Hunt Oil Co.

National Labor Relations Board - Board Decisions

Mar 1, 1966

157 N.L.R.B. 282 (N.L.R.B. 1966)

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hunt Oil Company, H.L.H. Products Division and J. D. Davis
and William Henry Williams. Cases Nos. 26-CA-2039 and 26-
CA-2039-f. March 1, 1966
DECISION AND ORDER
On October 14, 1965, Trial Examiner Herman Tocker issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in any unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Decision and a supporting
brief, and the Respondent filed an answering brief to General Coun-
sel's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Brown, Fanning, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order dis-
missing the complaint.]
1 While we agree with the General Counsel that the Trial Examiner erroneously denied
his motion to amend the complaint to allege additional 8(a) (1) violations, and while the
evidence in the record as made tends to support such proposed allegations, we neverthe-
less do not believe that the purposes of the Act would be effectuated in the present posture
of this entire case to grant the General Counsel's motion for remand respecting such addi-
tional matters.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Herman Tocker in Fort Smith,
Arkansas, on June 7, 8, and 9, 1965. The case was heard on pleadings consisting
of the General Counsel's consolidated complaint alleging two unlawful discharges
and the Respondent's answer. The General Counsel gave notice 3 business days
before the hearing of his intention to move to amend the consolidated complaint
by adding an entirely new count not therein set forth. This was to the effect that the
Respondent had "interrogated its employees concerning the union activities, mem-
bership in and sympathies of its employees " This was enlarged further by a tele-
gram sent to Respondent's attorneys on the Saturday before the hearing, scheduled
to commence on the following Monday. At the hearing Respondent opposed the
amendments and, in the alternative, demanded a continuance. The application to
amend was granted with the qualification that it would be reconsidered at the conclu-
sion of the General Counsel's prima facie case and the application for a continuance
was denied. At the conclusion of the General Counsel's prima facie case, Respond-
ent's attorneys renewed their opposition to the amendments and their demand for
a continuance in the event that the amendments remained in the case . Having
157 NLRB No. 21.
HUNT OIL COMPANY, H.L.H. PRODUCTS DIVISION 283
taken into consideration the nature of the amendments, the testimony submitted in
support, and the problem with which I was confronted by the Respondent's applica-
tion for a continuance which would have required, if granted, an additional trip by
me from Washington, D C., to Fort Smith, Arkansas, and by the General Counsel's
representative from Memphis, Tennessee, to Fort Smith, Arkansas, I again denied
the motion for a continuance but, at the same time, in my discretion, on reconsidera-
tion, denied also the motion for the amendments. The proposed amendments have
not been pressed by the General Counsel in his brief following the close of the hear-
ing. In addition to the General Counsel's brief, there has been submitted also a
brief on behalf of the Respondent.
The Pleadings
In the complaint it is alleged that the Respondent: (1) discharged employee Wil-
liam Henry Williams and thereafter refused and failed to reinstate him because he
had joined, participated, or engaged in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection; and (2) discharged Supervisor
J. D. Davis and refused to reinstate him because he had failed and refused to partici-
pate with Respondent in.the discharge of employees who had engaged in union activi-
ties or other concerted activities for the purpose of collective bargaining or other
mutual aid or protection. Although Davis was a supervisor and therefore not within
the protection of Section 8(a)(3) of the Act, the theory of the complaint is that
Respondent's purpose in discharging him was to interfere with, restrain, and coerce
its employees in the exercise of their rights guaranteed under Section 2(6) and (7)
as defined in 8(a)(1). (The charges were filed by Williams and Davis as individ-
uals. The Davis charge was filed originally on February 28, 1965, and amended
April 8, 1965. The Williams charge was filed originally on March 7, 1965, and
amended April 9, 1965. The amendments did not vary the original charges in any
material respect.)
