Foote Mineral Co.

National Labor Relations Board - Board Decisions

Jun 28, 1955

112 N.L.R.B. 1410 (N.L.R.B. 1955)

1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL bargain collectively, upon request, with United Packinghouse
Workers of America, Local No. 78, C. I. 0., as the exclusive representative of
all our employees in the bargaining unit , described below, with respect to rates
of pay, wages , hours of employment, and other conditions of employment, and,
if an understanding is reached, we will embody such understanding in a signed
agreement . The bargaining unit is:
All non-tomato-packingshed employees employed at the Tracy shed, exclud-
ing office clerical employees , guards, the shed foreman, the packing boss, the
receiver, the maintenance man, the carloading boss, and all other super-
visors as defined in the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization , to form, join, or
assist any labor organization , to bargain collectively through representatives of
their own choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
or all such activities except to the extent that such right may be affected by an
agreement made in conformity with the proviso to Section 8 (a) (3) of the Act.
All our employees are free to become or remain members of United Packinghouse
Workers of America, Local No. 78, C. I. 0., or any other labor organization or to
refrain therefrom except . to the extent that membership in such organization may be
required as a condition of employment by the terms of an agreement made as author-
ized in Section 8 (a) (3) of the Act.
COCHRAN CO., INC.,
Employer.
Dated---------------- By---------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced, or covered by any other material.
Foote Mineral Company and United Steelworkers of America,
CIO. Case No. 11-CA-770. June 28,1955
DECISION AND ORDER
On February 24, 1955, Trial Examiner John H. Eadie, issued his
Intermediate Report 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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices and recommended that the complaint be dismissed in that
respect. Thereafter the Respondent filed exceptions to the Inter-
mediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
112 NLRB No. 187.
FOOTE MINERAL COMPANY 1411
mediate Report, the exceptions, and the entire record in this case and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following modification :
We agree with the Trial Examiner that the Respondent discrimina-
torily discharged employee Martin in violation of Section 8 (a) (3)
of the Act. In so finding, however, we do not rely on the Trial Exam-
iner's finding that it was questionable whether Mine Foreman Day
knew at the time he discharged Martin that Martin had been absent
from duty on August 4. In his own testimony employee Martin stated
that on August :>, at the outset of the discharge conversation, Day
asked him where he, Martin, had been the night before. Thus, this
testimony of Martin's standing by itself is sufficient to establish that
at the time of discharge, Day had knowledge of Martin's absence from
duty on August 4.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Foote Mineral Company,
Kings Mountain, North Carolina, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from the following :
(a) Discouraging membership in United Steelworkers of America,
CIO, or any other labor organization of its employees, by discriminat-
ing in regard to their hire or tenure of employment or any term or
condition of employment.
(b) Interrogating employees concerning their membership in, or
activities on behalf of, United Steelworkers of America, CIO, or any
other labor organization, in a manner constituting interference, re-
straint, or coercion in violation of Section 8 (a) (1), or threatening
them with reprisals because of such union activities.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right of self-organization to form,
join, or assist the Union named above, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Robert P. Martin, immediate and full reinstatement
to his former or substantially equivalent position without prejudice
36902S-56-vol 112 90
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to his seniority or other rights and principles , and make him whole
in the manner set forth in section V of the Intermediate Report, en-
titled "The Remedy."
(b) Post at its plant, Kings Mountain, North Carolina , the notice
attached hereto marked "Appendix A."' Copies of such notice, to be
furnished by the Regional Director for the Eleventh Region, shall,
after being duly signed by the Respondent 's authorized representative,
be posted by the Respondent immediately upon receipt thereof, and
maintained for a period of at least sixty ( 60) consecutive days there-
after, in conspicuous places , including all places where notices to em-
ployees 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.
(c) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10 ) clays from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated Section 8
(a) (1) of the Act , by conduct other than that herein found to be
violative of the Act.
