Harvey Engineering and Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 19, 1974

209 N.L.R.B. 766 (N.L.R.B. 1974)

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harvey Engineering and Manufacturing Co. and
United Steelworkers of America , AFL-CIO. Case
26-CA-4652
March 19, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On August 17, 1973, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
MEMBER FANNING, dissenting:
Contrary to my colleagues, I would reverse the
Administrative Law Judge's dismissal of the 8(a)(3)
allegation as to Woodrow Graves and would find
that he was discriminatorily discharged on February
23, 1973, because of his leading role in organizing
Respondent's employees.
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
inc, 91 NLRB 544, enfd . 188 F 2d 362 (C.A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
The record herein furnishes no basis for Member Fanning's reversal of
the crucial credibility finding of the Adnunistrative Law Judge with respect
to Harvey 's version of the second encounter with Graves at 6 p in. on
February 21, 1973. The observation of the Administrative Law Judge that
he was favorably impressed by Graves does not compel the trier of fact to
credit Graves' testimony in its entirety . In our view, the general comments
of an Administrative Law Judge that particular individuals made good or
bad impressions as witnesses do not vitiate his specific resolution of
conflicting testimony We do not suggest that credibility resolutions by
Adnumstrative Law Judges are sacrosanct , but we should not lightly
repudiate the conclusions of the Administrative Law Judge "who has
observed the witnesses and lived with the case." Universal Camera Corp. v
NLRB, 340 U .S 474 (1951)
Graves, a witness who "made a good impression"
on the Administrative Law Judge, testified as
follows: 2
Graves was hired in August 1972 as a welder at an
hourly rate of $2.82, received a 27-cent raise within a
month, and in December of that year was promoted
to the position of fitter on one of Respondent's work
crews at $3.52 an hour.3
In late December 1972, Graves spoke on two
separate occasions to General Foreman Don Scrog-
gins and Foreman Dub Clenny4 concerning the
advantages of having a union represent the employ-
ees. Thus, Graves told Scroggins that he had been a
member of the Teamsters for 3 years prior to coming
to work for Respondent and that he would like to see
a union "come in" Respondent's plant. Graves told
Clenny that any union "would probably straighten
things out in the plant, would help get better
insurance and better wages."
Early in January 1973,5 during two lunch hours,
Graves talked to a group of employees in the plant
concerning the desirability of a unions On January
9, Graves went among the employees before working
hours to notify them that a meeting would be held on
Respondent's parking lot during the lunch hour.
While that meeting was in progress,7 Harbour and
John Fletcher, another vice president, came within
70 yards and glanced at the assembled employees as
they walked to Harbour's cans
On January 16, Graves again went through the
plant before working hours for the purpose of asking
the employees to be at the parking lot during
lunchtime. At that meeting, Graves urged the
employees to congregate at a local motel on January
27 for the purpose of having the organizer of the
Steelworkers distribute authorization cards and
explain what the Union might be able to do to help
the employees.9
Graves spoke at the January 26 meeting iO and at
another in the same motel on February 2. Graves
2 Except where indicated below , Graves' testimony was uncontradicted
l Both Respondent President and General Manager Ed Harvey and Vice
President Wesley Harbour testified that Graves was a good employee who
"worked harder than anybody else in the plant" and had a good attitude
and attendance record.
4 The parties stipulated to the status of Scroggins and Clenny as
supervisors
5 All dates below refer to 1973 except where otherwise specified.
6 The Administrative Law Judge found that Respondent had about 41
production and maintenance employees
7 The 27 employees who attended adopted Graves' suggestion that he get
in touch with the Steelworkers
8 The testimony of Harbour and Fletcher contains no denial that they
observed this meeting
9 Harbour testified that he did not observe this meeting but conceded
that he was aware of it and was informed by Scroggins that it was a union
meeting. Although Harbour mistakenly gave the date thereof as February
16, it appears that he was referring to January 16 as there is no evidence that
such a meeting took place in February.