The Respondent, in its answer, while admitting several of the formal allegations
contained in the complaint and that it had discharged both Williams and Davis,
denied all allegations to the effect that the discharges were unlawful. It alleged
affirmatively that: (1) Williams had been discharged because of his failure to obey
the orders of his superiors and his violation of the Company's established and pub-
lished procedures; and (2) Davis had been discharged because of his unsatisfactory
performance in his position as warehouse foreman.
The Issues
As far as Williams is concerned the issue simply is whether his discharge, allegedly
for smoking in violation of the Company's "No Smoking" rule, was merely pretextual
and really because of his union activities, or whether he was discharged rightfully
because, admittedly, he had smoked in violation of the rule.
The issue as far as Davis is concerned is more technical. Davis was a supervisor.
Being a supervisor he was excluded from protection by 29 U.S.C.A. Sec. 152(3),
Section 2(3) of the Labor Management Relations Act, 1947.
It is well established, however, that if a supervisor is discharged and the effect of
his discharge is to interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed to them in Section 7 of the Act, the discharge is unlawful and the
Board may frame a remedial order which would require his reinstatement very much
in the same fashion as an employee who is discharged in violation of 8(a )(3). On
the other hand, if the circumstances are such (with the exception of a supervisor
called to testify under Section 8(a)(4) of the Act) that he was discharged because
of some union activity or some failure to follow his employer's instructions or wishes
with respect to union activities, and the facts of the discharge are not brought home
to the rank-and-file employees, it does not follow that there has been an interference
with, restraint, or coercion of employees in the exercise of their rights under Sec-
tion 7. In that event, remedial action by the Board is not appropriate.
Consequently, as far as Davis is concerned, the General Counsel, in order to sup-
port the complaint, would have to prove [since the case does not involve testimony
given under 8(a)(4)] that the alleged reasons for the discharge were of such a
nature and occurred under such conditions that the employees became aware (or can
be assumed to have become aware) of the fact that it was connected with union
activities and, inferentially, thereby would be justified in concluding that a similar
fate would befall them if they exercised their rights under Section 7. Vail Manu-
facturing Company, 61 NLRB 181; N.L.R.B. v. Inter-City Advertising Co. of Char-
lotte, N.C., Inc., et al., 190 F. 2d 420 (C.A. 4), enfg. as modified 89 NLRB 1103;
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N.L.R.B. v. Talladega Cotton Factory, Inc., 213 F. 2d 208 (C.A. 5), enfg. 106
NLRB 295; Better Monkey Grip Co., 115 NLRB 1170, enfd. N.L.R.B. v. Better
Monkey Grip Company, 243 F. 2d 836 (C.A. 5); Eugen Pedersen (Modern Linen &
Laundry Service, Inc.) v. N.L.R.B., 234 F. 2d 417 (C.A. 2), reversing and remanding
110 NLRB 1305; N.L.R.B. v. Dal-Tex Optical Co., Inc., 310 F. 2d 58 (C.A. 5), enfg.
as modified 131 NLRB 715; Oil City Brass Works, 147 NLRB 627; Leas & McVitty,
Incorporated, 155 NLRB 389.
There is also Jackson Tile Manufacturing Company, 122 NLRB 764, in which the
Board found the discharge of a supervisor a violation without making any specific
reference to the fact that employees became aware of or could be assumed to have
become aware of the fact of the discharge and the reason therefor. The footnote
reference to this holding is Talladega Cotton Factory, Inc., above, but it is clear
from Talladega that the facts of the discharge in some way must be brought home
to the rank-and-file employees. In that case, it will be recalled that the Board, in
106 NLRB at 297 , rejecting the Trial Examiner 's conclusion, emphasized that the
respondent 's opposition to the union was well known to the rank-and-file employees
and that, under the circumstances there, the discharges having followed immediately
on the heels of the union's victory,
[They] plainly demonstrated to rank-and-file employees that this action was part
of its plan to thwart their self-organizational activities -and evidenced a fixed
determination not to be frustrated in its efforts by any half hearted or perfunc-
tory obedience from its supervisors .... [T]he net effect of this conduct was
to cause nonsupervisory employees reasonably to fear that the Respondent
would take similar action against them if they continued to support the Union.
