General Fireproofing Co.

National Labor Relations Board - Board Decisions

Aug 18, 1969

178 N.L.R.B. 130 (N.L.R.B. 1969)

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Fireproofing Company and United
Steelworkers of America , AFL-CIO. Case
11-CA-3778
August 18, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On April 9, 1969, Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 Respondent's exceptions
and brief, and the entire record in this case, and
hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner, as
modified below.
Upon the record as a whole we cannot agree with
the Trial Examiner that the General Counsel has
sustained the burden of proving that Thomas Dalton
was discharged for reasons proscribed by the Act.
Dalton's union activities were minimal, consisting
of signing a card and serving on the Union's
organizing committee along with several other
employees. Dalton had been injured on the job at a
time prior to the advent of the Union, and
Respondent offered to prove that his injury was the
result of "horseplay." Nevertheless, even after his
union activities became known, Respondent went to
great lengths to assign Dalton to jobs he could
perform. At the time of his discharge, Dalton was
assigned to a level 4 job, at his own request, but his
work record for the 2 weeks preceding his discharge
was very poor. The inferior level of Dalton's work
performance during this period may be explained by
the evidence, credited by the Trial Examiner, of the
large number of times he was away from his job
station engaged in activities unrelated to his work.
'In view of our adoption of the Trial Examiner's finding that the
Respondent violated Sec 8(a)(3) and (1) of the Act by discharging
employee Russell Harrill, we find it unnecessary to reach the Trial
Examiner's additional finding that the discharge of Harrill also violated
Sec. 8(a)(4) of the Act
There is further evidence in the record, also
credited by the Trial Examiner, which suggests that
Dalton looked upon his job injury as insurance
against discharge. As found by the Trial Examiner,
Dalton made plain to his coworkers that he felt this
was the case. Moreover, immediately prior to his
discharge, when supervisor Schuller called him into
the office to discuss his wandering away from his
job station and his poor work performance, Dalton
replied that if he could not satisfy Schuller, he
would go and wash parts (a job generally assigned
to women), and that if he could not do that job, he
would come and sit in the office with Schuller.
Following this flippant remark, Dalton was
discharged.
Accordingly, despite Respondent's union animus
and the several remarks directed to Dalton in
violation of Section 8(a)(1) of the Act, we do not
believe the record established that Dalton was
discharged for discriminatory reasons. In all other
respects we affirm the Trial Examiner's Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, General Fireproofing Company, Forest
City, North Carolina, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as herein
modified.
1. Delete paragraph 2(a) of the Trial Examiner's
Recommended Order and substitute therefore the
following:
"(a) Offer to Russell Harrill immediate and full
reinstatement to his former or 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
payment to him of a sum of money equal to that
which he would have earned from the date of his
discharge to the date of the offer of reinstatement,
less his net earnings during such period. Backpay
shall be computed on a quarterly basis in the
manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, together with
interest thereon at the rate of 6 percent per annum.
Isis Plumbing & Heating Co., 138 NLRB 716."
2. Add the following as paragraph 2(b), and
reletter the following paragraphs accordingly:
"(b) 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."
178 NLRB No. 22
GENERAL FIREPROOFING COMPANY 131
3. Delete the sixth indented paragraph of the
notice marked "Appendix" and substitute the
following:
WE WILL offer to Russell Harrill immediate and
full reinstatement to his former or 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 our discrimination against
him.
IT IS HEREBY ORDERED that the portion of the
complaint concerning the alleged discriminatory
discharge of Thomas Dalton be, and it hereby is,
dismissed.
MEMBER JENKINS , dissenting in part:
The record facts warrant the conclusion drawn
therefrom by the Trial Examiner that the discharge
of Dalton was discriminatory; therefore, I would
affirm the Trial Examiner.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A . DOWNING , Trial Examiner : This proceeding
under Section 10(b) of the National Labor Relations Act
as amended was heard at Forest City, North Carolina, on
February 12 and 13, 1969 , pursuant to due notice. The
complaint , which was issued on December 30, 1968,' on
charges filed on November 14 and on February 2, 1969,
alleged in substance ( as amended ) that Respondent
engaged in unfair labor practices proscribed by Section
8(a)(l), (3), and (4) of the Act by certain specified acts of
interference, restraint and coercion and by discharging
Russell Harrill on October 30 and Thomas C. Dalton on
November 1 because of their union membership or
activities and because they gave testimony in, or appeared
at, the hearing in an earlier Board case, II-CA-3610.
Respondent answered, denying the unfair labor practices.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS ; THE LABOR ORGANIZATION
INVOLVED
I find on admitted and stipulated facts that Respondent
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act, ' and that the Charging Union is a
labor organization within the meaning of Section 2(5) of
the Act.
THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
Organizational activities among Respondent's
employees, renewed in July, culminated in the filing on
All events herein occurred in 1968 unless otherwise noted.
'Respondent , an Ohio corporation , operates a plant at Forest City,
North Carolina, where it is engaged in the manufacture of business
furniture . Respondent purchases and receives annually from extrastate
points raw materials valued in excess of $50,000 and it sells and ships
annually to extrastate points finished products valued in excess of $50,000.
September 23, of a representation petition, which was
withdrawn by the Union on October 7. On July 10 and 25
the Union furnished to Respondent the names of eight
employee members of its organizing committee, including
those of Harrill and Dalton, who were discharged,
respectively, on October 30 and November 1.
This case concerns those discharges as well as alleged
statements which Personnel Manager Thomas E.