10 Paul Hamilton . Graves' crew supervisor. attended this meeting and
209 NLRB No. 95
HARVEY ENGINEERING & MFG. CO. 767
secured a total of 39 signed cards at the meetings and
the plant itself. On one occasion, Scroggins, who was
standing 10 feet away, looked in the direction of
Graves and an employee who was signing a card at
Graves' request.11
On February 21,12 Harvey called Graves into his
office about 4:40 p.m. and informed him in the
presence of Harbour and Fletcher that he was being
appointed crew supervisor.13 Graves replied that he
had never been a supervisor and was not "capable"
to fill that position. Graves then suggested that
another employee, Albert Ellis, could handle the job
more capably.14 Graves also declared that Harvey
knew that he (Graves) "had been talking union in the
plant" and that Graves "didn't want to be set up and
fired like Hamilton had been."15 When Harvey
replied, "if you want to continue working here you
are going to have to accept this job" as supervisor,
Graves said, "I guess I will have to accept this."
Upon reflection, Graves returned an hour later to
the plant where Harvey consented to give Graves "a
minute" although he had some people in the office.
Graves thereupon informed Harvey that he did not
want the job of crew supervisor and could not accept
it. Harvey responded, "this is the only way you can
continue to work for this company." Graves then
said, "I will come back to work in the morning, but I
won't be doing a supervisor job." Harvey's reply was,
"OK . . . We'll see you in the morning." 16
The next morning, Scroggins asked what Graves
was going to have his "men" do, and Graves replied
that he was not a supervisor and had told Harvey so.
Scroggins stated that he had not heard anything to
that effect and advised Graves to take the job as
supervisor. Scroggins repeated this advice in the
afternoon and warned that Harvey had already made
up his mind to fire Graves if he did not accept the
job.17
On the following morning, Scroggins directed
Graves to order two of the men on the crew to tear
down a scaffold. Graves refused to do so on the
ground that he was not a supervisor. Later that
morning,, Graves was called to the office where
Harbour discharged Graves for his refusal to obey
Scroggins' directive.'s
Harvey, who made "a poor impression" on the
Administrative Law Judge, was found to be unrelia-
ble as a witness : "Harvey seemed to be evasive,
uncertain and he demonstrated great difficulty in
remembering the dates of the events which he
described. He seemed to have a faulty memory."
As stated above, Graves made a good impression
on the Administrative Law Judge while Harvey made
a poor impression because he was evasive , uncertain,
and seemed to have a faulty memory. Despite this
appraisal, the Administrative Law Judge erroneously
accepted Harvey's version of their second encounter
at 6 p.m. on February 21.
In crediting Harvey's testimony that he did not
hear Graves refuse the job of supervisor at that time,
the Administrative Law Judge merely mentioned the
General Counsel's contention that there were discre-
pancies between Harvey's affidavit and his testimo-
ny. However, the Administrative Law Judge failed to
set forth and evaluate any of these discrepancies.
Thus, he did not specifically refer to the direct
conflict between Harvey's testimony that he in-
formed Graves that he was too busy to grant Graves
an audience and the affidavit wherein Harvey
acknowledged that Graves returned to the plant and
repeated his earlier assertion that he did not want to
be a supervisor and was not qualified therefor.
It is well established that such an admission against
interest by an affiant may be utilized for impeach-
ment purposes.19 Viewed in the light of the Adminis-
trative Law Judge's damaging assessment of Har-
vey's evasive and uncertain performance as a witness
and Harvey's careful review of the affidavit before
signing it, the admission must be deemed as
impeaching Harvey's testimony and accepted as
probative evidence in support of the General
Counsel's case.20
signed a card. Harvey testified that Hamilton on February 6 informed
Harvey that he had been present at the union meeting. Harvey in a
statement to the Board agent asserted that on this date he heard from
Hamilton that there had been union meetings.
11 Scroggms' testimony contains no denial of this statement
12 On February 5, the Union sent a letter informing Respondent of its
majority status and requesting recognition . Two days later, the Union filed
a representation petition and on April 23 lost a stipulated election.
is Hamilton was discharged earlier that afternoon . According to
Harvey's statement to the Board agent , Harvey told Hamilton who had
been supervisor since August 31, 1971, that he was being terminated for "the
best interests of the Company."
14 Ellis testified without contradiction that , during Hamilton's 2-week
vacation in November 1972, he took the latter's place as crew supervisor.
