Arkansas Grain Corp.

National Labor Relations Board - Board Decisions

Aug 2, 1966

160 N.L.R.B. 309 (N.L.R.B. 1966)

ARKANSAS GRAIN CORPORATION 309
Arkansas Grain Corporation and United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO. Case 96-CA-f114.
August 2, 1966
DECISION AND ORDER
On January 14, 1966, Trial Examiner Harry R. Hinkes issued
his Decision in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 Trial
Examiner's Decision and the entire record in this case, including the
exceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the extent consistent
herewith.
We do not agree with the Trial Examiner's finding that Super-
visor Ragsdale's interrogations of employee Meek were noncoercive
because they arose out of casual conversations between good friends.,
According to Meek's credited testimony, Ragsdale asked him about
the Union some 8 or 10 times during the 2-month period preceding
the April 23, 1965, election. On one occasion Ragsdale asked Meek
if he had seen a man on the parking lot handing out union cards, and
on several other occasions Ragsdale asked Meek if he had seen any-
one signing union cards. At other times, Ragsdale asked Meek how
the Union would stop the trains and trucks from coming into the
plant if there was a strike. Although Meek stated that he con-
sidered Ragsdale a *friend ,2 we do not believe that the coercive effect
of these numerous interrogations was in any sense lessened by what-
ever personal relationship existed between the two.' Accordingly, we
find that the Respondent's interrogations of Meek were violative of
Section 8(a) (1) of the Act.
IIn the absence of exceptions, we adopt the Trial Examiner's finding that Supervisor
Ashcraft's remarks to Meek were not violative of Section 8(a) (1) of the Act
2 Although Meek testified he was not frightened by Ragsdale's questioning, he also testi-
fied that he answered falsely because lie felt a disclosure of his union activities to Rags-
dale would have resulted in his being discharged
3 Cf. Ref-Chem Company, 153 NLRB 488.
160 NLRB No. 28.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We also disagree with the Trial Examiner's finding that the Gen-
eral Counsel failed to sustain the burden of proving that Meek was
discharged for discriminatory reasons. He was employed by Respond-
ent in June 1964, when it began operations. Meek was an active
union adherent during the early 1965 union organizational drive and
served as a union observer at the Board-conducted election held on
April 23, 1965. On the day following the election, Meek reported to
work and was met by his supervisor, Ragsdale, who told him, "Ted,
we are going to settle down. We are going to straighten out and we
are going to start doing our job." Ragsdale then proceeded to enu-
merate the duties he expected Meek to perform. While, as the Trial
Examiner found, Ragsdale merely itemized the duties and responsi-
bilities of the position of preparation operator, it is undisputed that
prior to this time Respondent had not been requiring Meek to per-
form all these duties, and there is no explanation offered to show
what prompted Respondent's sudden demand for Meek's strict per-
formance of these duties.
On the following day, Sunday, April 25, the plant did not operate,
but certain maintenance work was performed. On every other occa-
sion when the plant had been closed down, Meek was one of the
employees called in to perform maintenance work. In this instance,
however, Plant Superintendent McDonald called Ragsdale and
instructed him to notify Meek not to come to work that day. Rags-
dale was also instructed to call Meek's helper, Elbert Weaver, and
employee Warhurst, and to tell them to come to work.4 McDonald
testified that he chose Weaver over Meek because Weaver was a
lower paid employee.
The next day, April 6, Meek reported to work at his usual time,
3 p.m. Shortly after 4 o'clock, Ragsdale criticized him for not cor-
recting either the high pressure in the drier or the low moisture con-
tent in the meal. Meek complained that he had been given too much
work to do,5 to which Ragsdale replied, if he (Meek) could not do
the job, they would get someone else. At this juncture, Meek told
Ragsdale that he didn't need the job and that if he left, he could get
the job back again if he so desired. Following this conversation,
Ragsdale went to General Manager Higginbotham and complained
of Meek's attitude. Higginbotham advised Ragsdale that because of
the union situation, he would have to try to "keep things on an even
keel," but to make sure that Meek did his job and did it right.
4 The finding above is based on McDonald's testimony, which the Trial Examiner appears
to have credited In doing so, the Trial Examiner has discredited Ragsdale 's testimony to
the effect that employees Weaver and Warhnrst worked only because he could not reach
them to tell them not to report
5 On April 24, Ragsdale had advised Meek that he didn't want Meek ' s helper doing his
job for him any more.