IIn the event that this Order is enfoicod by decree of a United States Court of Appeals,
these shall be substituted for the words "Pursuant to a Decision and Order" the voids
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order,"
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activities on behalf of, United Steelworkers of
America, CIO, or any other labor organization, or threaten them
with reprisals because of such activities, in a planner constituting
interference, restraint, or coercion in violation of Section 8 (a)
(1) of the Act.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist the above-named
Union, or any other labor organization, to bargain collectively
through representatives of their own choosing, and 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, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
FOOTE MINERAL COMPANY 1413
as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
WE WILL offer to Robert P. Martin immediate and full reinstate-
ment to his former or substantially equivalent position without
prejudice to any seniority or other rights and privileges pre-
viously enjoyed, and make him whole for any loss of pay suffered
as a result of the discrimination.
All our employees are free to become or remain members of the
above-named Union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
FOOTE MINERAL COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by United Steelworkers of America, CIO, herein called the
Union, the General Counsel of the National Labor Relations Board, by the Regional
Director for the Eleventh Region (Winston-Salem, North Carolina), issued a com-
plaint dated September 30, 1954, against Foote Mineral Company, herein called the
Respondent, alleging that the Respondent had engaged in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act, as amended, herein called the
Act. With respect to the unfair labor practices, the complaint alleges that the Re-
spondent discharged Robert P. Martin on August 5, 1954, and thereafter failed and
refused to reinstate him because of his membership in and activities on behalf of
the Union; and that on certain dates, beginning on July 23, 1954, the Respondent
by its named officers, agents, and supervisors, engaged in conduct which constituted
interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the
Act.
The Respondent filed an answer on or about October 5, 1954, in which it
admitted the jurisdictional allegations of the complaint, but denied the commission
of any unfair labor practices.
Pursuant to notice, a hearing was held at Gastonia, North Carolina, on Novem-
ber 15 and 16, 1954, before the duly designated Trial Examiner. At the opening
of the hearing the General Counsel moved to amend the complaint. The motion
was granted without objection.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Foote Mineral Company is a corporation with its principal place of business
located at Philadelphia, Pennsylvania. It is engaged in mining and processing of
ores in the States of Pennsylvania, Virginia, and North Carolina. Respondent's
operation located at Kings Mountain, North Carolina, is the only one involved
in this proceeding.
During the year prior to the issuance of the complaint herein , the Respondent
mined and shipped products valued in excess of $ 100,000 from its Kings Mountain
operation to points located outside the State of North Carolina.
1414 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
It is found that the Respondent is engaged in commerce within the meaning of the
Act.
II THE ORGANIZATION INVOLVED
United Steelworkers of America, CIO, is a labor organization which admits to
membership employees of the Respondent.
III THE UNFAIR LABOR PRACTICES
A Interference, restraint, and coercion
It appears that the Union commenced organization of the Respondent's plant on
about July 20, 1954, and that employee Lancen Hollifield was one of the instigators
of the movement. On July 22, Lucius Day, mine foreman, had a conversation with
employee William Lyons, a drill operator Day told Lyons that he had heard that
the employees were trying to organize the Union in the plant. Lyons said that
nobody had notified him about the Union and that he did not know anything about
it. Day then said, "If it is found out you are in it, it will cause yourself to lose a
good job." Lyons thanked Day for the warning.' It is found that Day's remarks
to Lyons constitute interference, restraint, and coercion since they contain a threat
of reprisal.
On or about August 6, 1954, J. E Castle, Respondent's plant manager, made a
speech to the employees. In substance, he told them that if they wanted a union,
they should get it; that all employees would be "treated fair in every way"; that he
did not want any union activity on company time and property; that employees
who violated the rule would be discharged; that some employees were "cursing"
the foremen and fighting; and that the Respondent would not tolerate such conduct.
Castle also said that he did not believe that the employees needed a union, and
called attention to the Respondent's wage scale and other employee benefits in sup-
port of his statement.2 Contrary to the contentions of the General Counsel, I find
nothing in Castle's speech that constitutes interference, restraint, or coercion within
the meaning of the Act.
A meeting of the Union was held on Saturday, August 7. On August 9, Day
questioned Lyons about the meeting In this connection, Lyons testified credibly,
"He asked me how many men was there; I said, `Well, I could not afford to tell
you names'; he said, `Well, I know who they were'; and I said, `Well, if you know
go ahead and name them,' and he began to name some, and he named some that
were not there, and I spoke and said, `Those men have never been to a union
meeting to my knowledge.' " 3 It is found that Day's interrogation of Lyons con-
stitutes interference
Sometime during August and before August 16, Lyons had a conversation with
Assistant Mine Foreman Dathia Sanders Sanders said, ". . . it kinda had me about
scared to come in here, all this union mess here when I got back off vacation, . .
