within the meaning of Section 9(c)
of the Act, and would direct an election accordingly.
CHAIRMAN LEEDOM took no part in the consideration of the above
Decision and Order.
12 Thus this case is controlled by Kwikset Locks, Inc., 116 NLRB 1648, and not by the
Westinghouse case, cited by the majority.
American Creosoting Corporation and Georgia Creosoting Com-
pany and Georgia Creosoting Corporation and Local Union
Number 2591 , United Brotherhood of Carpenters and Joiners
of America , AFL-CIO
Georgia Creosoting Corporation and Local Union 2591, United
Brotherhood of Carpenters and Joiners of America , AFL-CIO.
Cases Nos. 10-CA-4409 and 10-CA-4423. February 13, 1961
DECISION AND ORDER
On November 1, 1960, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent Georgia Creosoting Corporation 1 had engaged in and
was engaging in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. The
Trial Examiner also found that the aforementioned Respondent did
not discriminate against Lamar L. Bennett in violation of Section 8
(a) (3) of the Act as alleged in the complaint. Thereafter, excep-
tions to the Intermediate Report were filed only by the aforementioned
Respondent.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions thereto, and the entire record, and
1 The complaint in Case No . 10-CA-4409 was originally issued against three Respond-
ents : American Creosoting Corporation , Georgia Creosoting Company, and Georgia Creosot-
ing Corporation . On June 10, 1960, prior to the hearing, American Creosoting Corpora-
tion and Georgia Creosoting Company entered into a settlement agreement with respect to
the charges in the complaint . Therefore , the Trial Examiner's Intermediate Report and
this Decision and Order involve only Georgia Creosoting Corporation as Respondent.
130 NLRB No. 4.
AMERICAN CREOSOTING CORPORATION, ETC. 151
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner?
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
,of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Georgia Creosoting
Corporation, Brunswick, Georgia, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Threatening or warning employees that it will not operate the
Brunswick plant if a union secures collective-bargaining rights in the
plant.
(b) Interrogating employees regarding union activities or engaging
in surveillance of union activities in a manner constituting interfer-
ence, restraint, or coercion in violation of Section 8(a) (1) of the Act.
(c) Discouraging membership in and activities on behalf of Local
Union 2591, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, or any other labor organization of its employees,
by refusing to rehire or otherwise discriminating against employees
in regard to hire or tenure of employment or any term or condition
of employment.
(d) In any other manner interfering with, restraining, or coercing
its employees in the right to self-organization, to form labor organiza-
tions, to join or assist Local Union 2591, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of
mutual aid or protection as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities.
2 Respondent 's exceptions pertain only to certain portions of the Intermediate Report
dealing with Alva Lee Shepard . In the absence of exceptions to the Trial Examiner's
other findings and recommendations , we adopt them pro forma . With respect to Shepard,
we agree with the Trial Examiner's conclusion that Respondent's failure to rehire Shepard
was for discriminatory reasons, and in violation of Section 8(a)(3) At the hearing,
Respondent contended that It should not in any event be required to offer Shepard a posi-
tion, as , in the course of new employment obtained by him , Shepard engaged in unlawful
conduct rendering him unfit for reemployment . No evidence of a conviction was offered
by Respondent . The Trial Examiner refused to permit evidence of the alleged misconduct
on grounds it would not affect his unfair labor practice findings, and would more properly
be litigable at the compliance stage. Under the circumstances of this case , we agree
with the Trial Examiner ' s disposition of this matter . Shepard ' s alleged misconduct does
not relate to the unfair labor practices alleged. In the complaint and found herein, and, at
the compliance stage , the facts now urged by the Respondent may be presented as evi-
dence in the event of disagreement on the amount of backpay due and the right of re-
instatement We expressly reserve the right to modify the baclepay and reinstatement
provisions of our Order if such action should be required by facts then proved, or by
specific circumstances not now apparent . See Coca-Cola Bottling Company of Louisville,
Inc., 108 NLRB 490, 494 , footnote 23, 219 F. 2d 441 ( C.A. 6), 350 U.S. 264 ( issue not
.considered on review.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Alva Lee Shepard and Ozie Lee Cooks immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privi-
leges previously enjoyed, and make them whole for any loss of pay
they may have suffered by reason of the discrimination against them.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all records necessary to analyze the amount of backpay due.
(c) Post at its plant in Brunswick, Georgia, copies of the notice
attached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by an authorized representative of Respondent, be
posted by the Respondent thereof, and be maintained by it 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 said notices are not
altered, defaced, or covered by other material.
(d) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of this Order, what steps it has taken to
comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminated against
Lamar L. Bennett in violation of Section 8(a) (3).
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, Ave hereby notify our employees that :
WE WILL NOT threaten or warn employees that the Brunswick
plant will not be operated if a union secures collective-bargaining
rights in the plant.
WE WILL NOT question employees regarding their union activi-
ties, or engage in surveillance of union activities of our employ-
AMERICAN CREOSOTING CORPORATION, ETC. 153
ees, in a manner constituting interference , restraint , or coercion
in violation of Section 8 (a) (1) of the Act.
WE WILL NOT discourage membership in or activities on behalf
of Local Union 2591, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, or any other labor organization,
by refusing to rehire or otherwise discriminating against em-
ployees in regard to hire or tenure of employment or any term or
condition of employment.
WE WILL NOT in any other manner interfere with our employees
in their right to self-organization , to form labor organizations, to
join or assist Local Union 2591, United Brotherhood of Carpen-
ters and Joiners of America , AFL-CIO, or any other labor
organization , or to bargain collectively through representatives
of their own choosing , or to refrain from any and all such
activities.
WE WILL offer to the following named employees immediate
and full reinstatement to their former or substantially equivalent
positions and we will make them whole for any loss of pay they
have suffered by reason of the discrimination against them.
Alva Lee Shepard
Ozie Lee Cooks
All our employees are free to become and remain or to refrain from
becoming or remaining members of the above -named or any other
labor organization.
GEORGIA CREOSOTING CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a duly issued consolidated complaint and the answer of Respondent , Georgia
Creosoting Corporation, a hearing was held in Brunswick, Georgia, on June 20 and
21, 1960. The complaint alleges that in November 1959, Respondent American
Creosoting Corporation, herein called American, and Georgia Creosoting Company,
herein called Company, by a named agent , interrogated its employees concerning
their union membership and activities; that Respondents American, Company, and
Georgia Creosoting Corporation, herein called Georgia Corporation, by named
agents, in March 1960, interrogated their employees concerning their union mem-
bership and activities ; that Respondents American and Company, by a named agent,
in November 1959, did threaten their employees that the new owner-purchaser
would close before it would operate with the Union in the plant; that Respondents
American, Company, and Georgia Corporation, by named agents, in March 1960,
did threaten their employees that the new owner -purchaser would close before it
would operate with the Union in the plant; that all Respondents, by named agents,
in March 1960, threatened their employees that the new owner-purchaser would
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not rehire them if they were active on behalf of the Union ; that Respondents Ameri-
can and Company , by a named agent , in November 1959 , promised the employees
economic and other benefits if they refrained from becoming or remaining members
of the Union or giving any support to it ; that all Respondents , by a named agent,
in March 1960 , solicited an employee to engage in surveillance of a union meeting;
the aforenamed acts as alleged with regard to the respective Respondents were al-
leged to be violations of Section 8(a)(1) of the Act. It was further alleged that
since on or about March 21 , 1960 , Respondent Georgia Corporation failed and re-
fused to reinstate or rehire three employees , Shepard , Cooks, and Bennett , because
of their membership in and activities on behalf of the Union and because of their
concerted activities , all in violation of Section 8(a)(1) and ( 3) of the Act. In its
answer, Respondent Georgia Corporation in effect denied the commission of any
unfair labor practices as alleged.
The General Counsel and Respondent Georgia Corporation were represented by
counsel and were afforded full opportunity to be heard , to examine and cross-
examine witnesses , to argue orally upon the record , and to file briefs. No oral
argument was made but both of the aforenamed parties filed briefs with the Trial
Examiner.
Based on the entire record in the case, and from observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Board asserted jurisdiction over Respondent Company in 1960.1 A settle-
ment agreement in Case No. 10-CA-4409, involving the instant complaint allega-
tions insofar as they had references to American Creosoting Corporation and Georgia
Creosoting Company, was approved by the Regional Director for the Tenth Region of
the Board on June 14, 1960. The business operations of the two aforenamed are
referred to hereinafter insofar as they are relevant to the instant proceeding.
Georgia Creosoting Corporation, a subsidiary of Escambia Treating Company, of
Pensacola, Florida, a Florida corporation, and of Lewis Wood Preserving Company,
of Camellia, Georgia, a Georgia corporation, is engaged in the treating of poles by
creosoting at its plant in Brunswick, Georgia, which was acquired by purchase on
March 22, 1960.2 From the date of the purchase to the date of the close of the hear-
ing, June 21, 1960, Georgia Creosoting Corporation had net sales amounting to
$210,798.51, of which sales 50 percent were made to purchasers in States other than
Georgia. Since the corporation was continuing to operate through the time of the
hearing, it is the Trial Examiner's opinion that a projection of the sales for a 12-month
period would substantially exceed the amount of sales that had been made in a
3-month period.
It is found that Respondent, Georgia Creosoting Corporation, is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local Union 2591, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The relationship between American Creosoting Corporation, Georgia Creosoting
Company, and Georgia Creosoting Corporation
The background and the general situation at the Brunswick plant
The creosoting plant in Brunswick, Georgia, commenced operations in 1914, as
Georgia Creosoting Company which became a subsidiary of American Creosoting
Corporation. The latter in turn was acquired by Union Bag Paper Company. In
1959, Georgia Creosoting Company, which had continued to operate the plant, was
not operating profitably and terminated its operations about January 1, 1960. The
Case No 10-RC-4571 (not published in NLRB volumes).
2 The personnel, local management and rank-and-file employees, remained substantially
the same under the purchaser as was the case under the predecessor-seller The physical
property and the general nature of the processing operation remain the same. This aspect
is discussed in more detail hereinafter.
AMERICAN CREOSOTING CORPORATION, ETC. 155
plant however did not cease its operations and the operations were carried on di-
rectly by American.3
Escambia Treating Company and Lewis Wood Preserving Company operate creo-
soting plants in Pensacola, Florida, and Camilla, Georgia. Two individuals, Soule
and Noonan, own more than 90 percent of the stock of Escambia and 100 percent
of the stock of Lewis Wood. There is no financial, individual, or corporate rela-
tionship between any of the foregoing companies and individuals and the Union
Bag-American complex previously described.
Soule, president of Escambia, had heard that Union Bag was interested in dis-
posing of some of its pole plants .4 After being in touch with Union Bag on January
15, 1960, Soule thereafter was referred to Lucas, vice president of American. By
February 15, a tentative agreement for the purchase of the Brunswick plant had
been reached by Soule and Lucas. On March 3, an agreement to purchase was
signed by Soule. The purchase price was $551,000, plus the value of inventories of
materials on hand in the plant on the date of closing. All real and personal prop-
erty at the plant was purchased. Records, forms, and accounts receivable were not
sold and no liabilities were assumed. Although Georgia Creosoting Company had
ceased operations in December 1959, Escambia, the purchaser on March 3, was
given the right to use the Georgia Creosoting Company name if it chose to do so.
The purchaser assumed no obligation regarding contracts or orders on hands Ac-
cording to Soule, American was to continue at the plant until March 22, 1960, the
sale closing date.
Soule testified that on February 3, 1960, while talking to Lucas about various
matters, he had asked Lucas whether or not the Brunswick plant was organized.
Lucas had stated that it was not.
Union organizational activity among employees at the Brunswick plant com-
menced about November 1959. A petition for ceitification was filed with the Board
on December 8, 1959. A hearing was held on December 22. The Board's Decision
and Direction of Election issued on February 29, 1960. By the terms of the afore-
mentioned decision an election was to be held within 30 days of the date thereof.
On March 3, the date when Lucas and Soule met to execute the purchase agree-
ment, the latter learned for the first time that there was union activity at the
Brunswick plant. Lucas said to Soule, "I think it's only fair to tell you that we
have just received a notice, that came as quite a surprise to us, that there was some
question about an election that's supposed to be held within 30 days; and, under
these circumstances, if you want to drop the proceedings, well, it's all right, because
this is something I didn't know and had not told you. In all fairness to you, I want
to tell you before we sign this agreement and take this money."
Soule and Noonan then discussed this aspect and Soule testified that the "first
reaction" was that: "This is no headache of ours. This is American Creosoting
Corporation's election and it's nothing to us whatsoever." However, on further
thought, it was decided "We had better hire or talk to some lawyer and find out
about it." After March 3, Soule and Noonan went to New York and "made
inquiries . . . made arrangements to get Mr. Bacheller [counsel for Georgia
Creosoting Corporation in the instant case]. . "
On March 8, 1960, a meeting was held in the Brunswick plant at which were
present Soule, president of Escambia, Lucas, vice president of American, Kuhlman,
general superintendent of American, Brownley, manager and superintendent of the
Brunswick plant, and Weathers, assistant superintendent of the Brunswick plant.°
Soule testified that at the meeting Lucas told Brownley and the staff that the plant
had been sold. Soule then announced that his company did not intend to close the
plant and planned to continue operations. He said "for the time being" the super-
visory staff would remain intact .7 Soule remarked that after the new company began
'There is some indication in the record that Union Bag had acquired American prin-
cipally because of valuable timber pulpwood holdings of American and that Union Bag
was not primarily interested in operating a creosoting plant
* Pole plants are those in which telephone poles are treated for use by utility companies
e The purchaser's principal customer at its other plants was the Western Electric
Company The purchaser arranged with the latter to assume the contracts which
Western had with American at the Brunswick plant. Other than this no irrang'ment
was made with respect to American's contracts
9 Soule testified that six or eight of the supervisors were present. Bi-ownley testified
that he and Weathers were there but he was not sure about other supervisors
7 He testified that although he did not know the local management "we presumed they
were able to handle the job."
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operating any changes that were necessary would be made. It was apparently
understood that American would terminate all its employees, including the Bruns-
wick plant supervisors, shortly prior to the closing date of the sale.
Brownley was the manager or superintendent of the Brunswick plant. He first
held this position under Georgia Creosoting Company in 1948 and continued in the
same capacity under American and under the 1960 purchaser, Georgia Creosoting
Corporation.8 Brownley was and is the top official at the Brunswick plant .9
Although not binding himself as to the future, Soule, as we have seen, informed
Brownley on March 8, that he would retain him and his supervisory staff. Other
than the general announcement of the foregoing nature, Soule gave no instructions
to Brownley on March 8. Brownley, in fact, did seek to speak with Soule in private
on March 8 in order to secure some information concerning the new company's
policies and his own exact status. Soule told Brownley that he did not have time
to talk with him that day.10 Later, on the same day, following the meeting with
Brownley and the others Soule conferred in Brunswick with his newly retained
counsel, Bacheller. Other than Soule's testimony that he told Bacheller "the situa-
tion . . . I turned it over to him and I went about my business," the record
furnishes no details on this aspect.
Having seen the picture at the Brunswick plant up to and including March 8,
we proceed to subsequent developments. Sometime between about March 12 and
15, Soule directed Brownley to insert an advertisement in the local Brunswick
paper.ii Brownley followed these instructions and the advertisement ran for 3
days.12 McLeod was sent to the Brunswick plant from Escambia's Florida plant
on March 18.13 He testified that he was office manager of Georgia Creosoting
Corporation and was also an officer, secretary, of that corporation. He had worked
in Escambia's Florida office -prior to coming to Brunswick. On March 18, McLeod
was the only person working at the Brunswick plant who was not on American's
payroll. It was on March 18 that American, through Brownley, issued notices
of termination to all its employees at the Brunswick plant.14 The terminated
8 Escambia, the parent corporation, was the actual purchaser of the plant from
American Georgia Creosoting Corporation is a subsidiary of Escambia. The latter buys
poles and pays Georgia so much per cubic foot to do the processing Georgia pays rent
to another Escambia subsidiary, Brunswick Creosoting Corporation, which in turn is mak-
ing payments for the plant to Union Bag. As far as appears, Brunswick, an Escambia
subsidiary, has no operating function.