ARKANSAS GRAIN CORPORATION 311
One of Meek's' responsibilities was to make an hourly reading of
the drier pressure and to record this information on the "preparation
sheet." Ragsdale testified that beginning about 7 o'clock, he stationed
himself where he could observe the drier pressure gauge. Ragsdale
stated that at 7 and 8 o'clock, he watched for approximately 15 min-
utes before until 15 minutes after the hour and that starting at 9
o'clock, he watched the pressure gauge uninterruptedly until 10:30.
According to Ragsdale, no one checked the pressure gauge during this
interval, but when he inspected the preparation sheet, he. found that
Meek had recorded readings for each hour from 4 through 10 p.m.
Ragsdale then informed Meek he was fired, and asked him to leave,
which he did.
There is a conflict in the testimony leading up to the discharge
incident. Meek testified that about 4 p.m. on the day he was dis-
charged, Ragsdale informed him he had to do all of his assigned
tasks within a 15-minute period starting at 15 minutes before the
hour, which concededly would have been impossible. He further testi-
fied that Ragsdale complained he was taking too long for lunch and
that about an hour before the discharge, Ragsdale said "I wouldn't
work for a company that didn't want me working." According to
Meek, Ragsdale then asked how the Union thought it was going to
stop trucks and trains from coming into the plant and whether
Harry Brown 6 was going to pay employees while they were on a
picket line during a strike. Meek denied that he had failed to read
and record the drier pressure.
The Trial Examiner resolved this conflict by crediting Ragsdale's
version of the discharge incident; 7 he accepted the Respondent's con-
tention that Meek's discharge was caused by his failure on April 26
to read and record the drier pressure, his falsification of this infor-
mation, and his previous record as an employee, which allegedly was
unsatisfactory. In our opinion, the record does not support such a
conclusion.
The Respondent demonstrated its animus toward the Union at the
very outset of the organizational campaign by persistently engaging
in unlawful interrogation of Meek to learn the identity of the union
supporters. There is no evidence that the Respondent knew, before
the election, of Meek's prounion sympathy and activities. But when
Meek acted as a union observer at the election, his relationship with
"Harry Brown is identified in the record as president of the Union 's Local 539
7 In resolving credibility , the Trial Examiner found that Ragsdale 's testimony was sup.
ported by records showing that on April 26, high steam pressure and low moisture read-
ings were recorded at 3 and 4 p in , while between 7 and 10 p m an unvarying pressure
was entered , although the moisture was still somewhat below the optimum point We can
attach no significance to this finding because the records also show that the following 12
p in to 6 a . m shift also recorded an unvarying pressure with approximately the same
moisture as was recorded by Meek earlier.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent underwent an immediate and drastic change. On the
very next day following the election the Respondent exacted a new
level of performance from Meek without offering any explanation
as to what prompted the action. Certainly, if the Respondent had
previously been dissatisfied with the manner in which Meek had been
performing his duties, it could be expected that at the very least,
Meek would have been warned of its dissatisfaction. Yet, although
the incidents upon which the Respondent relies to establish its dis-
satisfaction with Meek as an employee occurred well before the elec-
tion, nothing was then said to Meek. Nor can it be said that Meek's
conduct on the day in question prompted the action because it was
immediately upon encountering Meek, before he had started work,
that Ragsdale issued the new instructions. The next day the plant
was shut down and, as was the custom, Respondent used the oppor-
tunity to perform certain maintenance work. Although the record
indicates that Meek in the past always had been called in to work
in similar circumstances, on this occasion, Respondent chose not to
use him. On the second regular workday, Respondent summarily
discharged Meek, allegedly because he failed to perform his assigned
duties. We do not think this series of events was mere coincidence.
Respondent's animus toward the Union, and the sudden change in
its attitude toward Meek strongly suggests that Meek's discharge
was discriminatory. However, if any doubt remains, it is dispelled
by a consideration of the manner in which Meek's discharge was
effectuated.