Respondent 's records also show that Ellis was promoted to that position on
February 25 following the discharge of Graves.
15 Harvey, Harbour, and Fletcher denied that Graves made this
particular statement
16 As indicated below. Harvey's statement to the Board agent is in
accord with Graves' description of this conversation. However, the former's
testimony differs in some respects from that of Graves.
17 Scroggins testified that he did not make this particular statement
iii According to Harbour , Graves remarked, "I know why this is being
done I am backing the union all the way."
19 Skouras Theatres Corporation, et a!., 155 NLRB 157, 162, Grove
Shepherd Wilson & Kruge, Inc, 109 NLRB 209.213-215
20 My colleagues invoke but totally fail to adhere to the principles of
Standard Dry Wa ll Products, supra, and Universal Camera, supra, which hold
that an Administrative Law Judge's assessment of a witness should be
accorded great weight because he has the opportunity to observe and
evaluate the demeanor of the witness . Thus, they contravene this
fundamental rule of evidence by depreciating the Administrative Law
Judge's favorable estimate of Graves and completely ignoring his character-
ization of Harvey as an evasive and unreliable witness. They compound this
error by also failing to take cognizance of Harvey's affidavit which contains
an admission against interest that reinforces the Administrative Law Judge's
(Continued)
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also significant that Harvey put Graves under of the Act and would require the reinstatement of
inordinate pressure by telling him during both Graves with backpay. ,
February 21 interviews that Graves had no choice in
the matter. Harvey's unswerving insistence that
Graves become a supervisor against his wishes shows
a strange and unusual sense of urgency on Harvey's
part. That Harvey was willing to sacrifice an
outstandingly satisfactory employee and run the risk
of not replacing him21 cannot be plausibly explained
by Harvey's statement that he was altruistically
motivated by a desire to reward "the best man" for
the job. That Harvey had a reasonable alternative is
clearly shown by the availability of Ellis, an
experienced member of the same crew, who had
already been judged worthy of filling in for 2 weeks
as a substitute for Hamilton and was ultimately
promoted to the position of supervisor when Graves
was terminated.
The Administrative Law Judge also erred in
holding that Graves' revelation of his union sympa-
thies in December 1972 was too remote in time to
show Respondent had no knowledge thereof in early
January 1973. Respondent's supervisors, Scroggins
and Clenny, were fully aware of Graves' desire to
bring a union into the plant when he soon thereafter
assumed leadership on behalf of the Union by
arranging for and holding two parking lot meetings
and two union meetings, and by securing union
authorization cards at the plant itself. Aside from the
fact that Graves' union activities would, in any event,
come to the attention of the supervisors in a plant
with a relatively small number of employees,22 it is
clear from Graves' uncontradicted testimony that
Harbour and Fletcher observed the first parking lot
meeting and that Scroggins was nearby when Graves
secured an authorization card from an employee. In
addition, Harbour testified that he learned about the
nature of the second parking lot meeting from
Scroggins who informed him that it was a "union
meeting." 23 Finally, Harvey, who displayed his
"faulty memory" in testifying that he did not recall
when he became aware of Graves' union activities,
admitted in his affidavit that he learned about the
union meetings from Hamilton in early February.
In view of the foregoing, I would hold that the
Administrative Law Judge erred in crediting Harvey
and in finding that Respondent did not have
knowledge of Graves' leadership as a protagonist of
the Union. I would also reject Respondent's com-
pletely implausible explanation for forcing Graves to
become a supervisor. I would therefore conclude that
Respondent's reasons for promoting and then dis-
charging Graves were spurious and a pretext to
conceal its discriminatory motivation. Accordingly, I
would hold that Respondent violated Section 8(a)(3)
unfavorable appraisal of Harvey's performance as a witness To credit
Harvey's testimonial account of his second February 21 conversation with
Graves in the face of the foregoing considerations, which demonstrate so
inescapably the unreliability of Harvey's testimony , is to drain all meaning
from the basic tenets of the Board and the Supreme Court in this important
area of law.
