Klate Holt Co.

National Labor Relations Board - Board Decisions

Dec 8, 1966

161 N.L.R.B. 1606 (N.L.R.B. 1966)

1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it pays its carpenter employees the Bryan wage scale that has
been established by the local Carpenters Union The local Carpenters
Union's business agent has been granted visitation privileges on the
construction projects of the Employer The Employer also admitted
that it had paid union scale to some of its craftsmen on othei pi ojects,
and that the Employei had actually recognized the local Carpenters
Union in the Waco, Texas, area
The Employei contends that the requested unit is inappropriate on
the grounds that its operations are highly integrated and inter-
dependent and involve constant and continuous interchange of
employees between and among all its construction projects, and that
the requested unit does not constitute a distinct and homogeneous
group of employees For the reasons stated in R B Butler, Inc , 160
NLRB 1595, we find the Employer's contentions to be without
merit Accordingly, we find that the following employees constitute
a unit appropriate for collective-bargaining purposes within the
meaning of Section 9(b) of the Act
All employees working as laborers on the Employer's construc-
tion jobs in the Bryan, Texas, area,' excluding all other employ-
ees, office clerical employees, professional employees, watchmen,
guards, and supervisors as defined in the Act
[The Text of Direction of Election is omitted from publication 5 6]
The Bryan , Texas, area includes College Station, Texas
The parties did not agree on any formula for determining eligibility to vote The Em-
ployer stated that its position "only is that the petition should be dismissed or really
we have no position whatsoever " The Petitioner stated that it "would hope the Board
would be lenient as to allow as many employees as possible an opportunity to vote " But
since the parties could not agree on any formula for determining eligibility and since the
evidence adduced at the hearing is insufficient to warrant a deviation from our usual
eligibility requirements , eligibility will be determined by the usual payroll period See
R B Butler, Inc, 160 NLRB 1595
6 An election eligibility list, containing the names and addresses of all the voters, must
be filed by the Employer with the Regional Director for Region 23, within 7 days after
the date of this Decision and Direction of Election The Regional Director shall make the
list available to all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances Failure to com
ply with this requirement shall be grounds for setting aside the election whenever proper
objections are filed Er i8ior Underwear Inc, 156 NLRB 1236
Mate Holt Company and Robert Earl Davis. Case P3-CA-2,40
December 8,1966
DECISION AND ORDER
On July 11, 1966, Trial Examiner Thomas S Wilson issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in cei tam unfair labor practices alleged in the complaint
161 NLRB No 138
KLATE HOLT CO 1607
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion Thereafter, Respondent filed exceptions to the Decision and a
supporting brief
Pursuant to the provisions of Section 3(b) of the National Labor.
Relations Act, as amended, the National Laboi Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins 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, the brief, and the entire record
in the case, and finds merit in the Respondent's exceptions Accord-
mgly, the Board adopts the findings of the Trial Examiner only to
the extent that they are consistent with the following
The Ti mal Examiner found that Respondent discharged employees
Robert Earl Davis because of his pi oclaimed intention to file a griev-
ance with the Union over his demotion, thereby violating Section
8 (a) (1) and (3) of the Act We do not agree The reasons for our
disagreement axe set forth below in the summary and analysis of the
record in this case
On July 1, 1965, Respondent began to perform custodial services at
NASA's Manned Spacecraft Center in Houston, Texas It replaced
the Bowland Company, which had been awarded a like contract for
the preceding year, and took on Bowland's staff of employees for all
positions except that of "project engineer" and "night manager" For
these jobs Respondent secured the services of Jack Edgar and Wallace
Kirk The latter was transferred fiom one of Respondent's operations
in Cleveland, Ohio In taking over the NASA custodial operation,
Respondent also assumed or negotiated a new collective-bargaining
agreement with Teamsters Local 968, which had been the certified
representative of the employees during the tenure of the Bowland
Company
When Respondent began to provide custodial services at NASA,
Robert Davis was a leaderman in Building 30 He testified that he
had been appointed assistant steward or acting steward by the Union.
