Gamble's, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1969

175 N.L.R.B. 77 (N.L.R.B. 1969)

GAMBLE'S INC. 77
Gamble's, Inc. and United Steelworkers of America,
AFL-CIO. Case 15-CA-3236
March 26, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 8, 1968, Trial Examiner Paul Bisgyer
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices in
violation of the National Labor Relations Act, as
amended, 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 alleged in the
complaint. Thereafter, General Counsel filed
exceptions to the Decision and a supporting brief,
and the Respondent filed exceptions to the Decision
and a supporting brief, and a brief in reply to
General Counsel's exceptions and supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, with the following modification.
At the hearing, the General Counsel requested the
Trial Examiner to make provision in his
Recommended Order for the reimbursement of the
discriminatee for all expenses reasonably incurred by
him in his search for work, whether successful or
not. In an attempt to show that the discriminatee
had indeed incurred such expenses, the General
Counsel made an offer of proof that the
discriminatee had on various occasions since his
discharge approached various employers in the
Montgomery area, including one which he
approached at least 6 to 10 times, and that he had
incurred traveling expenses in this attempt.
The Trial Examiner, at the hearing, ruled that
this was a matter that should not be determined in
this proceeding, but should rather be decided in a
subsequent backpay proceeding, should he find that
there was indeed a discriminatory discharge. In his
In agreeing with the Trial Examiner that the General Counsel failed to
prove that Butler was a victim of discnmmation , we agree also that Butler
did say on February 13 that he was going to quit , and also that he was
told he was fired for leaving work without permission Whether this be
found as a quit or as a discharge for unauthorized absence , the record, in
any event , does not establish discriminatory treatment
Decision, however, the Trial Examiner
recommended that the discriminatee be credited
with reasonable expenses incurred in seeking other
employment, whether successful or not.
In view of the Trial Examiner's ruling at the
hearing and the state of the record on this question,
we are not persuaded that we should, at this time,
pass upon the General Counsel's request that the
discriminatee be reimbursed for all expenses
incurred by him in seeking employment, regardless
of whether he was successful or not. This disposition
does not, of course, preclude the General Counsel
from urging his position on this matter at the
compliance stage of this proceeding or in any
backpay proceeding which may ensue; and he may
request the Board to modify its order to include
such expenses at an appropriate time. Accordingly,
we shall provide for our customary order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Gamble's, Inc.,
Montgomery, Alabama, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Substitute the following for paragraph 2, (a), of
the Trial Examiner's Recommended Order:
(a) Offer Glenn H. Hall immediate and full
reinstatement to his former or a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and make
him whole for any loss of earnings he may have
suffered by reason of the discrimination against him
by payment to him of a sum of money equal to that
which he normally would have earned from January
18, 1968, the date of his discharge, to the date of
the offer of reinstatement, less his net earnings
during said period. Backpay shall be computed with
interest on a quarterly basis in the manner
prescribed by the Board in F W. Woolworth
Company, 90 NLRB 289-294, and Isis Plumbing &
Heating Co., 138 NLRB 716.
2. Substitute the following for the seventh
indented paragraph of the notice attached to the
Trial Examiner's Decision:
WE WILL offer Glenn H. Hall immediate and
full reinstatement to his former or a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and make
him whole for any loss of earnings he may have
suffered by reason of the discrimination against
him by payment to him of a sum of money equal
to that which he normally would have earned
from January 18, 1968, the date of his discharge,
to the date of the offer of reinstatement. Backpay
shall be computed with interest on a quarterly
175 NLRB No. 13
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis in the manner prescribed by the Board in
F W Woolworth Company, 90 NLRB 289-294, and
Isis Plumbing & Heating Co., 138 NLRB 716.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner This proceeding, with
all the parties represented, was heard on June 4, 5 and 18,
1968, at Montgomery, Alabama, on the complaint of the
General Counsel issued on February 28, 1968,' which was
subsequently amended, and the amended answer of
Gamble's, Inc.,' herein called the Respondent or
Company. The questions litigated and presented for
decision are whether the Respondent, in violation of
Section 8(a)(3) of the National Labor Relations Act, as
amended, discriminatorily discharged employees Glenn H.
Hall and Paul D. Butler because of their union
membership and activities, and whether, by this and other
conduct, it interfered with, restrained and coerced
employees in the exercise of their right to organize, in
violation of Section 8(a)(1) of the Act. Although afforded
the opportunity, the parties waived oral argument.
Thereafter, however, the General Counsel and the
Respondent filed briefs in support of their respective
positions
Upon the entire record,' and from my observation of
the demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Texas corporation, is engaged in the
steel fabricating business at its plant in Montgomery,
Alabama. In the course and conduct of its operations, the
Respondent annually ships goods and products valued in
excess of $50,000 directly to points outside the State of
Alabama. It also annually purchases goods and products
exceeding $50,000 in value which are shipped to its plant
from points outside the State.
It is conceded, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. I further find that
effectuation of the policies of the Act warrants the
Board's assertion of jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act
The complaint is based on a charge filed on January 24, 1968, a copy of
which was duly served upon the Respondent by registered mail the same
day
'The name of this case reflects the Respondent ' s name as corrected at
the hearing
'The General Counsel 's unopposed motion to correct the transcript of
testimony taken herein , notice of which was duly served on all the parties,
is hereby granted and the transcript is corrected in the respects therein
requested
1. The Union's appearance at the plant; the
Respondent's reaction
The Respondent is engaged in the fabrication of steel
on a job shop basis, that is, according to customer's
specifications. Its work force at its peak consisted of 200
employees reached in March 1967, gradually decreasing
thereafter to 157 in March 1968, when the downtrend
began to reverse itself.
In September 1967, the Union undertook to organize
the Respondent's employees. Obviously not happy over
this event, Albert J Gamble, the Respondent's president,
on September 18, assembled the employees and read a
prepared speech, not alleged to violate the Act, in which
he vigorously expressed his and the Company's opposition
to the Union, as he undeniably was privileged to do.'
Among other things, Gamble asserted that the Union
would be of no help to the employees or the Company
since it was more interested in the employees' money;
impugned the Union's motives to make money by
engaging in the business of "selling memberships and
collecting dues," initiation fees, fines and assessments;
urged the employees not to pay an "outsider" to speak to
him on their behalf and thus cut off communication
between him and the employees and "build a wall of
distrust" between them; and invited the employees to
bring their problems and complaints directly to him.
Referring to the benefits, wages and other working
conditions the employees were enjoying, Gamble
disparaged union promises to induce employees to sign a
card or vote for the Union for the asserted reason that
such promises could not be fulfilled without the
Company's agreement. Gamble then minimized the
importance of a union election victory, saying that it only
meant that the Union had a right to bargain over terms
and conditions of employment, and that its demands must
be acceptable to the Company and could only be forced
upon it by a strike which would cause the strikers to lose
wages and possibly their jobs if they were replaced.
Gamble concluded his address with advice to the
employees that they did not have to sign a union card or,
under Alabama's "right-to-work law," to ever join a
union to keep their jobs
In the months following his speech, Gamble, in
conversations with individual employees, sought to
dissuade them from supporting the Union. Except for the
incidents related below which are alleged to constitute
unlawful infringements upon employee self-organizational
rights, no testimony regarding the details of
above-mentioned individual conversations was adduced
nor is it contended that Gamble's remarks made therein
were coercive or otherwise exceeded the bounds of
permissible comment.
a. Gamble's conversation with employee Nobles
On a Monday morning in November 1967, President
'Section 8(c) of the Act provides that
[t]he expressing of any views , argument , or opinion , or the dissemination
thereof, whether in written, printed , graphic or visual form, shall not
constitute or be evidence of an unfair labor practice under any of the
provisions of this Act, if such expression contains no threat of reprisal or
force or promise of benefit
GAMBLE'S INC. 79
Gamble approached employee James Nobles in the plant
as the latter was preparing to go to work and engaged
him in a conversation, the nature of which is sharply in
dispute. According to Nobles' account, the following
occurred Gamble, in an angry mood, asked Nobles why
he had "such influence' and favoritism for the union." In
reply, Nobles stated that Gamble never heard him say he
was for or against the Union. This elicited Gamble's
response that, if he were neither for nor against the
Union, then why did he have "enough influence on the
union to attend the union meeting" the previous Saturday.