For this reason, .... the discharge violated Section 8 (a) (1) of the Act.
Consequently, Jackson Tile may not be regarded as having expanded the rule enun-
ciated as early as 1945 in Vail Mfg., supra.
After consideration of the entire record, the briefs of the parties, my independent
research of the law, and my observation of the witnesses, their demeanor on the
witness stand, the weighing of the various probabilities, and the nature of the answers
given by the witnesses to the questions propounded to them, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is a Delaware Corporation having its principal place of business
at Dallas, Texas. It is engaged in various business activities but the activity with
which we are concerned in this proceeding is that of a wholly owned subsidiary or
division known as H.L.H. Products Division with a plant at Alma, Arkansas. At
this plant it is engaged in the processing of vegetable products and the canning
thereof.
In the course and conduct of its operations at the Alma, Arkansas, plant, in a typi-
cal 12-month period, which preceded the filing of the complaint herein, it purchased
goods and materials valued in excess of $50,000 from suppliers located outside the
State of Arkansas and, during the same period, sold and shipped from that plant
materials and products valued in excess of $50,000 directly to States other than the
State of Arkansas. It is, and at all times material herein has been, an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act. _
II. THE LABOR ORGANIZATION INVOLVED
Although not a charging party herein, American Bakery and Confectionery
Workers, Local 346, AFL-CIO, herein called the Union, is now, and has been at
all times material herein, a labor organization within the meaning of Section 2(5)
of the Act. It is the Union which was involved in the organizing effort.
III. THE UNFAIR LABOR PRACTICES
A. Background
Approximately 4 weeks or more prior to October 1, 1964, when William Henry
Williams was discharged, a representative of the Union made some casual efforts to
solicit the Respondent's employees for membership. In substance, these were
merely to leave at a grocery store in the neighborhood a number of cards to be signed
by Respondent's employees for the purpose of authorizing the Union to act as bar-
gaining agent and to file a petition for certification. Williams obtained a number of
HUNT OIL COMPANY, H.L.H. PRODUCTS DIVISION 285
these cards , distributed them to several employees , and sought to have them signed
and delivered or returned to him . Apart from the fact that there might have been,
as testified by some employees , some inquiries about the appearance of the Union
on the scene and also what may be regarded as a perfectly innocent and appropriate
inquiry as to the identity of a man ( the union organizer ) who had come looking for
a certain plant employee , the Company did not interfere in any manner with the
solicitation of signatures on the cards and the cards were circulated freely on the
premises during working hours. A number of signed cards were obtained but nothing
ever came of the effort to organize the employees . As a matter of fact Williams kept
such of the cards as had been returned to him and never even turned them in to the
Union. This aborted effort commenced in August or about September 1, 1964, and
Williams was discharged on October 1, 1964, by which time , I assume, it had died.
J. D. Davis was not discharged until December 5, 1964.
B. The Davis discharge
The entire case in support of the charge that the discharge of this supervisory
employee was a violation of Section 8 (a) (1) and Section 7 of the Act is sought to be
proven by Davis's testimony alone. Nothing to which Davis testified is corroborated
by any fact in the case, circumstantial or otherwise . His testimony about the rea-
sons for his discharge is controverted not only by credible testimony denying his
statements but also by circumstantial evidence brought out both within his testi-
mony and in the testimony of others.
Apart from that portion of his testimony to which reference will be made in deal-
ing with the Williams discharge , Davis claims that in November or December 1964,
when it came time to lay off certain employees, Plant Superintendent "Buddy" Lollis
directed him to make up the list for layoffs . He says he prepared such a list and,
while he was in the kitchen behind the main office, his assistant , James Bowles came
to him and told him that Lollis wanted certain specific employees laid off. The
employees to whom it is alleged Bowles pointed, under Lollis ' direction , included
a number high in seniority but who, Davis thought , had been active in the union
organizing effort . Davis testified that he balked at this because of the seniority of
the men involved , that some of them were senior even to him , and that he told
Bowles he would not follow these instructions . He then testified that he went to
Lollis' office, made it clear that he would not follow these instructions because they
were not according to seniority, and that Lollis then authorized him to lay off what-
ever employees he selected . Davis then , so he says , made the layoffs according to
seniority with the exception of one employee who was retained even though not so
justified . It developed , however , that this employee was not in the same category as
the others laid off and therefore was exempt from layoff at that time.