Edmundson made to Harrill and Dalton on certain
occasions. The complaint also included a 8(a)(4) allegation
based on Harrill's testimony against Respondent at the
hearing on July 31 and August 1 in Case 11-CA-3610,
before Trial Examiner George L. Powell, whose decision
issued on January 27, 1969, TXD-30-69.' Respondent
defended Harrill's discharge on the ground that he
threatened a fellow employee that he would do everything
in his power to have the employee fired when the Union
came in, which threat caused the employee to quit.
Dalton's discharge was defended on the ground of
deteriorating work performance and efficiency after
repeated warnings to improve and it followed immediately
after a warning interview on November 1, during which
Dalton allegedly displayed a grossly insubordinate attitude
toward his supervisor.
Respondent raised no question of Harrill's performance
or efficiency and none in Dalton's case prior to July 22,
1968. It also stipulated that it had knowledge of the union
activities of both employees and it was fully aware, of
course, of Harrill's testimony in the prior case.
B. The Evidence
1. The Discharge of Russell Harrill
Russell Harrill was in Respondent's employ for some
two years and had progressed to the top rate of a
polishing jack operator; he had never received a
reprimand. The material events surrounding his discharge
began around July 10, when Respondent was notified that
Harrill was a member of the Union's organizing
committee.
Some week and a half before the hearing in the prior
case (July 31), Harrill was summoned to the office of
Personnel Manager Edmundson.' Edmundson expressed
appreciation at being informed that Harrill was working
for the Steelworkers' committee and stated he was not
going to discriminate against Harrill in any way but on
the other hand did not intend to give him any special
privileges. Claiming special knowledge of union methods
because of some 7 years' employment with NLRB,
Edmundson proceeded to warn Harrill to be careful how
he followed union advice as to what he could do (as a
committee member) and that though Harrill might go on
organizing in his own department, Edmundson had better
not catch him in any other department, for if he stepped
across the line, "[T]hat's going to be it."
Harrill testified that prior to that time no one had said
anything to him about going into other departments and
that the employees felt free to go anywhere they wanted
to. Thereafter Harrill noticed that he was constantly
watched by his supervisors, Daniel Schuller and Bob
'A similar allegation based on Dalton's appearance only as a spectator
at that hearing was dismissed on Respondent ' s motion at the end of the
General Counsel's case in chief.
'Though mistakenly fixing the occasion as October at one point , Harrill
corrected the month to July, fixing it as before the hearing at which he
testified as a witness. Edmondson disputed neither the date nor the content
of their conversation as Harrill testified to it.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Connors, who sometimes timed even his visits to the
restroom and who began to shift him from job to job.
That testimony was not denied by Schuller and Connors
and was directly corroborated by Morris Wilson, another
member of the organizing committee, who also testified to
somewhat similar treatment in his own case.
Some month and a half before Harrill's discharge he
was assigned to train on pedestals a new employee, Wayne
Hardin, who had previously done other work on another
shift. Harrill testified that on various occasions he
solicited Hardin to sign a union authorization card and
that Hardin sometimes assured Harrill he would do so,
but never did. A few days before Hardin quit (on October
4) he asked what Harrill would think if the Union came in
and if Harrill was signed up and was paying dues and
Hardin was not. Harrill replied that with Hardin receiving
the same benefits, he would feel that Hardin was no friend
of his and was cutting his throat. Harrill denied
threatening to have Hardin fired if he did not join the
Union.
Harrill testified further that on the afternoon of
October 30, Supervisor Schuller took him to Edmundson's
office where Edmundson informed Harrill he had reports
that Harrill was "breaking the solicitation law" and was
threatening employees on the job. Edmundson refused to
tell Harrill who the informants were and made no
reference to Hardin, who had quit nearly 4 weeks earlier.
He proceeded to comment, however, that he took Harrill
to be above the average employee who "was messed up in
the union," and that he thought Harrill was more
intelligent than to go to union meetings and to believe
everything that union representatives Claude Hall and Joe
Kirk told him. Thereupon, without asking Harrill for his
side of the story, Edmundson summarily discharged
Harrill.
Respondent rested its defense on an affidavit which
Hardin gave Edmundson on October 30,° the material
contents of which were as follows:
6. The first day I was on 1st shift, [training under
Harrill] about 8:00-8:30, Russell Harrill came up to me
and asked me what I thought about the union. I told
him that, "I don't think it's worth a damn for me."
This was during regular work time. Breaktime in
Finishing was 9:15-9:30.
7. This same date, after we got back to Finishing from
break, about 9:40, Russell Harrill came back to me and
asked me, "Have you thought about it?" I told him, "I
still haven't thought anything about it." Russell and I
worked side by side. He was roughing and I was
finishing.
8. Russell Harrill didn't say anything to me for a couple
of days after that. Then, after about two days lapse
from his talking union with me, about 2:00 p.m., he
started again. He told me that "Shorty," Tommy
Dalton and a bunch of them had signed union cards. He
told me that only 8 remained who had not signed union
cards. I told him to "leave me alone; that I still haven't
thought anything about it."
9. Everything cooled off for awhile, then about 2-3 days
before I quit , Russell started in on me again . He told
me that there would be an election and the union was
'Though Respondent' s brief refers to "some earlier problems with
Harrill ," it contended that Plant Manager Loveless ' decision to discharge
Harrill was based "purely" on Hardin ' s affidavit and Edmundson's
recommendation , which under the latter's testimony was itself based 95
percent on the affidavit.
going to win. He said that the union had 72% of the
employees "signed up." Russell then said, "You're not
for the union; I'm 100% for it; when the union gets in
I'm going to do everything in my power to get you
fired". I didn't say anything.