9 The equipment and general nature of the operation of the plant has remained substan-
tially the same under Georgia Creosoting Corporation as it was under the preceding
companies. Soule stated that there was some difference in that he regarded American's
operations as that of a wood-preserving company while his company was a pole-treating
company. American would take orders to treat railroad ties, poles, or other products,
and then would buy poles in order to fill the order. Georgia Creosoting Corporation kept
poles on hand and would supply them to its customers who were principally utility com-
panies Brownley testified, "We make the same product today that we made during all
of 1959" Brownley has enjoyed more autonomy and has somewhat wider authority
under Georgia Creosoting Corporation than under the prior companies
10 According to Brownley, Soule also said that a man from one of his other plants would
be in Brunswick the following day and Brownley could ask him as many questions as he
wished. Neither Brownley nor anyone else testified that the aforementioned man ever
appeared or who he was or whether Brownley spoke to him.
11 While the record is not entirely clear that Soule personally issued the instructions,
he was aware of them and was in accord therewith. In any event, the instructions came
either from Soule or from someone acting for the management of the purchaser.
12 The advertisement stated • "Need approximately 50 men to operate creosoting plant in
Brunswick. Will hire qualified laborers, switchmen, pole mill operators, crane operators,
motormen, maintenance men, retort operators, firemen and watchmen. Apply in person to
Mr. McLeod who will take applications at Georgia Creosoting Co. plant, Pyles Marsh,
between 1 and 5 p.m. on Friday, March 18."
13 Soule testified that he sent McLeod to Brunswick. He stated that McLeod "was
familiar with our policies and office routines."
14 The notices read
This is to advise you that your employment with the American Creosoting Corpora-
tion-Georgia Creosoting Company-is terminated, effective at the end of the work-
day March 21, 1960 On that date you will be paid all wages then owing. You are
being terminated, along with all other employees, because your employer will perma-
nently close the plant on that date and cease business
AMERICAN CREOSOTING CORPORATION.
AMERICAN CREOSOTING CORPORATION, ETC. 157
American employees were also told on March 18, through Brownley and the other
supervisors, that they should file applications for employment in the new company.
Soule was in Brunswick from March 19 through 22, the closing date of the
purchase. During this period, about March 21, Soule went over the policies of the
new corporation with Brownley. He told the latter that he was starting from
scratch; that American had laid off all the employees and Brownley was to employ
the most capable men he could find, whether they had or had not worked at the plant-
Soule said that he did not tell Brownley to hire or to discharge people because
of union activity. He did tell Brownley that "we felt that the company would
probably operate better as a nonunion operation . It had been our experience that
it was better for the men and better for us. . . Soule said he gave Brownley no
specific instructions about whom to hire or fire. He was asked:
Q. Then, you left it to his decision, what to do?
A. When I put a man in charge of a plant, I hold them responsible for
the dollars and cents. Therefore, I have to give them the opportunity to
exercise their best judgment.
Brownley was to be and was the judge on all applications for employment .15 McLeod
could not hire or fire but he could bring to Brownley' s attention any particular
application that McLeod considered worthy of attention. Assistant Superintendent
Weathers testified that on March 19 or 20, Soule told him that if the plant per-
sonnel wanted to bargain that he, Soule, would be willing but that he would rather
bargain with the men themselves instead of a third party.
Applications for employment with Georgia Creosoting Corporation were received
in the plant office at Brunswick on March 18 and 19, Friday and Saturday. McLeod
received the applications and interviewed the applicants. On Monday, March 21,
when the former American employees reported to the plant office for their final
paychecks, Brownley announced that those who had a white slip attached to their
paycheck would be rehired by the new company and that those who did not have
a white slip were not rehired. Of approximately 50 American employees all
were rehired except 8 or 10. The balance of the complement of 50 of the new
company was made up of persons from outside the former personnel. Among
those not rehired were the three alleged discriminatees, Shepard, Cooks, and
Bennett.
B. The alleged violations of Section 8(a) (1) of the Act
James Armstrong was called as a witness by the General Counsel and later by the
Respondent. He had been employed by American and had been terminated with
the others on March 18. He had then been rehired by the new company and was
so employed at the time of the hearing.is I have carefully considered the demeanor
of the witness on the stand, the content of the testimony, the circumstances under
which original affidavits were procured, and other factors. James impressed me
as less than an eager witness. It was my impression that he would have much
preferred to be almost any place else but on the witness stand. His memory for
dates was poor and his experience and background had not been in the general area
of the preciseness desirable in a legal proceeding. His testimony was considered
in the light of all these elements as well as in conjunction with that of opposing
witnesses.
James testified that in the latter part of November 1959, Assistant Superintendent
Weathers approached him on the job at the plant and said that James did not have
to discuss the matter with him but Weathers could not run the plant unless he knew
what was going on. Weathers told James to let him know if he wanted anything and
Weathers would try to get it for him. Weathers asked James who started the
Union at the plant. James did not know.
The Trial Examiner credits the foregoing testimony of James. Whatever his
deficiencies as a witness, James impressed me as truthful. It is found that Weathers'
interrogation of James as to who started the Union in the plant was violative of
Section 8(a)(1) of the Act.
This of course brings us to the General Counsel's theory in his complaint that
Georgia Creosoting Corporation is responsible for events antedating its purchase of
is Although the final word rested with Brownley he consulted Weathers, his assistant
superintendent, Kuykendall, supervisor of retort and maintenance operations, and McVeigh,
also a supervisor.
19 Hereinafter James Armstrong is referred to as "James" rather than as Armstrong
since his father, Jefferson Armstrong, was also a witness. The latter will be referred to
as "Jefferson."
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Brunswick plant when that operation was owned and conducted by American
Creosoting Corporation and Georgia Creosoting Company. The latter two or-
ganizations entered into a settlement agreement with the Regional Director for the
Tenth Region of the Board on June 10, 1960, which was prior to the instant hearing.
The instant complaint names the three companies on the theory, as I understand it,
that Georgia Creosoting Corporation, hereinafter called Corporation, took over the
plant intact, with substantially the same employees, produced virtually the same
product, and was therefore a successor bound to remedy the unfair labor practices
of its predecessors. The Corporation, according to the General Counsel "is bound
to remedy the unfair labor practices . . . under the `continuity of the employing
industry' doctrine."
The Trial Examiner is convinced, in accordance with the facts heretofore set
forth regarding the sale and purchase of the Brunswick plant, and the General
Counsel concedes, that the matter "was a bona fide business transaction." From
this point on, the Trial Examiner is unable to agree with the General Counsel's
theory. Admittedly, as the cases cited by the General Counsel illustrate, there are
areas and circumstances whereby successors or the employing industry may be
subjected to liability.17 An alter ego situation is perhaps the clearest type of per-
vading liability and, in general, successors and assigns are reached where they are
`-instrumentalities through which defendants seek to evade an order or [where
they] may come within the description of persons in active concert or participation
with them in the violation.. " 18 This is not the instant situation. As the Board
has stated "no provision of the Act authorizes the Board to impose the responsibility
for remedying unfair labor practices on persons who did not engage therein." 19 I
find no basis for holding Georgia Creosoting Corporation liable for events in the
Brunswick plant in November 1959, or prior to the time when supervisors at the
Brunswick plant became agents of the Corporation, and shall recommend dismissal
of the complaint allegations with respect to that period of time.'°
James testified that on Thursday evening, March 17, 1960, Weathers, the assistant
plant superintendent, came to his home and asked him to work that night in em-
ployee Bailey's place. Weathers said he wanted Bailey to take inventory the next
day. James stated that on this occasion Weathers had a list of names, which James
referred to as a company roster, with him. Weathers said, "I've got your daddy
[Jefferson Armstrong, an employee] marked down with a question mark." Weathers
handed James the list and told him to look it over. Weathers said he had a meeting
with the company lawyer at the Sands Motel. James testified that the list was
marked off as to how the employees might vote on the Union; his father's name had
the only question mark. Weather asked, How do you think he's going to vote')"
James said he did not know. Weathers asked James, ". . . do you think I ought
to take the question mark away from his name before I go down and talk to this
lawyer?" Weathers said, "James, I hope you boys will vote this union out because
this new company will not operate under a union." In his testimony Weathers
admitted that he had gone to James' house and had spoken to him about relieving
Bailey. He said there was conversation about the Union but it had been initiated
by James who told him that he and his father had signed union cards and he wanted
to know what was going to happen. Weathers was not sure whether or not he had
a list of employees with him but he believed that he did not. Weathers did not ad-
mit or deny that he had a meeting scheduled with a company attorney at the Sands
Motel As previously indicated by Trial Examiner believed that James was a
credible witness and credits the foregoing testimony. It is found that by interro-
gation and by the statement that the new company would not operate under a union,
Section 8(a) (1) of the Act was violated.
On Wednesday or Thursday, March 16 or 17, James heard Brownley sepaking
to employee Shepard in the plant. Shepard asked Brownley who was going to have
jurisdiction "over us being hired back; was he going to have anything to do with it."
In the Trial Examiner's opinion the cases cited by the General Counsel are quite dis-
tinguishable on their facts from the instant case
18 Regal Knitwear Company v N L R B, 324 U S 9, 14.
19 Symn8 Grocer Co and Idaho Wholesale Grocery Co., 109 NLRB 346, 348
29 Georgia Creosoting Company and American Creosoting Corporation of course would be
responsible for acts or statements of their agents in the period prior to the advent of
Georgia Creosoting Corporation, as described above. The settlement agreement, however,
has removed the Georgia Company and American, as Respondents, from our present con-
sideration. As explained later in this report the November 1959 and subsequent events do
have relevance to the issues in the case now before us which relates to Respondent
Corporation.
AMERICAN CREOSOTING CORPORATION, ETC. 159
Brownley said he was one of them that would have the say-so over who would be
hired back. Brownley said, the Company has only three major contracts and "if you
boys vote this union in, all they'll do is shut this plant down and move these three
contracts up to the other two plants and take care of them from there." 21 The
Trial Examiner credits James' foregoing testimony and finds the last-mentioned
statement of Brownley to be violative of Section 8(a)( I) of the Act.
James testified that on March 18, Foreman Kuykendall brought him his termina-
tion notice ; "He just told me that this new company was taking over and we was all
terminated, but we would be hired back." Kuykendall said, "This new company
will not operate under a union ." The foregoing testimony is credited 22 It is
found that the statement violated Section 8(a)(1) of the Act.
During the week of the terminations (Friday, March 18) Kuykendall spoke to
James, his father Jefferson, and Bailey, another employee. The four persons were
in the plant at the time. James testified that Kuykendall said, "I guess you all know
I've got my neck stuck out for you fellows. If you let me down I'm going to get
my neck cut off, and I'm going to shoot y'all." Kuykendall said to the men that he
had told the officials in the office how the men were going to vote in regard to the
Union. Jefferson testified that Kuykendall said, "Now, you boys have got to help
me out. The Union's coming in or trying to come in. I've got my neck stuck out-
away out. I told the Company that I thought you all would be for us. If the
Union comes in, I'll get my neck chopped off. Then I'll have to shoot you boys."
Bailey did not testify. Kuykendall was questioned about his remarks by Respond-
ent's counsel 23 While admitting that he made a remark to the effect that he was
sticking his neck out for "you men" and that he would shoot them, Kuykendall
placed the remarks in a different context. He said that the men had told him that
they were scared that they were going to lose their jobs because of the Union.
Kuykendall had talked about the men to Weathers and the latter had asked if they
were good employees and told Kuykendall to reassure the men about not losing
their jobs because of the Union. Kuykendall then did so. After careful considera-
tion the Trial Examiner credits the testimony of the two Armstrongs regarding the
incident and the remarks.
In regard to the foregoing , the testimony of Kuykendall and the Armstrongs is
that the reference to shooting the men was not intended and was not taken seriously.
The Trial Examiner' s opinion is that none of the participants believed that, literally,
n At this point James had something else to do and he left Shepard's testimony,
below, is substantially to the same effect regarding the conversation.
22Kuykendall denied generally that he had told any employees that the purchaser of
the plant would close it if the Union came in He stated that he gave termination notices
to 2 of the 11 men in his section and the other notices he gave to James to distribute.
He said that be told the men about the sale of the plant and that he did not know about
the future but that it took experienced men to run the plant He told the men to check
the local newspaper and on one of the notices of termination he wrote, "check with me
Check with the Brunswick News We'll take applications on March 18 " Kuykendall
testified that he told the men that the taking of applications was "just a formality "
On another occasion Kuykendall testified that he had told an employee, who was dis-
puting a report made about him to Kuykendall by James Armstrong, that ". .. I don't
believe that James would tell a lie" In this connection, there are indications in the
record that James was perhaps closer to some of the supervisors than were other em-
ployees, e g , he distributed nine termination notices for Kuykendall ; Weathers testified
that James had originally been opposed to the Union and according to Weathers he evi-
dently learned for the first time when he came to James' home on the evening of March 17
that James had signed a union card ; this perhaps may explain why Weathers had come to
James with a list of employees reflecting their union attitude; it may also explain why
James happened to be the recipient of various items of intelligence from the supervisors
and why the Charging Party made a distinct effort to secure an affidavit from James.
Finally, Kuykendall evidently regarded James as a reliable and truthful person Respond-
ent, it may be noted called James as its own witness and secured testimony that was, if
anything, helpful to Respondent's position.
x'The question put to Kuykendall was whether he recalled a conversation be had with
"Armstrong and Reddick" in which he was supposed to have said something about shoot-
ing them. Reddick was another Georgia Creosoting employee witness but he did not
testify to participation in the incident aforedescribed nor did anyone else so testify.
While the question was apparently phrased inadvertently there is some reason to expect
that Kuykendall , who knew his men, would, if he recalled the incident accurately and was
describing it accurately, have set the record straight as to the persons involved On the
other hand it was quite possibly a simple human error not in itself determinative.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kuykendall expected or would have had his neck cut off by the Company or that Kuy-
kendall was going to take a gun and shoot anyone. However, it is my opinion, that
the minimal reasonable construction is that a foreman was telling employees under
his supervision that he would be prejudiced or would suffer a detriment in his rela-
tionship with his superiors if the men voted for the Union and that this would be
the fault of the employees in question and the foreman would be displeased at
being placed in such a position by his subordinates. With due allowance for banter
or the particular phraseology used, the relationship of a foreman to his subordinates
is such, particularly on union matters at a time such as was here involved, that there
was a detriment, express or implied, forecast and conveyed to the employees if they
placed their foreman "on the spot" by voting for the Union. The displeasure of
the foreman, however congenial he may be, is not likely to be ignored by employees.
This was no mere expression of opinion by Kuykendall on union affairs and, in my
view, it was not protected by Section 8(c) of the Act. The remarks constituted
interference with the rights of employees in that they clearly indicated that the fore-
man presumed to be aware or was aware of the employees' position regarding the
Union and had told his superiors as much and had assured his superiors that these
men could be counted on to vote against the Union and that he expected the men
to act in accordance with his predictions. This was a form of pressure to either
firmly bind the employees to one position regarding the Union and to foreclose the
possibility of change or it was calculated to change the union position of the em-
ployees if it was otherwise than predicted by the foreman. As previously explained,
the statement also constituted a threat of reprisal, expressly or impliedly, albeit not
by means of firearms. The Trial Examiner finds the statement to be violative of Sec-
tion 8 (a) (1) of the Act.
James testified that after he received his termination on March 18 he returned
to the plant on Monday, March 21, and was interviewed by McLeod. In the course
of the interview, McLeod said, "Mr. Armstrong, you understand that if you're hired
back that this new company will not operate under a union." James replied, "Yes,
sir, I've heard something to that effect."
McLeod testified that he had interviewed a large number of applicants. He said
that the only mention of a union occurred in the case of one or two applicants
whose names he did not recall. The union matter, according to McLeod, was raised
by the applicant and occurred "if an applicant when I was giving him a resume or
history of our company, and the benefits and all that we give to our employees; if
they asked me as to the union with the other plants, I told them, 'no,' that the other
plants were not unionized."