Respondent offered testimony that the Union had no such position as
"assistant" or "acting" steward The Trial Examiner did not resolve
the conflict regarding the existence of such a position Nevertheless,
it is clear that whether appointed by the Union or not, Davis assumed
the role of a steward prior to his election to that position shortly
before his termination
On July 6 or 7, 1965, night manager Kirk criticized the perform-
ance of Davis' crew, and said that a particular individual was not
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'6worth a goddam" and if Davis disagreed, then Davis was no "god-
dam good " Offended by these remarks, Davis threatened to com-
plain to the Union about Kirk's conduct The following day he did
lodge a protest That evening Respondent's president, Klate Holt, saw
Da is and asked him to recount what had occurred between Kirk and
hnnself At the end of Davis' story, Holt apologized for his super-
visor's behavior, although by Davis' account, Kirk said, "I will die
and go to hell before I apologize "
According to Davis, about a week after the above incident, Kirk
ww arned him not to solicit memberships in the Union on company time
Davis indicated that he was on his lunch break but Kuk insisted that
solicitation could not take place "on the job" At the heaiing Davis
testified that he had reported this occuirence to union representative
Gaicia and claimed to have filed a wi itten giievance over it the next
moining In his prehearing affidavit, produced by Respondent's attor-
ney on cross-examination, Davis stated that Garcia called the com-
pany about Kiik's piohibition Kirk denied ever telling Davis that he
could not conduct union business on company time Under questioning
by the Trial Exaniinei, Klate Holt testified that Gaicia had not
appi ised him of any complaints made by Davis
In early August 1965, according to Davis, he objected to the dis-
chai ge of an employee, Bessie Winston, in the piesence of Project
Manager Edgar, and allegedly filed a grievance over the discharge
But the Trial Examiner found that "so far as this record is concerned
thei e was nothing done subsequently which confirmed this testimony "
On September 30, 1965, Respondent issued its employees the
brightly-colored uniforms prescribed by recently promulgated NASA
regulations Davis led a group of employees who, protesting the
requirement, turned in their uniforms as they left work despite Kirk's
iw ai ning that he would consider their refusal to wear the uniforms as
confirmation of a desire to quit The matter was resolved by Respond-
ent's piesident and the president of the Union without the imposition
of discipline against any employee, including Davis
On the evening of October 28, 1965, the incident occurred which
immediately preceded Davis' discharge That night Davis was per-
foi ming his duties when two of Respondent's supervisors, Jones and
Hobbs, came to Building 227 and told him that Kirk wanted him to
tianspoit a buffing machine from Building 49 to Building 227 A
heated discussion ensued wherein Davis said that Kirk had told him
that lie, Kirk, would see to the transportation of the machine But
Jones and Hobbs adhered to their understanding of the situation
which was based on Kirk's statement that he had ordered Davis to
inove the buffer After the supervisors repeated Kirk's version, Davis
replied, "If Knk told you that, lie is lying" or "is a liar "
KLATE HOLT CO 1609
The three men then drove over to Building 49, picked up the
machine, and brought it back to Building 227 Subsequently Jones
and Hobbs related the dispute over Kirk's instructions and Davis'
remarks to Kirk Kirk asked "Did he move the machine 2" When
Jones answered affirmatively, Kirk said, "Well, that is all I am con-
cerned with He moved the machine" Shortly thereafter Kirk,
together with Jones and Hobbs, went to Building 227 where Davis
was working In a confrontation with Kirk, Davis repeated his
charge that Knk had lied if he denied having told Davis the day
before that Kirk would have the buffer machine moved to Building
227 for Davis In addition, Davis accused Kirk of having molested
two female employees After this Kirk summoned Project Manager
Edgar to the company office on the NASA site Edgar listened to
Kirk's version of the incident and the corroboration thereof Then he
sent for Davis Given an opportunity to defend himself, Davis spoke
at length about Kirk's harassment and surveillance of him and also
of Kirk's verbal abuse of other employees and his indecent overtures
toward the two female workers At the conclusion of Davis' presenta-
tion, Edgar asked him if he had called Kirk a liar When Davis
admitted he had, Edgar turned to Ed Williams, the union steward,
and asked, "What would you do in this case Ede" Williams suggested
that Davis apologize and, when Davis refused, Williams said, "Well,
I would fire him" At this time, however, Edgar was reluctant to
take the drastic action suggested by Williams However, he did
inform Davis that he was being demoted from leaderman to janitor,
which involved a 10-cent-an-hour decrease in pay, for "cursing the
night manager," for "not telling the truth" about the incident con-
cerning the two female employees, for "being uncooperative," and
for poor supervision as a leaderman Edgar also informed Davis that
he would be transfer red to another location Davis refused to accept
this decision, saying, "I will not accept this You can't reclassify me
I will take this up with the Union " When Edgar stated that he did
not think that Davis could refuse either the demotion or the transfer,.
Davis reiterated, "I will take it up with the Union " Edgar then said,
"If you are going to file a grievance, you might as well file a damn
good one " Whereupon Edgar discharged Davis
The Trail Examiner found that "but for Davis' announced inten-
tion of making a grievance out of his proposed demotion, Edgar
would not have discharged Davis " Further, he found that Davis'
" `liar' statement, with or without embellishments, was actually of lit-
tle or no import to Respondent, and was, in fact, an afterthought on
the part of both Kirk and Edgar," who were seeking any excuse to
rid themselves of Davis because of his aggressiveness in upholding
the collective-bargaining agreement as shop steward
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not agree with these inferences of the Trial Examiner As to
the first, that Davis would not have been discharged except for his
declared intention of filing a grievance, the credited account of the
sequence of events casts doubt on the Trial Examiner's interpretation
When on hearing of Edgar's decision to demote and transfer him,
Davis said he would not accept the decision, he added that he would
take up the matter with the Union Edgar voiced no objection to this;
nor did he manifest irritation with the threat to file a grievance He
only said that he did not think that Davis could refuse either the
demotion or the transfer It was only when Davis seemingly reiteiated
his refusal to accept the disciplinary action and repeated his threat to
file a grievance that Edgar discharged him Although the issue is not
free from doubt, we believe, on the basis of the record considered as a
whole, that Edgar's discharge of Davis was occasioned not by the lat-
ter's threat to file a grievance, but by his refusal to accept the demo-
tion and transfer which Edgar had imposed as a disciplinary
measure 1
Nor is the Trial Examiner's inference warranted that Davis' liar
statement "with or without embellishments" was actually of little or
no import to Respondent and was actually only an afterthought seized
upon by Edgar and Kirk to discharge Davis for his aggressiveness in
processing grievances The Trial Examiner inferred that when Kirk
telephoned Edgar to come back to the plant to consider his complaint
against Davis, it was only because he belatedly recognized the possi-
bilities in the "liar" statement The Trial Examiner has not made
clear when this alleged belated recognition occurred A reasonable
assumption, following the trend of the Trial Examiner's thought, is
that it supposedly occuried shortly after Kirk had expressed himself
as satisfied when Jones and Hobbs reported that Davis had moved
the buffer, and that Kirk thereafter returned to Building 227 with
Jones and Hobbs to build up a case against Davis If this is what the
Trial Examiner intended to convey, it is rebutted by the testimony of
Kirk, Hobbs, and former Union Steward Turner that Kirk went to
Building 227 to see Davis because Davis insisted uopn seeing him.