10. I quit General Fireproofing about 3 days later
because Russell wouldn't leave me alone and I was
afraid that I might lose my job when the union came in
because of what Russell said to me.
11. 1 talked to Odell Lovelace, who buffs in finishing,
about the threat that Russell made to me. I was at
Odell's house that night. This was about 2 nights after I
quit work at General Fireproofing. Odell told me that
he would have talked to Schuller about it before he
quit. He said that he would help me get back on.
12. 1 told Odell that I would go see "Tom" in
Personnel about it. About the next day, I received a
note (in the mail) from Tom, saying to come in and see
him about the circumstances by which I quit work at
the Company.
13. I went to see Tom, Personnel Manager at General
Fireproofing, the next morning, about 8:30 a.m. This
was on approximately Friday, October 18, 1968. I told
Tom all about it. It is the same thing I've listed herein
above.
14. While I worked 1st shift in Finishing, "Shorty"
would come back to get the legs from Russell and me
and he would often motion to me like he was signing
something.-meaning, I gather, if I had signed the union
card. He asked me on one of these occasions if I had
signed . I told him, "No."
15. About 3 days after I came on 1st in Finishing,
Russell Harrill pulled a union card out of his billfold
and tried to give it to me. I told him, "I don't want to
mess with it." This was on the job, about 8:00-8:30 a.m.
Edmundson's testimony concerning the taking of the
affidavit was as follows: He first heard of the reason for
Hardin's quit when a report reached him around October
14 concerning statements Hardin made when he returned
for his check on October 11. On October 15 Edmundson
wrote Hardin a note requesting that he come to the office
to answer some questions concerning the reason he left the
Company. Hardin did not come in until October 30, and
he then informed Edmundson that Harrill began putting
pressure on him shortly after the training began to join
the Union but that he repeatedly refused to do so and
flatly refused to sign a card. Finally it came to the point
that Harrill told Hardin that if he did not sign a card and
the Union came in , Harrill would do everything in his
power to get Hardin fired. Hardin informed Edmundson
that this frightened him to a point where he worked out
the night and just did not come back. Edmundson
thereupon prepared the affidavit quoted above, writing
down what Hardin told him, and had Hardin read it over
to check it for truth and accuracy.
Edmundson later discussed the matter with Schuller,
who read Hardin's affidavit, and the two of them
discussed it with Plant Manager Loveless, who also read
the affidavit, and who based his decision to discharge on
the affidavit and on Edmundson's recommendation.
Edmundson's testimony concerning the exit interview
differed from Harrill's mainly in denying that he made
any reference to solicitation or the solicitation law and in
denying he expressed belief that Harrill had more sense
than to get mixed up with the Union or with union
representatives Hall and Kirk. He admitted however, that
GENERAL FIREPROOFING COMPANY
he did mention the names of Hall and Kirk and that he
stated he did not know what they or the Union had been
telling Harrill but that no matter what it was, Harrill
could not threaten other employees on company property
As for giving Harrill a chance to explain his side of the
story, Edmundson testified that Harrill "was welcome to
say anything he wanted to during the terminal interview,"
(emphasis supplied), and he agreed that Harrill's check
may well have been already made out.
Though Schuller was present and though he testified as
Respondent's witness on other matters, he was not called
on to corroborate Edmundson's testimony concerning the
terminal interview. Accordingly, I resolve all material
conflicts in the two versions by crediting Harrill, who
otherwise impressed me as a more reliable witness.`
Questioned on cross-examination concerning his
willingness to accept Hardin's affidavit at face value,
Edmundson testified his suspicion was not aroused is the
slightest by the fact that Hardin said nothing to his
foreman about the alleged threat when he quit nor was it
aroused when Hardin's affidavit showed he waited 3 days
to quit after the alleged threat was made. Edmundson
offered no explanation as to why he thought an actual
threat was involved under those circumstances.
Respondent also called Hardin whose testimony was in
general accord with his affidavit as quoted above except
he testified that he quit at the end of the same day on
which Harrill allegedly threatened him. Hardin simply
walked out without informing his foreman or anyone else
he was leaving, but when he returned (on October 11) for
his check he informed Supervisor Bob Goins that he quit
"on account of the union." Hardin also testified that he
knew when he quit that he was going onto another job
which he had arranged 3 days in advance, but that he
preferred to stay with General Fireproofing. Sometime
later Hardin received a card from Edmundson and he
went in on October 30, told Edmundson "what happened"
and gave Edmundson a sworn statement after Edmundson
rehired him on anotherjob.
Questioned on cross-examination about a conversation
with Jimmy Moore, Hardin at first denied he ever talked
with Moore about Harrill, but on further questioning he
qualified that denial by stating he told Moore nothing
about the Union. Hardin finally admitted that Moore
asked him about Harrill but testified he told Moore
nothing because it was none of Moore's business. He
denied telling Moore he quit because the job was a hard
one.
Moore, called in rebuttal, testified that on the first day
Hardin came back to work Hardin questioned him about
whether Harrill quit or was fired, and he informed Hardin
he heard rumors that Harrill was fired because Hardin
signed a paper in the office to the effect that Harrill had
threatened him. Hardin denied that he signed a paper and
denied that he threatened Harrill. On further questioning
Moore testified that he asked if Harrill threatened Hardin
and if that were the reason Hardin quit. Hardin replied he
had not been threatened and that he quit because the work
was too dusty or too hard or something to that effect.