Davis' entire testimony on direct , prior to cross-examination , hardly makes out a
case that he was actually discharged, although the discharge is admitted by the
Respondent. From his testimony on direct it would appear that, when called to the
meeting at which his employment was terminated , he did not give Lollis a chance to
say anything more than , "J. D., I don 't want you to get mad at me. I ain 't got noth-
ing to do with this." Davis stopped him right there and said, "Buddy , no need sitting
here lying to me .... You know what's all about. I know what it's all about. So
let's forget it." Assistant Plant Manager Newman started to say something but
Davis cut him off, saying , "Mr. Newman,-whenever you mail in my time to Dallas
just tell them I'll pick up my check out there Monday." His next testimony is that
he got up•and walked out of the office . This would suggest not a discharge but a
voluntary quit. Since , however, the discharge is admitted and was litigated it would
be inappropriate to rule that a prima facie case for discharge has not been established.
I am unwilling to accept as credible any testimony given by Davis. Apart from
the fact that the incident about the proposed layoffs has been denied , to my satisfac-
tion, by both Bowles and Lollis, I found Davis to be an evasive witness, a witness
willing to testify positively about any matters which would be adverse to the Respond-
ent and either forgetful , imprecise , or definitely misleading about other matters. I
mentioned above that circumstantial evidence demonstrates that Davis' story about
the layoff is untrue. This circumstantial evidence is to the effect first , as mentioned
before, that the layoffs were according to seniority and, second , that none of the
employees (except one concededly low on seniority) whom he mentioned as having
been designated for layoff by Bowles and Lollis was discharged.
The asserted reasons for the Davis discharge were numerous derelictions on his
part in the management of the warehouse , the loading or shipping of orders, the
stacking of goods, the failure to follow instructions with respect to packing, repack-
ing and relabeling, and general inefficiency . It is unnecessary to recount the facts
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about all this in detail because I just do not believe Davis' story about the alleged
effort to get him to lay off union adherents in disregard of the normal pattern of
seniority. In view of my conclusions about Davis' testimony and the long series of
derelictions on his part in the record, I can make no finding that he was discharged
because, as alleged, he "failed and refused to participate with Respondent in the dis-
charge of Respondent's employees because said employees engaged in union activity
or other concerted activities for the purpose of collective bargaining or other mutual
aid or protection."
Inasmuch as the concept justifying remedial action by the Board in the case of
the discharge of a supervisor has been brought into the case, I deem it desirable,
although unnecessary, to make these brief observations. First, Davis was discharged
months after the union campaign had ended. Next, if his version of the alleged
reasons for his discharge were accepted as true (which definitely I do not do), this
seems to have been the best kept secret I ever have encountered. There is nothing
in the entire record to suggest that any employee knew anything about it or heard
any rumor about it, and thereby could have concluded that the same fate would
befall him for engaging in protected activities. Consequently, whether this be
viewed on the facts as I have found them or on the law, the complaint, to the extent
that Davis is involved, should be dismissed.
C. The Williams' discharge
William Henry Williams, otherwise known as "Doodle," started working for the
Respondent October 19, 1962, and was discharged on October 1, 1964. The assigned
reason for the discharge was that, in violation of the Respondent's published and
well-known rules against smoking and, after it was decided to take drastic enforce-
ment measures because of widespread violations, Williams was caught smoking in
open defiance. Neither Williams nor Davis, in their,testimony about the discharge,
linked it to union activities. Both made clear that all discussions, whether with
supervision or between Davis and Williams, related it to the fact that Lollis had
caught Williams smoking.