Gamble also asked Nobles what the Union had promised
him, adding that it would promise him everything but get
him nothing and that all it was interested in was his $5
monthly dues. Nobles denied that the Union promised
him anything or that he made any promises to the Union.
At the close of their conversation, Gamble reminded
Nobles that a union would not help him "personally" but
would hurt him and suggested that if he favored the
Union so much, he should leave the Company's employ
and go to work in a union shop.
Gamble gave an entirely different version of this
conversation. After categorically denying the
interrogation, knowledge of Nobles' union sympathies or
his attendance at union meetings , the other remarks
imputed to him, or that he was agitated, Gamble testified
that his statements to Nobles followed the general tenor
of his September 18 speech discussed above. Specifically,
he testified, he pointed out that the Company was a good
place to work, that it offered good working conditions,
and that the Company would not benefit from a unionized
shop
Nobles, who is no longer in the Respondent's employ,
impressed me as a disinterested and reliable witness whose
recollection of this event was more accurate than
Gamble's. I, accordingly, credit Nobles' testimony.
b The Gamble-Hall conversation of December S,
1967
union affiliation or sympathies! However, I do not credit
Gamble's denial of knowledge of Hall's membership in the
Union or that his remarks were aimed at any labor
organization Since there is no evidence that Hall had
indicated to Gamble his dissatisfaction with his job,
Gamble's reference to Hall's dissatisfaction can have no
meaning except as it relates to his union membership and
activity, which is discussed below.
c. The presence of Respondent's Vice President
Atchison near the Union 's meeting hall
The Union scheduled a meeting of the Respondent's
employees for Saturday afternoon, January 20, 1968, at
the Labor Temple in Montgomery. Before the meeting
began, Frank W. Atchison, Jr., the Respondent's vice
president and sales manager, drove up to this area, parked
across the street from the Labor Temple, where he
remained in his car observing the Labor Temple. In the
meantime, a number of employees, who were outside the
Labor Temple waiting for employees to assemble for the
meeting, noticed Atchison's car which bore the
Respondent's emblem. Before they could investigate
further, Atchison drove his car up the street, made a U
turn, proceeded past the Temple and left the vicinity.
Atchison readily admitted his presence near the Labor
Temple but denied that he was there for the purpose of
surveillance or that he reported his observations to other
management officials. Instead, he offered the explanation,
which I find too incredible to accept, that, out of personal
curiosity,' he went to view the Labor Temple on his way
home that day because that building was one of the
landmarks he had not yet seen. Although he denied having
any knowledge that a meeting was scheduled at the time
of his visit to the area, he admitted being aware that
employees had been invited on other occasions to meetings
at the Temple.
d. Gamble's January 24, 1968, speech
On December 5, 1967, at the end of the shift, Gamble
entered the production area to speak to employee Glenn
H. Hall,° whose discharge will be later considered. Visibly
upset when he initiated the conversation but calmed down
later on, Gamble told Hall that the employees did not
need a union and that he did not want one in the plant.
He noted that the Company was a good place to work
and provided good wages, overtime and other benefits.
Observing that unions were in the business of selling
memberships and collecting dues, Gamble asserted, in
substance , that he had a sense of responsibility to the
employees who had to meet payments on their cars and to
feed their families and that he therefore had to secure
business in order to keep the men working. Probably at
this point Gamble commented that, if Hall were "not
happy with the job or the Company, it would probably be
better for both of . . [them] if . . . [Hall] were to work
somewhere else." During the conversation, Hall remarked
that he heard that Gamble favored the Boilermakers
Union. This elicited Gamble's reply that he has had a
pleasant relationship with that organization as an official
of Hartley Boiler Works, whose employees have been
represented by that union for a long time.' It is
undisputed that Gamble did not question Hall about his
'It appears from the sense of Gamble's quoted remarks that the word
"interest" was probably intended for the word " influence."
On January 24, President Gamble made arrangements
for the Respondent to merge with Trinity Industries
Later in the day, Gamble assembled the employees and, in
an "off-the-cuff" speech, informed them of the merger
plans, the Company's financial difficulties, and the need to
take this action and assured them of his intention to
continue the Company's operations. There is a serious
conflict in testimony, however, whether Gamble stated
that the employees would be cutting their throat if they
brought the Union into the plant, although there is no
dispute that he indicated that a union was not needed.
Witnesses called by the General Counsel testified that
Gamble made the remark in question According to
'Also known and referred to in the record as Flat Hall
'Gamble has been president of Hartley Boiler Works since January 1966
Previous to that date, between 1945 and 1961, he was superintendent and
later executive vice president of that company For at least 20 years that
company has been in contractual relations with the Boilermakers Union
Gamble admitted that he was aware of Hall's membership in that
organization while Hall was employed by Hartley Boiler Works
The foregoing findings are based on the testimony of Hall and Gamble
which, in significant respects, was not contradictory Although Gamble
denied that he was angry or upset , I find Hall's contrary testimony more
convincing It is noted that Gamble displayed similar agitation in his
previous conversation with Nobles
'It is rather odd that Atchison , who had been in Montgomery since the
inception of his association with the Respondent in October 1966, was not
inspired earlier to satisfy his curiosity
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William K. Chance, a former employee, Gamble told the
employees that "if . . [they] got a union, . [they]
would dust be cutting . . [their] own throats, . . it
wouldn't help . . [them]" and it wouldn't hurt him any."
Hollis J. Robinson, another former employee, quoted
Gamble as winding up his speech with a reminder that the
employees did not need a union but, if they "brought one
in" or "vote[d] one in," they "would only be cutting
[their] own throat.""
Gamble, on the other hand, denied making the
statements attributed to him by the General Counsel's
witnesses However, Cary G. Bush, a witness for the
Respondent with respect to this issue,' Z who is still in its
employ, recalled that at a prior meeting, Gamble said
something to the effect that the employees "don't have to
have anybody to bargain for [them]. [They] . . . can
bargain [themselves]. [They] . can come down to
the office and talk to [him] personally And by that,
. [they] won't have to be cutting . . [their] throat "
In view of my findings previously made concerning the
content of Gamble's prior speech to the employees on
September 18, 1967, I have no doubt that Bush was
mistaken in his testimony that the statements relating to
the employees cutting their throat were made on that
occasion rather than on January 24, 1968 Furthermore, I
find that, despite the insubstantial variances in their
versions which is normally to be expected when individuals
attempt to relate a common experience, Chance, Robinson
and Bush did corroborate each other. On the basis of their
combined testimony, which I credit except as to Bush's
recollection of the occasion of the remarks in question, I
find that Gamble, in effect, told employees that they
would cut their throats if they brought the Union into the
plant to represent or bargain for them instead of
maintaining their personal relationship
Gray removed the union button.
Gamble testified that, although he and Gray bowled
there in the Company's bowling league, he could not
recall ever having had the conversation in question It also
appears that Gray was not in fact laid off as a result of
this episode
I find Gray's testimony worthy of belief
f. Assistant Superintendent Hall's interrogation of
employee Butler
Paul D. Butler, the other alleged discriminatee, testified
to the following experience he had with Assistant
Superintendent Ernest C Hall in January or February
1968• At that time Hall approached him and asked what
was the button he was wearing Butler identified it as a
union button Hall then inquired why he was wearing it.
