Harold Brown Co.

National Labor Relations Board - Board Decisions

Feb 14, 1964

145 N.L.R.B. 1756 (N.L.R.B. 1964)

1756 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
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.
Employees may communicate directly with the Board's Regional
Office, 707 North Calvert Street, Baltimore, Maryland, Telephone No.
752-8460, if they have any question concerning this notice or com-
pliance with its provisions.
Harold Brown Company and District Lodge No. 37, International
Association of Machinists, AFL-CIO. Case No. 23-CA-1605.
February 14, 1964
DECISION AND ORDER
On October 15, 1963, Trial Examiner Ramey Donovan issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in certain unfair labor practices but recommending that
the complaint be dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also found that Re-
spondent had not engaged in other unfair labor practices alleged in
the complaint. Thereafter, the General Counsel filed exceptions and
a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications.
The Trial Examiner found that during the course of the Union's
organizing campaign Respondent's president, Brown, made a state-
ment to employee Purdy to the effect that even if the Union won an
election it would not be "coming in." The Trial Examiner found that
this statement constituted a violation of Section 8(a) (1) of the Act.
Nevertheless, because the Union had been certified and the Trial Ex-
aminer believed that the Respondent had recognized it, he recom-
mended that the complaint be dismissed on the ground that a remedial
order would not be appropriate under the circumstances.
We agree with the Trial Examiner that Respondent's statement to
Purdy constituted a violation of Section 8(a) (1) of the Act. How-
1 Respondent did not file any exceptions to the Trial Examiner's Decision.
145 NLRB No. 164.
HAROLD BROWN COMPANY 1757
ever, contrary to the Trial Examiner, and in agreement with the Gen-
eral Counsel, we believe that it would effectuate the policies of the Act
to issue a remedial order herein. The record shows that during the
Union's organizing campaign Respondent openly expressed hostility
to the Union. Respondent's president openly acknowledged his inten-
tion to get the Union out of the plant as soon as possible. In such
circumstances the fact that the Respondent may have recognized the
Union after certification is no guarantee that it will not attempt, as
it has proclaimed, to defeat the Union by engaging in similar unfair
labor practices. We believe, therefore, that a remedial order is justi-
fied as a deterrent to the commission of further unfair labor practices.'
Accordingly, to remedy the unfair labor practices we shall order Re-
spondent to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Harold Brown Com-
pany, Houston, Texas, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Stating to employees that should District Lodge No. 37, Inter-
national Association of Machinists, AFL-CIO, or any other labor
organization, be selected as the employees' majority representative,
the Union will not be coming into the plant.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Post at its plant in Houston, Texas, copies of the attached no-
tice marked "Appendix." 3 Copies of said notice, to be furnished by
the Regional Director for the Twenty-third Region, Houston, Texas,
shall, after being duly signed by a representative of Respondent, 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. Reason-
able steps shall be taken to insure that such notices are not altered,
defaced, or covered by any other material.
2 General Drivers, Chauffeurs , Warehousemen and Helpers Union, Local 886, AFL-CIO;
Local 850, International Association of Machinists, AFL-CIO ( American Iron it 111achine
Worts) v. N.L R B , 247 F. 2d 71, 75 (C.A.D C ), affd 357 U S. 93
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "A Decision and Order " the words "A
Decree of the United States Court of Appeals, Enforcing an Order."
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith.
MEMBER BROWN, concurring in part and dissenting in part :
I agree with my colleagues that the Respondent's violation of Sec-
tion 8(a) (1) of the Act, as found by the Trial Examiner, justifies
the issuance of a remedial order. Contrary to my colleagues, how-
ever, I am of the opinion that the Trial Examiner erred in absolving
the Respondent of the charge that it violated Section 8(a) (3) of the
Act by discharging employees Purdy, King, and Gilbert. The weight
of the evidence clearly establishes illegal motivation for the discharges
and the insubstantial nature of Respondent's claim that the employees
were discharged for drinking on the job.
It is undisputed that Respondent was strongly opposed to the Union
and to the organization of its employees, and, as my colleagues agree,
openly expressed its antiunionism. Furthermore, it is not seriously
challenged that Respondent was aware that Purdy and King were
union adherents and active on its behalf. The Union won the elec-
tion by a narrow margin. Respondent's strong desire to eliminate
the Union "within a year" as its president, Brown, readily conceded,
furnished Respondent with a strong incentive to rid itself of two
known union adherents. The fortuitous circumstance that one of
these employees had consumed some cider on the job which another
had brought to the plant provided the logical vehicle for achieving
this result.
Respondent's contention that the discharges were solely for drink-
ing cannot seriously be maintained. Vice President Baker knew
without any doubt that Purdy and Gilbert had been drinking cider on
the job. Yet with complete authority to discharge them on the spot,
he conceded that the men showed no signs of intoxication and told
them he would "forget" the incident and to return to work. Fur-
thermore, when Baker questioned King about the cider, King stated
that the cider was nonalcoholic. Baker told King that the investiga-
tion then being conducted was not concerned with the cider incident
but with conduct occurring during the election. In such circum-
stances, the discharge of the three employees 5 days later on the al-
leged ground that they had been drinking on the job, convinces me
that the assigned reason was a mere pretext for getting rid of two
known union adherents in order to enhance Respondent's chances of
defeating the Union should the Board order a second election.
Respondent's explanation for the 5-day delay in effecting the dis-
charges, which occurred contemporaneously with the filing of its
objections (the alloted time for filing objections under the Board's
rules is 5 days), is that it required 5 days to complete the investiga-
HAROLD BROWN COMPANY 1759
tion. This explanation of the delay is most unpersuasive. There is no
convincing evidence that whatever additional information there
existed bearing on the incident was not immediately available. More-
over, the statements contributed by other employees, if anything,
created doubts concerning the matter and offered less justification for
discharging the employees than existed at the time of the incident.
Thus, King denied that the cider was alcoholic and other employees
gave contradictory and conflicting views of the alcoholic nature of
the cider.
It is true, of course, that Respondent also discharged Gilbert who,
Respondent had reason to believe, was opposed to the Union. It is
clear, however, that Gilbert had to be discharged to lend a semblance
of justification to the discharge of Purdy and King. That Gilbert
was considered an innocent bystander by Respondent is evidenced
by the fact that after Gilbert's discharge Brown told him that he was
sorry Gilbert had become mixed up in the mess; gave Gilbert the
names of other employers in the same line of business; and offered
to serve as a reference for Gilbert.
In view of the foregoing, I would reverse the findings of the Trial
Examiner, find that the discharges of Purdy, King, and Gilbert
violated the Act, and issue an order requiring their reinstatement
with backpay.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT state to employees that should a majority of the
employees select District Lodge No. 37, International Association
of Machinists, AFL-CIO, or any other labor organization, as
their representative the Union will not come into the plant.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to join or assist labor organizations, to bargain
collectively through representatives of their own choosing, to
engage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from
any and all such activities.
HAROLD BROWN COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Employees may communicate directly with the Board's Regional
Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston,
Texas, Telephone No. Capitol 8-0611, Extension 296, if they have
any questions concerning this notice or compliance with its provisions.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Pursuant to a charge filed on April 25, 1963, by District Lodge No. 37, Interna-
tional Association of Machinists , AFL-CIO, herein called the Union, the General
Counsel of the Board issued a complaint , dated June 4, 1963, against Harold Brown
Company, Respondent herein. The complaint alleged that certain statements of
Respondent's agents were violative of Section 8(a)( I) of the Act and that Respond-
ent's discharge of three named employees was violative of Section 8(a) (1) and (3)
of the Act. The answer of Respondent denied the commission of the alleged unfair
labor practices . The matter was heard before Trial Examiner Ramey Donovan
in Houston , Texas, on July 29 and 30, 1963, with all parties represented. After
the close of the hearing the General Counsel filed a memorandum with the Trial
Examiner and the Respondent filed a brief, both of which have been carefully
considered.
Upon the entire record in the case , and upon my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL COMMERCE FACTS
Respondent is a Texas corporation , with its principal place of business in Houston,
Texas. Respondent , at Houston , engages in the manufacture and sale of oilfield
valves and equipment . During the past 12 months, a representative period, Respond-
ent, in the course of its business operations , purchased in excess of $50,000 worth
of materials from firms outside the State of Texas and these materials were shipped
directly to Respondent 's place of business in Texas.
It is found that Respondent is engaged in commerce within the meaning of the
Act.
IT. THE LABOR ORGANIZATION INVOLVED
It is found that the Union is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES i
A. Section 8(a)(1) allegations
Respondent's employees were not represented by a union when the instant Union
commenced organizational activity around January 1963. In the middle of
January, King and a number of other employees went to the union hall, discussed
organizing procedure with union representatives , and signed union cards. A few
days later, Shop Foreman Bethune spoke to King at the plant during working hours.
Both men agree that Bethune asked King if the latter had heard anything about
the Union and observed that someone was painting a "rosy" picture about unions
around there . King replied, yes , and that he had attended some of the meetings.