It is apparent that McLeod admittedly made it a practice to furnish the applicants
a resume or history of the new company. The aspect of such history that would be
most pertinent to employees would be the history of working conditions, and any-
thing reflective of employer-employee relations. It seems unlikely under the cir-
cumstances that the fact that the new company did not have a union in any of its
plants would not be considered a part of relevant history to be mentioned to appli-
cants for employment. McLeod admits mentioning this fact but testified that he
did so only when the question was asked by an applicant 24 The Trial Examiner
is persuaded and finds that not only did McLeod mention the matter of a union to
James but that he initiated the subject and made the statement attributed to him by
James 25
While it is true that McLeod did not have authority to hire or discharge, he was
the office manager and an officer of Georgia Creosoting Corporation. He was con-
ducting the interviews as a representative of that corporation. In my opinion Mc-
Leod was quite clearly identified with management and the latter is legally respon-
sible for his statements This conclusion is not altered by the fact that, at the time
of the interview with McLeod, James and apparently some other employees, did not
24 Commonly, employees, particularly when applying for a job, do not initiate the sub-
ject of unions with employer or management representatives. If an employee does initiate
a discussion with management about unions it is more likely to be with a supervisor whom
he has known for some period of time and not with a representative of management whom
he has never seen before or whom he does not know Further, James had no reason to
raise such a subject with McLeod because he had previously been advised by various
supervisors of the new company's position on the matter When McLeod told James that
the new company would not operate under a union he said, "Yes, sir, I've heard something
to that effect "
2" Reddick, another employee, who was present when McLeod spoke to James, corrobo-
rates the testimony of Armstrong regarding McLeod's remark that the new company would
not operate under a union.
AMERICAN CREOSOTING CORPORATION, ETC. 161
know McLeod's exact status. They believed McLeod was the new company's
lawyer. In any event, at the time, they identified him with management and later
learned his title.
Andrew Reddick was a former employee of American who was terminated with
the others and who was rehired and was working for the new company at the time
of hearing. He credibly testified Shat in November 1959 Weathers spoke to him in
the plant. Another employee, Braswell, was also present. Weathers said, he had
heard that "a bunch of us fellows were getting a union"; he said that "the Company
was going to give us vacations, holidays, insurance benefits, and a raise in pay if
the Union did not come in, but if the Union came in, the plant would be closed."
On March 18, 1960, Kuykendall came to Reddick's home and spoke to him about
working in the place of another employee. On that occasion Reddick asked Kuy-
kendall what the chances were of being rehired Kuykendall said the employees
would be rehired "if everything went right " 26
With the exception of Kuykendall's remarks to him in November 1959, Reddick
had no direct frame of reference through which Kuykendall's rather ambiguous
remark of March 18 could be interpreted. Reddick may have reasonably under-
stood on March 18 what the same foreman, Kuykendall, who had spoken to him in
November, meant by "things going right." Statements made to other employees by
supervisors may also have reached employees, such as Reddick, who were not the
immediate recipients of the statements. However, I find it unnecessary to make a
finding regarding the legality of Kuykendall's March 18 statement when originally
made to Reddick and I incline to the view that because of its ambiguity at the time
when made it was not then illegal. However, the statement did remain in the
employee's mind, as might reasonably be expected and the more so because of its
cryptic and ambiguous nature. Any ambiguity that may have existed on March 18
was removed, in my opinion, on March 21 when Reddick heard McLeod tell James
Armstrong that the new company would not operate under a union. Under all the
circumstances we have, by March 21, an objective standard, known to Reddick, by
which he could construe Kuykendall's remark of March 18. We need not rely upon
some purely subjective interpretation by an employee as to what his foreman may
have meant. The Trial Examiner concludes that Kuykendall's statement to Red-
dick, "if everything went all right," was reasonably subject to the construction that
the employees would be rehired and the new company would operate if there was
no union in the plant. Such a statement was violative of Section 8(a)(1) of the
Act
Jefferson Armstrong testified credibly that Kuykendall spoke to him in the boiler-
room of the plant one day. Kuykendall said, "a company is fixing to buy us out
and they did not know anything about the employees getting up a union until they
had gotten into the transaction and the Company did not want a union. Kuykendall
asked Jefferson to help "knock down" the Union. When Jefferson said the matter
of a union was immaterial to him because the Union would not do him much good
anyhow, Kuykendall said, "Well, it won't do you any good. It'll only hurt you "
Jefferson testified that this conversation took place about the middle of March 1960,
a day or two before the conversation, previously described, in which Kuykendall
spoke to the two Armstrongs and Bailey. The Trial Examiner therefore finds that
the conversation took place about March 15, 1960.
C. Other evidence with reference to the supervisors and
their attitude toward union activity
Plant Manager Brownley testified that he was aware of union activity among the
employees in the latter part of November or early December 1959. During this
period he asked employees, individually or in groups, how the Union was doing. He
instructed his supervisors "to find out whatever they could about it [the Union]."
Assistant Superintendent Weathers testified that he was aware in the period from
November 1959 to March 1960, that various employees were attempting to organize
the Union in the plant. He talked to many employees about the Union and the
employees talked to him on the subject. Sometimes employees initiated such con-
26 In the course of cross-examination, Reddick was asked
Q. Now then, the conversation with Mr Kuykendall on March 18, in which you
claim that he said everybody would be rehired if everything went right, I believe-
you said that there was no discussion of the Union in connection with that-
conversation?
A Well, no; the Union wasn't mentioned , but I could figure it out for myself.
597254-61-vol. 130-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
versation but at other times Weathers said that he instituted discussion of the sub-
ject. Weathers admitted that actually he was "quite interested in the union activity"
at the plant and he "definitely" preferred that a union did not come into the plant.
On March 19 or 20, while talking with Soule at the plant, the latter told Weathers
that if the plant personnel wanted to bargain he would be willing but he would rather
bargain with the men themselves instead of a third party.
Soule, as previously mentioned, testified that while speaking to Brownley around
March 21, "I told him that, generally speaking, we felt that the Company would
probably operate better as a nonunion operation. It had been our experience that
it was better for the men and better for us; but I was not too worried about the
general outcome, because after they found out how we were going to operate, why
there wouldn't be anybody that would want to pay dues to the Union anyway." 27
Shepard was hired as a fireman in the plant in September 1959. Kuykendall had
come to him and offered him the job when Shepard was working elsewhere as a
mechanic. Shepard signed a union card in November 1959. He attended the first
union meeting which was in December . The next union meeting was March 17,
1960, which Shepard did not attend because he was on the night shift, 3 to 11 p.m.
On March 10 or 11 Shepard was going through the plant boilerroom on his way to
his car. Kuykendall said to Shepard that he wanted to see him. Because it was
raining they sat in Shepard's car. Kuykendall said, "I didn't get a chance to tell
you here awhile back but the company's sold out. Now, let me tell you before you
jump up and blow your stack. Now, it's sold out, but everybody's going to be fired
but we're going to be hired back provided that we kill the union." Shepard replied,
"Ed, we done got this thing started and we are pretty well on our way with it. Once
I start anything like that, I'm going to stick it out. If I'm the only one that ever
votes for a union, they'll get one vote." Kuykendall said, "Well, I'm just trying to
warn you for your own'benefit. .
In appraising Shepard as a witness the Trial Examiner's impression was that he
had an alert mind, that he was an aggressive and outspoken personality , and that his
testimony on some matters was credible but that it raised serious doubts in my mind
regarding other incidents. In testifying regarding the aforedescribed conversation
with Kuykendall, which the latter denied, I believed that Shepard was testifying
truthfully and it is so found. It is also found that Kuykendall's warning that rehiring
was conditioned upon killing the Union was violative of Section 8(a) (1) of the Act.
Shepard testified that on Wednesday, March 16, he spoke to Brownley in the plant.
Shepard said that he had heard about the Company having sold out and about a new
company taking over and he would like to know the truth. Brownley replied that the
Company had sold out and everyone would be fired and they would have to fill out
application blanks for rehiring. Shepard asked what changes would be made.
Brownley replied that there would be a hospitalization policy and a retirement plan.
Shepard also asked who would be the judges of the application blanks, and Brownley
said he would. When Shepard asked about the Union, Brownley replied that the
new company would not operate under a union and that they only had three con-
tracts and the new owner would move the contracts to his other plants. James Arm-
strong overheard part of this testimony, the portion about not operating under a
union and having only three contracts which would be moved to the other plants in
the advent of a union. The testimony of Shepard as set forth above is credited. The
statement that the new company would not operate under a union and would move
its contracts to other plants was violative of Section 8(a)(1) of the Act.
On March 17 or 18 Shepard testified that he spoke to Kuykendall in the plant.28
Shepard said, "Ed, how's chances of being rehired?" Kuykendall replied, "Well, your
chances are slim." Shepard asked, "How do you get that" and was told, "You got a
phone call from Mr. Parker in Mississippi and the Company knows it. Your chances
for rehiring is gone " 29 Shepard testified that he had received a telephone call from
Parker. When asked when he received the call, he said, "I believe it was in March."
According to Shepard he had placed a call to Parker in Atlanta, Georgia, in the
morning before he went to work He placed this call from his sister's home. Parker
was not available at the time and Shepard informed his secretary, in the event that
"-T The reference to how the new company was going to operate apparently was a refer-
ence to the fact that the new company had hospitalization and other benefits that
American did not have and that it paid $1 05 per hour as compared with American's rate
of +1 I do not believe that Some's statement should he construed as meaning that
when the employees learned how we were going to operate regarding the Union and union
adherents they would not want to pay dues to the Union
^ This and the following is Shepard's testimony
m Parker was the union representative
AMERICAN CREOSOTING CORPORATION, ETC. 163
she contacted Parker, that Shepard went to work at 3 p .m. and Parker could call him
at the plant after 5 p.m. Apparently Parker was located and he called Shepard at the
plant about 4 p.m. Kuykendall had come to Shepard in the plant and had informed
the latter that he had a call from Parker . When Shepard answered , he told Parker
that he could not talk to him "like I want to on the phone because we are being
listened in from the office ." Parker is alleged to have asked , "How are things
going" and Shepard said , "it's pretty rough at the time being." Parker said he would
see Shepard in a day or so and Shepard said , "all right."
When cross-examined on the foregoing incident Shepard said that he knew the
Company was listening in because "I could hear them when they picked up the
phone.. . He also mentioned for the first time on cross-examination that Kuy-
kendall told him he would not be rehired because Brownley was listening in on the
telephone call.
Kuykendall denied that he knew that Shepard had received a telephone call from
a man named Parker . He also said that he never listened in nor did he hear of any-
one listening in on such a conversation . Brownley testified that he first learned of
Shepard's receipt of a call from Parker when he heard Shepard so testify. He said he
knew nothing of such a call , did not listen in on such a call, and had never listened
in on a call of any employee. He added that such an incident had never been
reported to him.
While in some respects the Trial Examiner did not have complete confidence in
Kuykendall and Brownley as witnesses, I have grave doubts about Shepard's testi-
mony regarding the telephone call. It is to be noted that while the whole incident
was sharply controverted by Respondent's witnesses and the very fact of the tele-
phone call was placed in issue, there was no corroborating evidence regarding this
telephone call. Lack of corroboration in itself is of course not determinative and
depending upon circumstances may not even be important. Here, however, in my
view, establishing the fact of the telephone call would have corroborated Shepard
,on a basic fact in his testimony and would have added considerable weight thereto.
By the same token, if the fact of the telephone call was established by convincing
corroborative evidence, it would be entirely plausible that since such a call would
have come through the company office the company might well have been aware
,of the fact that a party named Parker was calling Shepard by long-distance tele-
phone.30 We do not have here a situation where the lack of availability or the lack
of cooperativeness of corroborating witnesses on an important point is apparent or
possible Shepard testified that he placed the call to Parker at his sister's home.
Presumably his sister or a member of her family could so testify or the telephone bill
of his sister would have reflected that aspect of the call. Parker, the union repre-
sentative, who appeared at the instant hearing and who was the alleged recipient
of Shepard's call and who allegedly called Shepard at the plant and spoke to Shepard
on that occasion, could have presumably testified to the fact. But no such testimony
was offered.31
The Trial Examiner also noted Shepard's relative vagueness about the time of the
telephone call 32 This factor perhaps would be unnoticed in other employee wit-
nesses whose minds did not appear particularly precise with respect to such matters.
Shepard, however, in my opinion, was an alert and knowledgeable witness. I was
convinced that he was fully aware of the significance of all parts of his testimony.
He was very precise regarding dates with respect to other events to which he testi-
fied, e.g., the March 10 or 11 conversation with Kuykendall; the Wednesday before
the terminations (March 18) conversation with Brownley; the March 17 or 18
conversation with Kuykendall when the latter allegedly referred to the telephone
call, aforedescribed. that Shepard had received from Parker. Not only did Shepard
not fix the date or the approximate date of the telephone call but he was even not
too sure about the month-he believed it was in March. It is my view that such a
call would have been both unusual and significant and would have registered
rather definitely as to time with a person like Shepard.
After careful consideration the Trial Examiner is unable to credit Shepard's testi-
mony regarding the telephone call from Parker and Kuykendall's alleged statements
to Shepard regarding the call. The state of the evidence leaves too much doubt in
90 Parker had represented the Union at the representation hearing held on December 22
and the name would probably be recognized by the Company.
81 Since Shepard testified that Parker did not call him collect, the Company's telephone
bill would not have reflected this long-distance telephone call. The telephone company at
the point of origin of the call, Shepard's sister's home or the station in Mississippi from
which Parker called, would presumably have a record of a noncollect call.
Shepard , supra, "I believe it was in March."
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
my mind to resolve the matter in the General Counsel 's favor , particularly in view
of the fact that Brownley , in this matter , impressed me as credible 33
On March 17, 1960, a union meeting was held in the union hall. Shepard testi-
fied that on that date John Bailey, a retort operator , with whom Shepard, a fireman,,
was working , came to him about 5:30 p.m . and said he was ill and had to go home.
Shepard stated that Bailey was shaking and trembling at the time . Assistant Superin-
tendent Weathers called the plant about 5:45 p . m. and Shepard answered the tele-
phone. Weathers said he was sending in James Armstrong to relieve Bailey because
"we've got to use him [ Bailey] for inventory in the morning . We've got to inventory
the yard and everything . We're selling out, you know." James Armstrong came in.
at 6 p m. and Bailey walked out Shepard testified that when Bailey walked out
Shepard noticed that Kuykendall was still there at the plant . Shepard testified that
he considered it to be "a little unusual" for Kuykendall to be around the plant at
that time of night. Shepard asked Armstrong to watch the boiler for a-
minute and Shepard hurried to the plant office. Kuykendall and Bailey went into
the office , the door of which remained slightly ajar. Shepard testified that he heard
the former say, "Now, John , you understand what you're supposed to do tonight.
When you go to the union hall, all these men that appear up there at that meeting,
get their names and turn them in to us in the morning when you come out there."-
Bailey said something to the effect that he knew what he was supposed to do.
Shepard then returned to his place of work
On cross-examination Shepard adhered to his testimony Under questioning, he
stated that Kuykendall was rarely at the plant in the evening and then it would
be on occasions when equipment broke down and the employees called him to come
to the plant . Shepard stated that Kuykendall would not be in the plant in the
evening one night in the week As is indicated by Shepard 's testimony, Kuykendall's
presence in the plant when Bailey was relieved from his shift and Shepard 's knowl-
edge of a scheduled union meeting led to Shepard 's suspicion of what might be
going on or, as he stated to Respondent 's counsel on cross-examination , "I happened.
to smell a rat, if you want to know."
Kuykendall testified that although he did not remember the exact date he remem-
bered the occasion when Bailey was relieved . He stated that Bailey was relieved so
that he could take inventory . Kuykendall then said it was around the end of Febru-
ary or the first of March . He denied that he met Bailey in the office or that he
instructed him to attend the union meeting . Kuykendall did not deny that he was
at the plant of that evening nor did he state that his presence at such a time was
customary or not unusual . He did not state that Bailey did in fact take inventory,
on the following day
Weathers testified that he had gone to James Armstrong 's home one evening to•
have Armstrong relieve Bailey so the latter could help take inventory. Weathers
believed this occurred in January or February and then said , ". . . it could have
been in March ." James Armstrong , as we have seen , testified regarding the occa-
sion when Weathers came to his home to have him go in and relieve Bailey so the.
latter could take inventory. Armstrong did relieve Bailey that night and worked
with Shepard . Armstrong testified this occurred on Thursday, March 17. Weathers
did not testify that Bailey did in fact take inventory.