It is contended, nevertheless, in the complaint and argued by the General Counsel
that the violation of the "No Smoking" rule was merely a pretext for discharging
Williams and that the real reason was that he had "joined or assisted the union or
engaged in other union activity or concerted activities for collective bargaining or
other mutual aid or protection."
The case in support of the charge is erected on two major bases: (1) Williams'
activity in connection with the union organizational campign to which reference has
been made in the section of this decision entitled "Background," and (2) the fact
that there was widespread disregard of the "No Smoking" rule not only by rank-and-
file employees but also by supervisory employees and that, although Williams admit-
tedly was discharged after having been caught smoking by Lollis, this was a discrim-
inatory enforcement of the rule, the penalty having been invoked without prior
warning and in variance with prior laxity toward smoking and apparent condonation
thereof.
Here I shall repeat, necessarily for continuity , some material related before as
"Background." Williams' entire activity during the organizational campaign was
that he went to the grocery store where the union cards had been left, obtained them
about 4 p.m., passed them out for 2 or 3 days, and got seven employees to help him.
Apart from those cards which he passed out for distribution, he personally handed
out only seven or eight. The distribution and solicitation was done during working
hours.
After Williams had received those cards which had been signed, he did not deliver
them to the Union and did nothing more with them. He testified also that he sur-
mised that the Company knew he was passing out the slips and that he had heard
that some of the boys told company officials that he doing this, but initially he had
testified that nobody knew that he was engaged in the campaign. He admitted that
no one ever questioned him about it.
There is no evidence that any company official ever saw him distributing or solicit-
ing union cards and there is no claim that any company official ever objected to or
took any steps against the distribution or solicitation of the cards. The campaign
lasted from 1 to 3 days.
The balance of Williams' testimony is concerned with the circumstances of his
discharge and efforts to show that company supervisors consistently smoked in viola-
tion of the rules, that he was never warned against smoking, that the rule had not
been enforced, and that although from time to time there had been remonstrances
about his smoking nothing ever was done about it and he thought nothing of the "No
Smoking" rule.
HUNT OIL COMPANY, H.L.H. PRODUCTS DIVISION 287
For the purpose of proving the general disregard of the "No Smoking" rule and
that supervisors as well as rank-and-file employees disregarded it, the General Coun-
sel called a large array of witnesses in addition to Williams, one of whom was J. D.
Davis, whose testimony I discredit. The testimony given by these witnesses was con-
fused in numerous instances and was mutually contradictory in some respects, par-
ticularly as to the disregard of the rule by Supervisors Lollis and Nickell. It is clear,
however, from the testimony that prior to the end of September 1964, the Company
had had great difficulty in enforcing the "No Smoking" rule and, although many
employees smoked furtively and surreptitiously, there were continual reminders
that smoking was prohibited.
On October 1, 1964, the day when Williams was discharged, Bowles, the then
assistant warehouse foreman, went down to the vat and saw Williams standing there
smoking. This was about 8 a.m. Bowles told him that he knew this was against
the rule and he "kind of smiled, said yes," went to the door, and Bowles assumed that
Williams threw away the cigarette or whatever he was smoking. On cross-
examination, it was brought out that Bowles also told Williams on the day of his
discharge that he should not be smoking, he knew the rules and regulations, and that
he could be dismissed.
Later that morning Lollis saw Williams standing with his arms folded and a ciga-
rette in his mouth talking to Jess Ball. Williams seemed entirely unconcerned that
he had the cigarette in his mouth as Lollis came up to him. He made no effort to
get rid of it. Lollis said to him, "Doodle, you know you're not supposed to be smok-
ing here." Williams said, "I do. I been told I wasn't supposed to be smoking in
here." Lollis left and went to J. D. Davis, informed him he had caught Williams
smoking, and told him, after Davis requested that he be told what to do about it,
"You know what we're supposed to do about it." It was following this conversation
that Davis discharged Williams with a suggestion that the latter ought to go back and
ask Lollis to reconsider it. The foregoing depiction of Lollis' part in the discharge is
from his testimony. The testimony given by Williams and by Davis does not vary
this version to any material extent. Williams says that on October 1, 1964, he was
standing between the vat and the dumper when Lollis came up to him and asked
him if he had been notified about smoking. He answered "Yes, a month ago or
so." He admits that on that occasion Bowles had told him that he should not be
smoking. He admits that it was not the only prior occasion. He then says that
after Lollis caught him smoking on October 1, Davis came to him several minutes
later and told him that he would have to "punch him out" (fire him) because Lollis
had caught him smoking. Davis then "punched him out." Williams then tried to get
Lollis to reconsider but Lollis said, "Rules was rules."