This was the extent of the conversation.
Sometime in February 1963, apparently after the Union had filed a petition for
certification with the Board, the uncontroverted testimony of employee Purdy, which
is credited, describes a conversation with Respondent' s president , Brown. Purdy
was on the night shift. About 9 or 10 p.m. Brown came through the shop. He
spoke to Purdy and the latter replied, exchanging civilities . Brown asked Purdy
i On my own motion, I correct the following portions of the transcript : Page 17, line 11,
the name "Baker" should appear Instead of "Ewald ," as the record clearly shows; page 129,
line 5, should read ". . . election set aside " instead of ". . . election satisfied ," as the
record and other testimony show.
HAROLD BROWN COMPANY 1761
where he had worked formerly. Purdy said that he had been in the Army. Brown
asked what he had done prior to the Army period. Purdy replied that he helped
his father farm in Arkansas. Brown then remarked:
That is what I understand. You come down here, don't know nothing, and
I gave you a job, and you make more than you ever did in your life. And
you are not satisfied, want a union in here. I don't see why you don't get a
job in a union shop if you like unions so well. . I guess you know the
union is not coming in here. [Purdy said, "I don't know."] It may be voted
in, but it's not coming in.
Baker was Respondent's vice president in charge of manufacturing. He inter-
viewed an applicant for employment named Gilbert and hired him on March 28,
1963. In the foregoing connection Gilbert's former employment had been discussed.
As explained by Gilbert to Baker, the former had worked in a named unionized
plant and the union in the plant was the same union as the instant Union. Gilbert
had worked for the aforementioned employer for 5 years in the sales department and
had thereafter lost his job in the production department when a layoff occurred.
Apparently this layoff was attributed to the Union by Gilbert because only his
production department seniority had been considered in computing his seniority
standing.
Baker testified that he told Gilbert that the Brown Company was faced with some
of the same problems that Gilbert had described, that the Company had labor
problems, and that the Company was in the midst of an upcoming union election.
Baker states that he so advised Gilbert so that Gilbert would know exactly what
he was getting into. The witness, Baker, also states that he informed Gilbert dur-
ing the interview "that I was personally opposed to the Union, and possibly gave
him some explanation of why I was opposed to the Union, and told him that the
Company was opposed [to] the Union, that we felt like it wasn't either needed or
necessary at our plant." Gilbert, according to Baker, informed the latter at the
time that "he was not for a union, that in fact the Union had actually cost him his
job... " Baker also informed Gilbert of plant rules and -benefits at this interview
and advised him that he would check the applicant's background and would advise
him of his decision as to hiring Gilbert. Baker states that he thereafter checked
with Gilbert's former employer regarding the reason for termination, and with
Gilbert's immediate supervisor at the other plant regarding Gilbert's ability and
performance.
Gilbert's version of the conversation with Baker is that the latter "told me they
[the employees] were trying to vote a union in and that was part of the reason I
was going to be hired . I [Gilbert] had just lost a job by being laid off by the
Union and he wanted to know if I was for the Union or against the Union. I told
him I would vote against the Union. He'said if he had any suspicion I would vote
for the Union I wouldn't be considered for work."
In considering the testimony of Baker and Gilbert regarding their conversation
aforesaid, I believe that Baker's testimony was the more accurate. Baker im-
pressed me as a fairly careful and discreet individual in the conduct of his plant
responsibilities. His testimony regarding the February conversation with Gilbert
was, on the whole, rather frank. Gilbert contacted Baker in February regarding
a job. It is reasonable to believe that one of the first things that transpired was an
inquiry regarding the applicant's past employment. Gilbert would give his story,
including, in substance, his characterization and belief that he had lost his job "by
being laid off by the Union." 2 Baker's version of the ensuing conversation is the
more convincing. Gilbert's testimony that he was told that a union was trying to
come in and that was why he was going to be hired impresses me as an interpreta-
tion rather than as an accurate account of what was said. I believe that it is unlikely
that Baker made a commitment (that was why he was going to be hired) before
checking on Gilbert with the former employer. A prudent employer would do this
and Baker impressed me as reasonably careful and prudent. Further, Baker, being
frankly opposed to a union, would check the story of a man coming from a union
plant for employment shortly before an impending election at Brown. Gilbert's
testimony aforementioned is a translation or the giving of what he regarded as the
import of Baker's remarks or the implication thereof. The interpretation may be
correct but it is not an accurate account of what was said. Nor is the implication
or interpretation such that I feel justified in drawing it myself from what actually
was said. An employer who states that he is opposed to unions may not by such
2 The quoted words are from Gilbert's testimony in describing what he had told Baker.
1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remark alone be said to be stating that he will not hire union members or that he
will discharge employees who are or become union members. An applicant, in the
face of Baker's statement regarding unions, might well feel that his chances for em-
ployment were minimal if he was prounion or was not opposed to the Union, but,
here again, based on appraisal of demeanor, personality, and the circumstances, I am
not persuaded that Baker told Gilbert that he would not be considered for employ-
ment if Baker had any suspicion that he would vote for the Union.3
With respect to paragraph 6 of the complaint, it is found that Brown's statement
to employee Purdy in the plant, in context, that a union might be voted in but
that a union was not coming in Respondent's plant, was violative of Section 8(a) (1)
of the Act. The fact that a month or so later, after the Union won the elec-
tion, the Respondent began bargaining with the Union does not alter this conclu-
sion. Nor is the conclusion altered by the possible fact that Brown may have
spoken to Purdy in February without legal advice on the particular matter or that
subsequent bargaining with a Board certified union may have occurred under differ-
ent circumstances.
Foreman Bethune's limited and uncoercive inquiry to employee King, was not, in
my opinion, sufficient to constitute a violation of Section 8(a)( I) of the Act. Dis-
missal of the allegation is recommended. Dismissal of the allegation regarding
Baker's remarks to Gilbert in February 1963 is likewise recommended for the rea-
sons previously stated.
B. The discharges
On Friday, March 22, 1963, a Board-ordered election was to take place at Re-
spondent's plant. The hours for voting were 3:30 to 4 p.m. There were 24 eligible
production and maintenance employees. The plant had two shifts, one from 7 a.m.
to 3:45 p.m., and the other from 3:45 p.m. to 12:15 a.m.
Employee King, who was referred to in the preceding section, had been employed
by Respondent since December 1961. He was working on the first shift, 7 a.m.
to 3:45 p m., on March 22. King testified that the weekend before the election
(presumably March 16-17) he had visited his father in Beaumont. The father gave
the son some apple cider that he had purchased from a roadside stand in Arkansas
about 2 weeks before. King returned to Houston with a half gallon of the cider.
His family drank some of the cider, including his children.4 King stated that he
usually kept the cider around the house. The witness admitted that he had drunk
alcoholic beverages but stated that he had never tasted "hard" (alcoholic) cider.
Employee Purdy was from Arkansas. King was on friendly terms with Purdy
and he testified that knowing that Purdy was from Arkansas and that apple cider
was a "big drink" in that State, he decided to bring some of the aforedescribed
paternal cider to Purdy. Accordingly, on March 22, in the morning, when King
came to the plant, he carried with him a' glass mason or pickle jar, with a metal
screw-on cap, that was a little over half full of cider. Since the total content ca-
pacity of the jar did not exceed 18 ounces,5 I am satisfied that there was less than
a pint, 16 ounces, and probably 10 to 12 ounces of cider, in the jar. King carried the
jar in one hand and no effort was made to conceal it. In the plant lockerroorn there
were several other employees, Richardson, Belveal, and Tapia, all first-shift em-
3 The charge, as previously mentioned, was filed April 25, 1963. The complaint issued
June 4, 1963. The Charging Party, the Union, and the General Counsel sought and se-
cured evidence. Gilbert was one of the dischargees in the case. Both the Union and
the General Counsel secured affidavits from him. Evidence of employer hostility toward
the Union would be prime evidence, particularly if connected with the principals in the
case. There is no mention by Gilbert of Baker's employment interview remarks in the
affidavits or in the original complaint. The alleged remarks were not subtleties whose
significance could be grasped only by a labor lawyer. On July 26, 1963, Gilbert orally
informed the General Counsel of the Baker statements and the General Counsel, on July 29,
the first day of the hearing, amended the complaint to allege an additional Section 8(a) (1)
violation based on Baker's statements. Gilbert's explanation, as I understand it, is that
he had a friendly attitude toward Brown, the president, and that lie did not wish to
instigate anything against him. Gilbert said it was Baker, not Brown, who discharged
him. I have carefully considered the foregoing and have also endeavored, for purposes
of consideration, to develop Gilbert's explanation in a manner consistent with Gilbert's
expressed thoughts. But this effort has not been satisfactory insofar as lending weight or
conviction to the result.
+ It is not clear which children drank some of the cider but, in any event, they were of
the following ages: 11 months and 6, 9, 11, and 13 years.
s This aspect was gone into at the hearing.