Ragsdale testified that he did not observe Meek or anyone else read
the steam pressure gauge at 7 p.m. or thereafter and that it was
Meek's failure to read and record this information which caused
his discharge. Ragsdale stated he did not take any action imme-
diately because "I was going to see how long he would go." After
allegedly allowing the steam pressure gauge to go unread and unre-
corded for at least 31/2 hours, Ragsdale decided to discharge Meek
at approximately 10:30 that evening.8
Ragsdale informed Meek of his discharge merely by telling him,
"Ted, we don't need you any more. Go home." It is undisputed that
at no time during the course of the evening did Respondent indicate
to Meek the reasons for its action. Meek testified that after being
informed that he was not needed any more, he asked Ragsdale for a
separation notice and Ragsdale agreed to give him one.9 According
to Meek, Ragsdale left and returned in about 15 minutes, at which
8 We are unable to reconcile Ragsdale 's alleged inaction with General Manager Ihggin-
botham's testimony that a regular check of the steam pressure in the drier is very im-
portant to the process
° Ragsdale testified he did not recall if Meek iequested a separation notice No separa-
tion notice was offered into evidence at the hearing.
ARKANSAS GRAIN CORPORATION 313
time, he told Meek he had 5 minutes to get off the lot. When Meek
asked if he had brought him the separation slip, Ragsdale answered
he wasn't going to give him one, that no one had heard him fire Meek,
and ". . . it was my word against his and they couldn't prove unfair-
ness." 10 Meek then testified he left the plant without receiving a
separation slip and that one was never sent to him.
We have detailed the circumstances surrounding the discharge of
Meek because we believe that it leads inescapably to the conclusion
that Meek was discharged in retaliation for his union activities. The
fact that Meek's past record as an employee may have been less than
satisfactory does not cause us to reach a different result. Not only
were his past asserted shortcomings relatively remote from the dis-
charge, but Respondent also admits that it was the events of April 26
that prompted the discharge. Moreover in reaching his conclusion,
the Trial Examiner relied on the absence of any antiunion attitude
on the part of Ragsdale. In view of our findings above, contrary to
the Trial Examiner's, that Ragsdale had engaged in a course of inter-
rogation violative of Section 8(a) (1), we cannot agree that Ragsdale
was free of antiunion attitudes. Likewise, contrary to the Trial
Examiner, the fact that Respondent did not retaliate against
employee Posey who was also a union adherent does not in itself serve
as proof of an absence of any discriminatory motivation, but is
merely one factor to be assessed along with all others. In sum, we
are persuaded by all the foregoing evidence that Respondent dis-
charged Meek in retaliation for his union activities. Accordingly, we
find this discharge to be in violation of Section 8(a) (3) of the Act.
CONCLUSIONS Or LAW
1. The Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By interrogating employees as to their own and other employ-
ees' union activities, Respondent interfered with, restrained, and
coerced employees in the exercise of rights guaranteed by Section 7
of the Act, and, accordingly, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
4. By discharging Ted Meek, and by thereafter failing to reinstate
him, Respondent engaged in discrimination to discourage member-
ship in the Union, thereby engaging in unfair labor practices pro-
scribed by Section 8 (a) (3) and (1) of the Act.
10 Ragsdale 's version is somewhat vague Ragsdale specifically recalled only that he told
Meek they didn't need him any more and that when Meek continued to work he had to tell
him a second time to go home at which point Meek left the premises
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair labor
practices, we shall order that it cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
We shall also order that the Respondent offer to Ted Meek imme-
diate and full reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights and privi-
leges and make him whole for any loss of earnings suffered by reason
.of the discrimination against him, by payment of a sum of money
equal to that which he normally would have earned as wages from
the date of his discharge to the date of Respondent's offer of rein-
statement, less his net earnings during said period (Crossett Lumber
Company, 8 NLRB 440) and in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, together with interest thereon
at the rate of 6 percent per annum, as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
Finally, in view of the serious and extended nature of the unfair
labor practices, we shall order that Respondent cease and desist from
in any manner infringing on the rights of employees guaranteed by
Section 7 of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, Arkansas Grain Corporation, Helena, Arkansas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in and activity on behalf of United
Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
or any other labor organization, by discharging and refusing to
reinstate employees, or by discriminating against employees in any
other manner in regard to their hire or tenure of employment or any
term or condition of employment.
(b) Coercively interrogating employees concerning their own or
other employees' union activities and/or sympathies.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist said Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, or to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities.