21 Graves ' position as a fitter was still vacant at the time of the hearing.
22 Famet, Inc., 202 NLRB 409.
23 Although the Administrative Law Judge credits Harbour's testimony
that he did not know about Graves' union activities until after the discharge,
Respondent through its supervisors Scroggins and Clenny already possessed
this knowledge prior to the discharge.
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF , Administrative Law Judge : The charge
herein was filed on February 28, 1973 ,1 the complaint
issued on April 20, and the hearing took place in Hot
Springs, Arkansas , on June 5 and 6. The charge alleges that
Respondent , by employing a devious technique , promoted
employee Paul Hamilton to the position of supervisor and
then discharged him in order to have Hamilton 's position
as supervisor open so that the Company could then
promote employee Woodrow Graves to the job of
supervisor and then similarly discharge Graves. The
General Counsel contends that both Hamilton and Graves
were the chief union instigators in the plant and both men
were first promoted as supervisors and then discharged
because of their activities on behalf of the United
Steelworkers of America , AFL-CIO , hereinafter referred
to as the Union. By such action it is alleged that
Respondent violated Section 8(a)(1) and (3) of the Act.
Respondent denies the commission of the unfair labor
practices alleged but admits allegations of the complaint
sufficient to support the assertion of jurisdiction under
current standards of the Board (outflow of over $50,000 in
the past calendar year). The answer further admits that the
Union is a labor organization within the meaning of
Section 2(5) of the Act.
The complaint named both Hamilton and Graves as
8(a)(3)'s but at the hearing the General Counsel moved to
have the allegations concerning Hamilton deleted from the
complaint . This motion was granted. On July 11 the
General Counsel also moved to correct the transcript. This
motion was unopposed and it is hereby granted.
Upon the record made before me and my observation of
the demeanor of the witnesses and after careful considera-
tion of the briefs , I make the following:
FINDINGS OF FACTS
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a corporation engaged in the manufacture
of lumber handling equipment such as lumber conveyors,
trimmers , stackers, and sorters.
The Union filed a petition for an election in Case
i The dates of all events took place in 1973 unless otherwise indicated.
HARVEY ENGINEERING & MFG. CO.
26-RC-4400. The election took place on April 13 with the
following results : 26 votes against the Union and 10 for the
petitioner . There were five challenged ballots . No objec-
tions were filed by the Union.
The Union filed a demand letter on the Company on
February 6 and the petition referred to supra on February
7.
B. The Union's Organizing Campaign
The Union's organizing campaign commenced on
January 9 at which time Graves went among the employees
to notify them that a meeting would be held on the
Company's parking lot during the lunch hour. Graves
testified that he spoke to no supervisors or office personnel
about the meeting. While the initial meeting was in
progress Supervisors Wesley Harbour and John Fletcher
came within approximately 70 yards of the meeting and
allegedly glanced toward the group. They did not stop or
stare at the employees.
Graves contacted Union Organizer Jesse Trussell and
told him that the employees were interested in joining the
Union. Trussell in turn told Graves to get in touch with
Frank Russell, another union organizer, who, together with
Graves, arranged for the first union meeting to take place
at the Avenelle Motel in Hot Springs on January 26.
Graves, on January 16, again - went through the plant
before working hours and set up a second meeting of
Respondent's employees to take place during lunchtime on
the Company's parking lot. The employees were told by
Graves about the union meeting scheduled to occur on
January 26. He urged the men to attend and invited them
to meet Russell and to sign union application cards.
Graves got about six cards signed the evening of the
meeting of the 26th. Between January 26 and February 2
Graves secured 17 additional signed cards which he turned
over to Russell at the second meeting on February 2. Thus
Graves was instrumental in causing the employees to
attend the two union meetings and he also spoke at these
meetings . All told Graves secured signed union cards from
approximately 39 employees which were turned over to
Russell.
On direct examination Graves testified that while he was
passing out cards at the plant, on one occasion he was
observed by Don Scroggins, Respondent's general fore-
man, while an employee was signing the card. According to
Graves, Scroggins was standing approximately 10 feet
away while the employee was signing the card. Scroggins at
first looked in their direction and then turned his head
away and looked the other way. Graves further stated that
he did not believe that Scroggins could read what was
written on the cards but he felt certain that Scroggins could
see him.