Lyons, you have been here a long time, some boys' names have been put in the
main office. . . . I am not naming none of them, . . . I won't tell you whether it
includes your name or not, there are five men's names put in the office by Larry
Day to be fired the first stump of your toe." 4 It is found that the above threat of
reprisal because of union membership or activity constitutes interference, restraint,
and coercion
On or about August 20, Lyons had a conversation with Edwin Goter, assistant
plant manager, and Ben Goforth, Respondent's personnel manager. Concerning
statements made by Goter, Lyons testified as follows: 5
i The above conversation is based on the credited testimony of Lyons Day denied that
he had the above conveisation with Lyons His denials of this and other conversations
testified to by Lyons, hereinafter related, are not credited Day did not impress me as a
reliable or credible witness
2 Lyons testified without contradiction to the above remarks of Castle
3 Lyons also testified credibly to the effect that on August 29 Day again interrogated
hint about a meeting of the Union
4 Lyons testified credibly to the above Sanders denied the remarks attributed to him
His denial is not credited Lyons further testified that on about August 16 lie repeated
the conversation to Day without revealing the source of his information , and that Day
told hint "there may be some names down there," but assured him that his name was not
included
6 Lyons testified to the effect that the conversation was started by his assertion that he
had not received as much overtime work as other employees, and that he thought that
Goforth was present when Goter made the above remarks
FOOTE MINERAL COMPANY 1415
He said that they were working out a plan for us pertaining to wages and
thought it would be a pretty nice plan, but said this cannot take effect as long
as this Union Movement is in progress or as long as you men feel like that
you want the Steelworkers or the National Labor Relations Board to intervene
in it, said; "we will grant you an increase, but it will be when they are out of it."
Goter denied the statements attributed to him by Lyons. He admitted having a
conversation with Lyons and testified to the following:
The substance of the conversation was this: Willie Lyons had made a state-
ment that he had only received sixteen hours over time for such and such a
period, and it shocked me, because I felt he had, and I immediately checked
up and found that he had more over time than some of the others, it was
around sixty or seventy or eighty hours, some where in there, and 1 had pointed
it out, and I was talking to Willie about it, and Willie had also heard that we
were stabilizing our wages, which had been going on quite a while, and I said
that is quite right, Willie, and the only thing that would stop that that in case
it would come up about an election and they might consider it an unfair labor
practice and they might stop us; that was the entire conversation; at that time
Mr. Goforth came up with the time sheet and we showed to Willie where he
had had his over time.
I believe that Goter is the more reliable and credible witness in this connection,
and therefore credit his version of the above conversation. While Lyons impressed
me as an honest witness, I believe that he may have misconstrued the remarks made
by Goter Accordingly, it is found that Goter's statement on about August 20 does
not constitute interference as alleged in the complaint.
B. The discharge of Robert P. Martin
Martin was employed by the Respondent from November 1953 until August 5,
1954. He was a bulldozer operator in the mine and at the time of his discharge he
worked on the second shift from 3 30 to 11:30 p in He signed a union card on
August 2 when solicited by one of the "Euclid" drivers Martin solicited about
four employees to join the Union while at work on August 3 and 4
Concerning events on the day before his discharge Martin testified, in substance,
that (1) At about 3.30 p in. he told Day that the clutch on the bulldozer needed
adjusting and Day told him to run the bulldozer as long as he could as he wanted
him to finish some work before dark if possible; (2) he finished the job mentioned
by Day at about 6 p. in. and then drove his bulldozer to the waste dump where
he filled it with fuel; (3) after finishing his dinner at about 6 30 p. in he went to
the mill where he talked to Charles Bumgardner, mill foreman, and 2 other em-
ployees, 1 of whom was a member of the Union; (4) when Bumgardner left the
group, he solicited the other employee to join the Union; (5) he was at the mill for
approximately 15 minutes and then returned to his bulldozer and adjusted the
clutch, starting on the job at about 6:45 p. m. and finishing at about 7.30 p. in ;
(6) the other bulldozer operator, Ralph Collins, offered to help him on the job,
and while he was performing this work, Lyons sent word by his helper that he
needed the bulldozer, (7) Lyons' drill was located about half a mile from the waste
dump; (8) he arrived at Lyons' place of work at about 8 p. m and finished his work
there at about 9 15 or 9.30 p m ; (9) on his way to Lyons he passed the shovel
which was operated by Pollard Adams; (10) Hardy Postell, a drill operator, worked
on the same bench as Lyons and when he passed Postell's place of work after he
left Lyons' that neither Adams nor Postell spoke to him; (11) he then "scraped the
road down there where the Uckes were hauling from Pollard Adams to the Waste
Dump," finishing this job between 10:30 and 11 p. m.; and (12) before quitting for
the night he hauled "a couple of loads" for Gene Goforth to the waste dump.
