Barrus Construction Co.

National Labor Relations Board - Board Decisions

Sep 29, 1971

193 N.L.R.B. 410 (N.L.R.B. 1971)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barrus Construction Company and International Un-
ion of Operating Engineers , Locals 500, 500A,
500B, 5000, 500D . Cases 11-CA-4257 and
11-RC-3076
September 29, 1971
DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On March 30, 1971, Trial Examiner Harry R.
Hinkes issued his Decision in the above-entitled
proceeding, finding that the Respondent 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
attached Trial Examiner's Decision. He further found
that the Respondent had not engaged in certain other
unfair labor practices. He also found that the
Employer-Respondent's objections to the election
held on April 16, 1970, were without merit. Thereaft-
er, the Respondent 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 proceeding to a three-
member panel.
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, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following modifications:
We agree with the Trial Examiner that the Employ-
er's objections to the election held on April 16, 1970,
are without merit. Consequently, as the Union
received a majority of valid votes cast, and as the
challenged ballots are insufficient to affect the results,
i The Board ordered that a hearing be held on Respondent's Objections
I and 2 as recommended by the Regional Director and on those " issues set
forth above," such issues being raised by the Company 's exceptions to the
Regional Director's report with respect to "Objection 3 and alleged threats
of violence and retaliation " The Company contends that under such an
order it was entitled to introduce evidence not only in support of its
specifically numbered objections but also to establish generally improper
threats of violence and retaliation not covered by its specific objections
The Trial Examiner ruled to the contrary holding that the hearing on
objections would be limited to matter relevant to Objections 1, 2, and 3
and that the disputed language was intended to advert to matters falling
within the scope of the specified objections The Company contends the
Trial Examiner was in error and that his restricting the scope of the
objections hearing was a denial of due process. However, the Company has
adverted to only two instances in the record where the Trial Examiner
applied his disputed ruling In the first, he permitted company counsel to
we shall certify the Union as the bargaining represent-
ative of the Employer's employees in the appropriate
unit. We shall also order that the complaint be
dismissed insofar as it alleges Respondent unlawfully
transferred employee Willie Quinn from one job
location to another.
ADDITIONAL CONCLUSIONS OF LAW
2. Barrus Construction Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. International Union of Operating Engineers,
Locals 500, 500A, 500B, 500C, 500D, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
4. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
5. In accordance with the stipulation of the
parties, the following employees of the Employer
constitute, we find, a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All hourly paid production and maintenance
employees excluding office clerical employees,
professional employees, working foremen, guards,
and supervisors as defined in the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Barrus Construction Company,
Kinston, North Carolina, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's recommended Order.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges the Respondent violated
the Act by transferring Willie Quinn for discriminato-
ry reason from one job location to another.
continue with its examination of his witness by way of an offer of proof.
We have considered such evidence and conclude it warrants no
modification of the Trial Examiner 's results In the second instance
adverted to, the Trial Examiner , on being assured the proffered testimony
was being adduced in support of a numbered objection, permitted
company counsel to continue unhampered his examination of his witness.
Thus, the Company has failed to show that it was in fact restricted by the
Trial Examiner's ruling in introducing any evidence , either directly or as an
offer of proof, into the record Further, the Company did, as the record
amply shows, introduce extensive evidence-most of it of little
consequence-dealing with alleged threats of violance and retaliation as
part of its case with respect to Objection 2 Consequently, as the Company
has failed to show that the disputed ruling in fact restricted its introduction
of evidence, we find that such ruling, assuming it was erroneous, was
nevertheless nonprejudicial.
193 NLRB No. 62
BARRUS CONSTRUCTION CO. 411
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that International Union of
Operating Engineers, Locals 500, 500A, 500B, 500C,
500D, has been designated and selected by a majority
of the employees in the appropriate unit and that
pursuant to Section 9(a) of the National Labor
Relations Act, as amended, the said labor organiza-
tion is the exclusive representative of all employees in
such unit for purposes of collective bargaining with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY R. HINKES, Trial Examiner: On February 11,
1970,' the Union, the Charging Party herein, filed a petition
for an election. A Stipulation for Certification Upon
Consent Election was executed by the parties on March 9
and an election by secret ballot was conducted on April 16.
The tally of ballots showed 400 eligible voters and that 396
ballots were cast, of which 201 were for the Union, 189 were
against the Union, 3 were challenged, and 3 were void. The
challenged ballots being insufficient in number to affect the
results of the election, the Union won. Barrus Construction
Company, hereinafter referred to as the Employer or
Respondent, filed objections to conduct affecting the
results of the election on April 22.
On May 26 the Union filed an unfair labor practice
charge with the Board alleging that employee Willie Quinn
had been discharged by the Respondent on May 21 in
violation of Sections 8(a)(3) and (1) of the Act.
On July 6, the Regional Director for Region 11 of the
Board issued his Report on Objections and Direction,
recommending that the Employer's Objections 3 and 4 be
overruled and directing that a hearing be held to resolve
issues raised in Objections I and 2. Thereafter, on August
11 the Employer filed timely exceptions to the Regional
Director's report.2
A complaint was issued on August 28 with respect to the
discharge of Willie Quinn. The Company's answer was filed
on September 11, essentially admitting that Quinn was
discharged but denying that the discharge was for reasons
proscribed by the Act. On September 22, the Board ordered
a hearing with respect to the Employer's Objection 3 and
"alleged threats of violence and retaliation." The complaint
with respect to the discharge of Willie Quinn and the
Objections to the election were consolidated by an order
dated October 7 as amended on October 27. Respondent's
Motion to Sever the Proceedings, filed on October 30, was
denied by me on November 13.
A hearing was held before me in Kinston, North
Carolina, between November 17 and December 2 at which
1 All dates hereafter , unless otherwise specified, are in 1970
s Counsel for the Union urges that the Employer's Exceptions be
rejected for failure to serve the Union with copies of the affidavits
accompanying such exceptions Upon reconsideration of the arguments
advanced by the parties I adhere to my ruling denying said Motion to
Reject
all parties were represented and were afforded full
opportunity to participate, examine witnesses and adduce
relevant evidence. Extensive briefs have been received from
the parties and have been given careful consideration.3
Upon the entire record in this proceeding I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a North Carolina corporation with a
facility at Kinston, North Carolina, where it is engaged in
the business of asphalt paving. During the 12 months
preceding the issuance of the complaint, which period is
representative of all times material herein, Respondent
received at its Kinston, North Carolina, facility raw
materials valued in excess of $50,000 directly from points
outside the State of North Carolina. The complaint alleges,
Respondent's answer admits, and I find that the Respon-
dent is now and has been at all times material herein an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
The complaint alleges, the Respondent's answer admits,
and I find that the Union is now and has been at all times
material herein a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ISSUES
A. Objections to the Election
Has the Employer sustained its burden of proving the
allegations of its Objections 1, 2, and 3 to the election and,
if so, was the election thus invalidated?
B. The Unfair Labor Practices
Has the General Counsel sustained his burden of proof to
establish that Respondent discharged employee Willie
Quinn because he engaged in union activities or other
activities protected by Section 7 of the Act?
III. OBJECTIONS TO THE ELECTION
A. Objection 1
At a public meeting of the Employer's employees
conducted by Petitioner's representatives in Goldsboro,
N. C., at or shortly after the time when Petitioner began
actively to organize Employer's employees, and at one
or two similar meetings, a Mr. C. P. Snodgrass stated to
the meeting in substance that, if Employer's workers
would not `sign up' to show their support for Petitioner,
the Petitioner's supporters should put kerosene in their
lunch boxes. Mr. C.P. Snodgrass is an International
Representative for the Petitioner and was especially
active in Petitioner's organizing efforts among the
3 Counsel for the Employer has moved to correct the transcript of this
hearing in certain respects. Counsel for the Union opposes said motion.
Upon consideration of the arguments advanced and my recollection of the
testimony, I hereby grant Employer's motion to correct except for these
items. p. 913, 1.3, sufficiently to increasingly ; p 1443, 1.6, truck to
equipment ; R.'s Exh . p. 14, 1.12, Herpe to Harper'
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's employees . Approximately 200 to 250 of the
Employer 's employees are believed to have been in
attendance at the Goldsboro meeting when Mr.