HAROLD BROWN COMPANY 1763
ployees, as was King. King and Tapia testified that Foreman Bethune was also
present in the lockerroom and this testimony is credited. There are variations in
the testimony as to exactly what was said and who said what but I am satisfied that
one of the aforementioned men asked Purdy what he had in,the jar. He replied that
it was apple cider that he had brought for Purdy. In substance, King proffered the
jar to anyone present who would like to taste the cider. Richardson and Belveal
each took a taste and neither made any comment at the time as to the quality or
properties of what they had tasted.6 Tapia smelled the cider but declined to taste it.7
Following the foregoing, King placed the jar of cider in his locker and went to
work. About 9:25 a.m., during a break period, King returned to the lockerroom,
removed the cider from his locker, and placed it in a refrigerator near the locker-
room on the plant floor. The refrigerator was unlocked and was available to em-
ployees for storing milk, iced tea, or other beverages that they brought to the plant
to have with their lunches or otherwise. Around 3:30 p.m., Purdy, who was on the
second shift, came to the plant. When King saw Purdy he told him that he had
brought him some Arkansas apple cider and that it was in ,the refrigerator.8 Purdy
went to the refrigerator with some milk that he had brought with his lunch. He
placed the milk in the refrigerator, saw the jar of cider, and 'told King that he would
drink it later. This is the last that King heard or saw about the apple cider on
March 22 and until the following Monday, March 25.
The election took place on the same day, March 22, between 3.30 and 4 p m.
Of the 24 eligible voters, 12 cast ballots for the petitioning Union, 9 cast ballots
against the Union, and 2 ballots were challenged. Since the challenged ballots, no
matter how resolved, could not affect the result, it was apparent from the afore-
mentioned count, made at the situs immediately after the polls closed, that the
Union was the winner. Baker was present in the plant when the election results
were announced and the company attorney, Crawford, was also there. Upon being
asked by Baker what the Company could do about the matter of the election, Craw-
ford advised that objections to the election could be filed "if there was any irregular-
ities in the election." Baker, whose testimony is the sole source of information on
this aspect, stated that "we determined that we would investigate matters to see if
there was any coercion or threats or intimidations of any kind." Baker's testimony
indicates that this determination was made on March 22, following the election.
On March 22, the evening of the day of the election, Purdy, who was on the night
shift, went to the refrigerator about 9 p.m. and took as drink of the apple cider that
had been placed there earlier in the day by King. Purdy then put the jar of cider
back in the refrigerator. He then told Gilbert, who was on the same shift, that
there was some apple cider from Arkansas in the refrigerator. Gilbert went to the
refrigerator, took a drink, and returned the cider to the refrigerator. No more than
30 minutes later or less, either Purdy or Gilbert again went to the refrigerator and
took the jar of cider to or near the place on the plant floor where Gilbert was work-
ing. The jar had, according to Gilbert, about 3 or 4 inches of cider at this point.
Purdy took a drink and then handed the jar to Gilbert, who finished the contents.
O Foreman Bethune testified that he did not recall King being in the lockerroom while
Bethune was present on March 22. He had no knowledge of the cider incident in the
lockerroom on that date. The witness stated, however, that on that morning he and King
were in the plant stock bins. King told him that he had some real potent Arkansas cider
that Purdy should like. This was the extent of the conversation Since the Company had
a rule against bringing alcoholic beverages to the plant or drinking while at work and this
was known by King and the other employees, it appears unlikely that the only one to
whom King characterized the cider as potent would be the foreman. Equally unconvinc-
ing is the fact that Bethune would not have reminded King of the plant rule or would
not have sought to ascertain where the cider was or when Purdy would have access to It.
There was certainly the implication from King's alleged statement that he was not talk-
ing of something that he had at home but that he had something available for Purdy when
the latter came to work. I have not been persuaded that Bethune was a reliable witness
regarding the cider matter.
7 Respondent Introduced two affidavits that Tapia had given to the General Counsel dur-
ing the investigatory stage of the case. The witness did not repudiate the affidavits but
I do not consider that the witness was Impeached or his credibility undermined thereby.
In one of the affidavits Tapia mentions that he had a "problem with alcohol" and informed
King that he knew better than to offer Tapia a drink. "King then told me that there
wasn't anything in it . I told him I still didn't want any."
g This Is the substance of the credited testimony of King and Purdy on this point.
Hitchcock, an employee called as a witness by Respondent, stated that he heard King say
to Purdy that "there is plenty cold in the refrigerator."
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The latter thereupon placed the empty jar in a fiberboard type trash can that was
nearby. Gilbert next took a large long handled wrench and dropped it on the jar,
thereby breaking the jar.9 Thereupon , Gilbert states, he began having some fun
with Lewis, an employee who was working on the same shift. Gilbert testified
that he began acting as if he was intoxicated . He states that he pretended that it was
difficult for him to bend down and pick up a valve and that he was having a problem
fitting some part to another because of his intoxicated condition . According to
Lewis, who was a credible witness, Gilbert said to him, "Boy, do I feel good";
Gilbert then picked up a piece of broken jar and said: "Smell this." "I [ Lewis]
smelled it, and said, `What is this , beer' It smelled sort of stale. He said, `No '
I said, `What is it, moonshine ?' He said, `No' and just grinned ." Lewis testified
that Gilbert "was acting what I would term as smokestacking , someone who has been
drinking and tries to appear he is drunk when actually he is not. He impressed
me he had been drinking and wanted everyone to know he had been drinking, but
that he wasn 't drunk." 10
Gilbert testified , as he had stated in an affidavit to Respondent prior to the dis-
charges, that the banter with Lewis went on for 40 to 50 minutes Gilbert also
stated that during this general period he told Purdy several times that he, Purdy,
was "gone, we couldn't have that ." By "gone," Gilbert explained that he meant
that Purdy was fired inasmuch as drinking on the job could not be tolerated.
Employee Hitchcock , who was on the night shift , testified that on March 22 he
saw Gilbert go to the refrigerator and drink something from a jar about 9 p m.
Later, that evening, Hitchcock had occasion to go into the area where Gilbert was
working. As Hitchcock passed Gilbert, the latter took the lid off a jar and held the
lid up to Hitchcock , saying, "Doesn 't that smell good." Hitchcock , who testified
that he himself did not drink alcoholic beverages , testified that the lid smelled
strongly of alcohol, rather sour, and Hitchcock did not know what it was. When
Hitchcock returned to his work station he asked Lorenz , leadman on the night shift,
whether he knew that those boys over in the assembly department were drinking.il
Lorenz said that he did not know about it and that he would check into the matter.
I credit the aforementioned testimony of Hitchcock and that, with respect to the
smell of the lid of the jar , he was testifying truthfully as to his own opinion or
impression.
Lorenz corroborates Hitchcock regarding the fact that the latter informed him of
the drinking . There is ample testimony from Lorenz , Purdy, and Gilbert as to
what transpired thereafter on the evening of March 22 between these three in-
dividuals . I have considered their testimony and find as follows:
Around 10 p.m., after Hitchcock spoke to him as aforementioned , Lorenz went
and spoke to Gilbert in the assembly department . Lorenz asked Gilbert how he
was doing . The latter replied that they were "having a ball" and had had some
potent stuff . Gilbert suggested that Lorenz smell the lid of the broken jar that was
in the trash can. Lorenz did so and testified that it smelled like alcohol to him.
Gilbert said to Lorenz , "You wouldn 't squeal on me?" and Lorenz said , "I might "
Lorenz then asked Purdy how he was doing and said to Purdy, "Goodbye, Mr.
Keith." 12 Purdy asked whether he should go then or later . There is a conflict
between Purdy's and Lorenz' testimony as to what the latter said next but I am
satisfied that Lorenz did not give Purdy any definite order or instruction to go home
or that he should not finish the shift. The evidence also supports a finding that
the foregoing incident , including the conversations between Lorenz , Purdy, and
Gilbert, were completed by 10:30 p.m., or possibly by 10:45 p.m., and, in any event,
before 11 p.m . Lorenz returned to his work station and neither said nor did !any-
thing further regarding the two men until the following rather fortuitous event
Baker not infrequently dropped by the plant at night and he did this on March
22 at 8 p in. on his way to the theatre with his wife 13 After a brief visit, Baker
9 Gilbert testified as follows:
Q. Why did you drop the wrench on it [the jar]
A. Why does a kid throw a ball through a window, I don't know , I was playing
around.
"Lewis stated that he himself drank beer and Scotch . Absent a blood test and other
chemical analysis , Lewis appears to have had average qualification as a layman to express
his view of the situation Specialization has not reached the point where only a cider
drinker could have an opinion of another cider drinker's state
11 Gilbert and Purdy worked in assembly
12 Keith Purdy was the employee ' s name.
"There were five men on the night shift on March 22. Lorenz , Hitchcock , Gilbert,
Puidy, and Lewis.