Bailey was not called as a witness by either party although there was no indication
that he was not still employed by Respondent at the time of hearing . Shepard testi-
fied that Bailey did not take inventory the day following the evening when he was
relieved for such asserted purpose . Brownley testified that the last day worked
as An interesting and somewhat puzzling item of testimony was that of James Armstrong
who originally was called as a witness by the General Counsel . James was called later
by Respondent as part of its case. Respondent sought to elicit testimony from James
regarding Shepard's drinking on the job James mentioned an occasion when Shepard's
eyes looked red and he did not look normal . He was asked . "Q When was this Mr.
Armstrong ? A The date? I can't remember the date. It was the date that he called
Mr. Parker on the company phone " There was no development of this latter aspect and
it is noted that it was a call by Shepard to Parker on the company telephone at a time,
date unspecified , when Armstrong thought Shepard looked as if he might have been drink-
ing This was not a 'call from Parker to Shepard Perhaps there was a call from
Shepard to Parker on the company telephone and Shepard suspected that the Company
became aware of the fact Perhaps such was the fact or perhaps Shepard's version at
the hearing was the correct one In any event , the Trial Examiner has resolved the
matter as indicated above and as he viewed the evidence before him I have given careful
consideration to this as well as other aspects of Shepard's testimony and the effect of one-
matter on other matters to which he testified.
AMERICAN CREOSOTING CORPORATION, ETC. 165
by American was Friday , March 18 , and that the new company opened officially
on March 23, Wednesday . Brownley testified that on March 19 and 20, Saturday
and Sunday , inventory was taken . He was asked , "How many employees did you
use to help you with that inventory" and answered , "three," McVeigh , Logue, and
Weathers.
In its brief Respondent points to testimony of James Armstrong in which no refer-
ence was made to Shepard 's leaving his job on the evening of March 17 when
Shepard allegedly went to the office and overheard Bailey and Kuykendall. The
Trial Examiner is of the opinion that this fact is not significant . Armstrong was
not questioned at the hearing whether or not Shepard had absented himself 34
Shepard had simply asked Armstrong to watch the boiler for a minute. This was
not a noteworthy event . Such occurrences in the course of a work shift would not
be too rare since Shepard may have wished to go to the restroom or to go outside
for a smoke or any number of things. Shepard was gone for only a brief period
,of time.
Armstrong did testify that about 10 p.m . while he was busy the telephone rang
and Shepard answered it. Shepard , when Armstrong was free, then said , "Did you
know John Bailey went to a union meeting?" Armstrong said, "Well , he wasn't
supposed to. He was supposed to go home so he could be off tomorrow to take
inventory ." Shepard replied , "Well, he didn 't. He went to that union meeting."
Respondent asserts that the foregoing "news" of Bailey's attendance at the union
meeting "excitingly relayed , obviously coming as a surprise, is totally inconsistent
with his [Shepard 's] claim that he already knew it was to happen ( at the instigation
of a supervisor ), a far more exciting piece of news he entirely neglected to relay
to Armstrong." The Trial Examiner has given careful consideration to credibility
and to all other aspects of this case . I have appraised the witnesses and have con-
sidered their testimony . I do not agree that the news was excitingly relayed. It was
relayed to Armstrong when he was free from the particular task that prevented
him from answering the telephone in the first place or when Shepard returned
from answering the telephone . I find nothing to justify the adverb "excitingly."
It may have been regarded as important information since it was confirmatory of
what Shepard had reason to believe would happen . If Shepard did not learn
that Bailey had in fact gone to the meeting he may have believed that his eaves-
dropping had not been entirely accurate . The foregoing observation is also appli-
cable to the contention that the news came as a surprise to Shepard . There is
nothing to show that it came as a surprise to Shepard although Armstrong may have
been surprised.
As to why Shepard had not mentioned to Armstrong , either when he returned
from the vicinity of the office or later , the fact that he had overheard Kuykendall
speaking to Bailey about reporting on the union meeting, no absolute answer can
be given from the record . Respondent asserts that this factor impugns Shepard's
testimony . The Trial Examiner has considered Respondent 's contention and he is
not prepared to agree with Respondent . It is my opinion that Shepard did not tell
Armstrong of his trip to the office and of what he had learned about their mutual
foreman, Kuykendall , because it was my definite impression that the two men
were not close or good friends and that Armstrong was by no means a confidant
of Shepard on matters affecting the Union. Shepard , by absenting himself briefly
from his job and having Armstrong take over his duties , had gone on a venture
of his own and that venture involved eavesdropping on a foreman in the office. The
venture had disclosed a fairly "hot " matter of intelligence and it is doubted whether
that night , at least, Shepard knew just what he should do with it or to what fellow
workers, if any, he should confide it. Weathers testified that Armstrong had orig-
inally been opposed to the Union, and , judging by Weather's action of consulting
Armstrong about a list regarding the various employees ' sentiments toward the
Union , on March 17 , he apparently did not regard Armstrong as a union loyalist.
Kuykendall had told Armstrong and his father and Bailey that he had stuck his
neck out for them by telling the Company how they stood or would vote on the
Union and he did not expect them to let him down . The affidavit that the Charging
Party originally secured from Armstrong was at a time after the March 18 termina-
tions and before Armstrong was rehired . He subsequently sought to get back the
affidavit from the attorney for the General Counsel although it was not on any
asserted ground of the falsity of the affidavit . He had in fact agreed that the
contents were correct . As previously indicated , I believed that Armstrong was a
truthful witness but he did not impress me as a witness partcularly eager to support
as Armstrong and Shepard had both testified as witnesses for the General Counsel.
Respondent , later, as a part of its case, called Armstrong as a witness.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union 's or the General Counsel 's position or to assist Shepard . 35 This im-
pression in fact was one of the factors that led me to credit much of Armstrong's
testimony. Although Armstrong had signed a union card, there is no evidence that
he attended a union meeting or otherwise was active in the Union . He did not know
whether or not there was a union meeting scheduled for March 17. In all the
conversations that various supervisors had with him regarding the Union there is
no testimony that Armstrong ever expressed disagreement with the antiunion senti-
ments or indcated that he was for the Union . These facts are not said in criticism
of Armstrong and I am not concerned with his motivation or views in themselves.
These facts are mentioned to illustrate that Armstrong was either not prounion or
was at best lukewarm on the subject and I consider it not unlikely that a man of
Shepard's type had a fairly good estimation of where Armstrong stood on the union
matter. At best, from Shepard's standpoint, Armstrong was probably regarded
as a somewhat uncertain quality and by no means a strong union protagonist to
whom information on a matter of eavesdropping on a foreman could be entrusted,
particularly when the circumstances might redound to the eavesdropper's detriment.
Aside from the fact that the attitudes of Armstrong and Shepard regarding the
Union were importantly different, a factor probably known to each, there is no indi-
cation of anything approaching a close personal relationship between the two.
Armstrong was the retort operator. Shepard as the fireman had the duty of keep-
ing the boiler in the state considered desirable by the operator. The operator was
higher paid than the fireman. Armstrong had at one time reported to Foreman
Kuykendall that Shepard was sleeping while at work. Shepard was aware of this
fact because Kuykendall told him of the report and who had made it . While the
operator was not a supervisor he was in charge of the boiler operation. Kuykendall,
when asked who had reported Shepard, said, "His-well, I don't know whether we
call them foremen or not-but the retort operator or treatment engineer . .
James Armstrong." In short, there was nothing in the personal or official rela-
tionship between Shepard and Armstrong that would render it natural or normal
for Shepard to tell Armstrong that he had left his work, gone to the office, and
listened in on a confidential conversation by the foreman. Reporting the tele-
phone call to the effect that Bailey had gone to the union meeting was on a different
plane It was simply something that someone had told Shepard. Armstrong knew
there had been a telephone call and he knew Shepard had answered. It was quite
natural for Shepard to tell Armstrong what the call was about. The information
and the circumstances did not involve Shepard as a participant in any act like
listening in on a foreman nor did it reveal anything that in itself was particularly
significant. The significance to Armstrong was simply that employee Bailey had
gone to a union meeting whereas Armstrong had relieved him so he could take in-
ventory. Shepard apparently was not prepared to share the full story with,
Armstrong.36
Employees Cooks and Bennett testified that they attended a union meeting a
few days before the time when all the employees of the old company were termi-
nated. Neither witness could remember the date but on the basis of prior credited
testimony the date is found to be March 17. Both Cooks and Bennett testified
that in addition to themselves there was one other employee present at the meeting,
Bailey.37 The Trial Examiner found Cooks to be, on the whole, a credible witness.
35 Such an attitude is commendable in a witness since only the truth is sought and it
should be given objectively and without bias for or against any party.
36 At one point in his testimony Armstrong referred to a remark by Shepard to the
effect that John Bailey had "some kind" of a sheet of paper and Shepard got it and made
a copy. This segment of testimony was far from clear and it seems possible that Shepard
may have said he was going to make a copy of some paper Bailey had Armstrong. in
testifying on this matter said, "I forget now Just how he [Shepard] put it r can't
just remember exactly how he put it." This particular testimony was objected to by
Respondent as hearsay on hearsay and the Trial Examiner allowed the testimony, not to
establish the fact reported, but only as a statement allegedly made by Shepard The
testimony on this one aspect is so unclear that it has not been made the basis of a finding
or used in making a finding
I" As one of them put it, " . . there was two of us and a white fellow called
John Bailey, he came up there ' The record does not show the proportion of white
and Negro employees at the plant but all the employee witnesses and supervisors were
white with the exception of Cooks and Bennett It therefore appears that at the March 17
meeting there were three employees, one white and two Negroes. At the other union
meeting, held in December. the record shows that there were 27 present of a total of
approximately 50 employees
AMERICAN CREOSOTING CORPORATION, ETC. 167
While, as explained below , I was not impressed by Bennett 's credibility , I do find
the uncontroverted facts to be as stated above regarding the March 17 union meeting.
It is the Trial Examiner 's opinion and he finds that the evidence with respect to
Kuykendall 's having procured Bailey to engage in surveillance of the union meeting
on March 17 is supported by substantial evidence . Weathers, Kuykendall , Shepard,
and James Armstrong all testify that Weathers , after Bailey had been at work for
several hours, announced that Armstrong would replace Bailey. The reason given
was so that Bailey would assist in taking inventory in the following day. Armstrong
did replace Bailey but the latter, according to Brownley's and Shepard 's testimony,
did not take inventory . Inventory was not taken on the day following Bailey's re-
lief from his shift and when it was taken Bailey was not a participant . Respondent
offered no explanation in the record for these facts. It is also unclear why Re-
spondent would have decided , as asserted , on the participants in the inventory at
the last minute. Since at least March 8, management was aware that the closing
date of the sale of the plant was March 22. An inventory just before closing would
be entirely normal and if Bailey was to be a participant it is difficult to understand
why he would be taken off his shift at the last minute after he had worked for almost
3 hours and both he and his replacement would be hastily relieved and sent to
work respectively . The facts , including the attendance of Bailey at the union meet-
ing, impressed me as corroborative of Shepard 's testimony regarding the conversa-
tion between Kuykendall and Bailey in the office 38 It is found that Respondent, by
soliciting employee Bailey to attend the union meeting for the purpose of reporting
to Respondent the names of those in attendance , engaged in conduct violative of
Section 8 (a)( I) of the Act.
D. Conclusions regarding hostility toward the union; Respondent's responsibility
Evidence previously described establishes, in the Trial Examiner' s opinion, a
strong and articulate hostility on the part of management toward the advent of the
Union in the Brunswick plant. With the exception of a few statements in November
1959, the antiunion campaign was concentrated in the period following the Board's
direction of an election among the employees of the plant and shortly prior to the
proposed date of the election.39 Briefly recapitulated, there was Assistant Super-
intendent Weathers' visit to James Armstrong at his home on March 17; on this
occasion Weathers had a list of employees with markings showing whether they
were for or against the Union; he asked Jamse Armstrong about his father's union
sentiments since there was a question mark next to the father's name; Weathers told
James Armstrong that the new company would not operate under a union; on March
16 or 17 Plant Manager Brownley told Shepard that, if the Union was voted in, the
Company would close down and move its contracts to its other plants; March 18
Foreman Kuykendall told James Armstrong that the new company would not op-
erate under a union; sometime in the week of March 18 Kuykendall told employees
Bailey, James Armstrong, and Jefferson Armstrong that Kuykendall had stuck his
neck out for them by telling his superiors that they would vote against the Union and
Kuykendall admonished the men not to let him down; March 18 Kuykendall told
employee Reddick he would be rehired if things went right; Reddick heard office
manager McLeod, on March 21, tell James Armstrong that the new company would
not operate under a union, so, by that time at least, if not earlier, Reddick knew
what the phrase, "if things went right," meant with respect to the employer; March
10 or 11 Kuykendall told Shepard that the employees would be rehired by the new
company if they killed the Union and Kuykendall said he was warning Shepard for
his own good; March 17 Weathers arranged for employee Bailey to be released from
his shift for the ostensible purpose of taking inventory on the following day; in-
stead of preparing for or taking inventory Bailey was told by Kuykendall that he
88 Bailey, as we have seen, was one of the employees for whom Kuvkendall had "stuck
his neck out" by vouching to his superiors that Bailey and the Armstrongs would vote
against the Union
It is also to be borne in mind that Brownley testified that he had instructed his super-
visors to find out what they could about the Union
9e As mentioned, the Direction of Election was issued February 29, 1960, and directed
an election within 30 days ; March 25, 1960, was the proposed date of the election, a fact
apparently known to the parties sometime prior to March 18: the election was not held
and on March 29, 1960. the Board issued an order amending its prior direction of an
election, pending disposition of the unfair labor practice charges, by directing an election
"at such time as the Regional Director deems that an election may appropriately be
conducted."
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should attend the union meeting that night and report the names of employees who
-attended the meeting.40
The same individual supervisors , from the plant manager to the foremen , of whose
antiunion animus we have seen ample evidence , were the persons who made the de-
cision as to which employees would be rehired and which would not be rehired.41
On March 21 , the employees were notified whether or not they were rehired by the
new company , Respondent Georgia Creosoting Corporation . The hiring or rehiring
for the new company or the failure to hire or rehire was quite clearly the act of and
the responsibility of Respondent , Georgia Creosoting Corporation . The former
employer had terminated all its employees on March 18 and ceased operations; it
clearly had no interest in or participation in the new company 's hiring.
In the Trial Examiner 's opinion it is not essential to determine whether the super-
visors in the Brunswick plant were agents of the predecessor company, American,
or of the purchaser , Respondent Georgia Creosoting Corporation , or of both, at
various dates prior to March 21, 1960. The important thing is that the decision not
to rehire certain persons , and specifically Shepard, Cooks , and Bennett , was made
by Brownley in consultation with the same supervisors who with Brownley were
participants in the antiunion campaign . Brownley and his staff were agents for
Respondent in regard to hiring or not rehiring on March 21 , and in evaluating the
reason why Shepard, Cooks , and Bennett were not rehired , the antiunion attitude of
the local management must be considered together with the other reasons advanced
in support of the action taken by management . 42 Brownley and his staff were the
same men on March 21 as they had been during the entire period from November
1959 to March 21, 1960. There was no disavowal of any prior antiunion state-
ments and as a matter of fact practically all the statements in the period March 10 to
18 were statements in which the plant management was speaking of the new
company's attitude toward a union , i e., the new company will not operate under
a union . McLeod, a direct import of the new company onto the local plant scene,
confirmed the foregoing policy statement.
Although the Trial Examiner is of the opinion , as stated heretofore , that in eval-
uating the failure to rehire certain persons on March 21, the prior manifestations
"Whether the drop in attendance , from 27 at the first union meeting , on December 23,
1959 , to 2 and 1 informer on March 17 , can be attributed wholly to the antiunion cam-
paign of management and fear of management surveillance, it is not necessary to deter-
mine Perhaps the simple chronology of events was in itself a factor , aside from any
unfair labor practices , e g., November 1959 , union organizing commences ; December 11,
union files petition for certification with Board ; December 22, Board conducts hearing on
union petition ; January 1 , American Creosoting Corporation , a subsidiary of Union Bag
Company, takes over operation of the plant from Georgia Creosoting Company which is a
subsidiary of American , also about January 1 , work slackens at the Brunswick plant and
employees , or some of them , work fewer hours, about January 15, Escambia Treating
Company learns that Union Bag may be interested in selling the Brunswick plant and
negotiations for sale and purchase of plant commence, February 29, Board issues order
directing election at Brunswick plant ; March 8 , sale of plant is announced to local plant
management and thereafter employees receive word of sale and the fact that everyone will
be terminated but will be rehired ( some variations regarding the latter aspect) ; and
March 18 , all employees are terminated
¢i The decision was made by Plant Manager Brownley who had full and final authority.