This testimony is consistent with Davis' quick display of anger at
Kirk's instructions and his generally aggressive character We credit
it If the alleged belated recognition occurred later , it is enough to
say that Davis repeated to Kirk's face that the latter was a liar, and
'A grievance over Davis ' demotion and transfer was, in fact, fled by the Union It
was settled on November 24 by Union Representative Garcia and Respondent's attorney
It provided for Davis' reinstatement , with a demotion to the position of janitor, and a
transfer to Ellington Air Force Base The settlement also permitted him to retain the
office of shop steward ( In the text of his Decision , the Trial Examiner stated that the
settlement did not include backpay or seniority In a footnote , however, he noted the claim
of Respondent 's attorney that the settlement did not affect Davis' seniority ) Davis refused
to accept the settlement , but instead filed unfair labor practice charges with the Board
ELATE HOLT CO. 1611
added the new charge that Kirk had molested female employees. Kirk
then acted promptly to bring Edgar back to the plant to consider pos-
sible disciplinary action against Davis. In view of Davis' statements
in his face-to-face confrontation with Kirk, an inference that the lat-
ter acted as the result of a belated recognition of the possibilities in
Davis' earlier statement to Jones and Hobbs is not warranted.
There still remains the question of whether the ostensible reason
for the discharge of Davis was a pretext, and that the real reason was
his aggressiveness in upholding the collective-bargaining agreement
,is shop steward. As to this, it is clear that Respondent harbored no
animus toward the Union. Except for the testimony of former Super-
-visor Bilton discussed hereinafter, there is no evidence that Respond-
ent considered the number of grievances filed as excessive, or that it
was irritated with Davis to the point that it wanted to get rid of him.
Owner Holt testified without contradiction that on at least five occa-
sions Respondent had processed grievances, including Davis' dis-
charge grievance, filed by the Union. In its treatment of Davis,
beginning with owner Holt's apology to Davis when the latter com-
plained that Kirk had used offensive language in criticizing him and
other employees, and culminating in Respondent's failure to take dis-
ciplinary action when Davis led a group of employees in refusing to
wear the uniforms NASA had prescribed, Respondent showed no irri-
tation with Davis, but a desire'to avoid trouble by placating Davis.
Even in the incident which led to Davis' discharge, Respondent
appears to have leaned over backward to avoid or to minimize dis-
ciplinary action. Thus, Kirk did not, as many a supervisor would have
done, discharge Davis outright when the latter accused him of lying
and of molesting female employees. Instead he called on Edgar to
hear his complaint and to decide what .to do. The latter in turn did
not act until he had heard both Davis' and Kirk's version of the inci-
dent, had consulted the union steward, and had offered Davis the
opportunity. to apologize which the latter rejected. Even then, Edgar
did not accept the -recommendation, of the steward that he discharge
Davis because of Davis' refusal to apologize and instead sought to
impose a less drastic penalty of a demotion and a transfer out of the
jurisdiction of Kirk. If Respondent was in fact looking for a pretext
to discharge Davis, it had a perfectly valid one in the union steward's
recommended discharge. That it did not take advantage of this sug-
gestion belies the theory that it was, looking for an excuse to dis-
charge Davis.
The only affirmative testimony offered to support the theory that
Respondent was seeking a pretext to discharge Davis is that of Ver-
non Bilton, a former supervisor 'of Respondent, who testified that on
several occasions he had heard Edgar and Kirk instruct area super-
visor Jones to watch for deficiencies in Davis' work so that reports
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could be written up on him Two such reports on an employee con-
stituted cause for dismissal under the Union's rules According to
Bilton, Davis' complaints to the Union were the reason for the
instructions issued by Respondent The Trial Examiner characterized
Bilton's testimony as "uncontradicted " This characterization appears
to us unjustified As we read Edgar's testimony, he did deny that he
had instructed Jones to watch Davis' work because Respondent wished
to get rid of him in view of his complaints to the Union 2 We note
also that there is no evidence that Jones ever did in fact write up
Davis because of work deficiencies, and that Davis was not discharged
because of such deficiencies, but because of his insulting remarks to
Kirk and his refusal to accept the disciplinary measure that Edgar
sought to impose In this state of the record, we do not believe that
Bilton's testimony is enough to establish that Respondent's assigned
reason for discharging Davis was a pretext
Moreover, even if we were prepared to find that Respondent was
seeking an opportunity to terminate Davis because of its annoyance
with the way in which he engaged in protected activity, we would
not, in this case, find that Respondent discriminatorily discharged
him The mere fact that an employer may desire to terminate an
employee because he engages in unwelcome conceited activities does
not, of itself, establish the unlawfulness of a subsequent discharge If
an employee provides an employer with a sufficient cause for his dis-
missal by engaging in conduct for which he would have been termi-
nated in any event, and the employer discharges him for that reason,
the circumstance that the employer welcomed the opportunity to dis-
charge does not make it discriminatory and therefore unlawful 3 This,
at most, is the situation in the present case Accordingly, we find, con-
trary to the Trial Examiner, that the General Counsel has not proved
by a preponderance of the evidence that Respondent discriminatorily
discharged Davis
The Trial Examiner also found that Respondent had violated Sec-
tion 8(a) (1) of the Act by deliberately creating the impression that
2 Edgar testified
Q Did you at any time in the course of a meeting in your office or a gathering of
these area supervisors in your office , ever instruct Mr Jones that he was to note any-
thing at all that Robert Davis did in connection with the union activities'?