Graves went on to say that during the course of the
meetings he held on the parking lot he "spoke up and told
them (the employees) I felt that the union was the best
thing we could tiave for any plant. If the union would
represent us we would get better working conditions, better
benefits, and that I was strictly union."
Graves continued his testimony by stating that he has
been a member of the Teamsters Union in a previous place
of employment and that he had held two conversations
769
with company supervisors on this subject. He claims he
spoke to Don Scroggins and Dub Clenny, who was a cutup
foreman for Respondent, sometime around Christmas
1972. Scroggins allegedly said he would like to see the
Company go union. Graves testified that Scroggins said the
Union would help the Company. During this conversation
Graves said he told Scroggins he had been a member of the
Teamsters for the past 3 years prior to his employment
with Respondent. In recounting his talk with Clenny,
which also took place sometime before Christmas 1972,
Clenny said he had been a member of the Boilermakers
Union. Graves told Clenny any union that came in would
probably straighten things out in the plant. That was the
extent of the exchange between Clenny and Graves.
There is information about Hamilton in the General
Counsel's brief wherein it is stated:
About February 6, 1973, President of Harvey Engineer-
ing, Ed Harvey, had a conversation with Paul Hamilton
and two company attorneys, Lincoln and Lyons.
During this conversation, Hamilton told Harvey that
he had been to a union meeting. Harvey testified that
after being told by Hamilton that he attended a union
meeting, he told Hamilton that he wanted him and
needed him as a supervisor regardless of what had gone
on and if he wanted to work there and do his job they
needed him, regardless of any union activity on
Hamilton's part. However, Harvey later admitted that
during the same conversation, Respondent's attorney,
Lincoln, told Hamilton that Hamilton had to be 100
percent for the Company or he couldn't work there.
Apart from the above the record is silent on matters
relating to Graves' union activities both past and present.
It should be remarked at this juncture that the complaint
does not contain any allegations of independent 8(a)(1)
activities except for the material concerning Paul Hamilton
all of which is not before me because the General Counsel
amended the complaint at the hearing in which he deleted
references to Hamilton.
C. Graves' Version of the Facts Surrounding His
Discharge
Hamilton was discharged on February 21. Later the
same day, about 4:30 p.m., Graves was summoned to the
office of President Harvey. Present at this meeting were
Graves, Harvey, Wesley Harbour, Respondent's vice
president, and John Fletcher, the Company's vice president
in charge of the engineering department. -
Graves testified that Harvey told him the Company was
appointing him as a supervisor to replace Hamilton.
Allegedly Graves said he felt he was not qualified to be a
supervisor. Graves also said he had never held a position
like that before and he further commented that Respon-
dent had a man, Albert Ellis, who was working in the same
bay with him and had more experience than Graves. In
point of fact Ellis had acted as a supervisor handling the
same crew once before for a 2-week period while Hamilton
was out of the plant on his vacation.
The General Counsel's brief states:
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... Graves went on to tell Harvey that he did not
want to be set up and fired like Paul Hamilton had
been, because Harvey knew that he (Graves) had been
talking union in the plant and had been trying to get
the people organized and get the union in . Graves felt
that under these conditions, that Harvey was just trying
to set him up to fire him. Harvey 's reply to Graves was,
that if he wanted to continue working , he was going to
have to accept this job. At this point Graves told
Harvey that it was his decision to appoint him as a
supervisor and Graves to refuse to accept but that he
guessed he would have to accept.
According to the testimony of Graves, Harvey told him the
Company would post a notice on the bulletin board in the
morning explaining that he was a supervisor . Fletcher
congratulated Graves and this was the end of the meeting
in Harvey's office. There is also testimony in the record
that when Graves expressed doubt of his ability to
discharge the responsibilities of a supervisor due to lack of
experience he was assured by Harvey that the Company
would be glad to assist him to learn his new job.
At the conclusion of the meeting in Harvey 's office,
which occurred at normal quitting time , about 5 p.m.,
Graves went home. He turned over in his mind what had
transpired and decided to call the union business agent,
Russell , to discuss the matter with him . Russell told him
that if he wanted the job he should take it but if he did not
want it he should tell Harvey his decision the first thing in
the morning . Graves saw that by this time it was about
5:30 p . m. and he decided he would return to the plant at
once , which is located not far from his home , and try to
catch Harvey and tell him he did not want the job.