HAROLD BROWN COMPANY 1765
left. Later that same evening, on the way home from the theatre, he again stopped
at the plant, sometime between 11:45 and 12. Baker's wife waited outside in the
car
Baker walked through the plant and when he came to Lorenz the latter said that he
had been debating about whether to telephone Baker that night because the boys in
the assembly department were drinking on the job Baker asked how long this
had been going on and Lorenz said, for some time. Baker then inquired as to the
details. Lorenz told him of his talk with the men and about smelling the broken
jar lid, that it smelled like alcohol of some kind, and that he suggested that they
should leave, telling Purdy goodbye. Lorenz said that Hitchcock had first noticed
the situation Baker then went over to Purdy and Gilbert to see how their work
was going; he spoke briefly to them, apparently without mention of their conduct.
Baker also spoke to Hitchcock and Lewis about the matter. Baker spoke to Lorenz
again and either then or a little later said that he would have discharged Lorenz
if he had not reported the incident to him. About 12 o'clock, Baker summoned
Purdy and Gilbert to the office.
From the testimony of Baker, Gilbert, and Purdy, I believe that the conversation
in the office was substantially as follows: Baker started off by telling them that he
was putting it to them straight, that he had been told that they had been drinking
and if this was so they were fired. Purdy and Gilbert did not dispute and, in effect,
acknowledged the proposition that drinking on the job was a dischargeable offense.
The men said that they had been drinking some apple cider Baker asked where
they got the cider and Purdy described the circumstances and the fact that King
had put the cider in the refrigerator for him. When Baker asked if the cider
was alcoholic, Purdy admittedly shrugged his shoulders. Gilbert admits that he
told Baker that it was "pretty potent apple cider " The general position taken by
Purdy and Gilbert on this occasion was that the cider had not affected them or
their work and Gilbert explained that their antics were just a matter of kidding
Lorenz. Baker said that they should not be kidding Lorenz.14 Baker explained
to the two men that he had trouble with drinking by employees in the past and that
a supervisor had been terminated for drinking. Early in the course of the con-
versation, according to both Baker and Gilbert, Baker had said that the two men
had picked "a hell of a time" to pull something like that since, occurring as it did
on the evening after the Company had lost the election, any action that the Com-
pany took would probably be regarded as a reprisal against the election result.15
During the course of the conversation Baker called in Lorenz. Baker states that he
told the men that they should not regard Lorenz' action in reporting the events as
squealing since it was his duty to do so. He, Baker, went on and said to Lorenz
that Purdy and Gilbert had explained to him that they had just been drinking apple
cider: that Baker himself did not drink at all and that he could not tell the differ-
ence between apple cider and hard cider and that it was hard for him to tell when a
person was drinking unless the individual was pretty far gone. Baker testified that
he said that under the circumstances that the men could go on back to work for
now and "I believe I said I would forget it for now." 16 The affair in the office afore-
described ended around 12 midnight or perhaps a few minutes latter. The shift
ended at 12.15 a.m. The next regular working day for the employees involved
was Monday, March 25.
When King came to work on March 25, Foreman Bethune asked him what was
in the cider. King said, "Nothing," and that it was pure apple juice. Bethune ob-
served, "It must have been pretty potent stuff. You liked to have got two guys run
off about it." Bethune indicated that Baker would probably want to see King.
14 Purdy testified that Baker told them that Lorenz was just a country boy and did not
know whether they were drunk or not and that they should not be kidding him and that
Baker did not know whether they had been kidding Lorenz or not.
15 Purdy did not mention this particular remark in his testimony and was not asked
about it, either way
16 Purdy states that the session ended with Baker telling them to go back to work and
to forget about it. Gilbert also states that the meeting ended with Baker saying that he
would forget about it. Both assert that Baker also said that if he was going to run them
off he would have done so already. Lorenz testified that Baker told the two men to go
back to work and the witness was not sure whether Baker told them to forget about it
for now. In an affidavit given to Respondent a few days after March 22, Lorenz stated:
"Mr. Baker told them that he would forget what had happened but that he did not want
any drinking going on. He told them that he could send them home if they had been drink-
ing " I credit Purdy and Gilbert and Lorenz regarding Baker's parting words and do not
find that the phrase "for now" was used
734-070-64-vol. 145-113
1766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later, that morning, King was the first employee interviewed.in the company office
by Baker and Crawford, the company attorney. They asked King what he knew
about the cider and whether it was alcoholic King said that the cider was non-
alcoholic. Crawford said, "You know that stuff can ferment." King replied that
he did not know and was not a chemist. King said to Baker that Baker did not need
an attorney to fire him. Baker said that arrangements had been made with Craw-
ford before the cider incident and that they were investigating all irregularities that
might serve as a basis for election objections. When asked, at the interview, King
said that no one had threatened him on any matter regarding the election.
On March 25, 26, and 27, Baker and Crawford interviewed employees at the plant.
Crawford took affidavits from those interviewed and Baker was aware of the contents
thereof. Hitchcock, Lewis, Bethune, Lorenz, Gilbert, Purdy, Belveal, Tapia, and
Richardson were thus interviewed. Their respective statements and affidavits at the
interviews were substantially the same as the testimony they gave at the instant
hearing, as described in this report.l'i The company representatives had told them
generally what they had told King, namely, that the Company was investigating any
irregularities relating to the election and each interviewee was asked if he knew of
any threats or intimidation and what he knew about the cider.
Prior to the interviews, beginning on March 25, Baker, as we have seen, had
spoken to Purdy, Gilbert, Lewis, Hitchcock, and Lorenz on March 22 about the
cider drinking. In addition to taking statements from these persons on March 25-28,
the Company also secured, for the first time, affidavits from Foreman Bethune, and
from employees Belveal and Richardson. Bethune's statement was that, on the
morning of March 22, King had mentioned that his father had brought him some
Arkansas cider that was "real potent stuff," "the kind you make at home" and that
Purdy should like it. Although I have not credited Bethune's testimony at the hear-
ing, there is no reason why Baker and Crawford could not have believed such a
statement by the company foreman. The statement was not implausible on its
face.ii Baker testified that, during the days when employees were being interviewed
about the cider, he spoke to Belveal one morning . Belveal told him that, when he
had tasted the cider on the morning of March 22, it had a bitter taste and Belveal
was not sure what it was.19 Later in the day, when Crawford took a written state-
ment from Belveal, Belveal stated that the cider tasted like apple juice and was non-
alcoholic. Baker was aware of this statement as well as of his prior conversation
with Belveal. When interviewed by Baker and Crawford, Richardson gave a state-
ment that the cider had tasted like "hard apple cider, it had the odor of wine. I
would definitely say that the cider had alcohol in it." At the hearing, Richardson
testified that the cider had a "winey" smell and taste and that he thought that it con-
tained alcohol.
By Wednesday night, March 27, Baker states that the investigation was completed
and he had reached the conclusion that King, Purdy, and Gilbert should be dis-
charged. Because Brown had been out of town Baker states that he waited until he
was able to talk to Brown on Thursday morning before taking action. Baker testi-
fied that he believed that the discharge action, coming shortly after the Union had
won the election, would almost certainly be met with unfair labor practice charges,
and he wanted Brown to know the situation before the action was taken. Baker
states that, when advised of the situation, Brown approved of the proposed
discharges.2°
17 Tapia had told Crawford and Baker that he knew nothing about the cider.
11 It is not clear when Bethune first gave his information to Baker Bethune states that
on Saturday, March 23, Baker told him of the cider incident the preceding night. It
would seem natural that Bethune would have then mentioned his conversation with King.
Bethune stated that he was interviewed by Baker and Crawford, like other employees,
about events relating to the election but that they asked him only about what he knew
concerning the cider . In his affidavit , aforementioned , Bethune also stated that he did
not know at the time King spoke to him that King had brought the cider to the plant. It
can be stated that King admitted in his testimony that he and Bethune had worked to-
gether on the morning of March 22 . King says nothing about any conversation between
them while alone and he was not called in rebuttal to controvert Bethune's testimony as
to their private conversation.
11 Belveal did not testify.
20 Brown testified that he did not believe that the men had been drinking plain apple
cider since cider could be bought in any grocery store and he did not believe that anyone
would offer a drink of cider as if it was something special or, further, that those who
drank it would start acting drunk and horseplaying if it was just a soft drink
HAROLD BROWN COMPANY 1767
Baker testified that his decision to discharge the three men was made because he
concluded that the drink was alcoholic based on the evidence he had heard and
because of the fact that the men were acting intoxicated after drinking . When he
discharged the three men on March 28, 1963, Baker told them that after a thorough
investigation he had concluded that they had been drinking an alcoholic drink.
When asked what was to be placed on the termination notices, Baker said, "Drink-
ing." King said that he did not think that that was the real reason. Purdy said that
he did not think that the cider was alcoholic. Gilbert said that he did not think that
it was fair to put "drinking" on the termination papers. At the hearing the dis-
chargees testified, in substance, that, in their opinion, the cider was not alcoholic.