ARKANSAS GRAIN CORPORATION 315
2. Take the following affirmative action to effectuate the policies
of the Act :
(a) Offer Ted Meek immediate and full reinstatement to his for-
mer or substantially equivalent position without prejudice to his
seniority or other rights and privileges , and make him whole for any
loss of pay which he may have suffered as a result of the discrimina-
tion practiced against him , in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Notify Ted Meek if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal
Military Training and Service Act, as amended , after discharge from
the Armed Forces.
(c) 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 other records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its plant in Helena, Arkansas , copies of the attached
notice marked "Appendix ." 11 Copies of said notice , to be furnished
by the Regional Director for Region 26, after being duly signed by
the Respondent 's representative, shall be posted by the Respondent
immediately upon receipt 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 the Respondent to insure that said notices are not
altered, defaced , or covered by any other material.
(e) Notify the Regional Director for Region 26, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf
of United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, or any other labor organization, by dis-
charging or refusing to reinstate employees, or by discriminating
against employees in any other manner in regard to their hire or
tenure of employment or any terms or conditions of employment.
u In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be submitted for the words "a Decision and Order" the words "a Decree of the
United States Court of Appeals Enforcing an Order."
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT coercively interrogate employees concerning their
own or other employees' union activities and/or sympathies.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist said Union, or any other labor
organization, to bargain collectively through representatives of
their own choosing, or to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities.
WE WILL offer to Ted Meek immediate and full reinstatement
to his former or substantially equivalent position without preju-
dice to his seniority and other rights and privileges and make
him whole in the manner provided in the Board's Decision for
any loss of pay he may have suffered as a result of our discrimi-
nation against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named or any other
labor organization.
ARKANSAS GRAIN CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-Notify the above-named employee if presently serving in
the Armed Forces of the United States of his right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced, or covered by any
other material.
If employees have any questions concerning this notice or compli-
ance with its provisions they may communicate directly with the
Board's Regional Office, 746 Federal Office Building, 167 North Main
Street, Memphis, Tennessee 38103, Telephone 534-3161.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on May 21, 1965, and amended on June 28 , 1965 , the Gen-
eral Counsel of the National Labor Relations Board by the Acting Regional Direc-
tor for Region 26 (Memphis , Tennessee ), issued a complaint dated July 7, 1965,
against Arkansas Grain Corporation, herein referred to as the Respondent or
Employer. The United Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO , herein called the Union, is the Charging Party. The complaint alleges
that the Respondent , by its supervisors and agents, interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act by
interrogating its employees concerning their union membership , activities, and desires,
and discriminated in regard to the hire or tenure or other terms or conditions of
ARKANSAS GRAIN CORPORATION 317
employment of its employees by discharging its employee, Ted Meek, and by refus-
ing to reinstate him because said employee joined or assisted the Union or engaged
in other union activity. The answer duly filed by Respondent denied the allegation
of interrogation as well as the dismissal of Meek for union activities.
Pursuant to notice, a hearing was held before Trial Examiner Harry R. Hinkes in
Helena, Arkansas, on September 9, 1965. All parties were represented and were
afforded full opportunity to examine witnesses and adduce relevant evidence. Oral
argument was waived. Briefs were requested from the parties but only the Respond-
ent has filed one.
Upon the entire record in this case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times material herein, an Arkansas corpo-
ration with a place of business located at Helena, Arkansas, where it is engaged in
the processing and sale of grain. During the past 12 months Respondent purchased
and received at its Helena, Arkansas, plant, directly from points outside the State of
Arkansas, materials valued in excess of $50,000, and processed, sold, and shipped
goods valued in excess of $50,000 from that plant directly to points outside the State
of Arkansas.
The complaint alleges, Respondent's answer admits, and I find that the Respond-
ent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
herein called the Union, is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
The issues in this proceeding are two: First, did the Respondent by its super-
visors and agents unlawfully interrogate its employees and second, was Respondent's
discharge of Ted Meek and its refusal to reinstate him unlawful?