Snodgrass made the above statement.
In support of this objection that Employer offered the
testimony of two employees , Leroy Jones and Raymond
Goff . Jones testified that he attended union meetings in
Goldsboro , North Carolina , "sometime between the middle
of January and the middle of April " and possibly even
earlier than the middle of January adding " I wasn 't paying
a whole lot of attention to it." He further stated that he did
not think it could have been later than the middle of
February . He further stated that Snodgrass and Dixon
(union representatives ) were at these meetings . On cross-
examination , however , he was not sure that Dixon was at
the first of the two meetings he attended . According to
Jones someone asked how they could get unwilling
employees into the Union and Dixon answered "a little
kerosene in their lunch boxes might help bring them
around ." He correctly identified Dixon at the hearing.
Jones volunteered that the men talked about kerosene in
the lunchbox but "we treated it like a joke ." On further
questioning regarding the date of these meetings, he
appeared completely unsure of the date except that the
meetings were "the first of the year after we had closed up
for our vacation " at Christmas . Finally, he testified that he
did not hear anybody laugh when kerosene was mentioned
adding that he "heard a lot of talk , everybody talking at one
time , there could have been somebody that laughed I don't
know."
Raymond Goff testified that he attended one union
meeting in Goldsboro and two other union meetings in
Kinston . At the Goldsboro meeting he stated "there was a
lot of people up there , some of them about half drunk, and I
heard them talking about kerosene up there on the stand,
and they said that was one way of making a man join up or
else pack up his tools. And there was a bunch of them boys
out there talking about one thing or another and if the
Union don 't come in , the Ku Klux Klan, everything, they
were talking a whole bunch of crap up there ." According to
him Union Representative Dixon and King did most of the
talking but Union Representative Snodgrass did not do
much talking . He added that he had seen Dixon and King
two more times since then. Nevertheless , he was unable to
identify Dixon , who was present during all of Goff's
testimony. At the second meeting he attended most of the
employees were talking about kerosene "and one thing and
another and a bunch of them got up there on the platform
and made speeches ." He related how employee Mordecai
Johnson urged that "The Black Panthers and the Ku Klux
Klan ought to go out there and blow up everything Barrus
has got." At another point Goff mentioned that he
"probably would have went on with the Union myself but
when they came telling me, talking about that kerosene and
messing with my wife or other people 's wives I just told
them I didn 't want no part of the Union ." At the third
union meeting he attended Goff stated that Snodgrass
"balled up his fist and said that if he heard anybody
repeating , he said he was mad enough to back it up if he
wanted to and he shoved his old big fist up there ." Here,
too, according to Goff , kerosene was mentioned . When he
asked who mentioned kerosene he answered "You take a
bunch of men in a place there , half of them drunk , half of
them talking loud, and this , that and the other you can't
understand half of what does go on in a place like that."
Goff placed the Goldsboro meeting "in February," then
"somewheres around the first of February ," then "it might
be sooner or later in February I know it was somewheres
around the first or the middle of February ." He also
remembered that Union Representative Snodgrass told
,.some kind of joke" but could not remember whether
Snodgrass was telling about the old days working on the
railroad . He did remember that everybody laughed. Later
Goff stated that Snodgrass may have said that was the way
they did it in the old days.
The testimony of witnesses called by the Union and the
General Counsel concerning Objection 1 was much more
specific . Thus, Union Representative King testified that the
first employee meeting he attended was on February 1 in
Goldsboro . There Union Representative Snodgrass read a
letter which Dixon had prepared and which was received in
evidence . When Snodgrass was asked what could be done if
people did not join the Union , Snodgrass answered
"There 's nothing we can do. We live in a right-to-work
state." He further testified that Snodgrass added that his
father said in the old days that people used to put kerosene
in nonunion workers' lunch pails but Snodgrass advised the
employees not to do that now and everybody laughed.
Nothing was said about kerosene in any other union
meeting he attended , having attended all except those of
January 18 and March 22 . Union Representative Dixon
testified that he never used the word kerosene nor told any
employee to put kerosene in the worker 's lunch pails nor
did he hear anything about kerosene at the union meeting
of March 22 or in any other meeting he attended , having
attended all but the meeting of February 1. Employee
Sutton testified that , at the second union meeting held in
Goldsboro on February 1, Snodgrass read a letter from
Dixon in which Dixon reported that the Company would
not recognize the Union. When Snodgrass was asked what
could be done about a man not joining the Union,
Snodgrass answered there was nothing you could do since
the "Reform Bill" had been passed and since this was a
right-to-work State . He added that Snodgrass told about his
father talking about the old days when the workers on the
railroad used to put kerosene in a man's lunchbox and
Snodgrass would not recommend it now because it is
against the law. Sutton testified that most of the workers
laughed at that comment and took it as a joke . Finally,
Union Representative Snodgrass himself testified . Accord-
ing to him the first union meeting took place on January 18
in Goldsboro . Kerosene was not mentioned there. At the
next meeting in Goldsboro on February 1, which he
attended together with Union Representative King, Dixon
was not present . Snodgrass was asked what to do about
getting people to join the Union if they did not want to join.
Snodgrass answered that he did not think there was too
much they could do because they were in a right-to-work
State and in the old days he heard his father speak of
putting kerosene in lunchboxes of people who did not join
the union , but that was before the "Labor Reform Act" and
those tactics were not necessary now. Nothing was said
BARRUS CONSTRUCTION CO.
about kerosene in any later union meetings . Snodgrass
remembered the events of the February 1 meeting
particularly since it took place on his birthday and he was
not happy about having to work on his birthday for the first
time in 15 years. Moreover, he had reviewed his biweekly
reports before coming to the hearing and had confirmed the
exact date.
I credit the testimony of the witnesses presented by
counsel for the General Counsel and counsel for the
Charging Party, rather than Respondent's witnesses Leroy
Jones and Goff. I find the latter's testimony to be confused
and confusing. Repeatedly Goff failed to answer questions
directed to him making nonresponsive answers. Both
witnesses were vague as to the date the alleged threatening
remarks were made and both witnesses ascribed the
remarks to the wrong speaker. Goff admittedly paid little
attention to what was occurring at these meetings, not even
recognizing Mr. Dixon at the hearing who had made the
threatening remarks. Jones admitted that the employees
treated the kerosene remark as a joke.
As respects the alleged threat by Snodgrass when he
raised his fist and said "if he heard anybody repeat what he
said up there he would back it up and say it wasn't true,"
Snodgrass admitted raising his right hand into a fist. He
explained that he did so when he was told there were spies
in the room. Snodgrass answered that the spies could go
back and tell the Company that the Union meant what it
said, gesturing as he spoke. Considering Goff's admitted
inattention to events occurring at these meetings and his
imperfect recollection of the few things he did testify about,
I credit Snodgrass' version of the fist raising incident and
find that this gesturing was not a threat nor could it so be
construed.
I conclude that the Employer has not sustained its burden
of proof with respect to its Objection 1, either in
establishing that the Union advocated unlawful activity
against nonunion employees or in fixing the occurrence of
such alleged activity during the "critical period" which
extended from February II when the Union filed its
petition for an election to April 16 when the election took
place.
B. Objection 3
3. During Petitioner's organizing campaign among
the Employer's employees, Petitioner (i) on at least one
occasion offered to pay employee Mordecai Johnson,
who at first actively supported and campaigned for the
Petitioner , in return for Johnson 's agreeing to speak in
favor of the Petitioner, at a meeting of the Employer's
employees sponsored by the Petitioner; (ii) reportedly
from time to time offered to pay other employees to
induce them to support and vote for Petitioner; and (iii)
reportedly from time to time actually paid other
employees in return for their agreeing to support or
actually supporting the Petitioner and/or their agreeing
to vote or actually voting for the Petitioner.