Lyons testified that: On the night of August 4 all three of the drillers were work-
ing on the "second bench," drilling into the third bench; each driller had a helper
and his helper was Leander Parker; at about 7 p. in. he went to Hardy Postell, drill
leader, and told him that he needed the bulldozer and Postell told him to send for
Martin; he then sent Parker to notify Martin; Parker returned at about 7:40 p. m.
and Martin arrived at about 8 p. in. and left at about 9:15 or 9:30 p. in.; 6 his drill
was located about 150 to 200 feet distant from Postell's drill; he did not observe
Postell looking for Martin that night; he (Lyons) made out the "drill reports"
for all of the drillers on the first and second shifts and then turned in the drill re-
6 On cross-examination , Lyons testified that Martin arrived at about 7 or 8 p in and
leftat9 or9 15p in
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ports at the office; the reports showed the "down time" and the reason for such
time of each driller; and on August 4 his drill was down for 1 hour, he did not
record this downtime on the drill report for that day, and he did not record any
downtime for Postell.
Postell testified that: "Lyons sent his helper down there and asked me could
he get the dozer to come up there and push off some for him, and I told him he
could, and Mr. Parker went down and seen Martin, and said Martin would be up
just as quick as he could adjust his clutch, which would take about 15 minutes"; he
saw Martin from about 4:30 until about 6:15 p. in., while he worked for Lyons;
at 8 p. in. he (Postell) needed Martin to move his drill and he looked "all over the
quary" until 10 p. in., but could not find him; he did not see Martin after about
6:15 p. in. that night; and he wrenched his back trying to move the drill himself.
Willie Moore, Postell's helper, testified that: On August 4 he saw Martin
"just a little before dark" at about 7 p. m.; Martin worked for Lyons for about 30
minutes and Postell was present but did not need Martin at the time; Postell's drill
was "supposed to get moved about 8:30"; later Postell went to look for Martin
in order to get the drill moved and was gone for about 30 minutes; 7 when Postell
returned he said that he could not find Martin and he and Postell tried to move the
drill but Postell wrenched his back and they were unable to perform any more work
that night.
Pollard Adams, the shovel operator, testified to the effect that: He kept the time
of the employees and told them what to do; "a little after dark" he needed Martin
"to move a drill for Postell and push some rock for me"; Postell came to him to
find out the whereabouts of Martin and he told Postell that he would send for Mar-
tin; starting at about 8:30 and until about 11:15 p. in. he sent one of the Euclid
drivers "at least 4 or 5 [times] . . . about 30 minutes apart" to look for Martin;
he did not see Martin until quitting time; and he did not talk to Martin then "be-
cause I was going home then from work, and I thought I would get him the next
day."
Virgel Camp, a Euclid driver, testified in substance, that: On August 4 Adams,
his "lead man," sent him to look for Martin; he looked for Martin starting "after"
dark and "somewhere a little after 8 . . . until close to 11"; during this time he made
approximately 40 or 50 trips to the waste dump; he saw Martin's bulldozer stand-
ing on the dump during the whole time but did not see Martin; he reported to Adams
that he could not find Martin; and he saw Martin "pushing in the mine" before
8 p. in.
Charles Bumgardner, mill foreman, testified that: On August 4 Martin came to
the mill at about 9:30 p. in. and talked to him and three employees who worked
under him; when he left the group Martin continued to talk to the employees; Mar-
tin remained in the mill for about 45 minutes; Martin did not mention the Union
in his presence ; and he did not talk to Day before Martin's discharge.