When Butler answered that it was to benefit himself, Hall
retorted that he would "benefit more by taking it off "
Butler, however, continued to wear the button until his
separation on February 20 or 21, 1968. Hall categorically
denied questioning Butler about a union button or
otherwise discussed the Union with him, although he
admitted seeing Butler wear a union button.
Butler impressed me as an honest witness who would
not deliberately contrive a conversation which had no
basis in fact At the time he gave his testimony Butler was
a disinterested witness. It was only after certain facts were
elicited from him during his cross-examination that the
General Counsel was permitted to amend the complaint to
allege discrimination against him I, accordingly, credit
Butler's foregoing testimony.
2 Glenn H. Hall's discharge
e. Gamble's conversation with employee Darmon E.
Gray
In the latter part of January 1968, Darmon Earl Gray,
who is no longer in the Respondent's employ, wore a
union button for the first time " While at work at his
machine, Assistant Superintendent Ernest C Hall" came
over, put his arm around Gray's shoulder, noticed the
union button and walked away without making any
comment . According to Gray, at night in a bowling alley,
President Gamble informed him that he was
recommended for layoff because he was not doing his job
right and was producing only one basket of material while
the employees at Hartley Boiler Works were producing
two and a half baskets. Gray further testified that he
blamed the difference in production on the Respondent's
deteriorated machines and baskets, adding that, not only
had he never been criticized before, but also that his
"boss" had praised his work Gray conceded that Gamble
did not mention the Union on this occasion. The next day
"Although the transcript of testimony shows that , on cross-examination,
Chance testified that the Union "would help [them] out," it is quite
clear from the totality and sense of his testimony that either "not" was
inadvertently omitted from the transcript or that Chance actually meant to
say "the Union would not help" the employees
"Another former employee, Darmon Earl Gray, testified that he could
only "really remember" that the words "cut throat" were used by Gamble,
although earlier in his testimony he quoted Gamble as saying that the
Union was "a bunch of cut throats" and the Union would cut the
employees ' throats
"Bush was originally called by the General Counsel to give testimony
respecting other matters
Hall has been a manual welder for some 30 years. He
was hired by the Respondent's president, Gamble, in that
capacity in September 1963, having previously been
employed by Hartley Boiler Works when Gamble was an
official of that company On January 18, 1968, Hall was
discharged allegedly for poor production attributable to
his incessant talking and wasting time Concededly, he
was otherwise a competent manual welder" duly certified
to perform certain types of jobs the Respondent
undertakes The events preceding the discharge are, as
follows:
Shortly after the Union initiated its organizational drive
at the Respondent' s plant, Hall joined up and signed a
union card. Thereafter, he became one of the most active
and outspoken advocate of this organization He openly
discussed the Union with employees in the plant before
and after working hours and during his lunch period and
solicited some 30 to 40 employees to sign union cards,
succeeding in persuading between 15 and 25 of them to do
so. Hal l was the only employee who attended all the
"There is evidence in the record that other employees also wore union
buttons
"Ernest C Hall is not related to Glenn Hall, the employee allegedly
discriminated against
"The respondent also uses automatic and semiautomatic welding
machines which Hall, like other manual welders in its employ, could not
operate Conflicting estimates , unsupported by records or documents, were
given by witnesses for the General Counsel and the Respondent concerning
the proportion of welding work done in the plant manually and by the use
of the automatic and semiautomatic machines However, this conflict need
not be resolved since the Respondent does not contend that the asserted
increase in the use of automatic and semiautomatic welding in its
operations was a reason for Hall's discharge
GAMBLE'S INC. 81
Union' s meetings at the Labor Temple in Montgomery
As found above, Gamble, in the course of a conversation
with Hall on December 5, 1967, in which he noted that
the Company was a good employer to work for, suggested
to Hall that, if he were so dissatisfied, it would be better
for both of them if he obtained other employment.
On January 17, the day before his discharge, Hall went
to the Company's parking lot after the close of his shift at
4 30 p.m There, pursuant to prior arrangement, he met
three employees seated in a red pickup truck which was
parked about 75 to 100 feet from the Company's office
building. Standing outside between the opened driver's
door and the truck, Hall handed the three employees
union cards which they signed and returned to Hall after
some discussion.
Hall's presence at the truck was observed by Earl L.
Overholster, the Respondent's personnel manager, from
the steps of the office building which were about 8 feet
above ground level i" According to former employee
Nobles, whose testimony in the context of the events
herein I find plausible and credible, noticed that
Overholster fixedly stared in Hall's direction during the
entire time that Hall was at the truck. Nobles, at that
time, was waiting for Hall in his nearby parked car.
Oveiholster admitted that from the building's steps he
noticed Hall on this occasion standing behind the opened
door of the truck but denied seeing what Hall was doing "
He further denied any knowledge of Hall's union activity
at that time or that he attached any significance to Hall's
presence there or reported this incident to management
officials
Explaining his actions, Overholster testified, as follows:
After the first shift ended at 4.30 in the afternoon, he left
the office to attend to some business in town. As he was
about to drive out of the parking lot, he realized that he
had forgotten a letter in his office which he wanted to
mail. He thereupon drove up to the building and parked
the car directly in front of the steps When he walked up
the stairs, he looked around at the parking lot for a few
minutes and saw Hall's head and shoulders behind the
opened driver's door of the red pickup truck Although he
customarily surveys the parking lot, this was the first
occasion that he observed Hall's presence there and this
was only because the red car usually attracts his attention
whenever he looks around the parking lot. Overholster
further testified that he frequently observes the parking lot
between the first and second shifts for various reasons,
namely, to deliver messages he might have for employees,
to transact personnel business with them, to note the
number of second shift employees coming in after the 4:30
starting time, to check on the cleanliness of the lot, or to
ascertain the traffic problems departing employees might
experience However, Overholster did not state in his
testimony which of these reasons, if any, prompted his
actions on this occasion.
In view of Overholster's fixed gazing in Hall's direction
and Hall's summary discharge the very next day, as
discussed below, I am persuaded that, if Overholster did
"Former employee Nobles credibly testified, without contradiction, to
Overholster's observation position above ground level There is also
testimony by former employee William K Chance and David P Wilson,
who is still in the Respondent's employ, that Overholster observed Hall
from his car Although this could have occurred before Overholster
mounted the steps, I find it unnecessary to rely on their testimony or
resolve the conflicting versions as to the position of Overholster's car and
the window through which he purportedly watched Hall
"Overholster also testified that he could not see what was going on
because he was looking "toward the sun, at an angle"
not actually see union cards pass between Hall and the
three employees, he at least suspected that Hall was
engaged in some form of union solicitation and that
Overholster conveyed this information to management
officials
At about 4 30 p m. the following day (Thursday,
January 18), Superintendent Smith summoned Hall to the
shop office as Hall was finishing his day's work In the
presence of Plant Manager Potts, Smith opened the
conversation by asking Hall whether he knew why he was
called in When Hall answered that he had a good idea,
Smith informed him that he was letting him go because
his production was poor and he was interfering with the
men's work by talking to them. Smith further stated that
he had previously spoken to him about his low production
and that, after showing improvement for a time, he would
again slip back into his old habits. Hall thereupon
requested Smith to give him one specific instance of such
occurrence Asserting that he would give Hall three such
instances, Smith simply repeated that Hall talked to the
men and his production was low. This led to Hall's
inquiry whether this meant that he was being fired and
Smith's response that, if this was his interpretation, he
was fired At about this time Potts handed Hall two
envelopes, one containing his paycheck for the week
ending Tuesday, January 16, and the other containing his
paycheck for Wednesday and Thursday i" On this note,
Hall left the office." President Gamble testified that while
he was out of town he first learned of Hall's discharge
after it was effected. He further testified that he did not
participate in the decision.