Subpart (i) was dismissed by me during the hearing for
failure of proof . Subpart (iii) was dismissed by me during
the hearing as surplusage, being necessarily encompassed
within subpart (ii). As a result the only issue to be discussed
as employer's Objection 3 is subpart (ii):
413
During Petitioner's organizing campaign among the
Employer's employees, Petitioner . . . (ii) reportedly
from time to time offered to pay other employees to
induce them to support and vote for the Petitioner... .
The principal evidence in support of this objection was
presented by A. J. Jones, a Barrus employee. Jones testified
that he attended a union meeting held in Kinston on
election eve, April 15. Before the meeting started he was
outside with a group of men including Quinn, Sutton, and
Union Representative King. According to Jones, a "low
chunky colored fellow" who worked for Barrus in
Goldsboro came up to Quinn who asked him "Doc, do you
have enough money for what you want?" Jones heard him
answer "yes he sure did, he had plenty," adding "I got
Goldsboro sewed up." Quinn made no response. Jones then
asked Quinn about loaning him money to which Quinn
replied "you know you can get it, Jeff, you can come up to
my house." Jones could not remember ever having seen the
man referred to as Doc but assumed he was a Barrus
employee because he was present at the meeting. Moreover,
he later learned that an employee at Goldsboro was known
as Doc. Counsel for the Respondent argues that the
obvious interpretation of the conversation between Quinn
and Doc is that "money had been paid out in Goldsboro to
get the employees there to vote for the Union." I do not so
read the record.
According to Quinn, borrowing money from another
employee and lending money to another employee was a
common practice at Barrus. The only money he received
from the Union, however, was reimbursement for pay he
lost while attending a Labor Board hearing on March 5. He
denied ever lending money to get votes for the Union.
Quinn admitted lending money to an employee called
"Preacher" in March or April. Preacher had complained of
a toothache and asked Quinn for a loan of $1.50. Quinn
gave him $2.00 and was repaid the following Friday. Later
Quinn learned that that man was known as Doc. Sutton, in
his testimony, corroborated Quinn's version of the incident
in all essential respects. He testified that he had a bad
toothache or that he wanted to get some lunch or a cab and
that it was hard for Sutton to understand Blount because
Blount could not talk plainly. Sutton further corroborated
that the employees lend money to each other and have done
so for many years prior to the election as well as during the
union campaign. Sutton further testified that on April 15,
the night before the election, he was with Quinn, A. J. Jones
and Union Representative Dixon. He heard Quinn ask
Preacher Blount "if the money took care of it." Preacher
answered, "yes, he sure appreciated it." He denied Blount
saying he had everything sewed up in Goldsboro. Union
Representative Dixon also corroborated Sutton's version of
the meeting between Quinn and Blount on the night before
the election. He testified that as Blount approached Quinn,
Quinn asked if it took care of everything and Blount said
yes, sir, he appreciated it. Blount himself testified, stating
that he is an ordained minister and a preacher at a local
church. He remembered talking to Quinn before a union
meeting and that A. J. Jones was present. He, too, testified
that he had had a toothache one day and received a loan
from Quinn. That night he saw Quinn who asked him if he
had enough and Blount answered that he had plenty.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After considering all of the evidence on this subject as
well as the demeanor of the witnesses on the stand as they
testified , I am persuaded that the version given by Sutton,
Quinn , Dixon , and Blount should be credited . I find,
therefore , that Quinn lent Blount some money when the
latter complained of a toothache . This loan was repaid
later . On the night before the election when Quinn and
Blount attended a union meeting Quinn inquired if it took
care of everything , referring obviously to the loan that he
had made to Blount . Blount answered that it did and he
appreciated it. Nothing was said about Goldsboro. I do not
by this conclusion mean to infer that A. J. Jones was not
telling the truth as he remembered the incident . I find it
more likely , however , that Jones may have been inexact in
his remembrance of the event . It is only too likely that there
was talk of Goldsboro at the union meeting, perhaps even
talk of Goldsboro being "sewed up" and that Jones has
mistakenly connected that talk with the conversation
between Blount and Quinn . This appears to be very
plausible to me in view of the fact that at the hearing Jones
was unable to identify Blount as the man with whom Quinn
had his conversation that night. It is not likely that Jones
would remember minute details of a conversation without
recognizing both of the participants . Counsel for the
Employer argues, however , that the inconsistencies in the
testimony of Quinn , Blount , Dixon , and Sutton lessen the
probative value of their testimony. He points , for example,
to Quinn 's testimony that he lent $2 to Blount and Blount's
testimony that he got only $1. Much testimony was received
from various individuals establishing the unquestioned fact
that borrowing and lending among the employees was a
very common practice at Barrus with amounts ranging as
high as $100 or more. It is too much to expect that the
participants to a loan of $1 or $2 made and repaid 8 months
before the participants were called upon to relate the
incident would be quite sure of the amount . Counsel for the
Employer also cites the testimony of another employee who
stated that on the day Quinn gave Blount money, Blount
had not complained of a toothache to him that day. The
testimony however , does not preclude the possibility that
Blount complained to Quinn , without complaining to
anyone else . Counsel for the Employer also points to the
testimony of employee Horace Jones who testified that
during an argument with Blount he said "I understand
Willie [Quinn ] has paid you money to get people to vote for
the Union," to which Blount replied "You are damned
right, I am going to vote for it ." I do not credit this
testimony by Horace Jones. I had occasion to consider the
temperament and personality of Blount as he testified. I am
convinced that he is not the type of person that would use
that language . Omitting the profanity , it is just as likely that
when Blount told Horace Jones he was right and that
Blount would vote for the Union , he was not admitting that
he had been paid money to get people to vote for the Union
but only that he was going to vote for the Union.
In any event , it was Quinn who allegedly offered to pay
for union support , not the Union . This would normally
dispose of the objection which alleges that the Union made
such offers. In accordance with the court 's position in
Home Town, Inc., 379 F.2d 241 (C.A. 5), I have,
nevertheless , considered , infra, whether the combined
effects of all the alleged misconduct may have contributed
to an atmosphere which rendered a free election impossible.
Monroe Auto Equipment Co., 186 NLRB No. 18, fn. 9.
Counsel for the Employer also cites the testimony of
Union Representative King who denied that the Union
paid any money to an employee for joining the Union and
had no knowledge of any employee lending money to
persuade Barrus employees to join. He did , however , relate
how during the election campaign he and another union
representative were at a motel room when five or six
employees brought a company handbill to show them.
When their visitors asked for some liquor , King and the
other union representative said they had to leave but would
"chip in" to buy a bottle. King then gave the visitors $3 of
his own money and left . Counsel for the Employer argues
that King gave them the money to secure or maintain
employee support . I find this point of view unreal . There is
nothing to indicate that King demanded or expected their
allegiance to the Union in return for the $3 gift . Moreover, I
fail to see how he could expect much from his visitors in
return for what amounted to a gift of 50 cents per person.
In sum , I conclude that the Employer has not sustained
his burden of proof with respect to Objection 3.
C. Objection 2
2. On a Sunday evening in late January or early
February 1970, when Petitioner's organizing efforts
were in progress, a Willie Quinn, one of the Employer's
employees who with Petitioner's knowledge and
support actively campaigned for the Petitioner among
his fellow-employees , held a meeting of seven (7) of his
fellow-employees at his home . The Employer's employ-
ees who attended this meeting were Elwood Basden,
Jerry Dunn, Paul Dunn , Frank Harper, Willie Quinn,
Early Russell , Ricky Sutton and Guy Taylor. At this
meeting Quinn stated in effect that those who were
present were to be members of what he called a
`violence club'; that the members of this club were to
`beat up' those would not `sign up ' with the Petitioner or
who were against the Petitioner ; that the members were
to damage the automobile of these employees , that if
the members beat up a few of these employees it would
change some of their minds so that they would be for
the Petitioner ; that the members needed to `hush up' the
mouth of employee Richard Rouse , who was actively
opposing the Petitioner; that something should be done
about Rouse 's automobile ; that none of those present
should say anything to anyone about the `violence club.'
Employees Sutton , Quinn and Harper were each
selected by Petitioner to serve , and in fact served, as
Petitioner 's three (3) election observers.