Davis, in his testimony (although I regard him as not worthy of credibility),
agrees that he was ordered by Lollis to discharge Williams. (His testimony in this
connection points up his concept of his duties as a supervisor, which incidentally sup-
ports also Respondent's contention that the minor supervisors, because of their close-
ness to their employees, were loath to enforce the rules. Although Davis, as a
supervisor, elsewhere had testified that he had the right to hire and fire, he says
here that he remonstrated with Lollis about discharging Williams by saying, "Well,
Buddie, I don't think it's my place to fire him.")
A charge that an employee has been discharged in violation of Section 8(a)(3)
of the Act ought to be supported by knowledge on the part of the employer of the
employee's union activities and a demonstration of antiunion attitude. The record
here does not support, by a preponderance of the evidence, any such result. The
Respondent'appears to have known about Daily's and.Delmar Davis' [two other em-
ployees] activities on behalf of the Union. They are still working for the Company.
It permitted the distribution and solicitation of. union cards on company premises and
on company time. It had no rule against union solicitation. Such evidence as appears
in the record of Respondent's knowledge of Williams' union activity is either not
worthy of credibility or of doubtful and little probative value. J. D. Davis says Lollis
specifically mentioned Williams as a union organizer and that some way would have
to be found to get rid of him. I do not regard J. D. Davis as a credible witness and
reject his testimony. Williams only surmised or suspected that Respondent knew of
his union activity This was wrenched out of him on redirect after he had testified
that the Company did not know. Another employee, J. S. Ball, on cross, over
Respondent's objection, after the .General Counsel had adopted him as his on wit-
ness, following a denial that he had mentioned Williams' name to Bowles, a minor
supervisor, in response to questions injecting the name of Williams, said that he
had told Bowles that "he" was angry at him and that "he" was peeved because he
did not intend to join the Union R-ill's use of the word "he" immediately following
the cross-examiner' s use of the name Williams could be regarded as referring to
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williams. On the other hand, I was left with the impression that he became con-
fused and that he still could have been thinking about Fisher. I cannot be sure that
it was Williams who was peeved with him and that this is what he told J. D. Davis'
then assistant, Bowles.
The weight of the credible evidence brought out on the prima facie case and the
affirmative evidence adduced on behalf of the Respondent persuades me to conclude
that: (1) the Respondent had no union animus; and (2) it had no knowledge of the
relatively ineffective activities of Williams in the organizing campaign. Certainly
no employee, in his testimony, ascribed the Williams discharge to anything but the
fact that he had been caught smoking in violation of the rule. Even J. D. Davis did
not connect the Williams discharge to union activities. Both he and Williams, in
their testimony, related it to the violation of the "No Smoking" rule, and neither, in
their conversation with each other, even speculated that it was for union activities.
The strongest evidence brought out as to the Company's attitude toward the Union
was that found in Monchamp's [another employee] testimony. Lollis is quoted as
having said, "(T)hat he thought the Union was all right in its place, but he didn't think
.the cannery-it should be at the cannery." This was a week or two after the Williams
-discharge. When asked to repeat what Lolhs had told him he said that Lollis had
said, "(T)hat he thought that the Union was a good thing in its place, but he said that
the cannery, he didn't think that the cannery was the right place for it." He referred
.also to a remark allegedly made by Lollis to the effect that if the Union came in, union
painters, carpenters, and bricklayers would have to do the work that certain cannery
people were doing at that time. If Lollis, in fact, did say this to Monchamp (his son-
,in-law), there is no reason to conclude that this was a threat that the cannery people
would lose their jobs.