The preponderance of the reliable and credible evidence establishes and I find that
Postell and Adams needed Martin "after dark" or shortly after 8 p. m.; that they
tried but were unable to locate him from about 8 until about 11 p. m.; that Martin
was at the mill at about 9:30 p. m.; and that Martin worked for Lyons "before dark"
or at about 7 p. in. In so finding I credit the above testimony of Adams, Moore,
Camp, and Bumgardner, and that of Postell,8 except to the extent that he testified that
he saw Martin working for Lyons from about 4.30 until about 6:15 p. in.
As heretofore stated, Lyons impressed me as a credible witness. His was the only
testimony which supported that of Martin to the effect that he worked for Lyons from
about 8 to about 9:15 or 9:30 p. in. However, it appears that Lyons was not certain
of the time. On cross-examination he testified that Martin "come in around 7 or 8,
and left about 9 or 9:15." Further, his testimony to the effect that he had downtime
of only 1 hour indicates that Martin worked for him for no more and probably less
than 1 hour and may have finished the job before 8 p. in. Martin himself did not
impress me favorably as a witness and his testimony concerning his actions on August
4 is not credited.
At 10 a. m. on August 5, Day had a conversation with Lancen Hollifield, operator
of the bulldozer on the first shift. Day asked him if he thought Martin was involved
70n cross-examination, Moore at first testified that Postell went to look for Martin at
6 p in., and later testified to the effect that Postell left at sometime after about 6 : 30 p. in
However, he was clear in his testimony that Postell was present when Martin was working
for Lyons and that Postell was not looking for him at that time.
B Both Adams and Postell appeared as witnesses for the General Counsel While Postell
did not impress me as a reliable witness , his testimony in this connection is supported by
that of Adams and Moore.
FOOTE MINERAL COMPANY 1417
in the Union. Hollifield replied that he did not think that Martin knew "anything
about it," and that it was "mostly rumors." Day then said that Martin "was caught
down in the plant signing up men." They had another conversation at about 2 p. m.
Day said, "I don't believe you told me all you knew about the Union." Hollifield re-
plied, "Well, I guess I didn't tell you all I knew about it." Day then asked him "who
was at the bottom of the Union, who started it." Hollifield answered, "Well, I guess
I am the man." 9 It is found that Day's interrogation of Hollifield constitutes inter-
ference, restraint, and coercion.
Day testified, in substance, that between 2.30 and 3:30 p. in. on August 5 Postell
and Adams told him that they had looked for Martin on August 4 between 8 and 11
p. in. but could not find him, and that he talked first to Postell and later to Adams.
Adams testified that he saw Day on August 5 "just as I was going to work," but denied
that he talked to him about Martin. Postell testified that he saw Day at about 2:30
p. in. on August 5; that Day asked him why his drill had not been moved the night
before; that he replied, "Why in the Hell the dozer ain't here to move it"; and that he
also told Day that he had looked for Martin but could not find him. For purposes of
impeachment, the General Counsel introduced in evidence an affidavit of Postell,
dated September 4, 1954. In his affidavit Postell states, "On August 5 I went into
the quarry between 2 and 2:30. I saw Day to find out what I had to do that night.
He asked me then how come I didn't get moved the night before. I told him if they'd
have had a winch on my drill the night before, or if I'd have had a dozer, I could have
moved the night before. . Martin wasn't mentioned in this talk. . . . I'm positive
that on the whole day of August 5 the first and only time that Martin's name was
mentioned to me by Day was when he said, `Don't look for Martin. I've fired him."'
I credit Adams' testimony to the effect that he did not talk to Day about Martin on
August 5. While Day and Postell in their conversation may not have mentioned
Martin by name, it at least appears that Day asked Postell why his drill had not been
moved and that he told Day that the bulldozer was not available.