A No
Q Did you eves mention to Mr Jones that Davis was a union agitator and you
wanted him to note all his mistakes'
A No Part of your question about the mistakes about the building yes I have
never given anyone concerning anyone else , Daiis or any other person, noting-what
was the word you used'
Q Union agitators
A I hac a never given anyone any instructions like this
3 Frosty Morn Meats , Inc v N L R B , 296 F 2d 617 , 620-621 (C A 5) Anderson Rooney
Operating Company and Ninth and Detroit Building Corporation , 134 NLRB 1480 1495,
Radio Kemetal Industries, Inc, 144 NLRB 546, 548-552 Accord Winn Dixie Stores Inc ,
153 NLRB 273, 288
KLATE HOLT CO 1613
it w as keeping the union activities of its employees, including Davis,
under surveillance Although we agree with the Trial Examiner's
finding, we consider these events to be isolated occurrences and of
minor importance In view of the absence of any evidence of union
animus on the part of Respondent, we find that no remedial order is
necessary foi this violation We shall therefore dismiss the complaint
in its entirety
[The Board dismissed the complaint ]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on November 26, 1965, by Robert Earl Davis, an Indi-
vidual, hereinafter referred to as Davis or the Charging Party, the General Counsel
of the National Labor Relations Board, hereinafter called the General Counsel,'
and the Board, respectively, by the Regional Director for Region 23 (Houston,
Texas), issued its complaint dated February 4, 1966, against Klate Holt Company,
hereinafter called the Respondent
The complaint alleged that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8(a)(1)
and (3) and Section 2(6) and (7) of the Labor Management Relations Act, 1947,
as amended, herein called the Act
Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices
Pursuant to notice, a hearing thereon was held in Houston, Texas, on April 13,
1966, before Trial Examiner Thomas S Wilson All parties appeared at the hear-
ing, were represented by counsel, and afforded full opportunity to be heard, to
produce, examine and cross-examine witnesses, and introduce evidence material
pertinent to the issues At the conclusion of the hearing, oral argument was waived
Briefs were received from Respondent and General Counsel on May 23, 1966
Upon the entire record in the case and from my observance of the witnesses, I
make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I find that Klate Holt Company,
a sole proprietorship with its principal office and place of business in Webster,
Texas, is engaged in the business of providing custodial services During the past
12 months, which period is representative of its operations at all times material
herein, Respondent, in the course and conduct of its business operations, received
gross revenue in excess of $500,000 Respondent currently has a contract with the
National Aeronautics and Space Administration (herein called NASA), to provide
custodial services at NASA's Manned Spacecraft Center near Houston, Texas, and
has received revenues in excess of $100,000 for services performed under said con-
tract within the past 12 months Said operations of Respondent at NASA have a
substantial impact on the national defense
Accordingly I find that Respondent at all times material herein was engaged in
commerce within the meaning of the Act
H THE UNFAIR LABOR PRACTICES
A The facts
About June 20, 1965, Respondent was awarded the contract to perform custodial
services at NASA's Manned Spacecraft Center in Houston, Texas. It commenced
'This term specifically includes the attorney appearing for the General Counsel at the
hearing
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
operations under that contract as of July 1, 1965 , utilizing the same staff of employ-
ees as had the Bowland Company which had held the contract for custodial services
there for the previous year. About the middle of the month of July 1965, one Jack
Edgar became the Respondent 's "project engineer" in charge of this operation. One
Wallace Kirk, a longtime employee of Respondent, had come from a Respondent
operation in Cleveland, Ohio, to become, on July 1, the night manager for Respond-
ent at Houston . Edgar and Kirk constituted the main changes in personnel made
by Respondent upon assuming the Houston contract. Otherwise Respondent merely
took over the existing staff from Bowland.
Under the Bowland administration Local 896 of the Teamsters Union had
become the certified bargaining representative of the Bowland employees as a result
of a Board-conducted election. Respondent either assumed the existing collective-
bargaining agreement or negotiated a new one with Local 896. As of July 1, 1965,
one Rual Hampton, who had probably been the most active employee in the orga-
nizing of the Bowland employees , was recognized as the union shop steward. He
was assisted by one Robert Earl Davis.
On July 1, 1965, Robert Davis, a leaderman in Building 30 under Bowland,
became the leaderman for Respondent in Building 30. Building 30 consists of some
50,000 square feet of floor space known as Mission Control. There were two
leadermen in the building under Respondent, Davis and one Ed Williams who had
been the area supervisor for Bowland over Building 30.
As of this time Davis maintained that he had been appointed by the Union as an
assistant steward and thereafter became an acting steward.2
One evening about July 6 or 7, 1965,3 Kirk came into Building 30 and informed
Davis that Davis and his whole crew in Building 30 were "goofing" and that the
building was in very poor shape. Davis denied the accusations maintaining that
they were doing the best they could with the materials on hand. Kirk then opined
that the service in Building 30 was "no good" and specifically referred to an elderly
employee who happened to pass the door at that time as not being "worth a god-
dam," adding that if Davis said the man was any good, then he, Davis, was no
"goddam good." When Davis objected to this type of criticism, Kirk added that,
"If you get to mouthing, who do you think Mr. Holt is going to believe, you or
me?" Davis told Kirk that he was going to "run you [Kirk] into the local in the
morning" over the incident. Kirk's reply was, "Well, I don't give a goddam. The
local didn't hire me and don't pay me."
Davis did report the incident to the president of Local 896 the next morning.
That same evening Kirk came back to Building 30 and told Davis, "Davis, Mr.
Holt will be over to see you . . . . Apparently you didn't like the way I talked to
you last night."