Graves found Harvey and allegedly told him that under
the circumstances in the plant he just could not accept it.
Graves claims that Harvey then asked him if he was
quitting . Graves replied that he was not quitting . Graves
then stated that when he came to work in the morning he
would be working just like the rest of the fitters doing
exactly what he was told to do in his line of work. Harvey
again told Graves that this was the only way he could
continue to work for the Company. Graves said he would
be back at work in the morning but he would not be
performing supervisory work . This ended the conversation.
Next morning, February 22, Graves punched in for work
and reported to his usual work station . Scroggins asked
him what he was going to have his men do . Graves replied
that he was not a supervisor and that he had made it clear
to Harvey the night before that he rejected the promotion
to be a supervisor . Scroggins said he had not been
informed of Graves' decision to decline the supervisory
job. Scroggins called Graves aside and advised him to take
the job. Graves reiterated his determination not to become
a supervisor.
On two additional occasions that day Scroggins suggest-
ed that Graves take the job as supervisor otherwise Harvey
had made up his mind to fire Graves if he did not accept
the job . Graves was adamant and said his decision not to
take the promotion was made clear to Harvey the previous
night.
On February 23 Graves reported to work and began to
check a gas line for leaks which assignment he had begun
on the previous day. Scroggins approached Graves about 8
a.m. and instructed him to order two of his men to tear
down a scaffold and take two sections to a local contractor
who was engaged in putting up a building outside of the
main building . Graves told Scroggins that he could not
order . any of the men to tear down a scaffold or to do
anything else because he was not a supervisor . Graves
informed Scroggins that he (Graves) had never refused a
job given to him by any supervisor and he had always
performed whatever tasks had been assigned to him to the
best of his ability . According to Graves, Scroggins agreed
that he had followed orders but that Graves left him no
alternative . The men were then ordered to take down the
scaffold by Scroggins but Graves was not given this job.
Later that morning, about 11:45 a.m ., Scroggins told
Graves to report to Harbour in the latter 's office . When he
got there Graves found Harbour was in the office together
with Fletcher . Graves testified that Harbour told him the
Company was going to have to let him go because he
refused to give a direct order when he was told to do so by
Scroggins. Harbour handed him a check for 27 hours at
$3.62 an hour and 13 - 1/2 hours at $4.12 per hour . Graves
told Harbour there was an error , that he was not entitled to
$4.12 an hour since that was pay for supervisors and he
only performed the job of a fitter whose correct rate was
$3.62 per hour . Graves further testified that at no time had
he performed any supervisory functions and he was
therefore not entitled to the pay of a supervisor.
The General Counsel calls attention in his brief to the
fact that there is no indication that the Respondent advised
the employees of Graves ' promotion . However, the record
does show that some of the men in the crew said they knew
about the promotion and one witness testified that Graves
himself had stated that he had been promoted.
D. Respondent's Version of the Facts Surrounding
Graves' Discharge
On the day when Hamilton was discharged , February 21,
the Company promoted Woodrow Graves to the position
vacated by Hamilton . Respondent in its brief characterized
Graves "as being at the top of his pay grade, a good
worker, dependable , and (he) had exhibited a desire to
advance (in his job with the Company)."
The brief continues:
Credible evidence from three of the four persons
attending the meeting (Harvey, Graves , Harbour and
Fletcher) establishes that at first Graves stated that he
did not desire the promotion because he did not think
that he was qualified . However, the Company ex-
plained that they would help him in any way . Graves
admitted that at this meeting he at first accepted the
job as supervisor to replace Paul Hamilton.
Thus far the evidence in the record coincides with both
versions of the events as described by Graves and
Respondent's witnesses . However, there is a sharp conflict
between the witnesses as to the later meeting which was
held by Graves with Harvey at approximately 6 p.m. on the
same day. Harvey testified that no detailed meeting was
held but that Graves came to him and said that he wanted
f
HARVEY ENGINEERING & MFG. CO. 771
to talk to him. Harvey then went on to say that he had
some customers in his office who were waiting for him and
consequently he could not talk to Graves. Harvey stated
that he continued walking to his office and Graves
continued talking but Harvey claims he did not hear what
Graves said. Graves did testify that Harvey said he had
some customers to take care of in his office but Harvey
denied that Graves said he would not accept the promotion
to supervisor.