All the evidence of interrogation suggests not an antiunion course of action but
merely a few informal and friendly conversations without any suggestion of planned
surveillance, intimidation, threats, or coercion.
The Company was plagued by widespread violation of the "No Smoking" rule.
This "No Smoking" rule is not its private rule. The regulations of the Department
of Agriculture, title 7, chap. 1, part 52, provide that "Spitting, and the use of tobacco
are prohibited"; (section 52.87(e) ). The State of Arkansas has promulgated the
following rule for canning plants:
Section 9. Cleanliness of personnel. All personnel must keep themselves and
their clothing clean, and no person shall use tobacco in any form in any room
or department where food and food products are being prepared or handled.
The plant rule against smoking had been in effect prior to the Respondent's acquisi-
tion of the cannery. Among 11 paragraphs of a notice entitled "Plant Rules &
Regulations," the following is included, "No smoking at any time inside the plant
or warehouses." The last paragraph of this set of rules and regulations states, "These
rules will be enforced. We ask each employee to read and to study them carefully.
If you have any question, ask your foreman." This notice had been posted during
all the time Respondent operated the cannery.
There was universal awareness of the rule. Even the General Counsel's witnesses
testified that employees who smoked did so furtively, surreptitiously, or in hiding.
The situation was quite serious. While it should be perfectly obvious that foreign
matter such as cigarette wrappings or tobacco could find their way into the canned
products, the Respondent offered a communication from one of its major customers
with which there had been enclosed a complaint that a part of a cigarette package
and some tobacco had been found in one of its cans of spinach. There is credible
testimony that the Respondent became acutely concerned with the smoking problem
toward the end of September 1964. Meetings of supervisors and supervisors' meet-
ings of employees were held on September 30 and October 1. One of these consisted
of the warehouse employees. There is no direct testimony that Williams attended it
but, inasmuch as the testimony is that all the employees attended, I infer or assume
that he did attend. The purpose of the meetings was to highlight the importance of
the "No Smoking" rule and to wam the employees that it would be enforced strictly.
During the meeting of the warehouse employees the rule was read, the employees
were told that it would be enforced, and that an employee caught smoking would be
subject to discharge.
This September' 1964 anxiety about the violation of the "No Smoking" rule, accord-
ing to the testimony of Respondent's witnesses, was fanned by complaints they had
received from a Government inspector and their insurance carrier. This explana-
HUNT OIL COMPANY, H.L.H. PRODUCTS DIVISION 289
tion is supported by the wording of an additional rule posted on all the bulletin
boards on the morning of October 1, 1964, the day Williams was discharged. Its
text was:
The use of tobacco in any form while working in the plant or warehouses is
strictly prohibited. The Food and Drug Department, and our insurance car-
rier requests that this rule be enforced. We must insist that each employee shall
obey this rule. [Emphasis supplied.]
There is no doubt about the integrity of this piece of evidence. The fact that it was
promulgated and posted is admitted generally, even by witnesses called by the Gen-
eral Counsel.
The assistant warehouse foreman caught Williams smoking on the morning of
October 1. Obviously he was derelict in his duty because he gave Williams only a
mild reminder and rebuke. Later Plant Superintendent Lollis caught Williams
smoking. In the incident which followed, Williams demonstrated both obstinancy
and insubordination when called to task by Lollis. Lollis did not discharge Wil-
liams forthwith but followed the pattern of channels and reported it to Williams'
immediate supervisor, J. D. Davis. Davis, while reluctant to discharge Williams,
did discharge him.
On the credited evidence, it is my conclusion that Williams was discharged right-
fully for his insubordinates, fiagiant rebellion against and violation of the rule.
It is argued that no one had been discharged before for the violation of the rule,
and therefore there should have been one or a series of warnings to Williams for
smoking with admonitions that he would be discharged if he continued smoking.