On the foregoing record I conclude and find that
Hardin was not in fact threatened as he claimed in his
`Though Respondent sought to impeach Harrill ' s denial that he informed
the State Unemployment Commission that he did not have work at
General Fireproofing Company because no work was available, it offered
only an unidentified claims ruling which related the "no work available"
statement to Harrill's separation from later employment at Forest City
Electric Co
133
affidavit and in his testimony. All the remaining evidence
tended to refute that claim and to support Harrill's denial
of a threat. Thus Hardin's affidavit shows that he waited
3 days before he quit, and his testimony showed that he
then simply walked off the job without notifying his
foreman he was quitting or that he had been threatened.
Furthermore, when Hardin returned a week later for his
paycheck and was asked by Supervisor Goins why he quit,
he again made no mention either of a threat or of Harrill
but stated instead that he left "because of the union." So
matters stood with Hardin for another 2 weeks when,
after first being rehired, he gave Edmundson an affidavit
that though Harrill had threatened him, he waited some 3
days to quit Finally I credit Moore's testimony that
Hardin admitted that Harrill had not threatened him.
To find that Hardin was not threatened does not end
the matter, however, for Respondent claims reliance on
Hardin's affidavit that Harrill threatened him. Since that
defense bears directly on the overall issue of Respondent's
alleged discriminatory motive, it will be reviewed further
under section 3, Concluding Findings, infra
2. The discharge of Thomas C. Dalton
To be noted preliminarily is the record of Dalton's
employment and his medical treatments. Dalton was in
Respondent's employ for some 5 years and as early as
December 1966, he had advanced to a class 5 buffing job,
the highest job classification in the finishing department.
On or about December 16, 1966, he was severely injured
on the job and after an initial recuperation, he returned to
the hospital in Gastonia in May 1967, and again in March
1968, for further operations on his arm. Dalton's doctor
has never given him a final release Payment of
workmens' compensation which Dalton received from time
to time ended some 3 weeks before the hearing when
Dalton reported to the State Commission that he had
another job. His claim for permanent injuries has never
been settled
When Dalton returned to work after his first
recuperation of some 3 to 4 weeks, he was put on various
light jobs but retained his class 5 rate. After an absence of
some 4 or 5 weeks following his May 1967, operation,
Dalton was again assigned to light work at his class 5 rate
and he remained at that rate until January 1968 when
Edmundson (who came in as personnel manager in August
1967) reduced Dalton's classification to class 3, burring
and polishing, with a corresponding cut in pay. Dalton
resumed his class 3 job upon returning in June from his
March 1968, operation, but on July 22 he was assigned at
his request to his old class 5 buffing job upon representing
to Foreman Schuller that his arm was in satisfactory
shape. Except for some 3 weeks in August when (Dalton
testified) he was temporarily assigned again to a class 3
job, Dalton worked on his class 5 buffing job until some 2
weeks before his discharge. Then at Dalton's request to be
taken off the class 5 job, Schuller assigned him to a class
4 job at corresponding pay.
Dalton's union activities became known to Respondent,
as in Harrill's case, by a letter to the Company in July
informing it that he was a member of the Union's
organizing committee. Dalton also testified to two
conversations (later to be referred to) in which
Edmundson mentioned his union activities.' Whether
coincidential or otherwise, it was on July 22 (when Dalton
was reassigned to his former class 5 job) that Respondent
first claimed to note a change in Dalton, whose attitude,
job performance and efficiency were thereafter allegedly
'Dalton ' s appearance as a mere spectator at the hearing before Trial
Examiner Powell did not establish a violation of Sec 8(a)(4) and the
complaint allegation based on that section was dismissed on Respondent's
motion See fn 3, supra
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unsatisfactory. Before turning to that evidence, however,
we should note briefly the considerable testimony by
Dalton and Edmundson concerning Dalton ' s workmen's
compensation claims and Edmundson's efforts to obtain a
final release from Dalton's doctor and to reach a final
settlement on Dalton's permanent injuries. As Respondent
did not relate its defense of the discharge in any way to its
failure to obtain such a settlement, the conversations need
not be reviewed in detail except in such respects as bear
on the alleged discriminatory motivation and on
credibility generally.
Edmundson testified, for example, that he had a series
of some 10 conversations with Dalton during the 2 or 3
months prior to June, 1968, when Dalton returned to
work after his final operation but had no further
conversations with Dalton until the latter part of October.
Dalton testified to the contrary to an occasion in August
(after the former hearing and after the plant vacation)
when Schuller took him to Edmundson's office after he
reported that his arm was giving him trouble on the
buffing job, and Edmundson directed Schuller to assign
Dalton to a third class job on work he could do, with a
corresponding pay cut. Neither Schuller nor Edmundson
denied that conversation nor disputed Dalton's testimony
that he in fact worked for some 3 weeks on the class 3 job
before going back to buffing.
Dalton also testified that on September 27 he obtained
from his doctor a certificate covering the dates of his trips
to Gastonia for treatment and that he presented a copy to
Edmundson the following week with a claim that he was
entitled to mileage on the trips. Edmundson stated that he
would "turn it in" but did not know whether Dalton
would receive anything. Edmundson continued that he was
"getting damn sick and tired of your activities you are
having , going to those union meetings , meeting with
Claude Hall, and Claude Hall brainwashing you and
telling you lies, and your coming back here and spreading
it all over the plant ... I'm going to put a stop to it."
When Dalton asked how Edmundson knew he was going
to the union meetings, Edmundson replied, "I know, in
the hardest way, I know." Edmundson ended the interview
by telling Dalton he wanted a statement from the doctor
concerning when a final release could be expected so that
Dalton's attorney and the Company's attorney could "get
this thing over with."