If Harvey is to be believed Graves at no time reversed his
prior acceptance of the job and then later, in his alleged
conversation with Harvey at 6 p.m., he did not change his
mind and refuse the job. Harvey denied he heard Graves
say he would not take the job. Under Respondent's version
of the facts when 2 days later Graves refused to order men
in his crew to take down the scaffold after being ordered
by Scroggins to issue such an order he was guilty of
refusing to follow the express instructions of Foreman
Scroggins. This would constitute insubordination and
provide ample justification for Graves' discharge.
It should be pointed out that Harvey, Harbour, and
Fletcher gave mutually corroborative testimony in support
of Respondent's position. Since Graves' recital of his
conversation with Harvey is in direct conflict with the
testimony of the Respondent's witnesses it becomes
necessary to evaluate the credibility of Graves and Harvey.
E. Credibility of the Witnesses
It should be stated at the outset that Graves made a good
impression during his testimony. On the other hand
Harvey seemed to be evasive, uncertain, and be demon-
strated great difficulty in remembering the dates of the
events which he described. He seemed to have a faulty
memory. The General Counsel sought to make much of the
discrepancies between an affidavit which was executed by
Harvey on March 26 and his testimony at the hearing. The
statement signed by him consists of 19 pages of handwrit-
ten material and, while it is not always easy to read, it is
comprehensible. Respondent's counsel made a motion to
strike this affidavit on the dual grounds that it is illegible
and no typed copy of the statement was sent to Respon-
dent at the time General Counsel agreed to do so. Neither
ground advanced by Respondent has merit and I deny the
motion. In any event, as stated supra, the copy in the
possession of Respondent is sufficiently legible for me to
have had no difficulty in deciphering it.
Unfortunately, in determining credibility issues, a trier of
fact does not have the benefit of any test that may be
applied with absolute certainty that the result reached will
be correct. Under our judicial system, all that a trier of the
facts can do is to give due consideration to, among other
factors, the demeanor of the witnesses, their apparent
candor and frankness, their bias or interest, or the lack
thereof, the probability of the truth of their testimony, and
upon considerations of all relevant factors, give credit
where credit appears to be due. After careful consideration
of the testimony, and without imputing any improper
motive to Graves, I have concluded that I must credit the
testimony of Harvey that he did not hear Graves say that
he could not and would not accept the job of supervisor. I
base this conclusion upon the totality of the following
considerations:
1. While I have commented on the rather poor
impression Harvey made as a witness as against the good
impression I took from the testimony of Graves it should
be noted that demeanor is only one of the factors that must
be taken into consideration when one is attempting to
resolve questions of credibility.
2. The conflict in testimony concerns the second
conversation between Graves and Harvey. Graves admit-
ted that Harvey did tell him he had only a few moments to
talk to him because he had some customers waiting for him
in his office. It is plausible that he did not tarry too long in
getting to his office and Harvey was clearly in a hurry to
terminate the conversation with Graves. It may well be
that Harvey did not hear all of the remarks made by
Graves. Also there was no corroboration of this conversa-
tion. Furthermore the initial talk between Harvey and
Graves was heard by Harbour and Fletcher both of whom
testified and impressed me with the candor of their
corroborative testimony. It was not denied that Harvey did
say in this conversation that unless Graves accepted the
job of supervisor he could no longer work for Respondent.
Added to this undisputed fact Scroggins took Graves aside
and suggested to him that he better assume the responsibil-
ities of supervision because otherwise Harvey had made it
plain that his mind was made up: either Graves would act
in a supervisory role or he could not continue to work for
the Company. Scroggins made a separate and second
attempt to urge Graves to order two men to take down a
scaffold. Graves again refused to issue the order to the men
as he was instructed to do by Scroggins. Scroggins credibly
testified that he had received no word from the front office
that Graves had told Harvey he refused the job the night
before. Under these circumstances for Graves to have
disobeyed a direct order was insubordination warranting
his discharge.