About 9 o'clock that evening Holt and Kirk came into Building 30 where Holt
told Davis that he would like to speak to him. When Davis suggested that Holt
was supposed to have the union steward present while talking to employees, Holt
said , "Well, I would rather we just forget this thing. I want you to tell me what
happened ." Davis did so, explaining that Kirk appeared to be under the influence
of liquor, had cursed, and abused the employees without any reason. After this
explanation Kirk told Davis that he would apologize for the Company. But Kirk
spoke up and said, "I will die and go to hell before I apologize." 4
During the lunch break on or about July 12 Davis was engaged in encouraging
employees to join the Union in the lunchroom when Kirk walked in and told Davis
that he could not do that "on company time." When Davis pointed out that it was
being done on the lunch break , Kirk said, "Well you can't do that on the job."
Thereupon Davis stated that he was going to call the union representative and find
out if he could not sign employees during the breaks. Thereupon Davis telephoned
to Union Representative Garcia. Davis also claimed that the following morning he
filed a written grievance about the matter with Garcia.
2 Respondent discounted this contention with testimony that the Union had no such
position as "assistant steward" or "acting steward."
3 All dates herein are in the year 1965 unless otherwise specified.
'Kirk's testimony on this incident was very short 'consisting only of a denial that he
had cursed Davis- and that he had-apologized to Davis "if [ he] hurt your feelings ." Other-
wise the testimony of Kirk, corroborated that of Davis.
KLATE HOLT CO 1615,
The next evening at work, Kirk remarked to Davis that apparently Davis had not
liked what Kirk had had to say the day before5
Shortly thereafter 6 Davis was transferred from Building 30 to Building 49 and
227 Ed Williams replaced Davis as leaderman in Building 30 7
Sometime in early August and after his transfer to Building 49 and 227, Davis
was summoned to Respondent 's office by his area supervisor where Davis entered
upon a chaotic scene 8 as Project Manager Edgar was discharging employee Bessie
Winston 9 After Edgar succeeded in discharging Winston , over Davis ' protest that
Edgar was violating the agreement in so doing, Davis asked her if she cared to file
a grievance with the Union When Winston refused , Davis stated that despite her
refusal, he intended to file such a grievance with the Union on her behalf the next day
Although Davis testified that the next morning he did in fact file such a written
grievance with the Union , so far as this record is concerned there was nothing
done subsequently which confirmed this testimony
At the union meeting in early September Emndge Turner , Jr, was elected union
steward replacing Rual Hampton whom Respondent had transferred to Ellington
Air Force Base At or about this same time , Respondent selected Turner for train-
ing to become one of its area supervisors
On September 30, Respondent issued to its employees uniforms consisting of
bright orange and black striped jackets and bright orange caps Upon receiving his
uniform Davis told the supervisors distributing them, Edgar , Kirk, Hobbs, and
Jones, that "this is the most disgraceful , most intimidating thing I have ever seen "
Edgar answered that, "This is what NASA wants, this is what NASA purchased
and this is what NASA selected " After completing that night 's shift in these
brilliant uniforms , some 17 employees led by Davis turned in their uniforms as they
checked out Kirk stood by as the employees threw their uniforms in a pile saying,
"But anybody that turns in his uniform, I consider him as quit " When Davis
heard this , he objected and said that they were not quitting their jobs and that he
would carry the matter to the Local Union Kirk answered that that is what Davis
should do-"let the local handle it " Davis replied that "I am the local I represent
the local here" but that the employees did not desire to wear the uniforms "and
be called monkeys" by the other employees but that they were not quitting their
jobs
Following a meeting of the affected employees after they had clocked out, Davis
returned and retrieved the timecards of the 17 employees Kirk claimed had quit,
reiterating that he would report the incident to the Local Union in the morning
5 Kirk's denial of this incident if it was a denial, consisted only in denying that Davis
had told him that he, Davis, was going to file a grievance with Garcia, as well as the
fact that he had not seen the four named employees sign union cards Respondent also
produced the cards of the four named employees Each bore a different date But Davis had
not testified that he actually secured the signatures of these four on the occasion in
question
6 Davis contended that this took place in the very early part of July Respondent con
tended that the transfer occurred in "August or September" No company records were
produced to substantiate either position
7 Williams testified that Building 30 was way down when he took over the leadership in
the building from Davis He also testified that under his leadership the building was
brought back up This testimony of Williams is suspect because, as of the time the building
supposedly got into such bad shape, Williams was the area supervisor for Bowland over
Davis and was, therefore, himself partially responsible for the alleged condition of the
building When Williams replaced Davis as the leaderman in Building 30, Williams was,
actually being demoted from area supervisor to leaderman
8 Respondent 's witnesses acknowledged that Davis succeeded in bringing some quiet and
order to this meeting upon his arrival
9 Edgar testified that it was his custom to call in a union steward when talking to any
employee about a mattes which "might hurt his feelings " Calling Davis in on the occasion
of Winston's discharge would thus seem to corroborate Davis' claim that he was known
to have been appointed assistant or acting steward, despite Respondent's contention that
the Union had no such positions and, in fact, that Respondent did not know that Davis was
a union member until shortly before his own discharge
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next morning Davis in fact did report the mcidt' it to Local President Bing-
ham,10 who telephoned to Holt, in the presence of Davis and Turner, insisting that
none of the employees had quit , and that they were entitled to remain at work
under the agreement , or the Local Union would claim backpay for them if they
were denied their right to work
That evening all 17 employees returned and were permitted to work However,
before Davis was allowed to work , he was called into Edgar's office where Edgar
told Davis that he, Edgar "could have fired 17 people last night if it had not been
for you " Edgar contended that all 17 had "quit" their jobs by turning in their
uniforms which Davis denied , adding, "Well , Mr Edgar, we have our union steward
right here, Mr Turner , and he can tell you exactly what Mr Bingham said " Edgar
refused to listen to Turner but, although still maintaining that Davis "was responsi-
ble," ordered Davis back to work
A few days thereafter , on October 5, Local 896 held its monthly meeting At
this time Davis and Ed Williams were elected stewards to replace Emridge Turner,
who by this time was in training to become one of Respondent 's area supervisors
In addition the meeting voted 62 to 0 to continue wearing the NASA uniforms
at least until the Union 's November meeting
The day following this union meeting, Kirk, Jones, and Hobbs approached Davis
and asked what had transpired at the union meeting Davis refused to tell them,
suggesting that Jones and Hobbs , as members, should attend if they wanted to
know Whereupon Kirk said, "Well, he ain't going to tell us nothing We don't need
him to tell us nothing We've got somebody at every union meeting to tell us what
goes on We know what goes on , we know who talks, we know what they talk
about We know when they talk We know everything that goes on You
voted yesterday you voted at Sunday's meeting , 62-0, unanimously , to wear
these uniforms until November 1, is that right?"