He talked to his supervisors about the applicants for hiring or rehiring , but he made the
ultimate determination
42 There is nothing in the record to indicate that Soule did anything that could, be con-
strued as an alteration of the attitude of the Brunswick plant management toward the
Union About March 21, Soule told Brownley that the new company would , in his opinion,
operate better as a nonunion operation . On March 19 or 20 , Soule told Assistant Super-
intendent Weathers that he would be willing to bargain if the plant personnel wished to
do so but he would rather bargain with the employees themselves and not a third party.
The 'Trial Examiner has previously stated his conclusion that Respondent, Georgia
Creosoting Corporation , is not obligated to remedy unfair labor practices committed in
November 1959 and prior to the time when the Brunswick plant supervisors became agents
of Respondent As is explained hereinafter , the Trial Examiner is of the opinion that the
precise cutoff date is March 12 or 13 , 1960 , and that Respondent is not required to remedy
conduct prior to that date . Remedy, however , is to be distinguished from evidence The
past threats , statements , and manifestations of hostility toward union activities by the
local plant management is quite germane and can and should be considered in evaluating
the terminations of employees by the same management on March 21 , 1960, in terms of
possible motivation.
AMERICAN CREOSOTING CORPORATION, ETC. 169
of antiunion animus on the part of the plant management can be and must be
taken into consideration regardless of whether Brownley was an agent of Respond-
ent prior to March 21, it is also his opinion that there was in fact a prior agency
relationship. Brownley in the period from March 12 or 13 to 18 was in effect a
dual agent 43 He had been advised on March 8 that the plant had been sold by
American to Respondent. The latter company had advised Brownley that there
would be no change in the plant management at least initially. Although Brownley
and his staff were still on American's payroll and were agents of American, Respond-
ent instructed Brownley to insert an advertisement in the newspaper to secure
employees for the Respondent. Applications were to be made on March 18 which
was prior to the closing date of the sale on March 22. Brownley received his
instructions about the advertisement 5 or 6 days prior to the time when the adver-
tisement was run. The advertisement ran for 3 days, apparently March 15, 16, 17,
or March 16, 17, 18, since the advertisement stated that applications were to be
made at the plant on March 18. During this period of approximately March 12
or 15 to 18, the latter being the predetermined date when American was to and did
terminate all its employees, including Brownley and his staff, Brownley and his staff
were still agents for American. While this relationship existed legally, it was, in
terms of the realities, little more than a caretaker-type agency during which the
demise of American at the plant was presided over by the plant management.
Respondent and the plant management during this same period had also entered
into an agency relationship with respect to advertising for and recruiting employees.
Brownley was vested with authority not only to solicit applicants for employment
but he was the man who was to and did make the determinations as to who would
be hired or rehired. By vesting Brownley with the hiring program of securing
suitable employees for Respondent, the latter, in my opinion, gave Brownley as
plant manager such incidental authority as might be implied therefrom A grant
of authority need not spell out every detail thereof and is not necessarily exclusive
of the normal details. The statements to employees by the plant management staff
that manifested management opposition to the union and expounded the policy of
the new company not to operate with a union, during the period March 12 or 15
to 18 and thereafter, were within the agency created by Respondent with the plant
management. In view of the time when the statements were made and the ref-
erences therein to the new company, it is doubtful that it was the fact or that the
employees believed that their supervisors were speaking on behalf of American.
However, the supervisors were still on American's payroll and legally they were
American's agents. But, in my view, for the reasons given, local management was
also, in matters pertaining to employment and employment policies, including atti-
tude toward the Union, acting within the scope of an agency relationship with
Respondent, whether or not the acts and statements were expressly authorized.
Brownley and the local management were not strangers comparable to a local
businessman or community leader who engages in an antiunion campaign that
benefits some company in the community Brownley was the plant manager who
had been told that he was being retained by Respondent in the same capacity. He
launched a hiring program at Respondent's direction. He was responsive to Re-
spondent's direction, not only in fact, because he did act as directed, but also because
Brownley knew that American was, in effect, as far as he was concerned, expiring
or dead with respect to the local plant. Respondent, aside from the fact that it
undertook to direct and exercise control over Brownley, had a very realistic control
over Brownley and his staff since their future employment by Respondent, fructify-
ing within a few days, was dependent upon their acting in Respondent's interest on
the matter of suitable employees. Whether local management, in acting as it did
during this period, had correctly divined Respondent's policy regarding the Union
is not determinative on the question of agency since the acts were within the scope
of the agency relationship. Other evidence, previously referred to, indicates, how-
ever, that Respondent, as Soule stated, preferred its plants to be nonunion rather
than union and McLeod stated that Respondent would not operate with a union.
E. The failure to rehire Shepard
Brownley, who terminated Shepard, testified that there were two reasons for his
action: Shepard's inefficiency as a fireman and his conduct. The plant manager
43Dual agency is not a novel concept in the law and it is also to be found in the field
of labor law, e.g., a foreman who is a union member may he an agent for both the em-
ployer and the union and his discrimination against a nonunion employee may render
both the employer and the union liable for the illegal discrimination.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,did not have firsthand knowledge of Shepard's deficiencies , aforementioned, but he
-stated that he learned of these faults through Shepard's foreman, Kuykendall, and
-James Armstrong, a treating operator. Brownley testified that "there was some
-drinking in the plant" and he said this statement applied to Shepard. When asked
by Respondent's counsel for some specificity of this point, Brownley said, "Well,
there was a lot of big talk. He was not looking after his job, and some drinking."
The allusion to drinking was later made somewhat clearer by Brownley's statement,
"I wouldn't say he was drinking on the job but under the influence." Brownley's
testimony therefore was no more specific than the assertion that he had been told
by James Armstrong and Kuydendall that Shepard was engaging in "a lot of big
talk," was not performing his duties efficiently in tending the boilers, and had been
under the influence on the job.44
Since Brownley's information was based upon what Kuykendall and James Arm-
strong told him about Shepard, the testimony of these two individuals will be
considered. James stated that he never saw Shepard drink on the job but he
testified to one occasion when he believed that Shepard looked as if he had been
drinking. James said he based this conclusion on the fact that Shepard was talking
more, that his eyes were "red or something like that," and that he did not act his
usual self. He stated that he had seen other employees at the plant that looked
as if they had been drinking and he specifically named Bailey, one of the treating
operators in Kuykendall's and Shepard's department, as coming within that category.
Later in his testimony, 'although he had previously been able to name only one
occasion when Shepard looked as if he was under the influence, James said that he
thought that Shepard looked as if he was under the influence, more than other em-
ployees. James did not testify that he had ever advised Brownley that Shepard was
under the influence. Foreman Kuykendall testified to one occasion in February when
Shepard came to work under the influence . Kuykendall reported the foregoing to
Brownley at the time but no disciplinary action was taken. Kuykendall did not
testify to other drinking incidents by Shepard either from his own observation or
from what any other employee had reported nor did he mention any other report
of drinking to Brownley. It is also noted Brownley was asked:
Q What was your policy about drinking. Suppose a man drank but could
do his work all right?
A. We do not want them to work under the influence of whiskey. We send
them home until they get straightened out.
The aforementioned policy does not appear to be particularly drastic, but in any
event there is no instance or assertion in the record that Shepard was ever sent home
to "get straightened out." While the Trial Examiner believes that Shepard drank, the
evidence is that Kuykendall, in February, reported to Brownley one instance of
Shepard being at work under the influence. James Armstrong did not testify that
he reported to Brownley the one instance when he believed Shepard was under the
influence but, assuming that he did, this like the other incident was not deemed
serious enough to warrant sending Shepard home or to require disciplinary action.
Another item referred to by some of Respondent' s witnesses was Shepard's sleep-
ing. Although not specifically mentioned by Brownley in his testimony, the latter
did state that Shepard was inefficient as a fireman with respect to his duties on the
boilers. If we assume that Brownley was aware of Shepard' s sleeping then his aware-
ness was admittedly not based on personal observation. Although James Armstrong
testified that Shepard slept on the job he admitted that he had seen other employees
sleeping at the plant but believed that Shepard slept more . The only mention that
James Armstrong said he had made to another person about Shepard's sleeping was
44 The only evidence in the record that would explain Brownley's reference to a "lot of
big talk" by Shepard Is Jefferson Armstrong's testimony when he was called as a witness
by Respondent. He stated that Shepard "always was talking to him [Kuykendall] about
things ; more so, the union coming in and what he was going to do when it did come in."
Also, there is Shepard's credited testimony that he spoke openly in the plant that he was
prounion and he told Kuykendall, after the latter warned him that rehiring for the new
company was dependent on the Union being killed, that be would still support the Union
and that he would vote for it even if his was the only vote. This probably came under
the heading of "big talk" by an employee in the face of his supervisors' strong activities
against the Union. As appears above, Brownley mentioned Shepard's "big talk" as the
first item when asked to be specific about Shepard's misconduct. Weathers also testified
that Shepard "talked very much." There was no rule about talking in the plant and it is
difficult to conclude that anyone would be concerned about employees talking in a creosot-
ing plant unless it was concern about the subject matter.
AMERICAN CREOSOTING CORPORATION, ETC. 171
to Bailey, who was another employee and not a supervisor. Armstrong said that
"maybe" he had mentioned such information to Kuykendall but he "wouldn't
swear" that he did. James Armstrong did not testify that he had reported this matter
to Brownley. Reddick, who was also a fireman in Kuykendall's department, testi-
fied, when called by Respondent, that Shepard had worked with him 2 nights and
that Shepard "snoozed" "a couple of times maybe." Reddick said that work was
slack at the plant, a fact admitted by Brownley, and he believed that everybody,
including himself, snoozed occasionally. Reddick stated that Kuykendall also
snoozed. Although Reddick worked with Shepard only 2 nights and said that
Shepard had snoozed "a couple of times, maybe," he opined that snoozing was more
common with Shepard than with others. Jefferson Armstrong, who worked on the
shift following Shepard's, testified that he had seen Shepard sitting in a chair with his
hands on the table and the witness believed he was asleep on that occasion. Jefferson
stated that Shepard did a lot of "cussing" although he admitted that others, including
himself, also used profanity on occasion. When asked whether he had reported to
any supervisor about Shepard using profanity, he said, "No, I didn't report that."
Later, the witness was asked whether he had heard Shepard use profanity with Fore-
man Kuykendall and he said, "Yes." When asked what Shepard said to Kuykendall,
Jefferson replied, "I don't know what all. He was talking to him about things;
more so the Union coming in and what he was going to do when it did. . . I
don't recall the words he was saying or nothing." He said he had spoken to Kuyken-
dall several times about Shepard; he stated he had complained to Kuykendall about
Shepard's profanity. When asked for details about his complaints to the foreman
about Shepard, Jefferson said, "I just told him-when I did complain to Mr. Kuy-
kendall, I told him he should have let him go, because he had a million opportuni-
ties; and, if he had of, well, there wouldn't have been so much stir-up about this." 45
Jefferson said that the foregoing occurred "between the period of the time of closing
down until we rehired back in," about "the 18th or 19th of March."
The conversation, described above, between Jefferson and Kuykendall, occurring
on March 18 or 19, raises some questions. The word "stir-up" I take to mean some
sort of reaction, agitation, or unusual condition of affairs. Jefferson was not pre-
dicting a "stir-up," he was speaking of something in being, ". . . there wouldn't have
been so much stir-up about this." This "stir-up," in Jefferson's mind, would have
been prevented or alleviated if Shepard had been discharged in the past. The witness
did not explain his words, "so much stir-up about this." The Trial Examiner does
not believe that the "stir-up" referred to had reference to the plant closing and the
terminations because there is no reason to conclude that Shepard's discharge in the
past would have had any effect on either of these events. The "stir-up" could not be
a reference to any existing employee or union reaction to the new company's failure
to hire some of the old employees because that action did not occur until March 21.
No company supervisor had told Shepard that he would not be rehired prior to
March 21 so the "stir-up" could not refer to any reaction to such intelligence. The
only condition in the plant, as far as the record shows, that might merit the term
"stir-up" (that conceivably could have been averted by discharging Shepard in the
past), at the time and under the circumstances when the phrase was used, was the
impending Board election and the Company's campaign against the Union in the
period immediately prior to March 18 and 19. The Board's order directing an elec-
tion within 30 days was issued February 29, 1960. The record contains the credited
testimony of Cooks that prior to the shutdown on March 18 Weathers was posting
an election notice in the plant and remarked that there would be a little voting, and
that the Union was trying to come in but that he did not want a union in the plant.
Weathers admitted that he was posting a notice when Cooks was present. Weathers
did not say what kind of a notice it was although he said that he told the employees
present not to worry about their jobs. The foregoing indicates that an election was
imminent or potentially imminent at the time. Also, information in the Board's for-
mal file in the representation case tends to indicate that the scheduled or proposed
date of the election was March 25. In this context, including the antiunion state-
ments of supervisors to employees in the period March 10 to 18 and Weathers'
action on March 17 in going to James Armstrong's home with a list of employees,
with the employees' probable voting sentiments marked thereon, and questioning
James about his father's (Jefferson) attitude toward the Union, the "stir-up," re-
ferred to by Jefferson Armstrong in his testimony may be explainable. It is a
reasonable inference that the Company's campaign against the Union and the effect
At another point in his testimony Jefferson also mentioned that h e had told
Kuykendall, while Shepard was still employed, that "there wouldn't be so much stir-up if
,he'd just let him [Shepard] go sometime ago."
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on, and the reaction of, the employees may have been the "stir-up" that Jefferson had
in mind. Jefferson may well have believed, as he testified, that "there wouldn't have
been so much stir-up" if Kuykendall had discharged Shepard, a strong union advo-
cate, in the past. Such action could have had a dampening effiect on union activity
and interest. Jefferson was well aware and he testified that he had heard Shepard
talking to Kuykendall about the Union in the past, telling Kuykendall of what would
be done when the Union came in. Jefferson, as we have seen, was also well aware
of the Company's position on the matter of a union. Jefferson's own sentiments
toward the Union are not in conflict with the foregoing implications of his statements
to Kuykendall. Jefferson had been asked by Kuykendall on about March 15, 1960,
to help "knock down" the Union Jefferson, on that occasion informed Kuykendall
that the advent of a union in the plant was of no interest to him since a union would
not do him much good in any event. Weathers testified that the two Armstrongs
were originally opposed to the Union and as late as March 17 the Company did not
consider Jefferson to be a union advocate. There was a question mark next to his
name on Weathers' list aforementioned. Jefferson had signed a union card but he
was one of the employees for whom Kuykendall had vouched as being a voter against
the Union. Since Respondent called Jefferson as its witness and elicited testimony
concerning his statements to Kuykendall about Shepard, it has appeared appropriate
to analyze these statements not only as an employee's estimate of and recommenda-
tion regarding Shepard but as an estimate and recommendation of how the union
"stir-up" in the plant could have been obviated, i.e., by the earlier discharge of
Shepard. This is some indication of Shepard's role in the union activity in the plant.
Jefferson Armstrong and Weathers testified that as a fireman Shepard ran high
water in the boilers. Jefferson said Shepard did this "all the time." Both witnesses
explained when water gets "too high" or if you have an "excess amount of water" it
runs wet steam on the materials being processed in the retort and causes a wet
charge. A wet charge in turn necessitates a 7- or 8-hour re-treating of the materials.