It is generally undisputed that some sort of meeting or
gathering took place at the house of employee Willie Quinn
on a Sunday evening sometime in February or early March.
Sutton and Quinn testified that several days before this
meeting, while they were at Jacksonville working on U. S.
Highway 17, Early Russell complained to them that
employees Gray and Rouse had gone to his supervisor
objecting to Russell's making more time then they did.
Russell said he had $50 to put on anybody that would beat
the hell out of those two. Neither Quinn nor Sutton made
BARRUS CONSTRUCTION CO. 415
any reply. Instead, they left, leaving Russell. Russell in his
testimony denied saying anything about Gray and Rouse
on Route 17. He admitted, however, that he heard that
Rouse and Gray had gone to his boss sometime around
Christmas complaining about the extra work Russell was
getting. He asked his supervisor about the report and was
told that Rouse and Gray were trying to cut Russell's hours
back. Nevertheless, Russell said that he was not angry.
On Saturday evening preceding the meeting at Quinn's
house Mr. and Mrs. Quinn and Mr. and Mrs. Sutton had
dinner out of town and returned to the Sutton's house
around midnight where they stayed until around 5 a.m.,
talking and drinking. The Quinns then went home.
Around 5:30 p.m. on Sunday, Quinn's son-in-law, Jerry
Dunn, dropped by for a visit. Shortly afterwards Sutton,
accompanied by employee Basden, arrived. Not long
afterwards employee Guy Taylor came in. The men were
talking about various things, Quinn's son who was in the
service in Germany, working conditions at Plymouth, etc.
The next to arrive were employees Russell, Harper, and
Paul Dunn. Russell testified that Quinn had telephoned
him that morning around 3 a.m, and had told him a
meeting was being held at Quinn's house that night asking
Russell to come together with Paul Dunn and Frank
Harper. Nothing was said about the purpose of the meeting,
nor did Russell ask. Quinn on the other hand denied calling
Russell that morning. Russell called Paul Dunn telling him
they were going to have a meeting at Quinn's house and
asked him if he was going. Dunn went over to Russell's
house and they decided to go over. On their way they
picked up employee Harper who was visiting at his lady
friend's house. When Russell, Harper, and Paul Dunn came
in together, Harper told Quinn that Russell had said Quinn
had called him and that he (Russell) was supposed to come
by and pick Harper up. Quinn answered that he did not
know what it was all about, but invited them in. Jerry Dunn
saw that Russell had left the lights on in his car on and told
Russell but Russell replied it was all right, that he would be
leaving shortly.
The conversation turned to union matters, and according
to Quinn, Jerry Dunn, Sutton, and Harper, Russell said that
Gray and Rouse were doing a lot of talking around the
shop against the Union and that somebody ought to do
something about it, somebody ought to shut their mouths
up for them. Russell put his hand in his pocket and said he
had $50 to get somebody to do it, slapping his pocketbook,
Taylor and Harper spoke up immediately saying they did
not want any violence, that it would hurt the union
activities. Russell then said, "we had better go" and he left,
together with Harper and Paul Dunn. Sutton told Jerry
Dunn that they ought to talk to the people around the plant
against any violence if anybody was trying to start any
violence. This was corroborated by Harper. Then, in turn,
Taylor, Sutton, and Basden left.
Russell 's version of the meeting at Quinn's house differs
radically from that given by Quinn, Sutton, Harper, and
Jerry Dunn. According to Russell, when he arrived together
with Paul Dunn and Harper, Quinn told him that Mrs.
Quinn and the children were gone and that they could talk
freely. He also asked that no one should reveal what was
said to anyone else. Quinn then said that it was necessary to
stop Rouse and Gray from talking against the Union so
much adding that if Rouse's head was "tightened up" or his
mouth "hushed up" it would "change a lot of the rest of
their minds.114 Quinn also suggested a threatening tele-
phone call, tearing up Rouse's car, and hiring some one to
whip Rouse. Taylor then spoke up against any violence and
the meeting ended. When Harper, Russell, and Paul Dunn
drove back there was no discussion of what had happened
at Quinn's house. After Harper was let out Paul Dunn told
Russell that he was against violence and getting out. Russell
agreed. This version of the event was partly corroborated
by Paul Dunn. His testimony relates Quinn's threat to
Rouse and no mention is made of Gray. Similarly, his
affidavits of April and May make no mention of Gray.
The issue, then, is the identity of the person or persons
who advocated physical violence against Rouse and Gray
at a gathering held at Quinn's house attended by eight
employees, Quinn, Jerry Dunn, Sutton, Basden, Taylor,
Harper, Russell, and Paul Dunn. Stated alternatively, the
issue is whether the Employer has established by a
preponderance of the evidence that Quinn promoted the
establishment of a "violence club" to inflict injunes and
damages to employees in order to secure their support.
Counsel for the Employer urges that the version of the
meeting given by Russell and Paul Dunn be credited rather
than that given by the other witnesses. He argues that
Quinn had motivation for threatening Rouse and Gray but
that Russell did not. Thus, he cites the fact that Quinn was
admittedly a strong union supporter and, since Rouse and
Gray were antiunion, Quinn might recommend or threaten
violence against them because they were causing the most
harm to the union campaign. Moreover, Rouse and Quinn
did not get along well, not having spoken to each other for
at least a year. Russell, on the other hand, had no motive
according to the counsel for the Employer. He argues that
Russell had no reason to complain about the attempt by
Rouse and Gray to have Russell's hours cut and argues that
it is "improbable that such a complaint was ever actually
made." This, however, ignores Russell's testimony in which
he admitted that when he spoke to his supervisor about the
alleged complaint made by Rouse and Gray concerning his
hours, his supervisor told him that Rouse and Gray were
trying to cut his hours. Counsel for the Employer argues
further that even if Rouse and Gray did complain about
Russell's overtime, his overtime was in fact not cut and that
therefore Russell had no actual grievance. This does not,
however, eliminate the probability that Russell was
concerned about their efforts to get his pay cut. Again,
counsel for the Employer argues that Russell would not be
apt to be upset at the time of the Quinn meeting in
February or March 1970 since the attempt by Rouse and
Gray to have his overtime cut occurred around Christmas
1969. I see no reason to conclude that merely by reason of a
lapse of a month or two between the time Russell learned of
the complaint by Rouse and Gray and the meeting at
Quinn's house, Russell had completely forgotten about the
matter. I conclude, therefore, that Russell had sufficient
4 In affidavits executed by Russell in April and May, however, he
alleges Quinn threatened Rouse and makes no mention of threats against
Gray.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motivation to be upset and to urge reprisals upon Rouse
and Gray at the Quinn meeting whether or not Quinn had
sufficient motivation as well.
Counsel for the Employer further argues that it is
substantially more likely that Quinn made the threats than
did Russell. He points to the testimony of union witnesses
to the effect that Russell made similar threats against Gray
and Rouse when he met Quinn and Sutton on Route 17
sometime earlier and that both Quinn and Sutton gave him
no encouragement. Counsel argues from this that it is not
likely Russell would attempt to raise the issue once again
with them. Moreover, argues counsel for the Employer,
Russell must have known it would be foolish for him to seek
support from Quinn for any prounion scheme since Quinn
would suspect Russell's motives, Russell being openly for
the Company. Also, Quinn being prounion, would be much
more likely to secure the support of the employees who met
at his house than would Russell who was procompany.
Counsel for the Employer also cites the testimony of other
witnesses to the effect that on several occasions Quinn said
that if the Union came in and if he got to be the shop
steward, Rouse and Gray would have to go. Counsel admits
that these statements do not refer to the use of violence but
they do indicate Quinn's "deep antagonism" toward Gray
and Rouse. It may be conceded that there was hostility
evidenced by Quinn towards Rouse and Gray. The issue,
however, is not hostility but threats of violence. In
conclusion counsel for the Employer urges that I accept the
testimony of Russell and Paul Dunn as "simple, straightfor-
ward and credible," and reject the testimony of Jerry Dunn
who is Quinn' s son-in-law as well as that of Sutton, Quinn
and Harper, all of whom were active on behalf of the
Union's campaign. In support of this conclusion, counsel
for the Employer argues that fear was created among
Barrus employees that they might suffer violent retaliation
if they opposed the Union. He cites the testimony of
various witnesses that there were rumors that union
supporters were going to whip employees who did not vote
for the Union, that employee Goff thought he was
threatened by Basden when the latter stuck an object which
Goff believed was a knife in Goff's back, and that Early
Russell told Rouse, Gray, and employee Shotwell on the
morning of the election that a violence club had been
formed at Quinn's house to beat up nonunion employees.