When Davis asked where he got his information and Kirk had answered, "We
don't need to be there to get the information We have somebody else to get the
information for us," Davis stated that "I am going to file a grievance on you "
Much the same thing had happened following the July union meeting Following
that meeting Kirk accurately reported to Davis a complaint one of the girls in
Davis' crew had made about Davis at the union meeting When Davis asked how
he knew about this, Kirk stated , "May I say again that we have somebody in every
union meeting?" When Davis insisted that he would "run [Kirk] in" every time
he did this, Kirk said, "It ain 't going to do no good , Davis We have an
agreement with your representative to give us only the problems that we want
Mr Holt or Mr Garcia ain 't going to do nothing unless Mr Holt tells him
to "ti
On the evening of October 28, Area Supervisors Jones and Hobbs came to Build-
ing 227 and ordered Davis to pick up a buffing machine in Building 49 A dispute
arose over who was supposed to bring that machine to Building 227 with Davis
maintaining that Kirk had said that he would bring it to Building 49 whereas Jones
and Hobbs stated that Kirk had just told them that he had ordered Davis to go
get the machine When Kirk 's statement was repeated , Davis said , "If Kirk told you
that, he is lying"-or , "is a liar " Then the three men, Jones, Hobbs, and Davis
drove over to Building 49, got the machine and brought it back to Building 227
Jones and Hobbs thereupon departed and reported the matter to Kirk at his office
Upon receiving Jones' report that Davis was angry about having had to move
the buffer and had called Kirk a "liar" if Kirk had denied telling Davis that Kirk
would move the machine , Kirk, according to Respondent's testimony , made one
inquiry , to wit , "Did he move the machine?" When Jones answered that question
in the affirmative , Kirk said, "Well, that is all I am concerned with He moved the
machine " 12
Shortly thereafter Kirk , accompanied by Jones and Hobbs, went to Building 227
where Davis confirmed the fact that he had, in fact , stated that Kirk had lied if
he denied having told him when he picked up his paycheck the day before that
Kirk would have the machine moved to Building 227 for Davis
to Respondent 's witness and supervisor, Emridge Turner then the union steward, con
firmed the fact that Davis had already reported the incident to Bingham by the time
Turner ariived at Davis' home from where Turner telephoned Bingham about the matter
himself
11 Subsequent events tend to confirm the truth of this statement
12 Kirk did not deny this testimony
KLATE HOLT CO. 1617
After that, Kirk, and the supervisors returned to Respondent's office where Kirk
telephoned Edgar at home, requesting him to return to the office on account of this
affair with Davis. According to Edgar's testimony, Kirk complained over the tele-
phone that "Robert Davis had cursed him and had made allegations that he had
molested one or more girls, and that he, Wallace Kirk, had been harassing Robert
Davis." Edgar was reluctant to return to the plant because he believed that Kirk
should be able to handle the matter himself. However, Edgar finally agreed to
return to the office and gave orders that Ed Williams, the other union steward,
should be there when he arrived.
After interviewing Kirk, Williams, and the other supervisors, Edgar had Davis
brought to the office.
When Davis arrived, Edgar inquired, "Is there anything here that you want to
tell me about?" Then, according to Edgar, Davis talked for about 45 minutes
regarding Kirk's "harassing" him, "watching" him, "cursing him" and, "molesting"
two women employees. When he finished, Edgar asked Davis, "Did you call Kirk
a damn liar?" Davis admitted having done so. Edgar then turned to Ed Williams,
according to Edgar's testimony, and said:
Ed Williams, here is the situation. It looks like he did call Kirk a liar. He
didn't get the buffer.13 He was supposed to have picked up a buffer.-What
would you do in this case Ed?
According to Edgar's testimony, Williams then suggested that David apologize
and, when Davis refused, Williams supposedly said, "Well, I would fire him."
Despite this alleged advice from Williams,14 Edgar informed Davis that he was
demoting Davis from leaderman to janitor,15 a 10-cent-an-hour decrease in pay,
"for cursing the night manager [Kirk], being uncooperative and not good supervis-
ing" and "not telling the truth . about the two girls." Davis answered, "I will
not accept this. You can't reclassify me. I will take this up with the Union." When
Edgar stated that he did not think Davis could refuse either the demotion or the
transfer to Ellington,' Davis reiterated, "I will take it up with the Union."
Whereupon Edgar stated, "If you are going to file a grievance, you might as well
file a damn good one." He proceeded to terminate Davis from Respondent's
employ.16 • ,
.Subsequently on the morning of October 28,.Davis filed a grievance with the,
Union in regard to his discharge.