According to the testimony of Potts and Smith, they
jointly made the decision to discharge Hall about 2 hours
before it was effectuated and that the decision was
dictated solely by Hall's poor production due to his
time-wasting conduct and not by Hall's union activities
As will be discussed more fully in my concluding findings,
infra, I find it difficult to believe their testimony that they
were unaware of Hall's union interest and activities at this
time, particularly in view of Gamble's knowledge
demonstrated in his December 5 conversation with Hall
and Overholster's observation of Hall's conduct in the
parking lot on January 17 Potts further testified that the
discharge decision was made at a time when the
Respondent was experiencing a reduction in force
necessitated by a decrease in available work20 and the
increased use of automatic and semiautomatic welding,
which Hall was not capable of performing. Smith,
however, testified that nothing unusual had happened at
the time of Hall's discharge nor, indeed, did he (Smith)
have advance notice that Hall was to be terminated when
Potts called him to his office to consider Hall's status.
Potts also testified that Hall was the first manual
welder to be terminated" and that within a day or two
The regular workweek ends on a Tuesday for which employees are paid
on the following Friday
"The foregoing findings concerning the separation interview is based on
the combined testimony of Hall, Smith and Potts which is essentially
undisputed
"It appears that welders constitute but a small part of its work force
The record indicates that peak employment of 200 was reached in March
1967, that on January 18, when Hall was discharged there were between
175 and 185 employees, that this number decreased to the low point of 157
in March 1968, and that beginning with April 1968, employment was on
the rise However, the evidence does not show how many manual welders,
if any, were separated dunng this period of decreasing employment
"The Respondent retained other manual welders in its employ, some of
whom could not operate the automatic or semiautomatic equipment Smith
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
five other welders were separated. Specifically, it appears
from Potts' testimony, that a welder on the night shift
(Hoyle) was removed from the payroll because he refused
to take a nonwelding assignment and quit; a beginner
welder in the Company's employ for a few months
(Burnett) was dismissed because of his poor record of
attendance; two part-time welders on the night shift who
had other regular employment (Mulner and Reagan) were
laid off subject to recall because of insufficient welding
work; and another welder on the night shift ( Innis), in
effect, quit because the Respondent refused to transfer
him to the day shift.
To support its asserted reason for Hall's discharge, the
Respondent presented a dismal picture of Hall's
unproductive work habits which, if true, would leave one
perplexed why the Respondent had waited this long to,
terminate him. Thus, Plant Manager Potts testified that
he first became aware that Hall was not producing in late
1965 or early 1966, a few months after he (Potts) entered
the Respondent's employ as plant manager, and called the
superintendent's attention to the fact that Hall was not
welding "too often."32 Potts further testified that from
that time on, he observed Hall "constantly" standing
around with his protective hood up not welding
Continuing in this vein, Potts testified that Hall was the
only man who would drop his hood "consistently" when
he saw Potts coming and resume welding; that this was
"typical of Hall", that he was "the most conspicuous
man" in the plant who was not working; that it was the
"rare" instance when he noticed Hall with his hood down
and working; that he "consistently" produced less than the
other welders with whom he was compared; and that
Hall's unproductive work habits encouraged "producers to
lie down on the job.i33 Notwithstanding his awareness of
Hall's shortcomings and their effect on other employees'
production, Potts admitted that he never spoke to Hall
about his poor production until July or August 1967, as
related below, and this despite the fact that, as Potts
testified, he was receiving complaints from supervisors
"almost . . . continuously" since the beginning of 1966
that Hall was not working.20 Indeed, it is odd that on that
occasion in July or August 1967, according to Potts,
Hall's work habits were not mentioned, only his low
production. Even more surprising is Potts' admitted
failure to speak to Hall before that date in the face of
Potts' testimony that it has always been the Company's
uniform policy to tighten up on production because that
was the only way the Company could remain in business.
Concerning his first conversation with Hall in late July
or August 196725 respecting his work, Potts testified that
he discussed with Hall his poor record of production on
certain skylight assemblies on which he was working,
pointing out that the two welders on the night shift who
were doing the same work were each completing about
three times as many assemblies as he was.S6 Potts further
testified that he did not recall what excuse Hall gave for
this disparity in production except "[m]aybe the setup
testified that Hall was the only employee he fired since September 1967 for
poor production
" Noevidence was adduced as to what action, if any, the superintendent
took It appears that Potts did not pursue the matter further
"Although Potts also testified that Hall had the reputation of being the
worst welder in the plant , no employee was produced to substantiate this
assertion On the contrary , witnesses for the General Counsel who had
worked with Hall, and whom I credit , refuted Potts'testimony
"No supervisor of Hall , however, testified concerning Hall's purported
poor production or work habits prior to July or August 1967 or their
efforts, if any, to remedy the situation
wasn't the same," but Hall stated he would do better.
However, Potts did not recall whether Hall actually did
better after this conversation, although he testified that
since that conversation, Superintendent Smith called
Potts' attention to the fact that the night shift men were
producing more than Hall. Hall, on the other hand, could
not recall working on assemblies in July or August 1967
or that Potts discussed his poor production in connection
with such work 27
The next occasion, according to Potts, when he spoke
to Hall about his poor production was the following
October. Potts testified that at that time Hall and
employee Nobles, working as partners, were welding cover
plates; that because of their low production, he summoned
them individually to his office, that he told Hall that his
production was not what it should be and that other
welders were running 2 1/2 to 3 cover plates a day to his
one; and that he could not remember Hall's reply
However, when Potts was recalled the next day as a
witness for the Respondent he testified that Hall offered
no excuse for his low production but indicated that it was
awfully hot on that job and that he would see what he
could do about his production. Regarding his conversation
with Nobles, Potts testified that Nobles told him that if he
had a faster partner, he could do more. Potts also testified
that, although Nobles did not suggest that he be assigned
another partner, he (Potts) said he would do so if Hall
were keeping him from producing. However, there is no
testimony that such a change was actually made.
Hall could not remember the above incident. Nobles,
however, recalled that in 1966, a few months after Potts
joined the Company, he had a private conversation with
Potts in his office concerning his work on cover plates and
that he probably remarked that he could do more work if
he had a faster partner Nobles also added that that
remark was made to protect himself; that he really did not
mean it; and that Potts himself laughed and joked about
the situation, assuring Nobles that he was not checking on
the employees' production but was only surveying the
plant to familianze himself with its operations. I credit
the version given by Nobles, whom I have found to be a
very reliable witness.
To account for his failure to terminate Hall sooner than
he did, despite his knowledge of Hall's shortcomings,
Potts testified:
Hall was a long time employee there. And you put up
with a lot with a long time employee. It is the seniority
thing, you have to regard it somewhat. And the fact
that he was a good welder, but not a producer, he was a
poor producer, the fact that he could do the welding
was one thing And then it got to the point we could no
longer afford people who couldn't do their share of the
"In his testimony as a witness called by the General Counsel under Rule
43(b) of the Rules of Civil Procedure for the United States District Courts,
Potts interchanged the dates of this and the subsequent conversation with
Hall
"According to the testimony he gave earlier at the hearing as a witness
called by the General Counsel , the ratio was four to one
"The only conversation Hall recalled having with Potts, which involved
low production , was probably in the summer of 1966 On that occasion,
Hall testified , he lost production time trying to locate a " lead" and
thereafter experienced trouble with his "machine or line" Hall further
testified that, when informed by the fitter who directed the work that Potts
and Superintendent Busier were dissatisfied with the footage he was
producing , he voluntarily went to the office and gave Potts and Busier the
foregoing reason and offered to show Potts that three or four machines
lacked "leads " Hall also testified that Potts thereafter obtained the
necessary " leads "
GAMBLE'S INC. 83
job. We have other good producers out there making a
lot less money than he was making, but producing even
twice or more as much as he did. It got to the stage to
where we just could not afford him It was just a matter
of economics. We couldn't afford such a luxury. We
struggled along as good as we could and we gave him
every opportunity we could because of his longevity
with the company there. And personally, Hall was a
very fine fellow, but just not a producer.