Gray in turn told Leroy Jones and others. Several
employees, both union and nonunion, then carried guns to
their jobs.
Counsel for the Union, on the other hand, urges a
contrary interpretation of the events. As respects the
testimony of Paul Dunn corroborating the Russell version
of the Quinn meeting, counsel for the Union points out that
Dunn's testimony was not free of inconsistencies. Thus,
contrary to the version given by everyone else Paul Dunn
stated that there was no talk of money at the meeting and
that Russell said nothing. Russell, however, admitted that
he spoke at the meeting and said he could get up some
money and that money was no problem. Also, Paul Dunn
testified that Taylor had said they were going in for
violence , but it has been conceded by all that Taylor was
one who spoke up against violence. I question the probative
value of Paul Dunn's corroboration of Russell's testimony.
Counsel for the Union also attacks the testimony given by
Russell. He points to Russell's testimony concerning an
alleged telephone call from Quinn to him at 3 a.m. and
Russell's admission that he did not inquire about the
purpose of the meeting. He argues that it is not reasonable
for one to be called at 3 a.m. in the morning to attend a
meeting without the person asking what the meeting was
for. Counsel further argues that it is not reasonable that
unionist Quinn would call Russell and Dunn to a meeting
at his home to set up a violence club when he had no close
relationship with either Russell or Dunn and knew that
Russell was a company man. Counsel for the Union
suggests that Russell was seeking to enlist the support of
Quinn in his difficulties with Rouse and Gray who had
complained to Russell's supervisor and that Russell
brought his friend Paul Dunn hoping for his support as well
as Harper who was an active union supporter hoping
Harper would be persuasive with other union men such as
Quinn. Moreover, I am inclined to agree with counsel for
the Union that Quinn could not reasonably think he was
helping the Union which he supported by advocating a
violence club which would engage in beating up those who
would not sign for the Union. Monroe Auto Equipment Co.,
supra. There is no evidence adduced to demonstrate that
the Union needed more cardsigners urgently. Nor is it likely
that prounionist Quinn would suggest the creation of a
violence club to Russell and Paul Dunn, two men whom he
had no reason to believe were supporting the Union. Nor
did either Paul Dunn or Russell go to management to warn
them about the proposed violence even though the
Company invited employees to report threats or intimida-
tions. Indeed, Russell admitted that at every company
meeting, management invited employees to report any
intimidations or wrongdoing, but that he did not come
forward to report Quinn's alleged threat. Perhaps the
explanation for his silence can be found in his testimony
when he was asked "Did you think they were going to beat
anybody up?" and Russell answered "No." I note that in
spite of his admission Russell executed statements and
affidavits to the effect that Quinn's "violence club" was to
"beat up those who wouldn't sign for the Union." I note,
also, that although he testified that Quinn threatened both
Rouse and Gray, his earlier affidavits mention Rouse only.
Such inconsistencies as well as his unpersuasive demeanor
on the stand dissuades me from crediting his testimony.
Moreover, the record does not support a finding that the
employees were frightened by these alleged rumors of a
violence club. Thus, Gray testified that when Russell told
him of a violence club, he believed Russell, and was afraid.
Nevertheless, he did not report this to the Company
because he "wanted to make sure everything was right
before I told them . . . go around and talk to some of the
other boys and see how they felt about it." When asked
"What difference did it make to you how they felt if you
were afraid?", Gray replied "I wasn't exactly afraid
myself . . .
Q.: So you thought this violence club was one man?
Gray: No, I thought the violence club were more
than one man.
Q.: Why weren't you afraid?
Gray: I just wasn't.
BARRUS CONSTRUCTION CO. 417
Q.: Were you afraid or weren't you afraid?
Gray: Yes, sir, I was afraid.
Q: If you were afraid why didn't you go to the
company immediately?
Gray: I didn't think about it
Q: What made you go to the Company later?
Gray: I never got a chance to talk with any of the
officials . . . I couldn't get in touch with any of them at
that time . . . I dust didn't see them
Q: Did you ask for them?
Gray: No, sir.
Q: Then you don't know if they were around?
Gray: No, I sure don't
Q: After the election you heard more about the
violence club?
Gray: Yes, sir
Q: And it was only when you heard more about the
violence club you felt it necessary to go talk to the
company officials?
Gray: Yes, sir
Such vacillating testimony is not worthy of belief.
Similarly, Rouse testified that he was not afraid of Quinn
who is puny compared to Rouse. He was afraid, however,
. . five or six get on you, what can you do?" He admitted
that he did not know who the others might be, and Russell
did not tell him anybody else was in the club. I find it
incredible that Rouse should be afraid of Quinn, a little
man, and the only one mentioned. Paul Dunn also testified
that he never had been threatened.
Union counsel further points out that there is no evidence
of any violence committed upon anyone during the "critical
period" except an alleged threat by Basden against Goff.
Goff testified that on the Monday before the election
Basden asked him why he had not attended the last union
meeting and when Goff replied that he had a meeting of his
own to go to, Basden stuck an object, which Goff believes
was a knife, in Goff's back. Goff initially regarded the
incident as ajoke but when Basden during the "next couple
or 3 days . . . walked around like he could walk right
through me and he made special trips by my automobile to
stare at my old lady like he would stare through her," Goff
decided that it was a threat. Goff admittedly saw no
weapon and heard no threat and Basden denied putting
anything in Goff's back. It should be noted that I have
found Goff's testimony to be confused and confusing. I
find his testimony with respect to Basden's alleged threat
also quite imaginative. I credit Basden's denial.
Turning to the testimony of several witnesses to the effect
that Quinn threatened to force Rouse and Gray to leave if
the Union came in and if he became shop steward, it
appears that employee Young, who was one of the
witnesses who allegedly heard Quinn make such a
statement, testified that he reported the threat to Rouse and
Gray. Gray testified that after he heard of the threat to run
him off if the Union and Quinn got in, he went to Quinn,
asked him about the threat and Quinn denied saying it.
Gray testified that he preferred to believe his informant
rather than Quinn because Quinn had lied to him. The
"lies" Quinn told him were that the Union was going to get
air conditioning in the shop and in the trucks but neither
the trucks nor the shop have been air conditioned yet. Gray
then reported to Young that Quinn had denied it but
Young insisted that he had told the truth. Gray then went
with Rouse and Foreman Dunham to Mr. Richardson,
president of Barrus Construction Company. Richardson
assured both Rouse and Gray that neither could be run off
on account of not joining the Union but could work as long
as they did their jobs. Rouse and Gray testified that they
believed Richardson. It should be noted that at the meeting
of Rouse and Gray with Richardson, Gray withheld the
information that Quinn had denied making the threat, nor
did Gray tell anyone else. Similarly, although the threat was
allegedly repeated on the morning of the election, nothing
was said about the threat either to any member of
management, to the Labor Board government representa-
tive attending the election or anyone else. Moreover, such
remarks by employees conditioned on the Union winning
the election and Quinn becoming steward as well as threats
of violence are "more likely than not to elicit a negative
rather than a positive response to unionization." Monroe
Auto Equipment Co., supra.
Counsel for the Employer also cites the testimony of
Gray and Goff concerning alleged damage to their vehicles.