Concerning Martin's discharge at about 3:30 p. in. on August 5, Day testified, "I
started to question Robert about . where he was at that he never done his job the
night before, and he said he was in the mine; I told him I didn't think Pollard Adams
and Hardy Postell would lie about it, they told me definitely that he was not; he
said, `you are crazy as hell,' and I said, `that is the way you feel perhaps, go to the
office Day and get your pay' " Day at first testified that when he went to talk to
Martin, he had not decided to discharge him, and that, "I was going to talk to him
and write him up a warning ticket until he told me . I was crazy as hell." Later
he testified to the effect that he decided to discharge Martin immediately after talking
to Postell and Adams. The termination slip given to Martin by Day shows the reason
for discharging as, "Gross insubordination . . . cussing foreman for no justifiable
reason." Day further testified that after talking to Martin and before talking to "any-
body" else he went to the personnel office and wrote out "in long hand" a memo-
randum report on the discharge 10 The memorandum, dated August 5, 1954, and
directed to Goforth, reads as follows:
I have found it necessary to discharge Robert P. Martin a bulldozer operator
today August 5, 1954 for failure to be on the job when needed and gross insubordi-
nation.
Last night, August 4, 1954, Hardy Postell looked for Robert Martin for approxi-
mately two hours to obtain his help in moving a drill, which is one of Martin's
assigned jobs. While trying to move the drill by himself, Hardy Postell slightly
wrenched his back. Also on the same date, August 4, 1954, Pollard Adams, the
senior shovel operator looked for Martin for about two hours to obtain his
help in moving some rock in the quarry which is also one of Martin's assigned
jobs. During this time Martin's bulldozer was parked on the waste dump.
0 Hollifield testified credibly to the above conversations. Day denied that he had any
conversations with Hollifield on August 5 concerning Martin His denial is not credited.
10 Edwin Goter, assistant plant manager, testified as follows :
I saw Mr Day immediately after he had discharged Mr. Martin; in fact, I think
I saw the truck standing there and Day talking to Mr. Martin ; I was between the
shop and warehouse, I had been in the shop He told me he had fired Martin, and he
stated the reason ; and I immediately said "Larry, you go up immediately and see Ben
Goforth and get this down in black and white, state the facts" He said he was
absent from his job somewhere between 2 and 4 hours, as I remember it, the night
before, that he could not be found and when he asked where he had been, that Mr.
Martin cursed him; that is the statement Day made ; and I said "you have fired him,
now get those statements down in black and white."
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This afternoon at 3:30, August 5, 1954 when Robert Martin reported for
work, I asked him where he was when he was needed. Martin said he was on
his bulldozer all the time. I told him I was sure Pollard Adams and Hardy
Postell would not lie to me. Martin told me I was crazy as hell, so I told him
if he felt that way just to go to the office and get his pay
Personnel Manager Goforth testified that after Martin had left the plant, Day "dic-
tated" the memorandum to him and that he (Goforth) wrote it down in longhand.
Concerning his conversation with Day at the time of discharge, Martin testified,
. Day came by in the Company pick-up truck and recognized me and stopped
and backed up and motioned for me to come over to the truck; . it was 10
minutes to 3 00, I walked over to Day's truck and got in it and set down; he said
`where were you at last night,' and I said, `I was right here,' he said, `that ain't the
way I heard it . . . you were down at the Mill . . . what were you doing down
at the Mill, you and Goforth,' 11 I said, `I was not down there with Goforth,' . He
said, `I am a good mind to kick your - out of here . . . you know you can't get
away with nothing like that.' . I said, `Larry, you are crazy as hell'; he said,
`go to the office and get your time,' I told him to write it out, and I left him and went
on to the office and he met me in the door and handed me my termination slip "
Martin also testified that Day told him that one of the Mill foremen 12 reported to
him that he [Martini was seen in the Mill "selling Union Cards." Martin denied
that Day mentioned either Adams or Postell during the conversation.
On August 6 Day told employee Hollifield that he had discharged Martin for
"cursing" him or for "insubordination." Day also talked to employee Lyons that
same day. Day told Lyons, "Well, I had to let Martin go . you know that
Martin and Goforth were down there in the Mill Wednesday night . . . and they
were handling some Union cards signing up men on Company time and prop-
erty." Lyons said, "Well, what is he fired for . if you ain't careful that you do
it that way, it might create trouble, won't it'" Day replied, "I have better sense
than fire a man for Union activity . we will find other things to do it for." Day
then told Lyons that he had fired Martin for "insubordination," and that the "Labor
Board would not consider an insubordination case." On August 17 Day told Lyons,
"I want you to know I didn't fire Martin for Union activities, I want you to
get that clear . . up to that time I didn't even know Martin was in the Union. . . .