This grievance was processed informally between Garcia for the Union and
Bambace for the Respondent. On November 24 Garcia notified Davis that the
Union had settled this grievance on the basis that Davis would be employed at
Ellington Air 'Force Base as a janitor and shop steward but without backpay and
without seniority.17 He was to report on November 26. Davis refused the settlement.
On November 26, 1965, Davis filed his charge as an individual with the Board.18
13'With one exception, Hobbs, all the witnesses agreed that Davis assisted by Jones and
Turner did in fact get the buffer as directed. On the other hand, Hobbs' testimony indicates
that Davis did not get the buffer as ordered. Early in his testimony Hobbs answered Re-
spondent's question as to what happened then by candidly stating, "I don't recall now what
happened." However, assisted by leading questions, Hobbs continued to give answers. His
testimony was of little, or no, value.
,..Of importance is the fact that Respondent failed to call Area Supervisor Jones, a main
actor in this drama, as a witness and failed to account for his absence. Thus It Is a fair
inference,' which I draw, that as a witness Jones would not have assisted Respondent's
case.
14 Williams, as,a.witness for Respondent, failed to corroborate this testimony by Edgar.
1. At some indefinite point in this conversation Edgar also informed Davis that lie was
transferring him to Ellington Air Force Base where Respondent had about eight janitors.
10 There is testimony in this record to the effect that when Kirk went to Building 227
lie appeared to&be under the influence of liquor and threatened Davis. There is also evidence
In: the record that',' after Davis had received the pay due him on the evening of his dis-
charge, lie challenged Kirk to a fight, which admittedly never took place. As neither of
these things played any part in the discharge of Davis, I have disregarded them.
17 Bambace stated that the settlement did not affect Davis' seniority. .
zs It is to be noted that the Teamsters Local took no part in this proceeding.
264-188-67-vol. 161-103
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B Conclusions
From time immemorial (at least so far as this Act is concerned) it has been
settled Board and Court law that an employer who discharges a union steward or
a union employee in pique or resentment because said employee was zealously
attempting to enforce the collective-bargaining rules as to the employees wages,
hours, and working conditions by filing grievances or complaints regarding alleged
violations thereof by said employer or his agents (whether such were meritorious
or not), thereby deprived such employee of his right to engage in protected con-
certed activities in violation of Section 8(a)(1) and also discriminated in regard
to his hire and tenure of employment because of his union or concerted activities
in violation of Section 8(a)(3) of the Act 19
Recently the Board took occasion to remind me in no uncertain terms of the
existence of this venerable rule of law in its Decision in Interboro Contractors Inc,
157 NLRB 1295 It is my considered opinion that this well-established rule of law
is properly applicable to the facts in the instant case at least
The facts here prove that on at least six occasions to Respondent's knowledge
Davis, as an employee or as a union steward, was involved in complaints or griev-
ances against Respondent involving either Respondent's actions in regard to him-
self and/or other employees The undisputed facts also prove that Davis' complaints
or grievances irritated Edgar and Kirk to such an extent that they gave Area Super-
visor Jones, strict orders to watch for any errors Davis might make so that written
letters of complaint against Davis could be written preparatory to discharging hun
There is uncontradicted evidence in this record by a former area supervisor, Vernon
Bilton, who testified to hearing Edgar and Kirk give such orders to Jones for that
specific purpose
Respondent 's defense to this was a type of confession and avoidance Respond-
ent admitted that the order to watch Davis had been given to Jones but, according
to the evidence of Edgar, the order was given because of alleged complaints vis-a-vis
Davis' work which had been supposedly made by NASA As previously noted,
Jones, the man to whom these orders were given and who, therefore , could have
corroborated Edgar's testimony, was not called by Respondent to testify, thereby
fairly raising the inference that his testimony would not have assisted Respondent.
I draw this inference
Respondent's next attempt at avoidance by its contention that it did not know
that Davis was a union steward, an assistant steward , or an acting steward Actu-
ally, even if this claim were true , which the undenied evidence of Respondent's
own witness Ed Williams proves it not to have been, the contention is immaterial
for the reason that the above rule of law applies to zealous union employees bring-
ing grievances as well as to union stewards In addition to Williams' testimony,
there is the uncontradicted evidence that even as early as July 1965-and thus
while Davis was at best only an appointed acting or assistant steward-he was
called specially into the meeting during which Edgar discharged Bessie Winston
Edgar's testimony was that he "always" called in a steward at times when he was
about to criticize an employee , which would appear to indicate that Edgar knew
or suspected that Davis was at the time of the Winston discharge some sort of a
union steward Indeed, prior to the discharge of Davis, of course , Williams had
personally notified Respondent that both he and Davis were the union stewards-
even though Local 968 had failed and neglected to so notify Respondent
Respondent's final effort at avoidance was, of course , its claim that Davis actually
filed no written grievances over these six matters , except in the last instance, to
wit, his own discharge So far as this goes, it is correct But the record also proved
that, in every one of these instances , except perhaps in the surveillance instances,
Respondent gave proof thereafter of the fact that it knew that Davis had, as he had
promised at the time to do, complained of Respondent 's actions to the Union, even
though the complaints he made were oral and not written Oral complaints would
be as irksome as written grievances
Hence, the above rule of law is peculiarly applicable to the situation in this case
Respondent seeks affirmatively to overcome the prima facie case presented by
General Counsel with the claim that it first demoted and then discharged Davis on
1 Shattuck Glenn Mining Corporation, 362 F 2d 466, decided May 9 , 1966 (CA 9) ,
New Yori, Trap Book Corporation Nytralete Aggregate Division, 148 NLRB 374 Morrison
Knudsen Company, Inc and Hawaiian Dredging and Canstruction Co, 149 NLRB 1577
KLATE HOLT CO. 1619
October 28-29 (1) because he called Kirk, his superior, a "liar," a "damn liar,"
or a,"God-damn liar"; (2) because Davis "lied" when he claimed that Kirk had'
"molested"- two women employees; (3) because Davis was "uncooperative"; and
(4) "not good supervising," according to Edgar's testimony. - -
Of these contentions Respondent proved only the first, a fact which Davis readily
admitted.