3. Scroggins also testified with candor and forthright-
ness that while he saw the men gathered on the parking lot
there is no proof that from 75 yards away he was able to or
made any effort to identify the principal speaker at this
meeting. The General Counsel apparently expects me to
draw an inference that a union meeting was in progress
and that the Company knew Graves was a leader in the
union movement. I am unable to draw such an inference.
4. While it was not denied that Graves did in fact have
two conversations with company supervisors in which he
made his union sympathies and past membership in the
Teamsters clear it is also true that the conversations took
place in December 1972 and active proselytizing efforts
were not commenced by Graves until sometime in late
January and early February 1973. The causal relationship
between the conversations and Graves' efforts to unionize
the plant is too remote in time to infer that Respondent
knew that Graves had to be the Union's main supporter. I
draw no such inference from the record.
5. Harbour testified that the first time he ever heard
that efforts at unionization were being made and led by
Graves was on February 23 when Graves was told he was
being discharged. Graves' reaction caused him to say that
he was being set up as a supervisor, like Hamilton before
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him, so that Respondent could then fire him because of his
union activities. Harbour's testimony in the record on this
point is as follows: Harbour was being interrogated on
direct examination:
Q. Now after that time had Woodrow Graves ever
mentioned union to you or in your presence?
A. No, sir.
Q. You heard him testify this morning and you
heard him account as to how he was almost a one man
organizing committee. When is the first time you
became aware that that was a fact?
A. In February 23rd . . . when he told you that.
Q. Did you know about his activities before
February 23?
A. I did not.
I credit this testimony of Harbour.
6. In some particulars the testimony of Graves, Harb-
our, Scroggins, and Harvey runs along parallel lines.
Where the witnesses differ, on the question as to whether
Graves asserted he told Harvey in his second meeting that
he would not accept the job of supervisor, the plausibility
of Respondent's version, as supported by the overall
internal evidence presented by the Respondent, is persua-
sive. I credit it.
I am reluctant to make findings in the instant case based
solely on inferences and the demeanor of the witnesses as
requested by the General Counsel. Here, I believe, the
greatest weight must be given to the issue of plausibility
between the respective theories of the parties.
F. Conclusions
Company knowledge of Graves' leadership in and
activities on behalf of the Union is an important element in
the determination of this case . Among other things the
General Counsel relies in part on the so-called "small plant
doctrine ." At the time of the union campaign Respondent
employed approximately 41 production and maintenance
employees . According to the General Counsel the wide-
spread union organizing efforts among so few employees
must have been known to the Company. It is true that the
Board has found in certain cases that the small size of a
Respondent's plant affords a basis for inferring the
Respondent's knowledge of the union activities of its
employees.
The issue in this case is not whether Respondent had
knowledge of union activities in its plant-as indeed it may
have had-the issue is whether it knew about Graves'
involvement in such efforts. Much more important the
General Counsel had the burden of proving by a
preponderance of probative evidence whether Graves had
in fact first been promoted to the job of supervisor and
then discharged on the pretextual ground of refusing to act
as a supervisor when the actual motive of the Company
was to discharge him because of his union activities at a
time when he was a supervisor and presumably beyond the
protection of the Act.
The General Counsel's basic theory of the instant matter
is that the Company engaged in a devious conspiracy to get
rid of a union agitator by first promoting him to a job of
supervisor and then firing him when he refused to act in
that capacity. Such instances have occurred elsewhere in
the past in certain factual circumstances where the
evidence points in this direction. It must be emphasized
that there is no evidence, direct or indirect, to support such
a theory in the case at bar.
Furthermore and significantly there is no credible
evidence on this record to show that the Company had
animus against the Union or was motivated in its action by
antiunion considerations. I so find. There is not even an
allegation in the complaint which was amended at the
hearing of any independent 8(a)(1) incidents.
[Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2
The General Counsel has not sustained his burden of
proof. I therefore recommend the dismissal of the case in
its entirety.
[2 In the event no exceptions are filed as provided by Sec. 102 46 of the 102 48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings , its findings , conclusions , and order, and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec deemed waived for all purposes.]