I fired him for insubordination." Lyons said, "You just told me on the 6th Martin
and Goforth were down there in the Mill selling Union cards." Day answered,
"After all I am not firing him about it, I am firing him for insubordination, I don't
care how much Union they talked, or how much Union they get, but I am firing him
for insubordination, and not for being in the Mill with the cards " 13
I am convinced and find that Day discharged Martin on August 5 because of his
membership in and activities on behalf of the Union. Day's conversation with
Hollifield at 10 a in on August 5 shows that he had knowledge of Martin's union
activity; and his conversation with Lyons on August 6 and 17 show that insubordina-
tion was merely a pretext for the discharge. Insofar as the conversation between
Day and Martin at the time of discharge is concerned, it is undisputed that Martin
told Day that he was "crazy as Hell " I do not believe that this statement provoked
Day sufficiently to cause him to discharge Martin, since it appears that they had
been on very friendly terms. Martin testified credibly to the effect that on numerous
occasions he and Day drank liquor while on the job; that at other times, using his
car, he and Day left the job early in the evening in order to go for liquor or beer;
and that when they left the job, he (Martin) did not return to work but was paid
for the time he was absent.14
11 The Goforth mentioned above was not the personnel manager, whose testimony has
been discussed heietofore
12 The record indicates that there were four foremen in the mill
13Lyons testified credibly to the above conversations. Day denied that lie discussed
Martin's discharge with Lyons His denial is not credited Lyons also testified to con-
versations with Day conceinvig affidavits which he and other employees had given to a
field examiner of the Board It appears from this testimony that Day was attempting
through the employees to hale the Union withdraw the charge and to settle the case Since
Lyons' testinionv in this connection is not clear and, in my opinion, is not material to the
issues in the case, it is not set foi th herein
14 Day denied di inking with Mai tin or taking him off the Respondent's premises at night
His denial is not credited
FOOTE MINERAL COMPANY 1419
As for the balance of the conversation at the time of discharge, I believe that
Martin is the more reliable and credible witness and credit his version of it. Day's
conversations with Hollifield and Lyons on August 5 and 6 show that he was con-
cerned only with Martin's activity at the mill. He did not mention to them the fact
that Postell and Adams had been unable to locate Martin.15 This evidence tends to
support Martin's version of the conversation Further, Adams' denial that he told
Day about Martin on August 5, and the conflict between Postell's testimony and his
affidavit, put in question Day's knowledge at the time of discharge of Martin's absence
from duty on August 4.
Accordingly, for all of the above reasons and on the record as a whole I find that
the Respondent discharged Martin on August 5, 1954, in violation of Section 8 (a)
(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent set forth in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that the Respondent discharged Robert P. Martin on August
5, 1954, and thereafter failed and refused to reinstate him because of his adherence
to the Union.
It will be recommended that the Respondent offer him immediate and full rein-
statement to his former or substantially equivalent position without prejudice to his
seniority or other rights or privileges. It further will be recommended that the
Respondent make whole said employee for any loss of pay he may have suffered by
reason of Respondent's discrimination by payment of a sum of money equal to
that which he would have earned as wages from the date of the discrimination to
the date of an offer of reinstatement, less his net earnings during said period. Said
loss of pay shall be computed on the basis of each separate calendar quarter, or
portion thereof, during the period from Respondent's discriminatory action to the
date of the offer or reinstatement. The quarterly periods, herein called "quarter,"
shall begin with the first day of January, April, July, and October. Loss of pay shall
be determined by deducting from a sum equal to that which the employee would
normally have earned for each such quarter or portion thereof, his net earnings,
if any, in other employment during that period Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other quarter In order to
ensure compliance with the foregoing back-pay and reinstatement provisions, it is
recommended that Respondent be required, upon reasonable request, to make all
pertinent records available to the Board and its agents.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, CIO, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2 By discriminating in regard to the hire and tenure of employment of Robert
P. Martin the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act
[Recommendations omitted from publication.]
Lyons testified to the effect that Day first told of this fact about 30 or 14 days after
August 6