It is undisputed that the Respondent does not have any
written standards of production which its employees must
meet; nor does it maintain employee production records.
Clearly, the footage that a welder could produce depends
on the size of the weld and necessarily vanes from job to
job Verbon P Cartee, Jr., a foreman no longer in the
Company's employ, credibly testified that, while there
were no fixed production standards, "we expected a man
to . . . produce what he could" and to stay busy. In this
Cartee was corroborated by the testimony of employee
witnesses, uncontradicted by their supervisors, which I
credit, that they were never told by their supervisors that
they were required to produce a specified amount of
footage. However, it does appear that on occasions Smith,
unlike other supervisors, did so inform welders working
under him, including Hall.
Smith testified to three instances when he checked
Hall's work and that on two of them he alerted Hall to
his low production. The first time was in September 1967,
about a month after Smith began to supervise Hall.28
Smith testified that, after checking the footage welded by
Hall, he found it inadequate and told this to Hall who
offered no excuse but stated that he would do better
Smith further testified that he asked Hall and employee
Sides, his assigned partner on this job, whether they knew
how many feet they were suppose to get and that, upon
receiving their negative response, he told them that it was
25 feet per hour for "a five-sixteenths weld " He, however,
admitted under cross-examination that he also checked the
production of the other welders under his supervision and
found, to his surprise, that they, like Hall, were only
welding 14 feet per hour and that when he told the
welders what footage was required, they, too, expressed
surprise.
Hall, who testified before Smith, readily described a
conversation he and his partner, Sides, had with Smith,
which he believed was about a year or more before his
discharge.29 In that conversation Smith asked him and
Sides whether they knew how much footage they were
suppose to get and that, in reply to their negative
response, Smith stated 25 feet per hour, which included
removing 4 inches of "the flux" on each end. Hall further
testified that he thereafter made the indicated footage.
Concerning his next conversation with Hall regarding
his production, Smith gave the following testimony: About
2 months later in November, he again checked Hall's
work and still found his production poor and "warned
him" a second time.'0 Hall simply responded that he
would improve Smith also testified that he could have
also told Hall that he was required to get 26 feet per hour.
In the course of his cross-examination , Smith added that
in November he also checked the production of his other
welders and noted that they had "improved a bit," and
increased their output "maybe [to] sixteen" feet.
"According to Smith , he transferred in August 1967 from night shift
superintendent to day shift superintendent
"If Smith is correct that he began supervising Hall in August 1967, then
Hall must be mistaken when this conversation took place
Probably referring to the same incident, Hall testified
that one day when he and Sides were assigned to work on
another set of girders, they had some difficulty getting
started that morning He also testified that Smith
approached them, saying that they were supposed to do 26
feet and clean the entire "bead" in an hour Hall further
testified that they were not given any warning and that he
believed they achieved the indicated footage."
The next and last time, according to Smith, he checked
Hall's production was about the first of January 1968 and
again he was not satisfied with it. He testified that this
time, however, he said nothing to Hall because it was not
his practice to warn an employee a third time but to wait
a while to see if he would improve before discharging him.
In addition to the foregoing, Smith, on his direct
examination, testified that in January 1968 one of his
leadmen, Cothran, complained to him about Hall. This
occurred at a time when Smith was "riding Mr. Cothran
about . . . welding production and the welders and asked
him [Cothran] about them, particularly . . . about Mr.
Hall." In response, Cothran made the statement that if
Mr. Hall would quit talking so much he might get some
welding done." In the course of his cross-examination,
Smith alluded to several complaints made by his other
leadman, Raymond Hall, no relation of the discharged
Glenn Hall, during the period when Smith was checking
footage, concerning Glenn Hall's talking. According to
Smith, he spoke to Glenn Hall about his talking in
September and November and Hall stated "he would
better himself." Probably, Smith's reference to September
and November related to his conversations with Hall
described above. Significantly, neither Cothran nor
Raymond Hall were produced as witnesses by the
Respondent nor was an explanation offered for its failure
to do so. For this reason, as well as others discussed
below, I attach no credence to the testimony that Hall
indulged in excessive talking on the job or that the named
leadmen complained to Smith about it.
Except for one instance not mentioned by the
Respondent's witnesses, Hall denied that he was ever
warned about his production or that he risked discharge if
his production did not improve. The one instance occurred
about November 22, 1967, when an employee was injured
in a plant accident as a result of which operations were
interrupted. After the employee was removed to the
hospital and work resumed, Smith approached Hall and
employee Hurston, with whom Hall was working, and told
them that they were not getting production and that they
would either produce or they "would hit the clock," which
Hall understood meant discharge. Smith denied having
had any such a conversation, declaring that if he made
that remark to employees, they would "hit the clock" and
quit, and that therefore he would not "make a threat in
that order."
With respect to the Respondent's appraisal of Hall's
work habits, it is sharply disputed not only by Hall, but
also by present and former employeesJ2 who worked with
"Other than telling Hall that his footage was poor, Smith did not
amplify what this warning was
"Hall also testified to another incident in which he and his partner
encountered a problem , preventing them from achieving normal footage
As a result , Hall testified , Smith expressed dissatisfaction with their
footage and told them they were required to do 28 feet per hour on that
job Smith , however, denied having had a conversation in which he
mentioned a 28-foot requirement
"James Nobles , Verbon P Cartee, Jr, William K Chance, David P
Wilson, Cary G Bush , Octavia A Bankston, Hollis J. Robinson , and Paul
D Butler
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or near Hall and were in a position to observe his
conduct. A composite of their testimony shows that Hall,
whose welding aptitude is conceded, generally produced as
much as the average welder; that he did not loaf or waste
time; that he worked steadily with his hood down, raising
it to change rods, at which time he might take a puff on a
cigarette;" that he stayed at his job except when he left
for some purpose connected with his work, such as to
secure rods, or to go to the restroom or for a drink of
water; and that he did not talk on the job more than other
employees30 or otherwise interfere with the work of fellow
employees.
I find Potts' description of Hall's work habits grossly
exaggerated and is belied by the Respondent's
demonstrated indifference to their purported existence and
by the absence of any reprimand or warning to discipline
him if he persisted in his alleged conduct.35 I therefore do
not credit his testimony.J° On the contrary, I find, on the
basis of the testimony of witnesses for the General
Counsel which I credit, that Hall's production, work
habits and attitude generally compared favorably with
those of other welders in the Respondent's employ. In
light of all the evidence, I further find Hall's testimony
relating to conversations with Potts and Smith concerning
his production more reliable than the accounts given by
the latter. Lastly, I find that, despite Smith's
conclusionary testimony, he actually never warned Hall
that he risked discharge for low production, except for the
one instance volunteered by Hall, which Smith denied and
obviously could not have relied upon in making his
discharge decision.
3. Paul D. Butler's separation
Butler entered the Respondent's employ in May 1965.
Following an interruption in employment for service in the
Army, he returned in July 1967, and worked until his
separation on February 20 or 21, 1968, under
circumstances related below. Butler was a burner and
admittedly was a satisfactory employee. During his last
period of employment, he was a member of the Union
wearing, as did others, a union button in the plant. As
found above, in January or February 1968, Assistant
Superintendent Hall asked Butler why he wore a union
button. In reply to Butler's answer that it was to benefit
himself, Hall retorted that he would "benefit more by
taking it off."
On Tuesday, February 13, 1968,77 the close of the
weekly pay period, Ernest Hall informed individual
employees who were scheduled to receive wage raises, that
the raises were approved. When, in answer to Leadman
Harold Gray's inquiry, Hall told him that he was not
getting a raise, Gray declared that he was quitting and to
secure a replacement. Butler, who was working about 6
feet away at the burning table, made a similar inquiry
and, upon receiving the same negative response, became
angry and voiced his disappointment in strong language
"There is no evidence, nor is it contended , that smoking was prohibited
in the plant.