The day following the terminations Gilbert telephoned Brown. Gilbert had
known Brown 2 or 3 years before, when they were both working in the sales depart-
ment of another company. Prior to the events in the instant case, but at a time when
Brown headed the Respondent Company, Gilbert had spoken to Brown about his
interest in further education. Brown had suggested that Gilbert could work for
Brown and that Gilbert could attend school in Houston while so working and Blown
would help pay for the schooling. Apparently Brown had done this kind of thing
for other young men. This matter was never activated, and, later, when Gilbert did
apply for a job with Respondent, he did not so do through Brown personally?'
Gilbert states that in the aforementioned telephone call to Brown on March 29,
he asked Brown if he knew that Gilbert had been discharged the day before. Brown
said he did not know of the discharge but had known that something was going to
happen. Gilbert asked Brown about the possibility of not giving "drinking" as the
reason for his discharge. Brown said that that should be taken up by Gilbert with
Baker. Brown gave Gilbert the names of two employers to whom Gilbert might
apply for work. It was Brown's suggestion that Gilbert use him as a personal refer-
ence but that Gilbert not mention on his application that he had worked for the
Brown Company.22 Brown said that they (Respondent) were involved in a "squeeze
play" and there was much Brown would like to tell Gilbert but could not. Brown said
that he wished that Gilbert had never gotten mixed up in the whole mess but he sug-
gested that, if Gilbert did not secure another job, Gilbert should call him in a few
months "when the stuff got straightened out" and we would see about reemployment.
In his testimony Brown admits that Gilbert called him and spoke about changing
the reason given by the Company for his discharge. Gilbert said that he had not
thought much about the drinking because when he worked in sales there had been
sociable drinking. Brown explained that working in sales and working in a shop
were different. Because of past acquaintance, Brown admitted that he told Gilbert
of two places where he might apply for work. He told Gilbert to use him as a
personal reference but not to use the name of Respondent Company. Brown sug-
gested that if Gilbert did not find a job in a few days to call him back and that he
would give him the name of some other employers, since he knew everybody in town
who was in the oil tool business. The witness also said that he told Gilbert that he
wished that Gilbert had not gotten mixed up in this kind of a mess. Brown said that
he did not know of any reference being made by him as to a "squeeze play." He
denied categorically that he told Gilbert to call him in 2 or 3 months if he could not
find anything and that he would try to reemploy him when "this stuff" was straight-
ened out. When asked, at the hearing, Brown said frankly that he did not want a
union in his plant and still did not. He said that he would be working to get the
Union out of the plant in a year and would like to get it out sooner if he could. As
to why he was prepared to suggest other employers to whom Gilbert might apply
and to furnish a reference to Gilbert, Brown said that for many years he had still
recommended, as to ability, men discharged for drinking, because he felt that, though
a man had been drinking in his employ , he believed that the man should have a
chance to make good with a different employer. Baker said that he also was trying
to help Gilbert because of their past acquaintanceship. The witness said, however,
that he had never, either in sales or in the plant , given an employee a second chance
on drinking in his own company.
I credit most of the testimony of both Gilbert and Brown regarding their tele-
phone conversation . There is a substantial doubt , however , in my mind that Baker
said that he was in a squeeze play and there was much that Brown would like to tell
Gilbert but could not . I believe that Baker had informed Gilbert that drinking in
the plant was quite different from a sociable drink in sales work . He was thereby,
in effect , emphasizing .the reason for the discharge and standing behind that reason.
n Gilbert's application to Baker has been previously described.
22 Gilbert had actually worked for Respondent from February 28 to March 28, 1963.
1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears unlikely that he would then indicate by reference to being in a "squeeze
play" that it was not drinking, but something else Hof a somewhat shady implication
that was involved or was the real reason for the action. This is particularly true since
Gilbert was not challenging the discharge and pressing Brown for an explanation.
All Gilbert was asking was that a more innocuous term than "drinking" be placed
on his termination papers Moreover, both Gilbert and Brown knew that the
former was not a union man yet Gilbert did not mention this fact in his conversa-
tion with Brown. If Brown had given any indication that something other than
drinking was involved, e g. the Union, it would seem that Gilbert could have
emphasized his own nonunion position. It is also true that Brown knew that he was
talking to one of the men discharged the preceding day on the ground of drinking.
And Respondent fully expected that an unfair labor practice charge would follow
any discharges, as Baker had mentioned on March 22, and as he had mentioned to
Brown on March 28. Nor can it be said that Baker did not realize the possible im-
plication of a reference to a "squeeze play." He was a reasonably intelligent indi-
vidual and, in any event, his alleged remark, immediately following the squeeze
play reference, that he would like to tell Gilbert more but could not, indicates his
awareness that the entire area was dangerous. It is doubtful, therefore, that he ever
opened such a potentially dangerous door. Gilbert did not mention his conversation
with Brown in an affidavit he gave to the Union. But Gilbert testified that he told
the union representative about the conversation but asked him not to place it in
the affidavit. There is no corroboration from the Union as to this assertion. It also
appears that in a statement given to the General Counsel Gilbert does not refer
to the "squeeze play" remark. On the whole, Gilbert's version of what Brown said
about being in a squeeze play would indicate that Brown was being fairly candid
with Gilbert. At the same time, however, Gilbert's account would tend to show
that Brown was quite uncandid in telling Gilbert that Brown had not known that
Gilbert had been discharged. Brown, in fact, had approved the discharge before it
was made. The question is why would Brown fail to admit the simple fact that he
had been at least aware of the discharge but in the same conversation state or
strongly imply that the whole thing was due to the fact that Brown was in a squeeze
play- a rather frank admission that was potentionally much more important
than the matter of whether Brown had known of the discharge, since the squeeze
play reference implied not only knowledge and participation in the discharge but
also some possibly ulterior motivation. I am unable to credit the "squeeze play"
reference in Gilbert's testimony.
As to the alleged remark that Gilbert should call Baker in 2 or 3 months when
"this stuff" was straightened out and Baker would see about reemploying him, this
also does not appear in the statement given to the Union about a month after the
terminations. In an affidavit secured by General Counsel on May 2, 1963, Gilbert
thus describes what was said to him by Brown when he telephoned Brown: ".
he told me he was sorry that I had gotten mixed up in this and maybe if I could
call him within 2 or 3 months he would give me another job. He gave me the name
of a man to call at McEvoy Company about a job." The evidence persuades me
that when Gilbert telephoned Brown on March 29, Brown sought to help him.
This was probably due not only to the reasons given by Brown in his testimony
about past friendship but was also possibly attributable to a desire to preserve
or to develop Gilbert's lack Hof hostility toward Respondent on the union issue, with
a view of possible future litigation over the discharges. Brown gave Gilbert the
names of two employers where he could apply. Brown went to considerable length
to help Gilbert on the matter of references, even advising the omission of having
worked for Respondent but suggesting that Brown personally be used as a reference.
This was therefore more than a casual effort on Brown's part to help Gilbert secure
employment with another company. Since Brown had moved in that direction, for
the reasons previously indicated, it would seem that he would not simply give Gilbert
the names of two employers and then drop that approach and say that in 2 or 3
months, if Gilbert had been unsuccessful in his job hunt, he should come back
to Brown for reemployment by Respondent. Suppose Gilbert was not successful
in securing employment with the two companies mentioned by Brown or could
not secure another job? Gilbert's testimony would indicate that Brown was content
to allow Gilbert to be unemployed for 2 or 3 months, with the very possible
deterioration of Gilbert's attitude toward Respondent during the crucial period
when unfair labor practice charges might be underway. It is more likely that
Brown, as he testified, adhered to the direction in which he started, namely, of trying
to help Gilbert get another job. Someone moving in that direction would, as
Brown did, suggest several employers to Gilbert. But he would not abandon that
direction at such a point . It is more likely that Brown, as he testified, told Gilbert
HAROLD BROWN COMPANY 1769
to call him back in a few days if the first two employers did not prove a source of a
job and that Brown would give him the names of other employers in the industry
where Brown had a wide acquaintance. Perhaps, if a series of such employment
leads, over a period of a week or two or more, were fruitlessly explored by Gilbert,
Brown might have then said what Gilbert attributes to him. Even at such a point,
in the circumstances of this case, there is room for doubt that such a statement would
have been made. Gilbert's reemployment would be well known by all employees in
the plant, union and otherwise, including friends of King and Purdy who would
not have been reemployed. It would be likely that the Union would become aware
of the fact and also the Regional Office of the Board. But the testimony of Gilbert
is that in the initial conversation Brown gave him the names of two employers only
and also made the offer about coming back in 2 or 3 months without awaiting
Gilbert's exploration of employment elsewhere, although the latter avenue was
clearly the direction in which Brown was seeking to move Gilbert, including Brown's
personal involvement in the project. I am not persuaded that Gilbert's testimony on
this point is accurate.