While it is apparent that the water should not be allowed to run too high so that an
excess amount would necessitate a re-treating, neither Weathers nor Armstrong testi-
fied that Shepard was responsible for materials having to be re-treated. Since re-
treating was a 7- or 8-hour operation, and by that very fact a serious loss, it is my
opinion that such events would be noteworthy and would have been mentioned by
these two witnesses called by Respondent. Moreover, if Shepard ran high water
customarily or all the time, as the testimony sought to show, and if high water is to
be deemed the same as excess water or excessively high water that necessitated a
re-treating of the materials, it would seem to indicate that for substantially the entire
period of his employment Shepard was causing a more or less continuous or regular
re-treating of each batch of material In my opinion such a situation would have
been so intolerable from the employer's standpoint that Shepard would have been
terminated long since. The employer could not have operated under such con-
ditions. The failure of Respondent's witnesses to mention the very obvious fact and,
to my mind, a very cogent fact, if it were so, that Shepard had been responsible for
causing the operator to re-treat one or more batches of material, persuades me that
if Shepard ran high water it did not apparently reach the point where a re-treating
was necessitated. According to Weathers there were two marks on the water
column and the water was to average between these marks This reference to aver-
age would indicate that sometimes the water might be higher than the middle and
sometimes lower. It is the Trial Examiner's opinion that the evidence shows that
Shepard did at times run high water but there is no evidence that the water on such
occasions ran so high or averaged so high that it resulted in a single re-treating. Nor
is there any evidence that Respondent was turning out inferior products or that it had
received complaints from customers regarding the quality of its products while
Shepard was employed 46
The Trial Examiner has observed that the testimony about Shepard running high
water came from Weathers who was not Shepard's immediate supervisor. and from
Jefferson Armstrong, who worked on the opposite shift from Shepard. If the high
water runs of Shepard were as frequent and as serious as depicted, it would seem that
In short, if there were no instances where Shepard's work as a fireman resulted in
re-treating of products, it would mean that either Shepard had not run excessively high
water or that the Company was turning out inferior products that had received a wet
charge and should have been, but were not, re-treated There is no evidence of the latter
situation.
While some other employee may have intervened on occasion to avert a wet charge it
does not impress me as reasonable to conclude that this would explain a total absence of
wet charges during the entire period of Shepard's employment.
AMERICAN CREOSOTING CORPORATION, ETC. 17 3
Brownley would have mentioned this specifically, as one of the reasons why he termi-
nated Shepard. Although Kuykendall testified to various acts of misconduct on the
part of Shepard he made no reference to Shepard running high water in the boilers,
let alone that Shepard ever caused a wet charge 47 The foregoing observations are
not diapositive of this matter but on all the evidence pertaining to high water on the
part of Shepard it is my opinion and I find that Shepard did at times run high water
but he did not allow it to reach the point of excess water in the sense that it required
a re-treating of materials. The undesirability of high water was due to the danger of
a wet charge resulting therefrom and this in turn would require a re-treating. I find
that Shepard did not run high water all the time or most of the time as Weathers and
Jefferson Armstrong stated and implied. I do find that he did run high water on oc-
casion but did not do so frequently enough or under such circumstances that his
foreman reported it to Brownley or that it resulted in any disciplinary action by any
supervisor.
Foreman Kuykendall testified that in January James Armstrong told him that one
night he had to wake Shepard several times. In February, Kuykendall testified,
there was one occasion when Shepard came to work under the influence of liquor
and did some sleeping on the job. Kuykendall stated that he reported both incidents
to Brownley but no action was taken except that Kuykendall told Shepard that he
would have to do better and that "we" cannot put up with this. Regarding the
&mking incident, Kuykendall said he told Shepard that if it happened again "we
would probably have to let him go." There is no testimony by Kuykendall that the
foregoing offenses were thereafter repeated.
Kuykendall and Weathers both testified to an incident which Weathers said oc-
curred in February. Shepard was doing some repair work with a welder on top of
an incinerator under Weathers' direction. Weathers said that during the course of
the work a problem arose regarding a phase of the work and Shepard wanted to
ask Weathers how it should be done. Weathers was not available at the time, having
returned to the office, and as the janitor was walking by, half way between the in-
cinerator and the office, Shepard shouted to him48 According to Weathers, Shepard
said to the janitor, "When you go down to the office tell Jack Weathers to get his
Goddam ass up here, we need him." Kuykendall, who was just outside the office at
the time, testified that Shepard's words were, "If he wants this Goddam job done he'd
better get his damn ass down here." In the light of the circumstances it is clear
that Shepard was talking to the janitor, a fellow manual worker. By customary
standards the language was vulgar and profane. It was not the language of the draw-
ing room. But in a pole treating plant occupying a large area, in relative isolation, on
the outskirts or in the environs of town, I find it difficult to conclude that the language
used was unique, among the employees. Indeed, aside from the testimony of wit-
nesses, including Kuykendall and Weathers, that they had heard profanity at the
plant, it would be unusual (whether deplorable or not) if such were not'the fact.49
It is also my opinion that customarily, in giving this earthy message to the janitor,
Shepard or any other employee, including the immediate recipient, the janitor, would
expect and would know that when the janitor went into the office to relay the message
to Assistant Superintendent Weathers, the message would be simply, that Shepard
wants you to come out to the incinerator right away, and would not be a literal
transcription of the original. In any event, as aforementioned, Shepard was speaking
to the janitor and not to Weathers.so
Kuykendall testified that when he heard Shepard's remark, aforedescribed, he spoke
to Weathers and said he believed that they should talk to Shepard. Weathers told
Kuykendall to handle it and Kuykendall told Shepard "we" could not stand for that
and "It means nothing to me but if it had been one of the ladies in the office walking
out, instead of -me, they would have heard it." In their testimony Kuykendall and
Weathers also said that the assistant to the vice president of American Creosoting
Corporation was in the plant on that day and they thought he might have heard
47 Kuykendali's testimony about Shepard is considered in detail hereinafter
48 The distance from the incinerator, on which Shepard was working, to the office was
500 yards
48 Kuykendall testified that "you might hear it [profanity] every day" at the plant
co Even the language itself, without approving it, was not exceptional in the particular
circumstances. It was probably as common for some men to say, "get your G
D over here, Joe," as to say, "come on over here. Joe" or to refer to some-
thing as a "G D something" as to leave out that phrase Nor does the
language necessarily connote any animosity or disrespect. The same man might refer to
his favorite baseball player in similar fashion, e g , "I hope that Jones gets an-
other home run today in that series."
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shepard 51 No disciplinary action was taken against Shepard in February when the
incident occurred and he continued to work until the plant closed on March 18. Thi&
incinerator incident was not referred to by Brownley in his testimony and in any
event the Trial Examiner is not persuaded that management considered it to be a
cause for termination or that it was a factor therein.
About March 1, according to Kuykendall, Shepard and a helper were doing some
maintenance work for him. When Kuykendall checked the work and then spoke
to Shepard about the incompleteness of the job, Shepard told Kuykendall to do it
himself if he could do it any better. Kuykendall was asked by Respondent's counsel:
Q. Did you report this to anyone?
A. No, sir.
Other than to direct Shepard to finish the job Kuykendall took no disciplinary action.
Kuykendall had given testimony consuming 24 pages of the record on direct
examination and cross-examination and both direct and cross-examination had then
concluded. He had testified extensively, concerning Shepard and what he, Kuyken-
dall, did in regard to Shepard, including reports and discussions with Brownley and
Weathers. Kuykendall did not refer to any recommendations he had made to his
superiors that Shepard should be punished or disciplined or that he had recom-
mended Shepard's discharge or that Shepard should not be rehired. At that junc-
ture, the completion of direct and cross-examination, the Trial Examiner asked
Kuykendall whether he had ever recommended to his superior that Shepard be
terminated. The witness said that he did so in March at some time after the incident
when Shepard had shouted from the top of the incinerator, above, and after the
incident, last described, when Shepard was insubordinate to him. The Trial Ex-
aminer was not impressed by Kuykendall's credibility on a number of matters and
I do not believe that he recommended Shepard's termination as a result of the in-
cinerator incident or the insubordination incident or the other incidents of mis-
conduct to which he testified. The incinerator has been previously discussed. Suffice-
to say at this point that all Kuykendall told Shepard on that occasion was that, in
effect, the remarks should not be repeated, and although the language did not
bother Kuykendall it might happen that one of the ladies would overhear such
boisterous and vulgar language. I do not believe the Kuykendall recommended dis-
charge because of the foregoing. The insubordination on maintenance work incident
was handled by Kuykendall without even reporting it to his superiors although
he allegedly reported other infractions by Shepard. Brownley, in his testimony.
as to why he refused to rehire Shepard did not mention the incinerator or insubor-
dination affairs and the inefficiency and misconduct to which he confined his testi-
mony related to drinking and Shepard's work as a fireman on the boilers. Nor did
Brownley state that Kuykendall, Shepard's immediate foreman, had recommended
the employee's termination, a factor of some significance to Respondent's position,
if in fact Kuykendall had so recommended.52
11 There is no evidence that any woman heard Shepard's statement or that the assistant
to the vice president heard it or that anyone complained about the matter. In niy opinion
when Kuykendall spoke to Shepard at the time of the incident lie. in effect, told Shepard
to watch his language or the volume or decibel level at which he uttered it.
52 Kuykendall's testimony about his recommendation may simply mean that he did,
sometime in March, recommend Shepard's termination. He did not state the basis of his
recommendation and his reference to the incinerator and insubordination incidents was
actually in response to a question directed to fixing the geneial time of his recmnnienda-
tion and not the exact time or the cause or basis of the recommendation. If Kuykendall'
did make a recommendation about Shepard it probably occurred in the period in March
1960, when the events with which this report has been concerned were taking place.
Although Kuykendall did not state the basis of his recommendation it is reasonable to
assume that he would have asserted if he had been asked that the recommendation was
based on the derelictions of Shepard that he described: sleeping on his shift on one occa-
sion in January, under the influence and sleeping on one occasion in February, shouting
from the top of the incinerator in February , insubordination about March 1. I do not
interpret Kuykendall's testimony as stating or implying that promptly after the last in-
cident he recommended Shepard's discharge Kuykendall did not in fact even report that
incident. If his testimony is taken to mean that immediately after either the incinerator
incident or the insubordination he recommended discharge, the Trial Examiner does not
credit such testimony. Nor do I believe that in January or February Kuykendall had
recommended Shepard's termination. For reasons hereinafter stated, the evidence per-
suades me that any supervisory recommendation regarding Shepard's termination had:
reference to union activity.
AMERICAN CREOSOTING CORPORATION, ETC. 17
In the course of testimony about Shepard, both Brownley and Kuykendall, as
we have seen, stated that no disciplinary action had been taken at the time of the
reported incidents. Thus, Brownley was asked, "Did you take any disciplinary
action at those times?" He answered, "No, sir." When asked, "Why not," Brown-
ley said, "let me explain it this way: We were trying to make an operator out of
him, treating operator. . " He then said he, Brownley, "cut him [Shepard]
back to a fireman ." because of his conduct and "another reason was that we
had too many men and we were cutting back-cut some off." This action was about
2 weeks prior to March 22, 1960.
The evidence shows that a treating operator was a higher paid job than that of
fireman; it also involved more responsibility since the operator, for whom the fire-
man maintained steam in the boilers , was the man who conducted the treating op-
eration. It is difficult to understand why Brownley or Kuykendall would in effect,
have selected and promoted an inefficient and unreliable fireman to train for a higher-
paying and more responsible job 53
Evidence, which I credit, convinces me that Shepard was assigned to the job
of apprentice treating operator for only a few days, during which he was doing
plumbing and other maintenance tasks, and, because he did not feel that he was
learning much about being a treating operator, he asked to return to his job as
fireman.54 The Trial Examiner does not credit Brownley's testimony that Shepard
was cut back from operator to fireman as a punishment for his misconduct. Nor do
I credit Kuykendall, who also sought to convey the impression that Shepard was
cut back as a punishment albeit with a slightly different emphasis from that of
Brownley. Kuykendall said that Shepard was not working out as an operator, that
he was not learning the work. As stated, the Trial Examiner credits Shepard that
he worked as an apprentice operator 4 days and then asked to go back as a fireman
because he was not being given much opportunity to learn the new skill . Shepard's
regular job was that of a fireman. Respondent's counsel asked James Armstrong
about Shepard's "performance as this retort operator." Armstrong's reply was:
"You mean could he run it? He could not operate a retort, if that's what you
mean He wasn 't there long enough . In other words , as an apprentice , he wasn't
there long enough It takes time to operate a retort." The Trial Examiner is per-
suaded that the reason management acceded to Shepard 's return to his job was, as-
Brownley stated , the fact that there were too many employees , and management
was reducing its personnel.55
About the time of Shepard's return to the fireman job, Brownley reduced his per-
sonnel and one fireman was terminated. Although there was a lack of work during
this entire period, and an oversupply of employees , beginning as early as January 1,
Shepard was not laid off. In his department another fireman was let go instead of
Shepard This fact is of some significance since at a time of layoff for lack of
work it would be expected that an inefficient and low caliber employee, as Shepard
was alleged to be, would be terminated Uncontroverted and credited evidence also
shows that the fireman, who was laid off at the above period in March when Shepard
was retained, was subsequently rehired after Shepard had been terminated with
all other employees on March 18 Also relevant to Shepard's inefficiency and con-
duct as a fireman is the uncontroverted and admitted evidence that during March
1960 Shepard had been selected to train and did train a new employee in the work
of a fireman . If Shepard was as inefficient in the performance of his work and as
lax in his conduct as he is sought to be portrayed , his selection as a teacher and"
an indoctrinator of a new employee in March is quite incredible , and, in my opinion,
it is inconsistent with Respondent 's position.
The Trial Examiner does not credit Brownley's generalized testimony that Shep-
ard's alleged inefficiency and misconduct continued to the time of his termination.
He admittedly took no disciplinary action on such conduct. Brownley testified to
no firsthand knowledge of Shepard's work or of his conduct Shepard's foreman,
Kuykendall , reported to Brownley at the time, as we have seen , that on one shift-
in January , James Armstrong told him he had to awaken Shepard several times.
63 This observation is not affected by Brownley's testimony that he wished to train
another operator or operators because of a desire to eliminate overtime among the existing
operators
64 James Armstrong testified that Shepard worked with him 2 nights as an apprentice
operator
m Brownley gave this as one of the reasons for Shepard's return to his fireman job-
although also stating that it was because of Shepard's conduct The latter assertion has
been rejected by the Trial Examiner in the light of the evidence aforementioned. That
work was slack in the plant during this period is admitted and is undisputed.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The other occasion on which Kuykendall had reported was in February when
Shepard came to work under the influence and was sleeping . No disciplinary meas-
ures had been taken on either occasion. The incinerator incident was in February
and it does not appear that Brownley was aware of that but if he was, the Trial
Examiner's appraisal of that affair has been previously stated. The insubordination
incident about March 1 was not reported by Kuykendall. The delineation of
Shepard, as highly inefficient and as a repository of misconduct and bad habits, both
before and after the time and the fact that he was assigned to train a new fireman
and was retained in a period of layoff in preference to another fireman, who appar-
ently had no such deficiencies and who was subsequently rehired after March 18,
is, in my opinion, unconvincing. If Brownley knew, both before and after the fac-
tors referred to in the preceding sentence, that Shepard was and continued as noth-
ing but a wholly undesirable employee, the failure to terminate him or even to
discipline him in a period of slack business is very difficult to understand.56
Membership or activity in a union affords an employee no immunity from ter-
mination. The Trial Examiner is cognizant that an inefficient employee may seek
to protect himself from his just deserts by recourse to unionism . It is also apparent
that the existence of a legitimate reason for terminating an employee is not disposi-
tive of the issue of the reason why he was actually terminated.