A. The alleged unlawful interrogation
The only evidence in this proceeding on this issue provided by counsel for the
General Counsel is the testimony of Ted Meek, the dismissed employee. From his
testimony it appears that the Helena plant started operations in 1964. The Union
began an organizational campaign around the beginning of 1965, and an election
was held in the plant on April 23, 1965, at which Meek and another employee,
Roger Posey, were observers for the Union. According to Meek, Charles Ashcraft,
the Respondent's shipping department supervisor, speaking to Meek about 2 months
before the election, asked if Meek had "heard anything about the Union going on
around the plant." Meek replied that he had not. Meek denied that he had initiated
the union discussion. Ashcraft, however, credibly testified that the subject was
brought up by Meek who asked Ashcraft what he thought of a union . Ashcraft
replied that he did not know. Moreover, Ashcraft was able to relate more details of
the conversation as well as surrounding circumstances. Meek, in rebuttal, then testi-
fied that there were two different conversations with Ashcraft and that Ashcraft was
referring to the first while he was referring to the second. In his earlier testimony,
however, Meek stated that there was only one conversation with Ashcraft about the
Union. With such vacillation by Meek, I cannot credit his testimony of his conversa-
tion with Ashcraft.
Meek also testified that he had a conversation with his foreman, Steve Ragsdale,
whom Meek regarded as his "good friend." According to Meek, Ragsdale asked him
about the Union 8 or 10 times during the 2 months preceding the election. Meek
testified that Ragsdale once asked him if he had seen a man on the parking lot
handing out union cards. Meek replied that he had not. Several times Ragsdale
asked Meek if he had seen anyone signing union cards. Although Meek had seen
the signing of union cards he told Ragsdale that he had not. Meek admitted that he
considered Ragsdale a good friend even during this questioning, that they visited
each other's homes socially, had gone hunting together, and had gone to school
together. Meek also admitted that he was not frightened in any way by Ragsdale's
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questions, and that he told him the untruth only because he did not want Ragsdale
to know about the union activity. Meek also credibly testified that on some occasions
Ragsdale asked him how the Union would stop the trains and trucks from coming
into the plant if there was a strike. Ragsdale admitted only one conversation with
Meek about the Union , but stated that it was Meek and not he who brought the
subject up ' and that it consisted of Meek asking him what he had heard of the
Union. In view of the friendly and close association of these two men , I credit
Meek's testimony of 8 to 10 conversations with Ragsdale about the Union.
In sum, therefore , it appears that two of Respondent's supervisors .spoke with one
employee about the Union. One supervisor, Ashcraft, spoke to that employee but
once and then only when the supervisor was asked by that employee what he
thought of the Union. The supervisor's reply was absolutely noncommittal. There
was no intimidation of the employee nor were there express or implied threats or
promises made by the supervisor and the entire conversation took a few minutes.
The other supervisor, Ragsdale, spoke to the same employee about the Union several
times. On all occasions , however, the employee regarded themselves good friends
and the conversations were casual . Here, too , there was no intimidation of the
employee or suggestion of threat or promise . On this state of the record I am
unable to conclude that the interrogation by the Respondent through its supervisors
and agents was such as to interfere with , restrain , or coerce its employees in the
exercise of any of the rights guaranteed in Section 7 of the Act.
Even if Meek was discriminatorily discharged , which is the issue discussed below,
it would not necessarily render the previous interrogation unlawful. Thus, in
N.L.R.B . v. Southern California Associated Newspapers , d/b/a South Bay Daily
Breeze, 299 F.2d 677 (C.A. 9), the court held the interrogation not unlawful where
it was conducted in an entirely friendly manner and was consistent with the estab-
lished relationship between employee and supervisor, even though the interrogation
was followed by a discriminatory discharge.
B. The alleged discriminatory discharge
On April 24, 1965, the day after the union election , Meek came to work at
3 p.m., and was met by his foreman, Ragsdale. In the conversation that ensued
between them, Ragsdale itemized all of the duties he expected of Meek . Thus, Meek
was not to leave the building, as he had been doing, without calling Ragsdale; he
was to check the rollers every hour instead of every 2 hours as he had been; the
steam pressure was to be read by him instead of by Ragsdale who had been doing
it. Ragsdale , however, credibly testified that these instructions were merely a list
of Meek's duties which he had not always observed in the past . This dereliction of
duties is corroborated by evidence that on two earlier occasions management officials
had taken steps to discharge Meek for unexcused absences but had reversed their
decision upon Meek 's promise to do better . Meek was also shown to have had diffi-
culties with Posey and to have been noisy in his work , kicking, shoving , and cursing
his machine.
On the following day, April 25, the plant was shut down and the plant super-
intendent instructed Ragsdale to call Meek and tell him not to come in, which Rags-
dale did. Since some workers were needed that day for maintenance , the plant
superintendent decided to use Meek's lower-paid helper for that work instead of
Meek.