On March 29, 1963, Respondent filed, with the Regional Director of the Board,
objections to conduct affecting the results of the election (the March 22 election
previously mentioned). One of the grounds for the objections was that the
Union gave intoxicating alcoholic beverages to the employees prior to their voting in
the election. The Regional Director overruled the objections, including the one
aforedescribed 23
C. Conclusions regarding the discharges
The General Counsel contends that the cider was nonalcoholic, citing principally
the evidence introduced through witness King. The General Counsel also refers
to testimony by Duckworth, a laboratory chemist, who testified that pursuant to
arrangements made by the Union, he tested some apple cider brought to him by
King on April 30, 1963 The cider so tested showed no alcohol. It is also the
General Counsel's contention that on the night of March 22 Lorenz and Baker
condoned the drinking incident and that they knew substantially as much at that time
as Respondent learned through its investigation in the following week. According
to the General Counsel, when Respondent realized that its condonation of the
March 22 incident "rendered the objection [to the election] patently frivolous,"
it decided to make the discharges.
The question of the alcoholic or nonalcoholic content of the cider has a number
of facets. Was the cider alcoholic and known by King and the others to be alcoholic?
Was the cider alcoholic without the knowledge of King and without .the knowledge
of Purdy and Gilbert until the latter two had substantially finished drinking it?
Was the cider nonalcoholic? As I view the evidence, it does not warrant an absolute
conclusion that the cider was alcoholic or nonalcoholic. I do not doubt the testi-
mony of Duckworth that the cider he tested a month after the discharges was non-
alcoholic. But the proof that this was the same cider that was in the plant on March
22 is less than convincing. Indeed, the maximum proof that could have made
regarding the cider that was tested a month later was that it came from the same jug
from which the March 22 cider had been drawn. This would still leave a gap with
respect to the particular conditions to which the March 22 cider and been exposed.
There are a number of factors pointing to the conclusion that the cider was known
to be alcholic. King dealt with the cider as something special and there is room to
doubt that there is anything special or different about plain apple juice whether
it is made from apples grown in Arkansas, Texas, Ohio, or Maine. But there is also
evidence pointing to the opposite direction, such as the openness of the proffering of
the cider and the placing it in a place accessible to all. The testimony of the wit-
nesses is as has been described heretofore and support for different conclusions is
furnished in varying degrees. I have considered the evidence as a whole and have
reached the following conclusion: About 3 weeks before March 22, King's father
purchased the cider in Arkansas. Presumably someone in Arkansas had pressed
21 In his decision the Regional Director found, inter alia, "that a rank-and-file employee
brought to work with him on the day of the election, a fruit jar containing a liquid he
identified to others as 'home-made cider' which had been sent to him by his father . . the
facts as to whether or not the `cider' contained alcohol are disputed but I find it un-
necessary to resolve this issue since the witnesses furnished by the Employer, as well as
those furnished by the Petitioner [the Union], state that the 'cider' was not consumed
by the employees until after the election. There is no evidence whatsoever that the
Petitioner had any connection with the matter or that the voters in the election were in
any way influenced by the cider "
1770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some apples and had extracted the juice. The exact treatment of the juice is not
known, whether it was pasteurized or left in a more or less natural state. King had
the cider in his home for a week before March 22. Whether it was kept under re-
frigeration or not we do not know. The contents were opened to the air for various
intervals when someone drank the cider. Presumably the cider was not, or was
not known to be, alcoholic when King allowed his minor children to drink it. For
a period from before 7 a.m., on March 22, to approximately 9:30 a.m., a jar of the
cider was for various intervals held in the hands of at least three people; the lid was
off the jar for intervals of time; the jar was in a locker for several hours; it is a fair
conclusion that there was a degree of warmth in the jar, plus air and other elements
to which the contents had been exposed; the jar was then in a refrigerator for about
10 hours; it was later consumed with some enjoyment by two physically mature men;
at the time of the actual drinking, the two men were not performing for an audience
and they returned to finish the contents, indicating thereby their own belief in the
palatability of the drink. I believe that a degree of fermentation had taken place
in the cider. Exactly when this process of fermentation had commenced I do not
know, nor do I know the exact level of fermentation attained. But I believe, as
Gilbert stated, that the cider that was consumed on the evening of March 22 was
stronger than apple juice and I believe that it did have some alcoholic content.
It is also my opinion, on the evidence, that neither Purdy nor Gilbert was in-
toxicated. The term "intoxicated" is not readily defined and is a relative term in
many respects. Suffice it to say that I credit the testimony of the two men involved
that they "acted" intoxicated and that they had not been affected to the degree that
their actions indicated. Judging from the relatively small amount of the beverage
that was available to the men and the fact that having started work at 3:45 p.m. they
had no doubt eaten their lunch before 9 p.m. and therefore were not drinking on an
empty stomach, it is my opinion that the true effect of the cider was no more than
some degree of euphoria that actually did not materially affect their faculties.
I have discussed the matter of whether the cider was or was not alcoholic, not
because it is the crux of the case, but because it bears on the evaluation of the reason
given by Respondent for the discharges. If the evidence was conclusive that the
cider was nonalcoholic or if, under all the circumstances, no one could reasonably
believe that it was alcoholic, Respondent's contention that it discharged the men
because they were drinking or because it believed that they were drinking, would
carry little conviction I am of the opinion that, on the evidence in this case, which
in all substantial respects was the evidence before Respondent, the latter could quite
reasonably conclude that the cider that was consumed on March 22 was more than
apple juice and that it was alcoholic.
Our next question is, did the Respondent actually conclude on the evidence be-
fore it that the cider was alcoholic and did it make the discharges for that reason;
or did Respondent believe that the cider was not alcoholic but did it assert that it
had concluded that the cider was alcoholic in order to validate its objections to the
election and thus prevent the Union from acquiring a representative status in the
plant?
The General Counsel points to what he designates as Respondent's condonation on
March 22 of the conduct that the Respondent subsequently, on March 28, asserts
was the reason for the discharges. I am satisfied that the key figure on the night of
March 22 was Baker. Lorenz, the leadman, whom I observed as a witness and
whose role has been described, was what his title implied. Technically, Lorenz might
fit the definition of a very minor supervisor but, actually, he apparently was a com-
petent machinist, loyal to his employer, whose principal "supervisory" function with
respect to four men on the night shift was to perform his own work and to be avail-
able if any particular problem arose. Lorenz impressed me as being the leadman
who was regarded by the other men as being more or less on their own level. There
was not the clear line of distinction between a full-fledged supervisor and the rank
and file, between Lorenz and the others. The "kidding" of Lorenz, and the conduct
engaged in before him, and the conversation with him by Purdy and Gilbert on
March 22, confirms the foregoing conclusion. Lorenz could send a man home if
he deemed that the circumstances required it but his basic supervisory function was
to call Baker if anything unusual arose and to carry out Baker's instructions. It is
apparent that Baker knew the limitations of Lorenz and that this was one of the
reasons why Baker made it a practice to personally drop by the plant at night. The
evidence indicates that Baker's dropping by the plant on March 22 on his way to
and from the theater with his wife was not to perform any particular work by Baker
himself but simply to see that everything was going all right. I am satisfied that
Baker was not looking for anything in particular in the plant and did not expect
HAROLD BROWN COMPANY 1771
to find anything awry on that night. Baker had been unavailable while he was at
the theatre and he simply wished to be sure that the plant was running smoothly.
It is evident that on March 22 Lorenz was confronted with a situation that he did
not know how to handle. He uttered some half-hearted almost jocular words about,
"Good-bye Mr. Keith" to Purdy, but it was less than a command and was treated
in the manner that could be anticipated. When asked by one of the men, "You
wouldn't squeal on me, would you," Lorenz said, "I might." Lorenz did not know
whether or not he should call Baker. In effect, Lorenz did nothing. He thought
that the men had been drinking but he did not know what it was and evidently was
unable to evaluate or cope with the situation 24 Lorenz' supervisory capacity and
status was so tenuous in Baker's own regard and in the minds of the rank and file
that Baker felt it necessary in his talk with Purdy and Gilbert to state that they
should not feel that Lorenz had "squealed" on them since it was Lorenz' duty to
report such things to Baker.