. Edgar's-own testimony, corroborated by that of all the other witnesses present,
proved that he considered the above alleged offenses 20 sufficient only to cause him
to demote Davis and transfer him to Ellington Air Force Base (to which former
Shop Steward Rual Hampton had previously been transferred 'for reasons not in
this record). .
But when Davis iefused to accept this demotion and transfei because they
allegedly were contrary to,his rights under the collective-bargaining 'agreement in
existence and announced that he intended to file a grievance about the matter with
the Union, Edgar; according to his own testimony, answered:
Well, since you are- going to take this up with the Union, [referring to the
demotion and transfer], go ahead and take this up too because I will go ahead
and terminate you at the same time 21
Hence even Respondent's testimony removes all doubts that, but for Davis'
announced intention of making a grievance out of his proposed demotion, Edgar
would not have discharged Davis. By discharging Davis because he intended to
file yet another grievance against Respondent with the Union, Respondent sought
to deprive Davis of the rights guaranteed him as an employee in Section 7 of the.
Act in violation of Section 8(a)(1), and said discharge, in addition, tended to
discourage its employees' union and concerted activities in violation of Section
8(a)(3) of the Act. I so find.
Furthermore Respondent's testimony also proved that the liar statement, with
or without embellishments, was actually of little or no import to Respondent and
was, in fact, an afterthought on the part of both Kirk and Edgar. When Jones first
reported the buffer incident including the liar statement to Kirk, all Kirk was inter-
ested in, according to Respondent's own testimony, was whether Davis had, in fact,
moved the machine in accordance with instructions and, upon learning that he had,
Kirk said, "Well, that is all I am concerned about. He moved the machine." When
Kirk telephoned Edgar to come back to the plant after finally recognizing the
possibilities in -the liar statement, Edgar admitted his own reluctance to return.
obviously because he , too, considered the incident to be of such insignificance that
Kirk could handle the matter alone. It is further worthy of note that, after all his
investigation into the incident, Edgar continued to act under the erroneous
assumption that Davis had disobeyed orders and not moved the buffer. Quite obvi-
ously Respondent was seeking any excuse to rid itself of Davis because of his
aggressiveness in upholding the collective-bargaining agreement as shop steward.
In addition the facts above-found require the finding, here made, that Respondent
through Kirk deliberately created the impression that Respondent was keeping the
union activities of its employees , including Davis, under surveillance , a well-
recognized violation of Section 8(a)(1) of the Act.22
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section III, above have a
r^ According to Edgar 's testimony, these "offenses" Included Edgar's personal miscon-
ceived belief that Davis had not moved the buffer as per Kirk's Instructions. This belief
was factually incorrect . Whether this misconception was actual or merely due to Edgar's
loquacity as a witness , I have no way of knowing
m All the other witnesses corroborated the fact that this statement was made, although,
Davis , at least, indicated that the Edgar statement was couched in somewhat more emphatic
terms.
22 Respondent 's defense is here again one of avoidance since Respondent maintained,
probably correctly, that they picked up information about union activities from the con-
versations of the employees while passing the supervisors on their way to punch the time-
clock. This, however, was not the impression Kirk sought to convey when he told Davis
that Respondent always had "informers " at all union meetings. See Mitchell Plastics,
Incorporated, 159 NLRB 1574. -
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close, intimate , and substantial relationship to trade, traffic , and commerce among
the several States and tend . to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
IV. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that Respondent discriminated in regard to the hire and
tenure of employment of Robert Earl Davis by discharging him on October 29,
1965 , I will recommend that Respondent offer him immediate and full reinstate-
ment to his former, or substantially equivalent position at the NASA Manned
Spacecraft Center in Houston , Texas, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay he may have suffered
by reason of said discrimination against him by payment to him of a sum of
money equal to that which he would have earned as wages from the date of the
discrimination to the date of his reinstatement , less his net earnings during such
period , in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289 , with interest thereon at 6 percent per annum.
Because of the type of unfair labor practices engaged in by Respondent, I see
an opposition by Respondent to the policies of the Act in general , and hence
I deem it necessary to order Respondent to cease and desist from , in any manner,
infringing upon the rights guaranteed its employees in Section 7 of the Act.
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of Robert
Earl Davis by discharging him on October 29, 1965, thereby discriminating in
regard to his hire and tenure of employment and discouraging union membership
and activities among its employees and preventing its employees from exercising
the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (3)
and (1 ) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed to them in Section 7 of the Act , Respondent has violated
Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Brush-Moore Newspapers , Inc. d/b/a The Portsmouth Times and
Truck Drivers Union , Local 413, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America . Case 9-CA-3924. December. 8, 1966
DECISION AND ORDER
Upon a charge filed by Truck Drivers Union , Local 413, affiliated
with the International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , herein called the Union, the Gen-
eral Counsel for the National Labor Relations Board, by the Regional
Director for Region 9, issued a complaint dated June 28, 1966,1 against
Brush-Moore Newspapers, Inc. d/b/a The Portsmouth Times, herein
1 Unless otherwise noted, all dates are in 1966.
161 NLRB No. 141.