As previously noted, Edmundson testified at first he
had no conversations with Dalton from June to late
October, and even when shown the doctor's certificate of
September 27, his recollection was curiously vague and his
testimony became equivocal. Though contending at first
that the nurse handled much of such "stuff," Edmundson
finally agreed that the occasion may have been one of
those on which he talked with Dalton about a settlement,
that he did talk with Dalton about his mileage claim, but
not after receiving the letter from the doctor, though he
later "went on and paid [Dalton]." Edmundson made no
denial of the statements which Dalton attributed to him,
and I credit the latter's testimony that the conversation
occurred.
Concerning the late October conversation Dalton
testified that Edmundson charged him with being the
leader in a prank played on James Higgins and that
Dalton was "pressing" Higgins because Higgins would not
sign a union card. Edmundson continued that he was tired
of Dalton going to the union meetings with Claude Hall,
who was telling the employees a bunch of lies, that the
employees were spreading those lies around the plant and
that Edmundson proposed to put a stop to it.
Edmundson testified he called Dalton in, charged him
with participation in the prank and warned him to stop
immediately under pain of discharge.' Edmundson
admitted that he did mention Union Representative Hall
and Kirk, telling Dalton that regardless of what they had
told him as to what he could do on the job, he may have
been misled and that he could not engage in the sort of
conduct which Higgins reported. Edmundson denied
stating that he was tired of Dalton going to union
meetings or having anything to do with Hall and Kirk,
but did not deny that he charged Dalton with pressing
Higgins because the latter would not sign a union card.
We now turn back to Schuller's testimony, which forms
the base of Respondent's defense. Schuller testified that he
first "saw a change" in Dalton immediately after Dalton
was put back on his class 5 job on July 22, that he talked
with Dalton twice between July and October, and on
September 17 he issued a blue reprimand slip which read
as follows: "Called Tommy in my office. Told him to stay
on his job more. Not doing work assigned to him."
Schuller talked with Dalton possibly one more time before
October 18, when Dalton asked to be. assigned to a class 4
job because he knew he was not doing well on his buffing
job and could do better on the next class down. Dalton
signed the blue slip which Schuller prepared and which
stated that Dalton, "Asked to be taken off Buff Class V,"
and he was thereafter put on a class 4 job beginning
October 22.
Schuller testified that he noticed after some 4 or 5 days
Dalton was not producing and talked with him about his
efficiency. Around the eighth day he found Dalton some
20 feet away from his work bench and called him back to
it. He also called Dalton into the office and went over
with him the daily efficiency reports, which showed that
Dalton was averaging around 54 percent. Dalton
commented he thought that was good. Schuller reminded
Dalton that the department was supposed to operate at
100 percent and told him he had better try to do the job.
the way he was supposed to. Following that Schuller
wrote out under date of October 29 another blue
reprimand slip which read as follows:
Talked to Tommy Dalton about being away from his
job too much and his performance - Reviewed daily
performance sheets with Tommy since he has been on
new class.
Two days later Schuller discovered Dalton away from
his job area again ,' called him into the office, and told
Dalton that he would have to stay on the job if he wanted
to bring his efficiency up. Dalton replied that if he could
not satisfy Schuller on that job, he would go and wash
parts (generally assigned to women), and that if he could
not do that job, he would come and sit in the office with.
Schuller. Schuller ordered Dalton to "get the hell out" of
the office because it was not big enough for both of them.
'Respondent's counsel represented at the hearing that the Higgins'
incident played at most a minor part in the discharge. It is significant
mainly for the content of Edmundson's references to Dalton' s union
activities.
'James L . Coker and Odell Lovelace corroborated Schuller's testimony
concerning Dalton 's absences from his work area and testified further to
statements which Dalton made to the effect that the Company could not
fire him because of being injured on the job. I credit their testimony over
Dalton's denials.
GENERAL FIREPROOFING COMPANY
Schuller immediately reported that incident to
Edmundson and reviewed with him Dalton's record of
efficiency and his attitude toward Schuller. They also
reviewed the matter with Plant Manager Loveless, who
directed them to get rid of Dalton because of his attitude.
Edmundson's testimony was in accord. Edmundson
himself conducted the exit interview, testifying that he
reviewed with Dalton what Schuller had reported
concerning Dalton's efficiency and job performance and
told Dalton his attitude toward Schuller appeared to
border on insubordination. He told Dalton the Company
could not tolerate employees who adopted such an attitude
toward their supervisors and because of his attitude and
efficiency record there was no alternative but to sever
relations with him at that time. The termination slip
specified that Dalton was discharged for "Gross
insubordination with supervision."
Dalton admitted that Schuller talked with him a
number of times about his efficiency and also talked to
him a couple of times about being away from his work
station. He testified that on the buffing job it was only the
settee legs which gave him trouble, causing his arm to
swell up, and that he periodically informed Schuller of
that fact, including the occasion in August when Schuller
took him to Edmundson and thereafter put him on a class
3 job for 3 weeks. Though Schuller on other occasions
would take Dalton off of buffing settee legs temporarily,
either Schuller or Foreman Bob Connors would
nevertheless sometimes direct Dalton to help J. B. Smith
to catch up on the settee legs, with the usual effects on his
arm.
It was because of the continued pain in his arm that
Dalton told Schuller on October 18 that he would like to
get off the buffing job, with the result that he was
assigned to a class 4 job.'°
Dalton admitted that after some 3 or 4 days on his
final job Schuller informed him he was not getting enough
production and would have to improve. On the final day
Foreman Bob Connors put him on a job which required
him to perform separate operations on machines which
were some 15 to 20 feet apart. Schuller, who saw him
away from his normal work station, inquired angrily what
was going on and ordered him to stay on his job. When
Dalton attempted to explain that Connors had changed his
job, which required him to finish the operation on a
different machine, Schuller rejected the explanation
claiming that he had been watching Dalton all morning.