It is evident that Baker, on the night of March 22, had walked into an unexpected
situation. With his wife waiting for him in the car, close to midnight, he no doubt
expected to do nothing more than walk through the plant, ask Lorenz and the men
how things were going, and depart in a matter of minutes. Instead, Baker heard
from Lorenz, Hitchcock and Lewis of the conduct of Purdy and Gilbert. The in-
formants stated, and the prima facie evidence certainly indicated. that Purdy and
Gilbert had been drinking. As a competent and experienced manager, Baker
spoke to Purdy and Gilbert. At the outset, there is no question that Baker made it
clear that, if the men had been drinking an alcoholic beverage, they would be dis-
charged. He then heard Purdy's and Gilbert's story. They had been drinking cider
and had feigned drunkenness as a joke on Lorenz and the others . Baker was a non-
drinker himself. He was unable to come to any firm conclusion at that point.25
He gave the men the benefit of the doubt that he must have had 26 The shift was
about over and he told them to forget about it and to go back to work. Baker had
not made any decision to discharge the men and, in fact , his decision, at that point,
was not to discharge them. Had there been no union and no election in the pic-
ture I would regard Baker's handling of the situation, in the circumstances, as
unexceptional and the fact that there was the union background does not alter this
particular conclusion. It was a reasonable and a nonarbitrary type of managerial
judgment. By the same token, I find it difficult to believe that at midnight or by
12 15 a m. the incident vanished from Baker's mind and was a closed chapter when
he sent the men back to work. There may have been no clear view of a fire but
there was certainly a great deal of smoke. Purdy had told Baker that King had
brought the cider to the plant. It appears quite reasonable that on the next work-
day Baker might ask King about the cider, not necessarily expecting to change his
mind, but simply to round out the loose ends and to confirm his own judgment.
There,is, however, another factor that was present when Baker interviewed Purdy
and Gilbert on March 22. Baker was conscious of the fact, and admittedly so
stated to the men, that the drinking incident occurred at what he termed "a hell
of a time," because if he discharged them on the night after the Union had won the
election, it would be interpreted as a reprisal. Although Baker did not expressly so
state, it ds apparent that he was aware that the interpretation , that the act was one
of antiunion reprisal, carried, as almost a corollary, the fact that there would be a
charge of illegal discrimination. I am unable to agree with the General Counsel's
express statement that if Baker had discharged Gilbert and Purdy on that night
and King on the following Monday, "Respondent would undoubtedly have never
been charged with any unfair labor practices." The General Counsel and I, of
course, do not know whether or not there would have been ,a charge under the posited
circumstances . But one conjecture is at least as good as the other . If Baker had
24 Testimony reads as follows,
Q Isn't it true that Lorenz, Lewis and Hitchcock could have honestly believed that
you had been drinking9
A [Gilbert] Surprisingly enough they did, but in the dressing room . . after
Baker had his talk with us, Ewald [Lorenz] said he wished be knew we were playing
with him, that he would not have said anything to Mr Baker.
26 It should be noted that I, who had a detailed record of testimony and affidavits before
me and who was not confronted with the question of alcoholic or nonalcoholic cider
around midnight, while my wife waited for me outside, have found the conclusion regard-
ing the cider to be one that required detailed thought and analysis
20 Had Baker regarded Lorenz as a thoroughly competent supervisor the entire "kidding"
explanation night have carried no conviction But under the circumstances and with the
people involved no certain conclusion was then possible.
1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged Purdy and Gilbert on March 22 these could be alleged as indications of
discrimination. (1) timing, the evening after the Union won the election, (2)
precipitous action, with inadequate investigation; (3) a background of hostility to
the Union, and (4) contested evidence on the issue of whether the men had been
drinking alcoholic beverages. King's discharge on Monday could come under the
same aegis since other employees who had tasted the cider, such as Belveal and
Richardson, under the suppositious situation, were not questioned. Also present
could be the whole question of whether the cider was alcoholic and whether the
discharge was for the purpose of building a basis for objecting to the election be-
cause of drinking among the employees. Further, a union that has just won an
election would be under considerable pressure to file a charge to protect employees
discharged right after the election on grounds that were contestable I therefore
am unable to say, in view of all the circumstances present on March 22, that Baker's
action on that date in sending the men back to work was a clear act of absolution
on, or condonation of, the merits of whether or not they had been drinking an
alcoholic beverage on the job.
There is no doubt that Respondent was seeking grounds on which to object to
the election. This is admitted. Ideally, perhaps, parties should file objections to
Board or other elections only when the grounds thereof present themselves or when
the grounds stare a party in the face. But realistically, we live in less than a per-
fect world, and unions and employers and political parties may frequently seek to
find some tenable or even less than tenable grounds for objecting to elections that
are unfavorable to their desires. There is nothing illegal in Respondent's search
for grounds for objections Nor is it determinative that Bakei and Attorney Craw-
ford explored the cider incident with a view toward its potentiality as a ground for
objecting to the election.
I am of the opinion that, absent the election, Baker, on Monday, March 25, might
have casually asked King about the cider that Purdy and Gilbert claimed to have
been drinking. He might have done this because, after having had more time to
think, he had second thoughts about the events of Friday night or because he
simply wanted to round out the whole affair by at least checking with King about
the cider. Baker might have accepted King's story or he might have also spoken to
Belveal and Richardson since King would have probably mentioned that they had
tasted the cider. It is impossible to tell whether Baker would have been satisfied
with what he heard or whether he might have again spoken to Lorenz or Hitchcock,
Lewis, Purdy, and Gilbert. It is also possible that Baker, absent the election, would
have shown no further interest in the cider affair In any event, I am unable to
conclude that the March 22 events were removed from the picture on March 22
and that there was some kind of a factual estoppel created.
The most accurate appraisal, in my view, is that, absent the election, Respondent
would have not investigated the cider incident as thoroughly as it did, including on-
the-spot use of Attorney Crawford and the taking of affidavits In (a sense, at this
point, it can be said that there is a "but for" situation. But for the election and
the investigation to secure grounds for objections, the evidence, on which Respond-
ent states that it relied for its conclusion that the cider was alcoholic and on the basis
of which it allegedly made the discharges, would not have been developed as fully
as it was This "but for," however, is not enough to establish illegality. If during
the investigation that would not have taken place but for the election, one of the
employees, Purdy, Gilbert, or King, while being interviewed in the plant, had a
pint of whiskey fall from his pocket and smash on the floor, he could be discharged
for the possession of such liquor while in the plant. The discharge would not
be vulnerable on the ground that, but for the investigation to obtain grounds for
objection, the discovery of liquor would not have occurred.
The proposition that the General Counsel has undertaken to establish by a pre-
ponderance of the evidence is that the Respondent did not conclude or did not
honestly and reasonably conclude that the cider was alcoholic; that the asserted
conclusion that the cider was alcoholic and the accompanying discharges were
dictated by the necessity of lending validity to the objections to the election In
short, the proposition is, that but for Respondent's strong desire to keep the Union
out of its plant and Respondent's determined search for grounds on which to over-
turn the election, Respondent would neither have determined that the cider was
alcoholic nor would Respondent have discharged the three men.
There are three main pillars on which the General Counsel relies to support the
aforementioned propositions. One is, of course, Respondent's strong hostility to
the idea of having a union in its plant and Respondent's determination to find
grounds for objecting to the election I agree that point one has been established.
The second support on-which the General Counsel relies to support the basic legal
proposition of his case, as aforedescribed, is Baker's alleged condonation of the
HAROLD BROWN COMPANY 1773
conduct on March 22 I have discussed this condonation aspect at some length
and am of the opinion that the strongest factor for the General Counsel that emerges
from the condonation theory is that but for the election the Respondent probably
would not have investigated the cider incident as thoroughly as it did or might have
made no further investigation at all. The crucial aspect is not the making of the
cider investigation but the question whether Respondent acted honestly and in good
faith on the results of the investigation as it claims to have done, or whether
Respondent acted on the results of the investigation with illegal motivation, namely,
to lend validity to election objections in order to block the Union. This takes us
right into the third support on which the General Counsel relies. The General
Counsel assents that Respondent realized that if it condoned and did not take action
against the participants in the cider incident, "it could never have convinced the
Regional Director that the matter was serious enough to, warrant setting the election
aside"; 27 or, as otherwise stated, "For Respondent to condone the incident until it
had proofread its `Objections To Conduct of Election,' however, and to realize that
such condonation rendered its objections patently frivolous, renders Respondent's
tardy action [of discharging the men on March 28] unlawfully motivated " 28
As previously noted, Respondent's objection to the election with respect to intoxi-
cating liquor was that the Union gave "intoxicating alcoholic beverages to the
employees prior to their voting in the election thereby rendering the laboratory
conditions required by the NLRB an impossibility." The Regional Director's de-
cision on the objections indicates clearly that the cider incident evidence, which we
have considered in the instant case, was the only evidence that Respondent produced
in support of its No. 1 objection 29
Although the General Counsel has not detailed his theory except as indicated
above in the excerpts from his memorandum, it is apparent that it is as follows-
the objections rely on the cider incident as the basis for the contention that intoxi-
cating alcoholic beverages were given to the employees; if Respondent did not dis-
charge the three men on the ground that the cider that they had and that they had
drunk was alcoholic, there would be nothing to support the contention that the
employees had alcoholic beverages on the day of the election; in fact, failure to
discharge would indicate that the cider was not regarded as alcoholic by Respondent
and, on the other hand, the discharges for drinking would impress the Regional
Director that Respondent was convinced that the cider beverage was alcoholic
The foregoing hypothesis impliedly attributes to Respondent and its counsel a
fairly substantial quotient of knowledge and resourcefulness in dealing with ob-
jections to an election. I have no reason to differ with such a view but believe that
in dealing with a hypothesis we must also see whether a resourceful Respondent
was necessarily or most reasonably in the cul-de-sac that the General Counsel
claims.