Then only would a discharge have been proper. This argument is used in supporting
the contention that the discharge was pretextual and that Williams was singled out
for punishment, not for his infraction of the rule but because of his activity on
behalf of the Union. It is difficult to conceive just what this Respondent could have
done other than discharge somebody for violation of the "No Smoking" rule if it
ever was to get compliance with it (as it did after the Williams discharge). There
had to be a first time for a discharge. It just happens that Williams was the occasion
for the first time. Williams was or should have been at the meeting during which
the employees were warned that the rule would be enforced by discharge. He read
or should have read the additional posting of the rule.
It is my conclusion that Williams was discharged rightfully for his violation of the
"No Smoking" rule and not because of any protected activities under Section 8(a)
(1), 8(a)(3), or Section 7 of the Act. In coming to this conclusion I have not over-
looked Radio Officers' Union (A. H. Bull Steamship Company) v. N.L.R.B., 347
U.S. 17, wherein the Supreme Court, at page 44, pointed out "that specific evidence
of intent to encourage or discourage is not an indispensable element of proof of
violation of § 8(a)(3)." I do not base my conclusion on the absence of such spe-
cific evidence but on the whole record. Universal Camera Corporation, v. N.L.R.B.,
340 U.S. 474.
CONCLUSIONS OF LAW
1. The Respondent was engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The American Bakery and Confectionery Workers, Local 346, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent did not discharge employee William Henry Williams and did
not fail and refuse to reinstate him because he had joined or assisted the American
Bakery and Confectionery Workers, Local 346, AFL-CIO, or engaged in other union
activity or concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
4. The Respondent did not discharge Supervisor J. D. Davis because of his failure
and refusal to participate with it in the discharge of its employees because of union
activity or other concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
5. The preponderance of the evidence does not justify a conclusion that the
Respondent sought to enlist supervisor J. D. Davis in any plan or program to dis-
charge its employees because of their union activity or other concerted activities for
the purpose of collective bargaining or other mutual aid or protection.
6. The Respondent did not interfere with, restrain, and coerce its employees in
the exercise of the rights guaranteed to them in Section 7 of the Act, and did not
engage in unfair labor practices affecting commerce within the meaning of Sections
8(a)(1) and 2(6) and (7) of the Act.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. The Respondent did not discriminate in regard to the hire, tenure, terms, or
considerations of employment of its employees and did not discourage membership
in a labor organization, nor did it engage in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and the entire record, and pursuant to
Section 10(c) of the Act, and being of the opinion that the Respondent named in the
complaint has not engaged in nor is engaging in any unfair labor practices as alleged
in the complaint, I hereby issue the following:
RECOMMENDED ORDER
It is hereby ordered that the consolidated complaint in Cases Nos. 26-CA•-2039
and 26-CA-2039-2 be, and the same hereby is, dismissed.
Local 338, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, and Douglas Cusick, Its Agent and Valley
Service Company. Case No. 18-CD-51. March 1, 1966
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by Valley Service
Company on October 5, 1965, and amended on October 28, 1965, alleg-
ing that Local 338, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO, herein called Local 338, and Douglas Cusick,
its agent, have violated Section 8(b) (4) (D) of the Act.
A hearing was held before Hearing Officer Charles J. Frisch on
November 10, 1965. All parties appeared at the hearing and were
afforded a full opportunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the issues. The rulings
of the Hearing Officer are free from prejudicial error and are hereby
affirmed. Briefs filed by Valley Service Company, Local 338, and by
the Intervenor, United Construction Workers Local 84, CLA, herein
called Local 84, have been duly considered.'
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Jenkins and Zagoria].
Upon the entire record in this case, the Board makes the following
findings :
I. The Business of the Employer
Valley Service Company was incorporated in North Dakota in
1949 by the some persons who owned Valley Service Incorporated, a
1 Subsequent to the hearing, Local 84 filed a motion requesting that the Board not con-
sider certain extraneous papers attached to the brief of Local 838 but not introduced in
evidence at the hearing . Local 338 has not responded to this motion. As the motion has
merit , we will grant it.
157 NLRB No. 20.