The Trial Examiner is of the opinion that Shepard was not a paragon as an em-
ployee. While some of the testimony about Shepard was delivered with a broader
brush than the specific details were shown to warrant, it is my opinion that Shepard
on several occasion did come to work under the influence. I do not find that he
commonly did this. When he was under the influence his condition did not require
that he be sent home or disciplined although it was stated that it was management
policy to send home a man whenever he was under the influence . I also find that
Shepard slept on the job although here again not as frequently as some witnesses
indicated . There is no showing that Shepard 's sleeping resulted in any damage or
loss of materials or necessitated a retreating . This fact may explain why Shepard
was not disciplined for his derelictions. But, in my opinion , neither Shepard nor
any of the other employees who worked under the influence or who slept during
hours, was acting properly. Such actions clearly could have provided reasons for
discharge . The important consideration , in my opinion, is that the plant manage-
ment did not consider that Shepard 's conduct warranted either discipline or discharge
in the entire period during which his inefficiency and misconduct occurred. He
was in fact not laid off although work was slack and another fireman was terminated
and Shepard was retained . Shepard also was selected to instruct and did instruct
a new employee in the very duties of a fireman for which he was, according to
Respondent 's position, so poorly qualified in all respects . The Trial Examiner is not
persuaded that the desire to secure the best available complement of employees for
the operation of the plant after March 22 explains the reversal that the local plant
management made in its attitude toward Shepard. I believe that management was
always interested in having efficient employees, including the period prior to the
shutdown. This is particularly true because during that period work was slack, the
plant was admittedly losing money , and there was no reason for retaining Shepard
if the plant would have been better off without him and if better firemen were
available. The advertisement that Brownley placed in the local Brunswick paper
on March 18 was addressed and drew upon the same local labor market that was
always available to Brownley and from which he had drawn his employees both
before and after March 18. Moreover, after Shepard was terminated Respondent
did not replace him with a new and demonstrably superior fireman The fireman,
who had previously been laid off when Shepard was retained and who was the fireman
who had been trained by Shepard, was rehired after March 18 while Shepard was
terminated. The reason for the reversal of management's attitude toward Shepard
is to be found in the fact that during the period of March 10 to 18, the plant man-
agement, as we have seen , engaged in a very strong antiunion campaign . While there
had been some antiunionism prior to this period, the tempo and intensity was
stepped up during this period shortly before the anticipated Board election. Shepard
had spoken openly of his belief in the union cause. On March 10 or 11 Shepard's
foreman, Kuykendall, pointedly warned him that rehiring after the sale of the plant
was dependent upon the union being killed among the plant employees. Shepard
made his position very clear on that occasion when he told Kuykendall that he would
stick with the Union and that the Union would get one vote even if his was the only
ee The Trial Examiner perceives no room for ascribing this inaction to any sentimentality
that an employer might feel toward an employee of many years' service. Shepard had
only worked for the employer for about 8 months.
AMERICAN CREOSOTING CORPORATION, ETC. 177
vote. Kuykendall then said , "I'm just trying to warn you for your own benefit.. ."
If Shepard had heeded his foreman and had foresworn the Union , it is my opinion
that he would not have been terminated . Such was the import of Kuykendall's
statement but 'Shepard ignored the warning and made his prounion sentiments
manifest 5'+
The Trial Examiner does not credit Brownley's testimony that he did not know
about the union activity of any individual employee. Brownley stated that although
he had told his supervisors to find out whatever they could about the Union at the
plant and although he received several reports , no report referred ,to any individual
employee. The Trial Examiner is not persuaded that the reports received by
Brownley were general reports that the Union is doing well or is not doing so well.
It is my opinion that Shepard was known by Brownley to be active in the Union;
it is also my opinion that Kuykendall gave Shepard a final warning that rehiring
was dependent on killing the Union and Shepard rejected the warning and affirmed
his unionism . I find that Shepard was terminated for the foregoing reasons and
that the local management of Respondent did so because it was opposed to union
activity among the employees and opposed to the possibility of union organization
of the plant. The termination of Shepard is accordingly found to be violative of
Section 8 (a)( 1 ) and (3) of the Act.
F. The failure to rehire Cooks
Cooks had worked at the plant since 1946. He testified credibly, when asked
what type of work he did, that he worked anywhere in the plant, "retort, motorman,
switchman, changed the valves, railroad, pole yard, on cranes, anywhere." He signed
a union card in November 1959, and passed out some union cards away from the
plant. There is no evidence that his supervisors were aware of the aforementioned
activity. Cooks attended the first union meeting in December 1959, and he attended
the union meeting on March 17, 1960. He stated that there were three employees
present at the last mentioned meeting, himself, Bennett, and Bailey. The Trial
Examiner has previously found that on March 17 Weathers and Kuykendall relieved
Bailey from his shift and replaced him with James Armstrong. Weathers informed
Armstrong and Shepard, who was working as fireman with Bailey and later with
Armstrong, that Bailey was being relieved from his night shift in order that he
could take inventory the following day. In fact, Bailey did not take inventory the
following day. He had been instructed by Kuykendall to attend the union meeting
on March 17 and to report to management the names of those employees who
attended the meeting. Having received the foregoing instructions from his super-
visor and having stated to his supervisor that he, Bailey, understood what he was
supposed to do, and there being credible evidence that Bailey did attend the union
64 Weathers had testified that whenever he was near Shepard in the plant the latter
hastened to assure Weathers that he was not active in the Union and that he, Shepard,
could not furnish any information about the Union. Weathers was asked
Q. How did this come up?
A Well, I think he had a guilt complex more than anything else He felt that I
realized that he was active in the union work and that he had a fright of it for some
reason, of course he shouldn't have. I don't think I ever questioned him about his
connection with the Union. He volunteered the information. He wanted me to have
faith in him as a company worker and not working with the Union in any way.
Although Respondent's knowledge of Shepard's unionism is clear enough through Kuyken-
dall, Weathers' foregoing testimony indicates that Weathers realized that Shepard was
active in the Union Weathers testified that Shepard has no reason to be apprehensive
about Weathers' knowledge. Even if Weathers had not otherwise known of Shepard's
union activity, it would seem that Shepard's protestations of innocence would have been
a case of protesting too much and was unconvincing to Weathers Weathers' diagnosis of
Shepard as having a guilt complex about his unionism and being apprehensive on that
score is of some interest It is to be noted that the ascribed feeling of guilt and the
attendant apprehension related solely to union activity There was no guilt complex or
apprehension about being an inefficient employee. If, as Weathers Indicates, Shepard was
trying to save his job by giving Weathers assurances about himself, it is noted th-t the
assurances were in terms of playing down his union activity and not in terms of telling
Weathers that he would improve his job performance An employee trying to protect
himself gives his employer assurances or excuses relating to the particular area in which
he is vulnerable. Under these circumstances the employee has no reason to ignore any
area in which he has any reason to believe himself vulnerable.
597254-,61-vol. 130--13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting a few hours after he received his instructions , there is a presumption , albeit
rebuttable, that Bailey did report that Cooks and Bennett attended the meeting. The
Trial Examiner finds no evidence to rebut the aforementioned presumption and
therefore finds that Bailey attended the meeting and reported the names of those
present pursuant to his supervisor's instructions 58
Brownley testified that the reason Cooks was not rehired was because he could
not get along with people, including Brownley, and his foreman had complained
about Cooks "being inefficient and not wanting to work, talking so much . . ., he
didn't do the work and there was an exceptionally lot of talk . . ., insubordina-
tion . " Cooks' foreman, McVeigh, did not testify nor did any other supervisor
except Brownley testify about Cooks' work or conduct. There is no evidence that
Cooks received any warnings or was disciplined other than the fact that, according
to Brownley, 3 or 4 months before the terminations in March Cooks was taken
off his work as switchman on a motor because "he was fussing with the other employ-
ees" and placed on track work and yard work. Brownley said Cooks' foreman still
complained that he "couldn't get the work done."
On cross-examination Cooks was asked whether he did not have some trouble
with an employee named McDowell as a result of which Cooks was transferred.
Cooks denied having trouble with McDowell. He said he was transferred when
Kuykendall said to him, "Cooks, you know more about the railroad than anybody
else, you and Pee Wee-you will be assigned to the railroad to maintain this work
because we're going to keep someone on that railroad at all times, because we can't
go on the track for wrecking and jacking up all night long." The foregoing was not
controverted by Kuykendall in his testimony. It also appears that Cooks had had
about 11 years of experience on the railroad, a fact consistent with the foregoing
reasons for his transfer. Cooks testified that he had no trouble with anyone in the
plant. He denied that he argued with his supervisors or that Brownley had ever
told him to stop talking back to his supervisors. There is no testimony of Brownley
that he had reprimanded Cooks or warned him. The Trial Examiner credits Cook as
to the reason for his transfer as described above. Also, as mentioned previously,
neither his foreman nor any other supervisor, who was presumably closer than
Brownley to Cooks' work and conduct on the job, testified to any trouble with him.59
It is my opinion that Brownley, the plant manager, would not have tolerated any
insubordination or trouble directed to himself from one in Cooks' position, as
Brownley stated and implied.60 I believe that Cooks would have been discharged
long since if such had been the fact since neither his job status nor the ethnological
factor would indicate otherwise. Aside from Brownley's generalized statement that
Cooks did not get along with Brownley and others, the only convincing evidence
that the record discloses that might be the "failure to get along" was the fact that
Cooks testified that the equipmen on the railroad was inadequate. Cooks said, "Hit
a spike and it'd keep right on through the tie, but we did the best we could." Cooks
said he had told Brownley, Weathers, McDowell, and Kuykendall about the problem.
Cooks had had 11 years' railroad experience and as a 14-year employee he evidently
realized the problem and was conscientious enough to mention it to his superiors to
try to correct it. Cooks was told on these occasions to make do with the equipment
provided. He stated credibly, I believe, that he did not argue and simply told them
about the needs, "See something need to be done, I had to ask for the material. I
couldn't get the material. Well, I'd go ahead." 61 The Trial Examiner fails to see
why Cooks, after calling a deficiency to his superiors' attention and thereby putting
himself in the clear, would have had any reason to argue with his superiors or why
he would have wished to jeopardize his job thereby. A man who has been 14 years
68 "Every rule of presumption is based on experience in the probative value of some one
fact or set of facts Inducing belief in the other fact." Wigmore's Code of Evidence,
3d ed , ¢ 2882, p. 505.
The Trial Examiner is also of the opinion that 'his aforementioned conclusion is a valid
one whether the set of facts described is used in terms of presumption or of inference
69 Both as to Shepard and Bennett, the other two alleged discriminatees,i Respondent
offered specific testimony of immediate foremen or other supervisors.
60 Neither Shepard nor Bennett had any direct or personal trouble with Brownley him-
self and there is no indication that such would have been tolerated.
61
The then owner of the plant, according to Brownley, had been losing money during
the latter period of its operation and Brownley believed that the parent company was
not too interested in operating a creosoting plant, being primarily interested in the timber
holdings that it had acquired with the plant The then owner was interested in cutting
down expenses including the elimination of overtime, and it is not unlikely that it was
not anxious to invest in new equipment for the railroad segment of the plant operation.
AMERICAN CREOSOTING CORPORATION, ETC. 179
with an employer is presumably interested in holding his job and knows enough to
realize that insubordination to the plant manager and other superiors is a very
unwise course of action. This is particularly true when the subject matter involves
no personal advantage to the employee; it was probably as easy, perhaps easier,
for Cooks to drive a spike into a rotted railroad tie as into a good one.62
In assessing Cooks as a witness the Trial Examiner believed him to be honest and
candid. Aside from his demeanor I also found that in his testimony he did not seek
to build a case for himself by ascribing illegal statements or conduct to the Company
although he of course was in the position of one claiming to have been illegally
terminated. It was my impression that he told the facts as he knew them. The
occasion to which he testified that any supervisor mentioned the Union to him was
when Weathers was posting an election notice in or near the colored restroom in the
plant. Weathers said there was going to be a vote, the Union was trying to come in
but he did not want a union in the plant. Weathers said that everyone was going
to be discharged but that they would all be rehired by the new company. Weathers
testified that he was posting a notice in the restroom and that he told Cooks and
another employee who were present and who had expressed concern about their jobs
that they had nothing to worry about. In crediting Cooks about the foregoing the
Trial Examiner found no basic conflict in the two versions. Also, Weathers had
admitted in his testimony that he did not want a union in the plant and I believe
Cooks, that Weathers so stated in referring to the notice and the election. There was,
in my opinion , nothing illegal in this expression of opinion or point of view by
Weathers to Cooks and although Cooks was questioned several times about this
conversation he did not seek to exaggerate the situation or to ascribe a stronger
remark about the Union to Weathers. Regarding his interview for rehiring by
Respondent on March 21 or 22, Cooks testified several times that McLeod told him
that the Company had two other plants and that they did not have a union Cooks
did not seek to say that McLeod made a stronger remark about not operating with
a union and the Trial Examiner credits him.63 Although the General Counsel, by
amendment at the hearing, alleged that McLeod's statement to Cooks was violative
of Section 8(a) (1) of the Act, the Trial Examiner does not agree and recommends
dismissal of this allegation. A further indication of Cooks' truthful and factual
testimony was his account of the March 17 union meeting. In sum, he simply testi-
fied that the meeting was attended by three employees, Bailey, Cooks, and Bennett.
There was no effort to embroider this incident with facts that might appear helpful
to himself in the light of Bailey's role at the meeting. While Cooks did not know at
the time of the meeting that Bailey was present as an informer for management, it
seems unlikely that by the time of the hearing Cooks was wholly unaware of what
at least was attributed to or suspected about Bailey. In any event, Cooks did not
seek to say that Bailey acted suspiciously or had a notebook or made notes or did
anything out of the ordinary, all of which might have tempted an unscrupulous wit-
ness if he was in Cooks' position. Although Cooks testified that he had passed out
union cards to other employees he stated that he did this in town, away from the
plant. He did not say that any supervisor was present during the aforementioned
activity nor did he seek to show that any supervisor was aware of such activity.
Telling the truth under oath may merit no particular accolade but at least the Trial
Examiner was impressed that Cooks was an honest witness.
Cooks was absent from work from March 14 to the time of the shutdown. He
testified that he had pneumonia and was under a doctor 's care. Brownley under-
stood that Cooks was absent because of illness. Cooks was well enough to attend
the union meeting of March 17 and to visit several employees at their homes just
prior to that meeting. He came to the plant the following day, March 18, to pick
up his 1 day's pay for the week. Cooks' absence had nothing to do with Respond-
ent's failure to rehire him. Brownley said that as to Cooks' absence , "I did not
consider it any differently than I would any other man who is staying out. I
considered Cooks' application for employment."
When Cooks came to the plant on March 18, Brownley told him to come back
and fill out an application for the new company . Cooks returned Monday or Tues-
62 Contrast a situation where an employer assigns a man to an unfamiliar job that is
highly disagreeable . Employees under such circumstances may manifest an insubordinate
attitude. But Cooks was an experienced railroad hand of 11 years and there appears to
have been to him nothing difficult or disagreeable about such work.
es Cooks ' testimony was carefully considered in evaluating the testimony of other wit-
nesses as to what McLeod said during the course of the interviews The Trial Examiner
i` ut the opinion that McLeod's statements were not identical to all applicants, and credi-
bility was resolved as it appeared to the Trial Examiner with regard to the respective
witnesses
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day and was interviewed by McLeod who filled out Cooks' applicaton. Cooks'
uncontroverted testimony is that McLeod told him, did he know he was being
employed for a 30-day trial period. McLeod also, as described above, told Cooks
that the Company had two other plants and that those plants did not operate with
a union. Cooks reported for work the first day of the new company's operation,
Wednesday, March 23. As he was passing the office, Brownley saw him and said
to Weathers and McLeod, "Have y'all approved Cooks' application?" and they said,
"No." This was the terminaton of Cooks.
The Trial Examiner has considered the reasons advanced by Respondent for the
termination of Cooks and the evidence relating thereto. The alleged inefficiency
and misconduct that Respondent attributed to Cooks, an employee of 14 years'
service, was unconvincing to the Trial Examiner both from the standpoint of proof
and also from the standpoint of it being the real reason for Cooks' termination. The
Trial Examiner is persuaded and finds that management's surveillance of the March
17 union meeting by means of an informer is indicative of management's hostility
toward the union movement in the plant and of management's concern with ascer-
taining the identity of the union nucleus among the employees. While Cooks and
Bennett may not have been the core of union loyalists in the plant and while man-
agement may not previously have known of their unionism, their presence at the
last union meeting before the shutdown and shortly before the time when an election
would have been held pursuant to the Board's order of February 29, could not
fail to impress management of their strong union adherence. On the eve of the
discharge of all employees of the old company and the inevitable uncertainty of
rehiring by the new employer, those employees who attended the meeting would
certainly appear to be outstandingly loyal to the Union. This the more so since
management had previously made known its attitude toward union organization of
the plant. Weathers, the assistant plant superintendent, and Foreman Kuykendall
were directly involved in the surveillance of the aforesaid union meeting. Weathers,
as the evidence shows, played an important if not a decisive role in the matter of
not rehiring Cooks. On March 21 or 22, when McLeod interviewed Cooks
and took his application, there was no indication that Cooks would not be
rehired.64 Consistent with what had occurred, Cooks reported for work on March
23, the first day of the new operation. When Brownley saw Cooks he asked
Weathers and McLeod if they had approved Cooks' application and they said
no. While Brownley as plant manager had the final word on rehiring, it is apparent
from the foregoing that in the case of Cooks, at least, Weathers made the real
if not the formal decision.65 The Trial Examiner is convinced and finds on all the
evidence that Cooks was terminated because the fact of his attendance at the March
17 union meeting showed, or was believed by Respondent to show, that his loyalty
to the Union was very strong and that his sentiments were diametrically opposite
to those that Respondent was seeking to inculcate in its employees se The Re-
spondent's failure to rehire Cooks is found to have violated Section 8(a) (1) and (3)
of the Act.