Gray claims his truck was damaged when someone bent the
fender. James Turnage, an employee who had asked Gray
on some previous occasion to sign a union card, called
Gray's attention to the damaged fender. Gray, however,
was unable to place the time when his car was damaged, not
knowing if the fender was bent when he came to work that
morning or the night before. Indeed, when asked if he had
not said the car could have been damaged after the election
he answered "possibly it might have been damaged .. .
well, I don't know, I can't remember everything." The
extent of the damage was not fixed nor did Gray ever have
the car repaired. I find this evidence of violence much too
tenuous to base any findings upon. Counsel for the
Employer also cites the testimony of Goff with respect to
damage to his truck. According to Goff, when he took his
truck out after the election it did not operate correctly and
the brakes did not work. Upon examination, he found his
air hose lines crossed and the light cord socket torn off. He
reported the damage to Rouse who told him that his fan
belt was broken, too. Goff also claims that some 5 or 6
weeks after the election he found that someone had tripped
the fifth wheel lock on his truck which would have caused
him to lose his load if he had not noticed it. I have
commented previously on the nature of Goff's testimony.
Here, too, the alleged damage to his truck is unclear.
Employee Jones who was in the truck with Goff admitted
that equipment is apt to go wrong at all times. Employee
Basden testified that he used Goff's truck just before Goff
did, found the fan belt broken and replaced it. He also
found the light connections would not fit the trailer because
of the different type socket and had the wires taped
together so that the socket would not be needed and the
mechanic removed the socket which he brought back to the
Company. Moreover, Basden testified that if the hoses are
crossed the brakes become locked and the truck cannot be
moved. I credit Basden's testimony and find Goff's
testimony inadequate to demonstrate the commission of
any violence. Moreover, it is hard to see how alleged
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violence occurring long after the election would invalidate
the results of that election held previously.
In summary, I find that the Employer has not sustained
its burden of proof to establish by a preponderance of
credible evidence that at a meeting at Quinn's home, Quinn
proposed a violence club to beat up employees who would
not sign up with the Union or who were against the Union,
that they were to damage the automobiles of these
employees, that if they beat up a few of these employees it
would change some of their minds, and that they needed to
hush up the mouth of employee Rouse. Instead, I find in
spite of inconsistencies and discrepancies in the testimony
of many of the witnesses who testified, a gathering of some
sort was held at Quinn's home and that employee Russell
advocated violence against Rouse and Gray but that that
suggestion was not adopted by the others present at the
gathering that Russell, nonetheless, spread a rumor of
violence among a few employees who after the election
reported the threats to management without ascertaining
the truth or falsity of such threats; and that there is
insufficient evidence that the employees were frightened by
these rumors of violence, at least until after the election.
Accordingly, there was no "general atmosphere among
voting employees of confusion and fear of reprisal for
failing to vote for or support the Union" and nothing to
deter such employees from exercising their free choice at
the election. Golden Age Beverage Company, 167 NLRB 151,
enforcement granted, 415 F.2d 26. There is nothing in the
record to indicate that any employee was interfered with at
the election poll. Even those to whom Russell repeated the
alleged threats of violence on election day apparently cast
their ballots freely and without hindrance. It is impossible
to prevent irresponsible talk during an election campaign.
The test, however, is whether the desires of the voters were
interfered with. This record contains no such evidence.
Counsel for the Employer argues that the undisputed fact
that several employees carried guns to work corroborates
the allegation of an atmosphere of fear surrounding the
election. Employees Rouse, Gray and Shotwell testified
that they as well as other employees, naming Russell,
Quinn, Paul Dunn, Goff, Leroy Jones, and Koontz, carried
guns after the election. It would appear that their testimony
demonstrates only that until the election they found it
unnecessary to carry a gun for their self protection. Their
vote, therefore, at the election was not coerced and their
carrying of guns after the election does not demonstrate
that they were so coerced before the election. Employee
Jones testified that he carried a gun before the election
when he heard of the violence club from employee Gray.
Counsel for the Employer concedes, however, that since
Gray learned about the violence club only on election day
and told Jones later that day, that Jones must be mistaken
about the time. Employee Goff testified that he carried a
gun both before and after the election but his carrying of a
gun before the election was because of a threat he received
some 9, 10 or 12 years ago not apparently connected with
the Union campaign or the election. Quinn also carried a
gun before the election, once to demonstrate it to a
prospective purchaser at the plant and on other occasions
when he was permitted to do so after having been assaulted
by some outsider. Koontz also testified that he carried a
gun before the election, but his testimony is so uncertain
that I do not credit it. Thus, he stated, "If I don't make no
mistake, I think I carried the gun about 2 or 3 days before
the election...." In short, it does not appear that there
was any carrying of guns among the employees before the
election so as to give rise to an inference that there was a
general atmosphere of fear which affected the results of the
election.
IV. THE UNFAIR LABOR PRACTICE
The Respondent Union commenced its organizational
campaign among Barrus employees in January 1970 and
held its first meeting on January 18. Willie Quinn attended
practically every meeting the Union held thereafter
beginning in February through November 1970, some 25 to
30 meetings all together.
On March 5 Quinn informed his supervisor, Dunham,
that he had been subpoenaed to attend a representation
hearing on the petition of the Union and showed the
subpoena to Dunham. Dunham corroborated Quinn's
showing him the subpoena on March 5 and admitted that
he knew it was a subpoena from the Union for Quinn to
attend the Labor Board case.
Six days later Quinn who had been working on highway
17 in Jacksonville, North Carolina, was transferred back to
the truck shop. As a result, Quinn lost approximately 3
hours of work each day representing his paid travel time.
Dunham testified that his decision was motivated entirely
by business considerations and that the subpena for the
March 5 hearing had not affected his decision in any way.
According to Dunham the route 17 job was finishing up so
that there was no justification for maintaining two
mechanics on the road. Consequently, it was more
appropriate that an equipment mechanic remain in the area
to service some two or three dozen pieces of construction
equipment compared to only two or three trucks there.
Quinn contradicted this version, testifying that there was
more equipment on the job on March 5 than there had been
all winter and that there was a Company policy permitting
a worker to go out in the spring and summer if he had been
out in the winter. Moreover, Quinn testified that when he
did return to the shop he found only two trucks which took
three days to repair.
After Quinn was moved from Jacksonville, the Company
sent another employee, Dale, to replace him. According to
Quinn, Dale was only a heavy equipment mechanic,
whereas Quinn worked with both heavy equipment and
trucks. Employee Sutton, however, corroborated Dunham's
testimony to the effect that after Dale replaced Quinn on
route 17 there was only about half of the heavy equipment
that had been there before. It would therefore appear that
Quinn may have been mistaken about the volume of work
remaining on route 17 when he was transferred back to the
shop and that there is insufficient evidence to demonstrate
that his transfer was not for legitimate business reasons.
On Friday night following March 5 the Company held a
supper for employees at which the Company gave reasons
why they did not want the Union. Foreman Brown in
talking to the employees stated "Quinn, you and Sutton are
not invited because you went to the hearing and you know
all the answers."
BARRUS CONSTRUCTION CO. 419
As related above, around March 25 employee Young told
employee Gray that Quinn had said that if the Union was
voted in and if Quinn became steward, that Quinn would
run Gray and employee Rouse off their jobs. Young
repeated the story the following morning to Rouse in
Gray's presence . Gray told Quinn about the threat that
Quinn had allegedly made but Quinn denied the threat.
Gray and Rouse then spoke to their foreman , Dunham, and
subsequently to Richardson , Respondent 's president, who
reassured them that their jobs were secure . Richardson
advised Harry Downs, counsel for Barrus, that two
employees had reported being threatened by Quinn. On
April 3, Downs met Young and Gray and took written
statements from them describing Quinn 's threats. Downs
also repeated the same assurances Richardson had given,
that neither Quinn nor the Union would have any power to
force Barrus to fire Gray . Richardson and Downs agreed
that Richardson should warn Quinn against threatening
any fellow employee . The next morning Richardson went
to the truck shop to warn Quinn , but when he got there
Foreman Dunham told him that Quinn and another
employee, Turnage , had already asked to see him. Quinn
and Turnage came into the office . There Quinn told
Richardson he (Quinn ) had been accused of threatening
employees but that the accusations were untrue . Turnage
added that he never heard Quinn made any threats and that
Quinn would not do such a thing . Richardson testified that
he told Quinn and Turnage that he was not accusing
anybody, that he did not want any trouble, and that he
would let any man go that he considered was causing
trouble . He admitted that he knew Quinn had come to try
to clear himself and that his coming to Richardson was
voluntary . Richardson thereafter reported to Downs that
Quinn had come to see him about these rumors of threats,
but he did not tell Downs that Quinn had denied the
rumors.