""There is no evidence of any plant rule against talking on the job.
This is all the more surprising in view of President Gamble's testimony
that "[c]ontinually . . . [and as ] a general practice , but really all that
summer and from there on, . . . [he had ] been telling . . . the plant
supervision , if a man wasn't doing a good production job for . . . [the
Company] that . . . [the Company] didn't need him. . . . [The Company]
could not afford anything but the most productive workers......
"Potts also revealed a lack of candor with respect to his knowledge of
the union movement in the plant.
and announced that he was quitting the following
Tuesday, February 20.3" Thereupon, Hall conveyed his
conversations with Butler and Gray to Plant Manager
Potts and arrangements were subsequently made to
transfer William Chance, a welder, and Wayne
Bridgeman, a burner, to replace Gray and Butler.J9
On Thursday," February 15, Butler apologized to Hall
for "blowing up," asked to be forgiven, and told him that
he had changed his mind" and would like to stay on if he
could. There is a conflict in testimony as to the nature of
Hall's response. According to Butler, Hall, in substance,
told him to forget what had previously happened and that
he would speak to Potts about the matter. Butler also
testified that Hall did not mention that he had already
been replaced. He, however, candidly admitted that Hall
never returned to inform him of Potts' reply and that he
did not see Hall again until Wednesday, February 21, as
discussed below. Hall, on the other hand, testified that his
answer to Butler's indicated desire to remain in the
Respondent's employ was that it came too late because he
had already arranged for his replacement.
I find it unnecessary to determine whose recollection is
more accurate since it is perfectly clear that, neither
testimonial account shows that Hall expressly consented
to Butler's retention after February 20.
About 1 p.m. on Tuesday, February 20, employee
James M. Driver, Butler's brother-in-law with whom he
car-pooled, asked Butler to take him home because he did
not feel well. Butler agreed and, after securing permission
from his leadman, Harold Gray, he and Driver" punched
out their timecards and departed.
There is irreconciliable contradictory testimony
whether, before Butler and Driver left the plant, Butler
met and spoke to Potts. According to Potts' account, at
about 1:30 Tuesday afternoon (February 20), he
encountered Butler between the main shop and the office
building with a toolbox under his arm. He thereupon
asked Butler whether he was leaving and the latter
answered in the affirmative, adding that since that was his
last day of employment, he saw no point in staying any
longer. Potts agreed that this was the best thing to do as
his replacement had already been selected. Potts also
offered to furnish Butler with a recommendation because
he was a good and steady worker. Potts also specifically
testified that Butler did not mention that he was taking
his brother-in-law to the doctor's or that he intended to
return to work the next day. He also denied that he
discharged Butler or that he spoke to Butler on
"All subsequent dates relate to 1968. It appears that Ernest Hall was
mistaken in his testimony that this episode occurred on Wednesday,
February 14, sinod the pay period ended on a Tuesday, which was the
logical occasion for the announcement of the wage increases.
"About 2 months before, Butler had received a raise which he
considered inadequate and inequitable in light of the above-mentioned
increases granted to several employees.
"Apparently, Chance, who testified that he was "running a bay" when
he left the Company's employ in April 1968, replaced Harold Gray, and
Bridgeman replaced Butler.
10In his initial testimony, Butter fixed the day as Friday. However, in
subsequent testimony, he accepted Hall's testimony that this conversation
occurred on a Thursday.
"Although the sense of Butler's initial testimony was that he had
changed his mind about quitting and desired to continue working for the
Respondent, he denied, however, that he told Hall he had changed his
mind. When he was subsequently recalled as a witness, Butler testified that
he did advise Hall he had changed his mind and this testimony conforms
with Hall's recollection of this episode in this respect.
"Driver secured permission from Charles Parsons, whose status as
leadman or foreman is not clear in the record.
GAMBLE'S INC.
Wednesday, February 21, as Butler testified
Butler, on the other hand, insisted that his conversation
with Potts was on Wednesday, February 21, and that he
did not own a toolbox or carry one on the occasion of
their meeting. His version is as follows At about 9.30 or
10 o'clock, Wednesday morning, he approached Potts
between the office and the big shop in order to secure a
note entitling him to receive his paycheck from the office
In answer to Potts' question whether he was leaving,
Butler replied that he was and that he was on his way to
pick up his check Potts then offered to give him a
recommendation because he was a good worker and the
conversation ended with a handshake. Thereafter, Butler
obtained his paycheck and left.
Driver corroborated Butler, in part, in that he testified
that about 1 p m Tuesday, he met Butler at the latter's
work station and together they left the plant without
seeing or speaking to Potts and that neither had a toolbox
with him
I find that Driver's testimony lends credence to Butler's
account. Accordingly, I find that the conversation
occurred on February 21, as related by Butler
On the same Wednesday morning but before his
foregoing conversation with Potts, Butler testified that he
spoke to Assistant Superintendent Hall near the
washroom after he reported for work and found his
timecard missing from the rack. Butler recounted their
conversation, as follows. Butler asked Hall where his card
was and Hall replied that it was pulled and that he was no
longer an employee of the Company because he left the
previous day without his permission. In response, Butler
stated that his leadman, Harold Gray, gave him
permission so that he could take Driver, who was ill,
home When Hall indicated that his permission was,
nevertheless, required, Butler argued that in the past he
had been informed by his then supervisor, Verbon Cartee,
Hall's predecessor, that if he wanted time off, it was only
necessary to obtain permission from his leadman°' and
that this was the practice he had been pursuing. This
evoked Hall's reply that "there has been a lot of changes
made since yesterday " In reply to the Trial Examiner's
question whether anything was said concerning his earlier
notice to quit, Butler testified, in effect, that he reminded
Hall of his previous apology and change of heart about
quitting and that Hall remarked that he "thought it over
and [concluded] that it would be best if . . . [Butler]
would leave." Hall categorically denied ever having had
the conversation in question.
Butler impressed me as a trustworthy witness and I find
that the disputed conversation was neither imagined nor
deliberately fabricated
Driver reported for work on Thursday, February 22,'°
when he was informed by Hall that he was automatically
discharged for leaving without his permission. Driver's
discharge is not in issue here.
B. Concluding Findings
1. With respect to interference, restraint, and
coercion of employees
As noted above, I have found that in November 1967,
"There is a dispute as to whether Gray actually had this authority to
grant time off However , this question need not be resolved since the
critical issue in this case is whether Butler ' s separation was dictated by
antiunion considerations
"It is clear from Driver's and Butler's testimony that they did not report
85
President Gamble questioned employee Nobles regarding
his union interest, sympathies, and promises the Union
had made to him, disputed Nobles' asserted indifference
to the Union by referring to his attendance at a union
meeting, and thus giving him the impression that the
Company kept union meetings under surveillance or had
informants; observed that the Union could hot help him
"personally" but, on the contrary, would hurt him; and
invited Nobles voluntarily to quit his job and seek
employment in a union shop, thereby, in the context of
Gamble's other remarks, subtly implying that he was
persona non grata and that continued support of the
Union jeopardized his employment with the Company. On
December 5, 1967, Gamble, with obvious reference to
employee Glenn Hall's union adherence and sympathies,
extended a similar invitation to Hall to leave the
Respondent's employ with the same veiled warning of
discharge which, as discussed below, subsequently became
a reality when the Respondent found an excuse to
terminate him On January 20, 1968, Vice President and
Sales Manager Atchison, engaged in surveillance of the
union hall at the time of a scheduled meeting or, at least,
placed himself in a position near the meeting place as to
give employees the impression that their presence at the
union hall was being observed and noted by the
Respondent. Four days later, in a speech delivered to
assembled employees, Gamble warned employees that they
would be "cutting their throats" if they brought the Union
in, as their bargaining representative instead of continuing
their personal relationship. Finally, I have found that
Assistant Superintendent Hall inquired of employee Butler
why he was wearing a union button and, upon receiving
his reply to benefit himself, Hall retorted that he would
"benefit more by taking it off."