Assume that Respondent did not discharge the three men on the ground of drink-
ing. What happens to the intoxicating beverage assertion in the objections9 What
can a resourceful Respondent say? Respondent could assert: (1) the issue of
whether the cider was alcoholic depends on the testimony or affidavits of witnesses
Lorenz, Hitchcock, Lewis, Richardson, Bethune, as well as some admissions as to
conduct and statements by Gilbert and Purdy; (2) whether we discharge or other-
wise discipline certain employees is not the issue; the issue is whether there was
drinking of alcoholic beverages; (3) we determined that the cider was alcoholic but
did not discharge the men because we believed that such a discharge for conduct
immediately after the election would be met by a charge of unfair labor practice
and that we would be involved in litigation; (4) we did not discharge the men
although they drank alcoholic cider because it did not affect their work and they
were, on the whole, rather candid in admitting to us what they had done; (5) we
believed that discharging the men just prior to filing objections to the election would
create an unfavorable atmosphere for the consideration of our objections since
the discharges might be prima facie suspicions and would indicate the possibility
x' General Counsel's memorandum, p 4.
28 General Counsel's memorandum, p 3
29 If Respondent had any other evidence of the presence of or the drinking of alcoholic
beverages on March 22, it is a fair assumption that such evidence would have been
presented in the instant case, as well as in its objections, since the incidents in addition
to the cider affair would lend credence to Respondent's legitimate motivation in dealing
with a problem of drinking among its employees Also, if those was evidence that the
Union had supplied the beverage, as stated in the objections, this evidence would pre-
sumably have been introduced in the instant case since it was directly at variance with
King's story as to the source of the cider
1774 DECISIONS OF !NATIONAL LABOR RELATIONS BOARD
that we were resorting to every action available, objections and discharges, to
frustrate the Union 30
I conclude that while the hypothesis of the General Counsel , aforementioned, may
be an arguably reasonable possibility , it is less than compelling in the circumstances
of this case.
As contrasted with the sudden and unexpected encounter with the drinking affair
on the night of March 22 , when Baker gave the men the benefit of the doubt that
any reasonable supervisor in such a situation could be expected to have , the investiga-
tion in the following week was detailed and precise and written affidavits were secured.
While most of the individuals had been spoken to by Baker on March 22, an ex-
perienced attorney , together with Baker , pinned down details and secured fully
developed written statements in the following week. Gilbert 's affidavit, for instance,
is very complete and it is doubtful , whether, on March 22 , Baker had thought to
ask or that Gilbert had mentioned the detail that his bantering with Lewis had
gone on for 40 to 50 minutes . This is probably true of other aspects of Gilbert's
statement and of the statements of other witnesses to the circumstances of the drink-
ing. The affair of the drinking was discussed and was known in broad outline on
the night of March 22. The focus became precise and sharp as the result of the
subsequent investigation ?' Moreover , some additional witnesses , not available on
the night of March 22 , were interviewed . Richardson and Bethune definitely sup-
ported the proposition that the cider was potent and alcoholic . Belveal , according
to Baker's uncontroverted testimony , told Baker in the morning that the cider had a
bitter taste but later, in his affidavit , said that it tasted lust like cider and that it was
nonalcoholic . Eventually , with all the evidence before it, Respondent , particularly
Baker, concluded that the men had been drinking alcoholic cider. It cannot be said
that the evidence did not warrant such a conclusion or that the conclusion was not
reasonable . The evidence from the employees involved , even from the dischargees,
was preponderant in that direction . Gilbert, in his statement , to the Respondent
said that the cider "was stronger than apple juice." Purdy had shrugged his shoulders
when asked by Baker if the cider was alcoholic. King denied that the cider was alco-
holic but he said nothing to Respondent to support his assertion He did not state,
as he did at the instant hearing , that his minor children had drunk the cider. He
did not say that he himself had tasted , on March 22, the cider that was in the jar
brought to the plant . He did not say that he had more of the cider at home and
offered to produce it for company inspection or to have it tested.32
Since Respondent had reached a reasonable conclusion , on the evidence , that the
cider was alcoholic , the remaining question is whether that was the reason for the
discharge . Respondent was strongly opposed to the Union and was making a deter-
mined effort to overturn the election . The election-objection aspect has been pre-
viously discussed . I was not persuaded that the General Counsel carried his burden
on the hypothesis or theory that he advanced and it is difficult to see that he could
have done any more than he did, namely , to state the theory. Althouirh not ad-
vanced as such by the General Counsel as an alternate contention , we will consider
31 It is to be borne in mind that the Regional Director in considering the objections did
not refer to the fact that employees had been discharged for drinking nor did he find it
necessary to decide whether the cider had been alcoholic The objections foundered on
the fact that the drinking took place after and not before or during the election Perhaps
Respondent did not anticipate this outcome although the time of the drinking was cer-
tainly not in dispute in the instant case and the evidence in the objection case was evi-
dentlv the same. It may be said that however weak Respondent 's position was, it regarded
the discharges as essential to make a weak case stronger This may be so but it may also
be true that incurring an almost inevitable unfair labor practice charge was a fairly high
price for something that was not going to be or that might not be decisive on the objections
31 By March 25 the incident was widely known in the plant. Gilbert testified that when
he came to work on March 25 the day crew greeted them with remarks about "the cider
jacks, apple cider twins . . " While the remarks were made in a spirit of joshing, it
is apparent that the March 22 incident had reached a point of general circulation There
is no evidence whether Baker considered the problem of general discipline and the enforce-
ment of plant rules to be particularly important in view of the fact that many of the
employees , besides the entire night shift , were aware of the rather unusual events that
occurred on March 22
33 At the bearing , King testified that after the problem of the cider arose at the plant,
March 25 to 28, he did not taste the cider that he had at home I would suppose that
curiosity or confirmation of his own opinion would have oidinarily prompted King to
taste the cider at that stage It Is also the fact that King testified that lie did not take
a drink of the cider on March 22.
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC . 1775
whether the evidence warrants the conclusion that an antiunion employer discharged
the men discriminatorily, using the cider incident as a pretext. The evidence, in my
opinion , does not warrant such a conclusion. Practically the first thing that Baker
admittedly told the men on the night of March 22 was that if they had been drink-
ing an alcoholic beverage they were discharged. Baker was a nondrinker. He did
not say that his proposition aforementioned depended upon whether the beverage af-
fected the men or whether it had a little alcohol or a great deal. The proposition
was as stated. No one contested this rule as a recent contrivance and the evidence
does not indicate that Baker was out to "get" the men when he made the state-
ment. Further, Gilbert was known to be opposed to the Union; Baker's testimony is
uncontroverted that a day or so before the election Purdy had told him that "he
couldn't see where this [the Union] could benefit him in any way ... that with his
education . he . . . had a certain handicap, and that he felt like that he could do
just as well on his own"; Baker testified that he considered that Purdy was not in
favor of the Union 33 King, therefore, was probably the only one of the dischargees
whom Baker regarded as prounion. In any event, I am not persuaded that the Sec-
tion 8 (a)(3) allegation of the complaint has been sustained by a preponderance of
the evidence on the record as a whole. Dismissal is therefore recommended.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. By a statement made to employee Purdy in February 1963, Respondent, by
its president, Brown, interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act, and has thereby violated
Section 8(a) (1) of the Act.
4. Respondent did not engage in unfair labor practices by discharging employees
King, Gilbert, and Purdy.
IV. THE REMEDY
I do not believe that any useful purpose will be served by requiring the posting of
a notice stating that Respondent will not interfere with the rights of its employees in
violation of Section 8(a)( I) of the Act or a notice stating that Respondent will not
tell employees that even though a union might be selected as majority representative
it would not come into Respondent's plant. There is a single statement to one em-
ployee involved, albeit by Respondent's president. The evidence indicates that the
Union has been certified and that Respondent has recognized it. Moreover, real-
istically regarded, the employees, the Union, and the Respondent realize that the issue
in the case was the legality of the discharges. A notice of the type aforementioned,
in the circumstances, would be unmeaningful to all concerned.
RECOMMENDATION
It is recommended that the complaint be dismissed.
as It was Baker who made the basic decision regarding the drinking and the discharges.
Brown thereafter concurred when lie returned from out of town. Brown's earlier state-
ments to Purdy indicate Brown's belief that Purdy was prounion. It is possible that
what Brown had said to Purdy, described previously in this Decision, caused Purdy to
change his position or possibly Brown had been wrong in his suspicion.
Bay Counties District Council of Carpenters and Joiners of
America, AFL-CIO ; Shinglers Union , Local 478, International
Brotherhood of Carpenters and Joiners of America, AFL-CIO
and Associated Home Builders of the Greater East Bay, Inc.
Case No. 20-CB-909. February 1 I, 1964
DECISION AND ORDER
On July 25, 1962, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
145 NLRB No. 168.