According to Downs, after the election of April 16 the
Company received information of certain occurrences,
unrelated to Quinn , which , if true , might justify setting
aside the election . Employees Russell and Paul Dunn and
three other employees gave the Company signed statements
which were forwarded to Downs and Barrus ' management
asked Downs whether Quinn 's employment should not be
terminated in light of the allegations contained in the
documents . Downs answered that ". . . greater effort
should be made to establish the validity of the allegations
before termination was made ." Accordingly, Downs went
to Kinston , North Carolina , early in May and interviewed
Russell , Paul Dunn , Leroy Jones, Rouse and Gray. He also
obtained statements from Rouse , Gray and Young. These
statements refer to the meeting at Quinn's house where
Quinn allegedly proposed the formation of a violence club
and advocated violence. It should be noted that none of
these informants were present at that meeting . Some of the
statements also refer to Quinn 's alleged threat to run Rouse
and Gray off the job if the Union was voted in and he
became the steward . Downs nevertheless took no steps
against Quinn , explaining that he had an appointment with
the NLRB agent regarding the Company 's application to
set aside the results of the election and assumed that the
agent would want to examine these individuals and
substantiate the allegations . The NLRB agent came to
Kinston on May 19 and obtained statements from Russell,
Paul Dunn , Gray, Rouse , Leroy Jones and Young. He gave
them to Downs who then called Attorney Vaas relating the
information that had been received and discussing,
"whether from a legal point of view the discharge of Mr.
Quinn would be appropriate ." Downs also spoke to
Richardson and Mewborn, the Company vice-president,
and it was agreed that Quinn would be discharged. It was
further agreed that they would simply advise Quinn that he
was being terminated for having made threats against
fellow employees without revealing the identity of the
individuals who had given statements . Richardson said
nothing to Downs about Quinn having voluntarily come to
him previously to deny threatening other employees. No
disciplinary action was taken against any of the other
employees who had attended the meeting at Quinn's house.
One of them, Jerry Dunn, had quit shortly after the
election . As to the others , Downs testified that he felt there
was inadequate justification to take disciplinary action
against employees who were only present but who had not
spoken up advocating violence . He has not taken any
action against them although he admits that he believes that
the violence group still exists.
The next morning Richardson went down to his office a
little earlier than usual and asked Foreman Rouse to bring
Willie Quinn to his office . Rouse and Quinn came to
Richardson's office where Vice President Mewborn was
already. Richardson told Quinn that he was being
discharged for making threats against other employees and
that his check was being prepared . According to Richard-
son, Quinn asked "Can you prove it?" to which he
answered "I think we can." According to Quinn, however,
he asked Richardson whom he supposedly threatened and
Richardson replied that he did not have to reveal that
information. When Quinn expressed the belief that he had a
right to know, Richardson said "You'll have a chance to
prove your innocence ." Nothing else was said and, in due
course , Quinn's check was brought to the office . Richard-
son then told Rouse to go with Quinn to pack up his tools.
Rouse later returned to ask how to handle Quinn's
unemployment compensation slip. Richardson instructed
Rouse to indicate that Quinn had been discharged for
cause , specifically , misconduct-threatening other employ-
ees.
Counsel for the Respondent argues that "... regardless
of whether or not Quinn uttered these threats , Barrus'
conduct in investigating the charges against Quinn and in
discharging him is consistent with the proposition that
Barrus believed the evidence of Quinn 's guilt and
discharged him for that reason ." There seems to be little
doubt that .the gathering at Quinn 's house during the
Union's organization campaign, at which time the eight
employees attending the gathering spoke about union
matters, among other things, constituted protected activity.
Quinn's alleged advocacy of threats of violence might
constitute misconduct sufficient to justify his discharge.
See, however , Corrrveau & Routhier Cement Block, Inc., 171
NLRB No. 113, where the Board found the employer to
have violated Section 8(a)(3) of the Act in discharging an
employee who had told other employees at an organization
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting held off company premises, that he would "see
them down the road." The Board held such conduct not of
an egregious nature sufficient to deprive an employee of his
Section 7 rights. Although this decision was reversed upon
appeal , I am, of course, bound by the Board's decision.
Assuming arguendo, that Quinn's alleged advocacy of
violence was unprotected, I have, however, found that he
did not advocate violence. Quinn, therefore, was not guilty
of misconduct as alleged . It is well established that
... when, in the course of protected activity,
employees are accused of misconduct and a respondent
takes action affecting their employment tenure based
on a belief that the employee has engaged in
misconduct , such an honest belief would be an
adequate defense to a charge of discrimination for
refusing to reinstate such employee unless it affirmative-
ly appears that such misconduct did not in fact occur.
Burnup & Sims, Inc., 137 NLRB 766, 772.
See also Trailmobile Division, Pullman, Inc, 168 NLRB 230,
240. Accordingly, I find that Respondent's discharge of
Willie Quinn for alleged misconduct was unwarranted.
Respondent 's discharge of Willie Quinn, even if unwar-
ranted , does not necessarily give rise to a violation of the
Act, which depends upon a finding that Respondent's
motivation in discharging Quinn was his union or
concerted activities . In this respect there is no doubt that
Respondent was well aware of Quinn's prominence in the
union movement . It knew that he had been subpenaed to
attend the representation hearing before the Board on
March 5 and that he was an observer for the Union at the
election . Indeed, at four or five meetings of employees
called by the Company to discuss the Union, Downs,
speaking on behalf of the Employer, told the employees
that if they could look around and see who was pushing
hardest for the Union they would know who the shop
steward would be. Although Downs testified that he did not
believe he looked at Quinn "particularly," he admitted that
he "assumed" that the employees would know he was
talking about Quinn and "subjectively" intended for them
to know that he meant Quinn. There can be no doubt that
the Company regarded Quinn as the leading unionist. Was
Quinn's discharge attributable to his union activities? The
language of the Court in Shattuck Denn Mining Corp., v.
N.L.R.B., 362 F.2d 466 (C.A. 9) is appropriate:
... heavy reliance is placed on cases indicating that
the mere fact that good cause for a discharge does not
exist is not a basis for inferring that the discharge was
based upon an unlawful motive, that the fact that an
employee is engaged in union activity is not, taken
alone , proof that the discharge was for that reason, that
suspicion is not enough to support a finding, that an
employer may discharge for any reason or no reason
and so has no burden to justify his action, that
inferences must be based upon evidence, that it is not
the job of the Board to judge the severity of punishment
imposed by the employer, that lack of antiunion bias is
to be considered in the employer's favor, and that the
Board may not infer an unlawful motive if the evidence
equally supports an inference of lawful motive.
Actual motive, a state of mind, being the question, it
is seldom that direct evidence will be available that is
not also self-serving. In such cases, the self-serving
declaration is not conclusive; the trier of fact may infer
motive from the total circumstances proved. Otherwise
no person accused of unlawful motive could be brought
to book. Nor is the trier of fact-here the trial examiner
- required to be any more naif than is a judge. If he
finds that the stated motive for a discharge is false, he
certainly can infer that there is another motive. More than
that, he can infer that the motive is one that the employer
desires to conceal-an unlawful motive-at least where, as
in this case, the surrounding facts tend to reinforce that
inference. [Emphasis supplied]
I turn therefore to the surrounding circumstances.