I find that the Respondent's foregoing conduct and
statements, in their totality, if not singly, were plainly
calculated, and necessarily tended, to undermine the
employees' efforts to organize which the Act guarantees to
them and were more than innocuous acts and inquiries or
noncoercive expressions of opinion, as the Respondent
urges" This being so, I find that the Respondent
interfered with, restrained and coerced employees in
violation of Section 8(a)(l) of the Act. However, I do not
agree with the General Counsel that the evidence supports
a finding that President Gamble threatened employee
Darmon E Gray with layoff because of his support of the
Union and accordingly recommend dismissal of that
allegation of the amended complaint.
2. With respect to Glenn Hall's discharge
The General Counsel contends that the record
establishes that the Respondent discharged Glenn Hall
because of his union membership and activities and
thereby violated Section 8(a)(3) and (1) of the Act. The
Respondent, on the other hand, vigorously maintains that
the evidence will not support such a finding. On the
contrary, it urges that the evidence sustains its position
that Hall's employment was terminated for poor
production.
for work the same day In finding that Driver returned to the plant on
Thursday, I rely on Driver's testimony which corrected his earlier
statement that it was on Wednesday
"The cases relied upon by the Respondent to support a contrary
conclusion are clearly distinguishable on their facts
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The question whether an employee was discharged
because of his union membership or activities is not
susceptible of easy determination as it involves an inquiry
into the employer's state of mind. For this reason, all the
facts and circumstances surrounding the separation must
be carefully appraised with due recognition being given to
the settled principle that mere unreasonableness of an
employer's personnel action by itself does not establish
unlawful discrimination. It is axiomatic that an employer
may discharge an employee for any reason, good, bad or
indifferent, provided he is not motivated by union
considerations. It is equally well settled that a "justifiable
ground for dismissal is no defense if it is a pretext and not
the moving cause.""
From a careful analysis of the record, I find that the
evidence establishes that Hall's discharge was dictated by
his union activities and not by the reasons advanced by
the Respondent. As discussed above, Hall, admittedly a
competent manual welder with a 4 1/2-year history of
employment with the Respondent and prior thereto with
another company in which President Gamble was an
official, was one of the most active advocate of the Union
in the plant. That the Respondent was aware of Hall's
union sympathies is clearly indicated in Gamble's remarks
to him on December 5, 1967, when, after impugning the
Union's motives in its organizational campaign, he
suggested to Hall that, if he were unhappy with his job, it
would be best for both of them if he secured other
employment, even though there is absolutely no evidence
that Hall had expressed unhappiness with his job.
It appears to be more than an odd coincidence that
Hall should be discharged the very next day after he was
observed by Personnel Manager Overholster in the
Company's parking lot while he was engaged in signing up
three employees. It is true, as the Respondent urges, that
there is no direct evidence that Overholster had actually
seen union cards pass between Hall and these three
employees. However, I have little doubt that his attentive
staring in that direction was, at least, prompted by his
suspicion that Hall was engaged in some form of union
solicitation, as, indeed, he was. Overholster's not too
persuasive explanation for his conduct at the parking lot
only serves to confirm my belief. Moreover, like the
timing of the discharge, the Respondent's hasty and
summary action lends support to the inference that the
discharge was discriminatorily motivated. Thus, Assistant
Superintendent Smith admitted that when he was
summoned to Plant Manager Potts' office about 2 hours
before Hall was discharged, no decision to take that
action had been made and that he did not know that Potts
wanted to see him in order to consider Hall's status. In
fact, nothing unusual of a business nature appears to have
happened at this time to require this precipitate action.
Undeniably, the Respondent's asserted financial
difficulties were not a recent development. Yet, despite
this fact, the discharge decision was made only 2 hours
before it was effected, without any prior notice to Hall of
the Respondent's intention to do so, and in the middle of
the workweek. Such action is not natural unless the
Respondent had in mind other reasons than those assigned
for the discharge.
Also reflecting upon the Respondent's motivation is the
fact that, although it insists it terminated Hall for poor
production, Hall was never warned that he tisked
discharge if his production did not improve, except on one
occasion, which incident Smith even denied had occurred.
As discussed previously, this was on November 22, 1967,
when an employee was injured in a plant accident which
caused an interruption of operations and Smith apparently
singled out Hall and his partner, Hurston, to caution them
that they had to produce or else they "would hit the
clock," meaning be terminated. While on two occasions
- one in September and the other in November 1967 -
Smith spoke to Hall about his low production, it is quite
clear that Hall's production was no worse than that of
other welders who were also told by Smith to improve and
who, in response, expressed surprise to Smith about the
amount of work he expected from them.
Another factor which betrays the Respondent's true
motivation underlying Hall's discharge is its failure to
reprimand, discipline or even discuss with him his
purported bad work habits to which the Respondent
attributes his poor production. As found above, the
Respondent painted a grossly exaggerated picture of
Hall's shortcomings during a 2-year period which, among
other things, consisted of continuously standing around
without working, talking to other employees, interfering
with their work, and, by such conduct, encouraging
"producers to lie down on the job." Probably, the reason
for the absence of any word of caution or admonition to
Hall is the fact that he actually was not guilty of such
conduct at all. Indeed, I have found on the basis of
credited testimony that Hall's work habits and attitude
compared favorably with those of other employees who
did not suffer the same fate as he did.
Finally, whatever importance may attach to the
Respondent's asserted reduction in force and its increasing
utilization of automatic and semiautomatic welding
processes which Hall was incapable of performing, it is
sufficient to note that Hall was not terminated for either
of these reasons. Even assuming that these factors entered
into the Respondent's consideration in selecting Hall for
discharge, it cannot negate the fact that Hall's union
activities were, at least, the paramount moving cause of
his termination and that therefore his discharge was
violative of the Act." Nor is a finding of discrimination
precluded by the fact that other employees were
discharged or laid off during the same period as Hall's
discharge. As shown previously, the circumstances of the
separation of these employees were entirely different from
Hall's and no contention is made that their situation
involved union-related considerations.
In view of the foregoing, including the Respondent's
demonstrated hostility to the Union's organizational
efforts, reflected, in part, in its other unfair labor
practices, I conclude that the Respondent discharged
Glenn Hall in reprisal for his union activities and that his
purported low production was a pretext to conceal its real
unlawful motivation. Such conduct clearly constitutes
discrimination in employment to discourage union
membership and violates Section 8(a)(3) and (1) of the
Act.
3. With respect to Butler 's separation
In Butler's case, I find that the General Counsel has
failed to sustain his burden of proving that Butler was also
a victim of discrimination. From the factual findings I
have heretofore made, it is clear that Butler, concededly a
satisfactory employee, in a moment of pique caused by
being refused a wage increase, notified Assistant
Superintendent Ernest Hall, on February 13, 1968, that he
"N.L.R.B. v. Solo Cup Company. 237 F.2d 521, 525 (C.A. 8). "N.L. R.B. v. Jamestown Sterling Corp., 211 F.2d 725, 726 (C.A. 2).
GAMBLE'S INC.
was quitting his job the following week (February 20).
Two days later, Butler apologized to Hall for "blowing
up," told him he had changed his mind about leaving, and
asked to stay on if he could. While Hall accepted Butler's
apology, he did not give him any assurance at this time or
thereafter that he could remain in the Company's employ.
On February 20, the date when he originally intended to
resign, Butler secured permission from his leadman, Gray,
to leave the plant to take his sick brother-in-law, home.
On Butler's return to work the next day, he learned from
Ernest Hall that he was discharged for leaving the plant
without his permission."