A few minutes later Dalton was called in by Schuller
who showed him some production sheets which purported
to reflect that Dalton was "getting no where near
production." Dalton admitted that he made the comment
to Schuller that if he could not get production on that job,
he could not get it on any other one, and the only thing he
knew to do was to sit down in the office with Schuller.
Relevant evidence concerning Dalton's work
performance beginning July 22 is set forth in the following
"Though Schuller admitted knowing of Dalton ' s sore arm, he denied
that Dalton ever exhibited his swollen arm, either on October 18 or at any
other time . As there was no denial of Dalton ' s testimony concerning the
occasion in August when Schuller took Dalton to Edmundson 's office
about just such a complaint, I do not credit Schuller's attempts to
minimize his knowledge (and Dalton ' s complaints ) about Dalton ' s swollen
arm.
As Dalton's testimony showed that he willingly accepted the class 4 job
without objection, it is unnecessary to resolve a minor conflict concerning
whether Dalton specifically asked for the class 4 job or whether Schuller
suggested it after first proposing that Dalton move down to class 3 (an
easier job at lower pay).
135
weekly summary showing a comparison of Dalton's
performance with the department average:
Week Ending Percentage of Performance
Dalton Dept. Average
July 26 63 89
Aug. 9 85 88
Aug. 16 91 90
Aug. 23 101 91
Aug. 30 90 91
Sept. 6 107 91
Sept. 13 146 90
Sept. 20 (unmeasured) 87
Sept. 27 92 86
Oct. 4 87 87
Oct. I l 78 88
Oct. 18 97 90.9
Oct. 25 53 91
Nov. I 54 86.3
As is seen, Dalton's record, except for the final 2
weeks, compared most favorably with the department
average. Though Respondent contends that the daily
figures from which the foregoing summary was compiled
showed that Dalton performed sporadically, that fact
seems readily explainable by Dalton's testimony
concerning the difficulties he experienced on settee legs
when occasionally assigned to that job. Furthermore,
computations made from the tables show that Dalton's
overall performance through the week ending October 18
exceeded by some 5 percentage points the department
average.
Concluding Findings
Resolving first the allegations concerning Section
8(a)(1), I conclude and find on the credited testimony of
Harrill" and Dalton that Edmundson (a) warned
employees against attending union meetings and against
other union activities and stated he would put a stop to
them , (b) created an impression of surveillance of union
activities by professing knowledge of attendance at union
meetings and of what was said there, and (c) threatened
employees with discharge because of their union or
concerted activities . By such conduct Respondent
interfered with , restrained , and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act.
I conclude and find that the evidence did not establish
an alleged violation of Section 8(a)(1) (added by
amendment ) by a notice to employees which Respondent
posted on January 30, 1969 , concerning its intention to
seek Board and Court review of the Trial Examiner's
decision in Case I I -CA-3610. Though the notice stated in
"J. B. Smith , another member of the organizing committee, testified
concerning a conversation with Edmundson in July whose content, as
reduced on cross-examination , roughly approximated that of Harrill's
testimony concerning a similar conversation with Edmundson in July.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part that, "Leroy Young (the discriminatee) is not going
to be reinstated," it was plain from the notice as a whole
that Respondent was stating its intention not to comply
with the Trial Examiner's decision until it exhausted its
legal rights of review.
Turning now to the allegations of discrimination, it is
to be noted initially that certain facets of the evidence
apply commonly to the two discharges showing them to be
linked together as parts of a common plan to discourage
further organizational activities. Thus, both Harrill and
Dalton were members of the organizing committee, both
were warned about their union activities and they were
discharged in quick succession. Immediately upon learning
of Harrill's connection with the committee, Edmundson
warned him that a single step out of line would mean the
end for him and thereafter subjected Harrill and another
committee member to unprecedented scrutiny during their
daily activities. In Dalton's case Edmundson, claiming
knowledge of his attendance at meetings, warned him
about going to the meetings and against accepting what
the union representatives told him there. Edmundson
repeated similar warnings to Dalton in the late October
interview, and in terminating Harrill, he commented on
Harrill's lack of intelligence in believing what the union
representatives told him at union meetings.
Harrill in particular was a marked man after
Edmundson's July threat for Edmundson, biding his time,
seized on the first report of alleged misconduct.'r To
discharge him summarily without divulging the names of
informers or the nature of the alleged threats. Indeed
Edmundson was plainly interested in effecting the
discharge without hearing anything from Harrill in
defense, for he conceded as a witness that he was
conducting a "terminal interview" and that Harrill's check
may well have been already made out. Furthermore,
Harrill was put in the position of having to defend himself
against a charge whose nature he was unable even to
surmise since Hardin's name was not mentioned and since
Hardin had quit nearly 4 weeks earlier.