On the following day, April 26, Meek came to work at 3 p.m. Shortly after 4
o'clock, Ragsdale spoke to Meek about the drier pressure being too high and the
moisture content too low. When he told Meek that it should have been corrected
before, Meek complained that Ragsdale had given him too much to do , that he did
not need the job and that if he left , he could get the job back if he wanted it.
Ragsdale then went to General Manager Higgenbotham and complained of Meek's
attitude . Higgenbotham advised Ragsdale to try to "keep things on an even keel."
Ragsdale then watched to see if Meek would check the drier pressure. He stationed
himself where he could observe if Meek came out to read the pressure gauge and
watched from about 15 minutes before the hour until 10 or 15 minutes after the
hour. Starting at 9 o'clock, he watched uninterruptedly until about 10:30. At no
time did he observe anyone come out to check the gauge. He then inspected the
records that Meek kept and found drier pressure gauge readings for each hour
from 4 p.m. through- 10 p.m., despite Meek's failure to read the gauge. Ragsdale
LIFETIME DOOR COMPANY 319
then told Meek he was fired and asked him to leave, which he did. Meek on the
other hand, testified that Ragsdale told him around 4 p.m. of that day that he
had to do all of his work within a 15-minute period starting at 15 minutes before
the hour, which, it is conceded, would have been an impossible task. He further
testified that Ragsdale complained that Meek was taking too long for lunch, that
Ragsdale told him "I wouldn't work for a company that wouldn't want me working,"
and asked how strikers could stop trucks and trains from coming into the plant.
Shortly afterward, according to Meek, Ragsdale told him to punch out and get off
the lot.
The two versions of the dismissal incident cannot be reconciled. The illegality of
the discharge depends upon the uncorroborated testimony of Meek. His version is
contradicted not only by Ragsdale, but indirectly as well as by the records kept by
Meek and introduced in evidence. These records show high steam pressure and low
moisture readings both at 3 and 4 p.m. which presumably should and could have
been corrected by Meek in the ordinary course of his duties. These records also
show an unvarying pressure between 7 and 10 p m., although the moisture was still
somewhat below the optimum point.
In short, I am not convinced that the General Counsel has satisfied that burden
of proof which is incumbent upon him to uphold a charge of discriminatory dis-
charge. As the court noted in N.L.R.B. v. Barberton Plastics Products, Inc., 354
F.2d 66, 69 (C.A. 6), "the uncorroborated testimony of an untrustworthy and
interested witness, who stands to profit from a back pay award, may be held under
such facts and circumstances not to constitute substantial evidence on the record
considered as a whole." Meek's record as an employee left much to be desired. His
failure to record steam pressure was the last straw in an accumulation of various
dissatisfactions with Meek's behavior. Whether or not the summary discharge was
appropriate under the circumstances need not be decided here. The only issue is
whether Meek's discharge was motivated, at least in part, by union activities. There
is, however, a paucity of evidence to support such a conclusion. Admittedly Rags-
dale knew that Meek was a union adherent; Ragsdale knew that Meek had acted as
a union observer at the election. It is significant , however, that there is no suggestion
of any discrimination practiced by the Respondent against Roger Posey, the other
union observer. Nor does the record indicate any antiunion attitude on the part of
Ragsdale or anyone else. The only argument in support of the allegedly unlawful
discharge, therefore, is the claimed assignment of unreasonable duties to Meek. The
assignment of unreasonable duties was credibly contradicted by Respondent's wit-
nesses. Even without such contradiction, the result would be the same inasmuch as
there is no evidence to tie in the alleged assignment of unreasonable duties with any
union animus on the part of Respondent. There is as much reason to link the
imposition of these unreasonable duties with personal dislike on the part of Rags-
dale for Meek or any other reason unconnected with union activity. Considering the
record as a whole, therefore, I conclude that the General Counsel has not met the
burden of proof necessary for a finding of a discriminatory discharge under the Act.
RECOMMENDED ORDER
It is ordered that the complaint in Case 26-CA-2114 be, and the same hereby is,
dismissed.
Lifetime Door Company and Local Union No. 3135, United Broth-
erhood of Carpenters and Joiners of America , AFL-CIO. Case
11-CA-2816. August 3, 1966
DECISION AND ORDER
On March 15, 1966, Trial Examiner William W. Kapell issued
his Decision in the above-entitled proceeding, finding that the
160 NLRB No. 32.