I note that the Employer learned as early as Apn13 that
Quinn had allegedly threatened to cause Rouse and Gray to
leave the employ of the Company when employee Young
furnished a statement to that effect to the Company, and
that it allegedly decided to warn Quinn. Actually, however,
it was Quinn who approached Richardson to deny the
rumor. Richardson gave no indication that he believed the
rumor and, in any event, instituted no disciplinary action
against Quinn. After the election of April 16 the Company
learned of the gathering at Quinn's house and his alleged
advocacy of threats and violence. This information was
obtained from various employees but actually originated
from only two employees, Russell and Paul Dunn, who
attended the meeting at Quinn's house. None of the other
six employees who attended the meeting at Quinn' s house
were interviewed by the Company. Instead, Quinn was
discharged on the strength of information given by these
two employees only and despite his earlier denial of any
threats; also, in spite of employee Turnage who accompa-
nied Quinn when he spoke to Richardson denying the
alleged threats. At the hearing it developed that Quinn, as
well as Jerry Dunn, Sutton and Harper, denied Quinn
threatening violence at the meeting. Moreover, Downs
himself admitted that when he first heard of the alleged
violence club that was created at Quinn's house he felt that
"greater efforts should be made to establish the validity of
the allegations." He, too, was apparently not satisfied that
the mere allegations of two of the attendants at the meeting
were sufficient to establish Quinn's misconduct. His efforts,
however, at establishing the validity of the allegations leave
much to be desired. Knowing the identity of all the eight
participants at that meeting, he made no effort to interview
Quinn, Jerry Dunn, Harper, Basden or Sutton. Downs
attempted to explain his failure to interview these
participants saying that he felt he was "limited to
interviewing persons who indicated that they were availa-
ble." Accordingly, he limited himself, apparently, to those
employees who voluntarily came forward. It should be
noted, however, that although Taylor did not come
forward, Downs traveled some 35 miles from Kinston to
interview Taylor at his job location. Taylor refused to
discuss the incident. Significantly, when Taylor failed to
corroborate the versions given by Russell and Paul Dunn,
Downs should have had his suspicions aroused concerning
those versions and should have intensified his efforts to
interview Quinn, Sutton, Harper, Basden, and Jerry Dunn.
Instead, he abandoned such efforts. Downs was not
sufficiently concerned about the alleged violence club to
BARRUS CONSTRUCTION CO. 421
call in the police, increase the plant guards nor speak to
Basden about Goff's claim that Basden had put a knife to
his back. Downs explained that he was not satisfied that it
was a knife.
In short, the Company did not consider discharging
Quinn when it heard that he had allegedly threatened to run
Rouse and Gray off the job if the Union came in and he
became steward. Indeed, there is some doubt that the
Company even ever warned Quinn about that. On the
contrary it was Quinn who came forward to clear himself of
any such charges. Then later, when it learned from two of
eight participants at a meeting at Quinn's house that Quinn
had allegedly threatened violence and realized that "greater
effort should be made to establish the validity of the
allegation ," it, nevertheless , discharged Quinn without
establishing the validity of the allegations made by Paul
Dunn and Early Russell. Moreover, the reaction of the
Company when it felt that Quinn had advocated a violence
club is odd, to say the least. When Quinn had allegedly
threatened to run Rouse and Gray off the job if the Union
came in and he became steward, Downs and Richardson
decided to warn him. When the Company learned Quinn
had allegedly advocated the creation of a violence club with
damage to automobiles and injuries to persons a much
more serious offense , it gave him no warning nor did it even
explain to him exactly why he was being discharged.
Indeed, it was completely disinterested in any denials
Quinn might make, having already decided to discharge
him before he had been given an opportunity to deny the
charges. It is clear to me that the Company had decided to
rid itself of the one individual whom the Company
regarded as the prime union leader and seized upon the
allegations made by Early Russell and Paul Dunn to justify
its discharge of Quinn without attempting to ascertain the
truth of the allegation, in fact, avoiding further investiga-
tion which might have corroborated Early Russell's or Paul
Dunn 's allegation or contradicted those allegations. Under
such circumstances I cannot conclude that Barrus had an
"honest belief" that Quinn had engaged in misconduct. I
note that when Quinn's claim for unemployment compen-
sation was heard by the Employment Security Commission
of North Carolina, the Company also claimed that it had
discharged Quinn because it had received complaints from
some of the employees that Quinn was threatening them. In
support of that contention, the Company submitted the
affidavits of the employees. The Commission found,
however, that there was "insufficient evidence to show that
his discharge was due to misconduct in connection with his
work." The decision, though not controlling or decisive
here, is certainly relevant and corroborative of my
conclusions . Supreme Dyeing & Finishing Corp., 147 NLRB
1094.
The Company having failed to establish an honest belief
in Quinn' s misconduct , it was not incumbent upon the
General Counsel to go forward with evidence to prove that
Quinn had not in fact engaged in such misconduct. Rubin
Bros. Footwear, Inc., 99 NLRB 610, 611; N. L. R. B. v. Plastic
Applicators, Inc., 369 F.2d 495 (C.A. 5). The General
5 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and recommended Order herein
Counsel did, however, go forward with evidence to prove
that Quinn had not, in fact, engaged in such misconduct as
found above.
Accordingly, I conclude that Respondent discharged
Willie Quinn and failed to reinstate him because of his
prominent union activities of which it admittedly was
aware, having discussed such activities among its top
management personnel. Moreover, these activities were
resented by the Respondent as evidenced, among other
things, by the statement of Foreman Brown excluding
Quinn from a company dinner for its employees, as well as
by its failure to investigate thoroughly accusations of
violence made against Quinn.
CONCLUSION OF LAW
Respondent discharged and failed to reinstate employee
Willie Quinn because of his union activities in violation of
Section 8(a)(3) and 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices I shall recommend that it
cease and desist therefrom and take certain affirmative
action which I find necessary to effectuate the policies of
the Act.
Having further found that the Respondent discharged
employee Willie Quinn and refused to recall him in
violation of Section 8(a)(1) and (3) of the Act, I shall
recommend that the Respondent offer him immediate and
full reinstatement to his former job, or, if that job no longer
exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings suffered by reason
of the discharge or failure to recall by payment of a sum of
money equal to that which he normally would have earned
as wages from the date of discharge to the date of
Respondent's offer of reinstatement less any net earnings
during this period and in the manner described in F. W.
Woolworth Co., 90 NLRB 289, together with interest
thereon at 6 percent per annum as set forth in Isis Plumbing
& Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 5
ORDER
Respondent, Barrus Construction Company, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union or concerted
activities for the purpose of mutual aid or protection by
discharging or otherwise discriminating against employees
because they have engaged in union or concerted activities.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join , or assist the Union or any other
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization, to bargain collectively through repre-
sentatives of their own choosing or to engage in other
concerted activity for the purpose of collective bargaining
or other mutual aid or protection or to refrain from any
such activity.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer employee Willie Quinn immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges and
make him whole for any losses he may have suffered by
reason of the discrimination against him in the manner set
forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
records, social security payment records, timecards,
personnel records, and reports and all other records
necessary to analyze the amount of backpay due under this
order.
(c) Post at its Kinston, North Carolina, place of business
copies of the attached notice marked "Appendix." 6 Copies
of the notice on forms provided by the Regional Director
for Region 11, after being duly signed by Respondent's
representative, shall be posted by the Respondent immedi-
ately 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
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discnminatorily discharge any employ-
ee to discourage union activity on behalf of the
INTERNATIONAL UNION OF OPERATING EN-
GINEERS, LOCALS 500, 500 A, 500 B, 500 C, 500 D,
or any other labor organization, or discriminate against
employees in any other manner in regard to their hire or
tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization or to join or assist the Union
or any other labor organization or to bargain collective-
ly through representatives of their own choosing or to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
WE WILL make Willie Quinn whole for any loss of
earnings he may have suffered by reason of the
discrimination against him.
BARRUS CONSTRUCTION
COMPANY
(Employer)
to insure that said notices are not altered, defaced, or Dated By
covered by any other material.
(d) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.?
6 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
r In the event that this recommended Order is adopted by the Board
after exceptions have been filed, notify the Regional Director for Region
11, in writing within 20 days from the date of this order, what steps
Respondent has taken to comply herewith
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This Notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this Notice or compliance with
its provisions, may be directed to the Board's Office, 1624
Wachovia Building, 301 North Main Street, Winston-
Salem, North Carolina 27101, Telephone 919-723-9211,
Extension 3609.