Edmundson's eagerness to seize upon the first report of
alleged misconduct by Harrill reflected, under the
circumstances here, that he was interested only in finding
a pretext which would serve as ostensible ground for
discharge. Cf. N.L.R.B. v C. & J. Camp, Inc., 216 F.2d
113, 115 (C.A. 5). Thus he was willing to accept without
question and without further investigation Hardin's claim
that he quit in fear of Harrill's threat, though Hardin's
affidavit showed that he worked for some 3 days after the
alleged threat was made and did not report it to any
supervisor. Indeed, Hardin's testimony showed that he
simply walked off the job without saying anything to
anyone, that he had already arranged other employment,
and that when he returned a week later for his check he
informed his supervisor only that he quit on account of
the Union, again failing to mention any threat or to
implicate Harrill. Even cursory questioning of Hardin
would have developed those facts and would have
accentuated the grave doubts which were raised by the
affidavit itself. And despite the failure to make even a
minimal investigation , Edmundson might have learned the
facts as late as the terminal interview (if he were genuinely
interested) simply by informing Harrill the name of the
informant and the nature of the alleged threat. But having
precluded effectual defense, Edmundson proceeded
"Respondent , though referring vaguely to "prior problems" with Harrill
made no attempt to establish any misconduct prior to the Hardin incident
and rested its case solely on Hardin ' s affidavit.
forthwith and without warning to discharge an employee
whose prior record, unblemished by reprimand, was an
exemplary one.
I therefore conclude and find on the entire evidence
that Respondent discharged Harrill because of his union
activities and because he gave testimony against it in Case
11-CA-3610, thereby engaging in unfair labor practices
proscribed by Section 8(a)(3), (4), and (1) of the Act. It is
further to be noted that even had Respondent established
a good faith belief in the truth of Hardin's affidavit,
Harrill's discharge would in any event have violated
Section 8(a)(1), since the alleged misconduct occurred, to
Respondent's knowledge, in the course of soliciting
Hardin to join the Union (a protected activity) and since
Harrill was not in fact guilty of misconduct. N.L.R.B. v.
Burnup & Sims, Inc., 379 U.S. 21; Cf. N.L.R.B. v.
Industrial Cotton Mills, 208 F.2d 87, 90-92 (C.A. 4);
Rubin Bros. Footwear, Inc., 99 NLRB 610. Thus the
normal remedial order of reinstatement would follow in
any case even if (contrary to my finding herein) the
evidence failed to establish a discriminatory motivation
for the discharge. N.L.R.B. v. Gullett Gin Co., 179 F.2d
499, 502 (C.A. 5) rev. on other grounds 340 U.S. 361.
Though consideration of Dalton's case is complicated
by his physical condition and by Edmundson's attempts to
obtain a settlement on his permanent disabilities, the
evidence established, as in Harrill's case, that Dalton's
discharge also was discriminatorily motivated. Not only
were the two discharges made in quick succession and
after interviews in which Edmundson made reference to
attendance at union meetings and to alleged reliance on
what union representatives said, but the evidence showed
that Respondent's disenchantment with Dalton began at
the same time it was notified he was a union committee
member. Furthermore, though Schuller claimed that
Dalton's performance began immediately to deterioriate,
Respondent's records belied that testimony, showing to
the contrary that through the week ending October 18
Dalton's performance, overall, averaged some 5
percentage points higher than the department's. Moreover,
Respondent made no effort to refute Dalton's testimony
concerning his ability to do well the jobs he was assigned
to with the single exception of buffing settee legs which, as
he informed Schuller and Edmundson, caused pain in his
arm.
It was September 17 before Respondent made record
note of any displeasure with Dalton, and then the warning
related primarily to not staying on the job rather than the
failure to meet production standards. Furthermore,
Edmundson made no reference to Dalton's work
performance in their late September conversation. I
therefore conclude and find that Respondent failed to
establish that there was any deterioration in Dalton's
work performance prior to his assignment on October 22
to a class 4 job.
Edmundson 's interviews with Dalton in late September
and late October threw further light on Respondent's
concern with Dalton 's union activities. In the first
interview Edmundson angrily injected into the discussion
of Dalton' s mileage claim warnings against Dalton going
to union meetings and accepting and spreading the "lies"
told him there by union representatives, claiming
knowledge of Dalton's attendance "in the hardest way."
The October meeting concerned Dalton's participation in
the prank played on Higgins , with Edmundson charging
that Dalton's motive was Higgins ' refusal to sign a union
card. Again Edmundson expressed displeasure at Dalton
going to union meetings and believing what union
GENERAL FIREPROOFING COMPANY 137
representatives told him there.
There remains, however, the matter of Dalton's
performance during the last 2 weeks . The record
establishes that a sharp drop occurred in Dalton's
performance immediately upon his assignment to the class
4 job on October 22 and that it continued through
November 1. There is also no dispute that Schuller talked
with Dalton at least twice about the need to improve his
production and also criticized him for being away from
his work station . 14 The final occasion led to Dalton's
suggestion that if he could not get production on his
current job , or on any other to which he might be
assigned , he would come and sit with Schuller in the
office. Though it is plain from all the evidence that the
latter remark precipitated the discharge action," it is
difficult to determine from Respondent ' s case how it
reached the level of extreme provocation which
Respondent assigns to it
On the face of it Dalton ' s flip remark might, at a
minimum , have been regarded as facetious, or at a
maximum as reflecting an attitude of impertinence or
possibly of mild insolence . Edmundson himself shied from
calling it insubordinate , testifying he told Dalton his
attitude "appeared to border on" insubordination. But
Respondent promptly abandoned that milder appraisal of
the incident , apparently viewing it as affording inadequate
justification for the drastic penalty of discharge , for the
termination slip which Dalton received assigned as the
ground , "Gross insubordination with supervision."
Respondent ' s continued concern with the need to bolster
its action is reflected in its brief where it goes on to
greater heights of hyperbole by charging that Dalton
became extremely insubordinate.16
In the final analysis, then , determination of the true
motive for the discharge narrows down to a choice
between the discriminatory one made out by the General
Counsel's case and Dalton ' s alleged insubordination." On
that issue Respondent ' s straining for exaggeration
reflected not only the weakness of its defense but also its
awareness of that fact That weakness strengthened
correspondingly the General Counsel ' s case, N.L . R.B. v.