G. The failure to rehire Bennett
Bennett had worked at the Brunswick plant since 1956. He performed general
labor work although he described his work in the yard as skilled since it involved
hooking poles to a crane preliminary to the crane operator's hoisting the material.
In the latter part of his employment, Bennett while working in the black pole yard
had an argument with the crane operator. According to Bennett, while they were
04 In the case of other employees, they were told on March 21 or 22 that if they did not
receive a white slip with their paycheck on March 21 or 22, this would mean they were
not rehired. This announcement took place subsequent to interviews and processing of
applications by McLeod Cooks had received his pay the preceding Friday, apparently
because he had been absent because of illness for most of the week
65WVeathers of course knew the old employee applicants such as Cooks He probably
also knew of Cooks' attendance at the union meeting McLeod as a new man was not
familiar with individual employees McLeod was familiar with the new company's policies,
including at least the fact that the new company did not operate with a union at any of
its plants and believed that it was better for all concerned to operate a plant without a
union.
ea The paucity of attendance at the meeting made Cooks' attendance the more outstand-
ing. Whether the small attendance indicated that the union movement was thwarted by
management, or that it was dormant, or that the employees had had a change of senti-
ment, Cooks and Bennett would appear to be the apple or apples that might potentially
contaminate the whole barrel by the time of an election. Shepard, of course, as manage-
ment knew, was working on the night shift on the night of the union meeting.
AMERICAN CREOSOTING CORPORATION, ETC. 181
in the process of stacking poles, the crane operator held the poles too high and
Bennett could not steady them. The crane operator wanted Bennett to stand on the
truck in order to manage the poles and Bennett refused. The crane operator reported
the matter to the foreman and Bennett was transferred to the white pole yard.
Bennett said that the foregoing was the only dispute he had while employed by the
Company. Bennett testified that he had signed a union card and had distributed
about 20 such cards. There is no evidence that any supervisor was aware of this
activity. Bennett attended the union meeting on March 17 at which Cooks and
Bailey were present. He testified that the only supervisor who spoke to him about
the Union was his foreman, Logue. Logue, according to Bennett, asked him, what
did he think about the Union. Bennett said it was "all right, because if all, because
if all the fellows would go for it." This conversation, as the Trial Examiner under-
stands his testimony, was after the March 17 meeting.67 After his termination on
March 18, Bennett applied for rehiring. On March 21, when he received his pay-
check, Brownley announced to all those present that those who had received a white
slip with their check were rehired and the others could leave. Bennett did not
receive a white slip.
Brownley testified that Bennett was not rehired because he could not get along
with people. He said that Bennett had been transferred from the black pole yard
to the white pole yard because of this. In the white pole yard, Logue, his foreman,
complained to Brownley that he could not get the work out of Bennett. Logue, who
impressed the Trial Examiner as a credible witness, testified that he was in charge
of running the yard from November 1959 to March 1960. He stated that during
the last 6 or 8 weeks Bennett was under his direct supervision. Logue said that
Bennett had been transferred to his supervision because the people in the black
pole yard could not get along with him. Logue said that personally he did not have
any trouble with Bennett and that as long as Logue was immediately present when
Bennett was working he performed his work satisfactorily. The trouble arose when
Logue was not right on the spot and at such times Bennett would not do what the
crane operator or anybody else would tell him. Logue said he had had many com-
plaints from Bennett's crane operator, such as, if the operator asked Bennett to
straighten a pole or anything of that kind, Bennett just cursed him out. Logue said
he had told Bennett that he would have to listen to the crane operator and that
Logue could not stay around working with him personally. Logue testified that the
only occasion when any employee mentioned the Union to him was when employees
Newkirk and Wasone referred to the subject. Logue said he told them he knew
nothing about it adding, when testifying, "In fact, I just knew nothing about it."
Logue said he never had a discussion with Bennett about the Union and never heard
him mention the subject.
As stated, the Trial Examiner believed Logue to be a credible witness and credits
his aforementioned testimony. iI find that Bennett, as he admitted, and as Brownley
and Logue testified, was transferred from the black pole yard to the white pole yard
because of refusal to follow the crane operator's instructions and because of Bennett's
argument with the operator. It is also found that the same type of uncooperative-
ness continued in the white pole yard except when Foreman Logue was personally
directing Bennett. The Trial Examiner views Bennett's transfer as disciplinary action
taken by Brownley. The Trial Examiner is of the opinion that there is convincing
evidence that Bennett persisted in his uncooperative attitude during the latter period
of his employment although it is apparent that his work required him, in the Em-
ployer's view, to work with and in cooperation with the crane operator. The
personal presence of Foreman Logue at all times could not reasonably be expected
and an employee who worked satisfactorily only under the foreman's eye could
reasonably be regarded as expendable. It is my opinion that Bennett was so regarded
by Brownley.
Bennett's presence at the March 17 union meeting was, as I have found, known
to management. The animus of management toward union activity has been de-
scribed previously and in connection with Cooks the Trial Examiner has set forth
his view that the two employees, Cooks and Bennett, who attended the meeting, were
thereby marked as hard core union adherents and thus undesirable employees from
the standpoint of management. While Bennett might well have been terminated
because of his attendance at the meeting, even absent serious faults as an employee,
I find that management's prior disciplinary action and the convincing proof of
e7 The conversation is as follows :
Q Do you recall when he asked you that'
A. Yes, sir. That was at the same meeting-I went to the Union Hall, the last
union meeting. He asked me what did I think about it.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bennett's continuing derelictions known to management and reported by Logue to
Brownley, as Brownley credibly testified, was the reason for Bennett's termination.68
It is my view that Bennett's inability or unwillingness to work cooperatively with
either the crane operator in the black pole yard or with the crane operator in the
white pole yard so seriously impaired his usefulness as an employee that he would
have been terminated at the time the plant was being restaffed irrespective of his
attendance at the union meeting. The Trial Examiner is unable to conclude that
but for Bennett's attendance at the meeting he would not have been terminated. The
evidence convinces me otherwise. It is therefore recommended that the allegation
of the complaint with respect to Bennett be dismissed.69
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its business operations described in section I above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
In connection with the case of employee Shepard, Respondent at the hearing
proposed to develop evidence relating to Shepard's employment subsequent to his
termination at the Brunswick plant, "the same going to his honesty in the handling
of funds and truck repair orders for the Seven-Up Bottling Company, the same
which would show that Mr. Shepard has embezzled some money from the company,
and that because of said embezzlement the Trial Examiner would not be justified in
ordering any employer to reinstate this man to his employment." There was no
assertion that there had been an indictment or conviction of Shepard for embezzle-
ment. The General Counsel stated that it was his knowledge that Shepard was
presently employed by the Seven-Up Bottling Company and was able to testify only
by securing a substitute to temporarily take his place
The Trial Examiner excluded such a proposed line of evidence on the ground
that it would unduly enlarge the scope of the hearing and stated that the proposed
matter could be raised more appropriately at some compliance stage of the pro-
ceeding. It was and is the Trial Examiner' s opinion that the issue before him was
the termination of Shepard on March 21, 1960. Shepard's alleged embezzlement
at a subsequent date and while working for another employer would involve a
collateral proceeding of a criminal nature that potentially would entail the exam-
ination and cross-examination of officials or supervisors of another employer, as
well as testimony of rank-and-file employees, customers, and others. There was no
indication from Respondent that an admission of embezzlement was expected from
Shepard and the Trial Examiner discerned nothing in the General Counsel's asser-
tion that indicated that the proposed matter would be conceded or that it would be
established by anything but full litigation of the matter, which of course would be
necessary as a matter of right to all concerned. The Trial Examiner observed the
reaction of Shepard, who was at the time still on the witness stand, to the state-
es Brownley, as we have seen, stated, inter ilia, that Bennett's foreman could not get
the work out of him This was,the import of Logue's testimony-that Bennett could not
work harmoniously with the crane operator and refused to cooperate with the operator.
Such a condition resulted in a situation where the only way Logue could get the work
out of Bennett was to stand over him constantly, an intolerable situation
00 Without recounting it at this point the Trial Examiner has considered the evidence of
events between Bennett's termination and the time of the hearing. This evidence has not
altered my conclusion
The Trial Examiner in connection with his consideration of the entire case was cog-
nizant that five or seven other former employees had not been rehired by Respondent.
Aside from Brownley's testimony that his action was prompted by efficiency considerations
there was no basis of comparison between the reasons for such terminations and the
terminations alleged in the complaint When asked, the only example given by Brownley
was that of an employee whose wages were garnisheed so many times that Brownley
personally was tired of going to the courthouse so frequently in connection therewith.
Whether or not these other employees were members of the Union, or active in the Union,
ni hether management knew such facts, -n hether their deficiencies as employees were greater
or less than those of the instant complaints, the record does not show
AMERICAN CREOSOTING CORPORATION, ETC. 183
ment of Respondent's counsel and was confirmed in his appraisal that extensive
litigation of the issue would be involved. Although the record reflects Shepard's re-
action in a very limited way, it was necessary for the Trial Examiner to restrain the
witness from launching into the subject with some feeling. In sum, it was the Trial
Examiner's judgment that the essentially collateral matter of embezzlement might
well have led to an extensive and protracted litigation of its own at a time when no
determination had been made either tentatively or otherwise on the question of
whether reinstatement of Shepard would be involved.
The question of remedy is properly cognizable at the hearing in chief. But, as
stated, the Trial Examiner was not prepared to litigate the allegation of embezzle-
ment under the circumstances described. There are instances where misconduct,
including misconduct that may involve a civil or criminal offense, e.g., assault and
battery, is litigated at a Board hearing even though the misconduct may have taken
place subsequent to the alleged illegal discharge of the employee. Thus, in a strike
situation, a striker may have been discharged for participation in a valid strike but
may be denied reinstatement because it was established at the hearing that he sub-
sequently engaged in misconduct as a striker that disqualified him for reinstate-
ment. A slight variation of the foregoing would be found where, upon termination
of a valid strike, a striker not previously discharged, is denied reinstatement by
reason of proof that he had disqualified himself by misconduct during the course of
the strike.
The distinction between the foregoing situations and that which was presented in
the instant case is that the strike and all its circumstances, including misconduct on
the picket line as related to the strike, was part of the res gestae principally litigated
at the Board hearing and involving the same employer. In some situations the post
discharge conduct relating to the strike may be the principal issue although the
issue may have been framed within terms of the original discharge that precipitated
the strike. The res gestae involved in the present proceeding was the legality of
Shepard's termination and Respondent's failure to rehire him on March 21, 1960.
It is my opinion that what Shepard may have done at a later date, when working
for a different employer, on a matter unrelated to the unfair labor practice litigated,
was not part of the res gestae or issue before the Trial Examiner and to have made
it such under the circumstances would not have effectuated the purposes of the Act.
The Trial Examiner recommends the customary remedial action of an offer of
reinstatement and backpay with respect to Shepard. Such action is necessary in
order to wipe the slate clean and to place the discriminatee in the position he would
have occupied but for discrimination against him. The Act is concerned with public
rights and in my opinion the right of reinstatement of Shepard at Respondent's plant,
arising as it does out of Respondent's illegal discrimination, should not be affected
by any alleged subsequent misconduct by Shepard when working for a different
employer under circumstances wholly unrelated to the events and issues at Re-
spondent's plant The purposes of the Act to protect and to vindicate the free
exercise of employee rights to engage in or to refrain from engaging in union
activity without reprisal should not be made subject to defeasance by some sub-
sequent act of unrelated misconduct by the particular employee involved. To do so,
in my opinion, would place undue emphasis on the individual's private interest in
and right to reinstatement and would subordinate and leave wholly unremedied the
public rights with which the Act is primarily concerned.
Although the Trial Examiner recommends the aforedescribed remedial action by
Respondent with respect to Shepard,70 it is recognized that an employer is not pre-
cluded from discharging or otherwise disciplining employees for reasons other than
their union or concerted activities. After having remedied its unfair labor practices
in the recommended manner and the policies of the Act having thus been effectuated,
Respondent would be free to take such action as it deemed appropriate for reasons
other than the protected union activity of the employee. The time sequence, in my
opinion, would not be determinative. The important aspect is that the customary
offer of reinstatement with backpay be made in the usual manner. This would in-
clude offering the discriminatee a reasonable opportunity to accept or to decline
the offer, with such backpay as might be due, to be computed from the date of the
original discrimination to the date of the aforesaid offer.
Having-remedied the unfair labor practice, the Respondent, if it thereupon or
thereafter discharged the one-time discriminatee on the asserted ground that sub-
sequent to the original discharge the individual in question had elsewhere committed
"Cooks has not been referred to since his case involves none of the aspects that Re-
spondent has raised regarding Shepard The customary remedial action as to Cooks is
recommended
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an embezzlement or some other act disqualifying him as an acceptable employee,
would be in the position of any respondent claiming that it had complied with the
recommended order of the Trial Examiner or the order of the Board. Presumably,
if the General Counsel was satisfied that there had been compliance that would be
the end of the matter. On the other hand, if the General Counsel was of the opinion
that the evidence showed that in fact the employee in question had not committed
the alleged embezzlement or other disqualifying act he could take the position that
there had been no compliance. Such a position would be comparable to any situa-
tion where an employer offers reinstatement and then straightway discharges the
employee under circumstances that might convince the General Counsel that the
reinstatement was no more than a sham and was not the bona fide remedial action
required.71 In any event, any issue as to whether or not there had been compliance
by Respondent with the recommended order or order would be litigable in a com-
pliance proceeding.
Briefly summarized, it is the Trial Examiner's opinion that, procedurally, the issue
of whether or not Shepard, after his termination by Respondent, subsequently, while
working for another employer under circumstances wholly unrelated to the events
or actions of himself and Respondent at the latter's plant, committed an embezzle-
ment, was a collateral issue and not properly or appropriately litigable at the hearing
in chief before the Trial Examiner; the policies of the Act and the rights of the em-
ployer would both be effectuated and protected by confining the issue of the alleged
subsequent embezzlement to the compliance stage, if such might occur.
Upon the basis of the foregoing findings of fact and conclusions, and upon the
entire record in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Through threats, interrogation, and surveillance, as found in section III, above,
in the period commencing on March 13, 1960, and thereafter, Respondent Georgia
Creosoting Corporation has interfered with, restrained, and coerced employees in
the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
2. By refusing to hire or rehire employees Alva Lee Shepard and Ozie Lee Cooks
on or about March 21, and 23, 1960, respectively, for the employment period com-
mencing March 23, 1960, Respondent has discriminated in regard to their hire and
tenure and conditions of employment, thereby discouraging membership in a labor
organization or in concerted activity, and has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
3. Respondent has not engaged in unfair labor practices by its refusal to hire or
rehire employee Lamar L. Bennett.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
n The Issue of guilt or innocence of the alleged embezzlement would not necessarily be
the sole compliance issue, e.g, there might be evidence that other employees with known
records of offenses were employed.
Combustion Engineering, Inc. and Norman Markus, Thomas M.
O'Connor, Andrew Findley
International Brotherhood of Boilermakers , Iron Ship Builders,
Blacksmiths , Forgers and Helpers , Local No. 83, AFL-CIO
and Thomas M. O'Connor , Norman Markus , Andrew Findley.
Cases Nos. 17-CA-1426, 17-CA-1147, 17-CA-1428, 17-CB-?16T
17-CB-217, and 17-CB-9218. February 13, 1961
DECISION AND ORDER
On November 10, 1959, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that the
130 NLRB No. 24.