Although the circumstances here might justify the
inference that the Respondent acted unreasonably or
unfairly in terminating Butler, I am unable to conclude on
the basis of the record before me that the evidence
establishes that this action' was prompted by Butler's
union membership. In so doing, I am not unmindful of
the fact that some time in January or February 1968, Hall
had questioned Butler about the union button he was
wearing and remarked to Butler that he would "benefit
more by taking it off." Except for wearing the union
button in the plant, which other employees did as well,
there is no evidence that Butler was otherwise active or
vocal in promoting the Union. I have also taken into
consideration the fact that I.have rejected testimony of
management representatives indicating that Butler had
voluntarily quit. While the rejection of testimony of this
nature gives rise to the suspicion that Butler's separation
might have been discriminatorily inspired, suspicion is
obviously not an adequate substitute for evidence on
which to predicate a finding of discrimination.
Accordingly, I recommend dismissal of the allegations
of the amended complaint relating to discrimination
against Butler.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent as described 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
its free flow.
V. THE REMEDY
87
reinstatement, ' less his net earnings during the said period.
Backpay shall be computed with interest on a quarterly
basis in the manner prescribed by the Board in F W.
Woolworth Company, 90 NLRB 289-294, and Isis
Plumbing & Heating Co., 138 NLRB 716.
At the hearing, the General Counsel requested the Trial
Examiner to make provision in his recommended order
for the reimbursement of the discriminatee for all
expenses reasonably incurred by him in his search for
work, whether successful or not. I find such a remedy fair
and equitable and a necessary corollary of the duty
imposed on a wrongfully discharged employee to seek
other employment-in mitigation of his loss of pay In a
recent decision,'9 the Fifth Circuit Court of Appeals
explained the nature of this duty and the reason for it, as
follows:
In order to be entitled to backpay, an employee must
at least make "reasonable efforts to find new
employment which is substantially equivalent to the
position from which he was discharged and is suitable
to a person of his background and experience."
(Citations omitted.)
The employee's duty is based both on the doctrine of
mitigation of damages and on the policy of promoting
production and employment. . . (Citations omitted.)
Accordingly, I Find it appropriate that, in determining
the backpay due Hall, credit should be allowed him for
the reasonable expenses he had incurred in seeking other
employment.50
To facilitate the computation, as well as to clarify the
named employee's rights to reinstatement and
employment, the Respondent shall make available to the
Board, upon request, payroll and other records necessary
and appropriate for such purposes. I further recommend
that the Respondent notify this employee of his right to
reinstatement, on application, if he is serving in the
Armed Forces of the United States. The posting of a
notice is also recommended.
In view of the nature of the discrimination for union
activity which "goes to the very heart of the Act,"" and
the other unfair labor practices here found, there exists
the danger of the commission by the Respondent of other
unfair labor practices proscribed by the Act. Accordingly,
I recommend that the Respondent cease and desist from
in any other manner infringing upon the rights guaranteed
employees in Section 7 of the Act.52
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
Pursuant to Section 10(c) of the Act, as amended, I
recommend that the Respondent be ordered to cease and
desist from engaging in the unfair labor practices found
and take certain affirmative action designed to effectuate
the policies of the Act.
I have found that the Respondent unlawfully discharged
employee Glenn H. Hall because of his union activities
To remedy this violation, I recommend that the
Respondent offer him immediate and full reinstatement to
his former or a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him by
payment to him of a sum of money equal to that which he
normally would have earned from January 18, 1968, the
date of his discharge, to the date of the offer of
"I find no support in the record for the General Counsel 's extravagant
suggestion that the Respondent changed the time-off rule to entrap Butler
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Glenn H Hall to discourage membership
in, and activities on behalf of, the Union, the Respondent
has engaged, and is engaging, in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct, by interrogating an
employee concerning his union sympathies and promises
the Union made to him and warning him that support of
"N L R B v Miami Coca-Cola Bottling Company, 360 F 2d 569, 575
"Cf Miami Coca-Cola, supra at 574-575 (hiring hall fees)
"N L R B v Entwistle Mfg Co. 120 F 2d 532, 536 (C A 4)
"N L R B v Express Publishing Company, 312 U S 426, 433
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union would hurt him "personally"; by giving
employees the impression that the Respondent was
keeping union meetings under surveillance or that it had
informants, by engaging in surveillance of union meetings,
by impliedly threatening employees with discharge if they
continued to support the Union, by warning employees
that they would be "cutting their throats" if they selected
the Union to represent them, and by questioning an
employee concerning a union button he was wearing and
advising him that he would "benefit more by taking it
off," the Respondent has interfered with, restrained and
coerced employees in the exercise of their statutory rights
within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not discriminatorily discharged
Paul D Butler or engaged in interference, restraint, or
coercion of employees except as found above.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, it is ordered that the Respondent, Gamble's,
Inc., Montgomery, Alabama, its officers, agents,
successors, and assigns, shall-
I. Cease and desist from
(a) Discouraging membership in United Steelworkers of
America, AFL-CIO, or any other labor organization, by
discharging employees or discriminating against them in
any other manner in regard to their hire or tenure of
employment or any term or condition of employment
(b) Coercively interrogating employees concerning their
union membership, sympathies, activities or promises the
Union made to them; giving employees the impression
that the Company was keeping union meetings under
surveillance or that it had informants; engaging in
surveillance of union meetings, warning employees that
support of the Union would hurt them "personally",
expressly or impliedly threatening employees with
discharge if they continued to support the Union; warning
employees that they would be "cutting their throats" if
they selected the Union to represent them; and
questioning them concerning union buttons they wear and
advising them that they would benefit more by removing
them
(c) In any other manner interfering with, restraining, or
coercing 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, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Offer Glenn H. Hall immediate and full
reinstatement to his former or a substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of
earnings he may have suffered by reason of the
discrimination against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Notify Glenn H. Hall if serving in the Armed
Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) 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 or useful in analyzing the amount of
backpay due and the right to reinstatement and
employment under the terms of this Recommended Order.
(d) Post at its plant in Montgomery, Alabama, copies
of the notice attached hereto as an "Appendix."" Copies
of said notice, on forms provided by the Regional
Director for Region 15, shall, after having been duly
signed by an authorized representative of the Respondent,
be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other matenal
(e) Notify the Regional Director for Region 15, in
writing, within 20 days- from the date of the Tnal
Examiner's Decision, as to what steps the Respondent has
taken to comply herewith "
IT ► S FURTHER ORDERED that the amended complaint
be, and it hereby is, dismissed insofar as it alleges that the
Respondent discriminated against Paul D Butler in
violation of Section 8(a)(3) of the Act and engaged in
interference, restraint and coercion in violation of Section
8(a)(l) of the Act except as found above
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
emplo ees that:
WE WILL NOT discharge or layoff any employee or
otherwise discriminate against him because of his
membership in, or activities on behalf of , United
Steelworkers of America , AFL-CIO, or any other labor
organization.
WE WILL NOT coercively question our employees
concerning their union membership , sympathies or
activities or promises they received from the Union or
any other labor organization.
WE WILL NOT expressly or impliedly warn our
employees that the Union would hurt them personally
or that they might lose their jobs if they supported the
Union or that they would be cutting their throats if
they selected the Union to represent them.
WE WILL NOT tell our employees that it would be to
their benefit to remove union buttons they might be
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 15, in writing, within 10 days from the date of this Order, as to
what steps the Respondent has taken to comply herewith."
GAMBLE'S INC. 89
wearing.
WE WILL NOT keep union meetings under
surveillance or give employees the impression that we
have been doing that or that we have informants to tell
us about their attendance at union meetings.
WE WILL NOT in any other manner interfere with,
restrain, or coerce 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, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
WE WILL offer Glenn H. Hall immediate and full
reinstatement to his former or 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 discrimination
against him.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of United
Steelworkers of America, AFL-CIO, or any other labor
organization
GAMBLE'S, INC
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6361.