Georgia Rug Mills, 308 F.2d 89, 91 (C.A. 5), since it
tended to confirm not to refute , the inference of
discriminatory motivation and furnished part of
"reasonable cause for believing that the ground put
forward by [Respondent ] was not the true one and the
ground was because of union activities ." N.L.R.B. v.
Texas Bolt Co., 313 F.2d 761, 763 (C.A. 5).
I therefore conclude and find on the entire evidence
that Dalton was discharged, as was Harrill , to discourage
membership in the Union, in violation of Section 8(a)(3)
"Respondent did not call Supervisor Connors in denial of Dalton's
testimony that Connors put him on a job which required him to move
between two work stations
"As Schuller's testimony gave no indication that he intended more than
a reprimand , it may be fairly inferred that but Dalton's final remark, the
discharge would not have occurred and that Dalton would again have been
shifted to work he could perform (e g , a variety of class 3 jobs as well as
class 5, buffing , except on settee legs ) as had frequently been done in the
past
"Similar hyperbole appeared in Respondent 's opening statement where
the term " total and complete insubordination " was used A further
characterization of "open insubordination " was plainly wide of the mark
for Dalton's statement was made in Schuller's office , not in the presence of
hearing of other employees
"As previously noted, Respondent disclaimed reliance on the Higgins
prank and it at no time asserted reliance either on Dalton's physical
condition or on its failure to reach a settlement of his permanent
disabilities
and (1) of the Act.
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. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1).
2. By discharging Russell Harrill on October 30 to
discourage membership in the Union and because he gave
testimony against it under the Act, Respondent engaged in
unfair labor practices within the meaning of Section
8(a)(3), (4), and (1) of the Act
3. By discharging Thomas C. Dalton on November 1,
to discourage membership in the Union, Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
as provided in the Recommended Order below which I
find to be necessary to remedy and remove the effects of
the unfair labor practices and to effectuate the policies of
the Act. For reasons which are stated in Consolidated
Industries, Inc., 108 NLRB 60, 61, and cases there cited,
I shall recommend a broad cease-and-desist order.
Upon the foregoing findings of fact and conclusions of
law and the entire record and pursuant to Section 10 (c)
of the Act, I hereby issue the following:
RECOMMENDED ORDER
General Fireproofing Company, a corporation, its
officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Warning employees against attending union
meetings and against other union activities and stating
that it will put a stop to them.
(b) Creating an impression of surveillance of union
activities by professing knowledge of attendance at union
meeting and of what was said there.
(c) Threatening employees with discharge because of
their union or concerted activities.
(d) Discouraging membership in the Union , or in any
other labor organization of its employees, by discharging
them or in any other manner discriminating against them
in regard to hire or tenure of employment or any term or
condition of employment.
(e) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights to
self-organization, to form , join, or assist United
Steelworkers of America , AFL-CIO, or any other labor
organization , to bargain collectively through
representatives of their own choosing or to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain
from any or all such activities.
2. Take the following affirmative action:
(a) Offer to Russell Harrill and Thomas C. Dalton
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have
suffered by payment to each of them of a sum of money
equal to that which he would have earned from the date of
his discharge to the date of the offer of reinstatement, less
his net earnings during such period (Crossett Lumber
Company, 8 NLRB 440), said backpay to be computed on
a quarterly basis in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289, together
with interest thereon at the rate of 6 percent per annum.
Isis Plumbing & Heating Co., 138 NLRB 716.
(b) Preserve and upon request make available to the
Board or its agents for examination and copying all
payroll records, social security records, timecards,
personnel records and reports and all other records
necessary to analyze the amount of backpay due under
these recommendations.
(c) Post at its plant and offices at Forest City, North
Carolina, copies of the attached notice marked
"Appendix."" Copies of said notice on forms provided by
the Regional Director for Region 11, shall, after being
duly signed by Respondent's representative, be posted by
it 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 material.
(d) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.19
" 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 . If the Board'A
Order is enforced by a decree of the United States Court of Appeals, the
notice will be further amended by the substitution of 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 11, in writing , within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."
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
employees that:
WE: WILL NOT warn our employees against attending
union meetings or against other union activities or state
that we will put a stop to them.
WEWILLNOT create an impression of surveillance of
union activities by professing knowledge of attendance
at union meetings and of what is said there.
WE WILL NOT threaten employees with discharge
because of their union or concerted activities.
WE WILL NOT discourage membership in United
Steelworkers of America , AFL-CIO, or in any other
labor organization of our employees , by discharging
them or in any other manner discriminating in regard
to hire or tenure of employment or any term or
condition of employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form labor
organizations , to join United Steelworkers of America,
AFL-CIO, or any other labor organization , to bargain
collectively through representatives of their own
choosing or to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such
activities.
WE WILL offer to Russell Harrill and Thomas C.
Dalton immediate and full reinstatement to their
former or substantially equivalent positions without
prejudice to their seniority or other rights and
privileges , and make them whole for any loss of
earnings they may have suffered by reason of our
discrimination against them.
All our employees are free to become, remain, or
refrain from becoming members of United Steelworkers
of America , AFL-CIO, or any other labor organization.
GENERAL FIREPROOFING
COMPANY
(Employer)
Dated By
(Representative) (Title)
Note:-Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
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.
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, 1624 Wachovia
Building , 301 North Main Street, Winston-Salem, North
Carolina 27101, Telephone 919-723-2303.