Liberty Scrap Materials, Inc.

National Labor Relations Board - Board Decisions

May 7, 1965

152 N.L.R.B. 480 (N.L.R.B. 1965)

480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Helpers of America, or any other labor organization of our employees, by
discharging or in any other manner discriminating in regard to their hire or
tenure of employment, or any term or condition of employment.
WE WILL NOT interrogate employees concerning their union membership,
activities, or sympathies in violation of Section 8 (a)( I) of the Act.
WE WILL NOT threaten employees with discharge or other reprisals for engag-
ing in union activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce employ-
ees in the exercise of rights guaranteed them by Section 7 of the Act.
WE WILL offer Guadalupe Carreon and Cruz Dominguez immediate and full
reinstatement to their former or substantially equivalent positions, and make
them whole for any loss of pay they may have suffered by reason of our dis-
crimination against them, provided, that our obligation to reinstate Carreon
will cease if, after he receives our offer of reinstatement, he does not present us
with evidence that he has a commercial driver's license.
GLAZER'S WHOLESALE DRUG COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if they are presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No.
Edison 5-4211, Extension 2131, if they have any question concerning this notice or
compliance with its provisions.
Liberty Scrap Materials , Inc., Absorbent Sanitary Wiper Com-
pany, and American Barrel & Cooperage Company and Ice,
Storage, Scrap Material & Grain Warehousemen 's Local Union
No. 105 , affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America. Case No.
9-CA-3285. May 7,1965
DECISION AND ORDER
On February 3, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in certain unfair labor practices within the meaning
of the National Labor Relations Act, as amended, and recommending
that they cease and desist therefrom and take certain affirmative action,
as set forth in the attached Decision. The Trial Examiner further
found that the Respondents had not engaged in certain other unfair
labor practices alleged in the complaint, and recommended that those
allegations be dismissed. Thereafter, the General Counsel filed limited
exceptions to the Trial Examiner's Decision and a supporting brief,
The Respondents filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the National Labor Relations Board has delegated its
152 NLRB No. 47.
LIBERTY SCRAP MATERIALS, INC., ETC. 481
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made-
at the hearing and finds that no prejudicial error was conunitted. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
the Respondents, Liberty Scrap Materials, Inc., Absorbent Sanitary
Wiper Company, and American Barrel & Cooperage Company, Cin-
cinnati, Ohio, their officers, agents, successors, and assigns, shall take-
the action set forth in the Trial Examiner's Recommended Order, with
the following modification :
Add the following as the third indented paragraph of the notice :
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organi-
zation, to form labor organizations, to join or assist Ice, Storage,
Scrap Material & Grain Warehousemen's Local Union No.
105, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities,
except to the extent that this right may be affected by an agree-
ment requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
"As a clear preponderance of all the relevant evidence does not demonstrate that the
Trial Examiner ' s credibility findings are incorrect , the Respondents ' request that they
be overruled is denied, and the credibility findings are adopted. Standard Dry Well
Products, Inc., 91 NLRB 544, enfd . 188 F. 2d 362 (C.A. 3).
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This proceeding, heard before Trial Examiner Frederick U. Reel in Cincinnati,
Ohio, on November 30 and December 1, 1964,1 pursuant to a charge filed the pre-
ceding August 11 and a complaint issued September 30, presents questions as to'
" Except where otherwise indicated , all dates herein refer to the year 1964.
789-730-66-vol. 152-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether Respondents discharged four employees for union activity and threatened
and unlawfully interrogated employees with respect to their union activity. Upon
the entire record , including my observation of the witnesses , and after due considera-
tion of the brief filed by Respondents , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS AND THE LABOR ORGANIZATION INVOLVED
The three corporate Respondents , herein collectively referred to as the Company,
are affiliated businesses under common ownership and control , engaged in Cincinnati
in the business , inter alia , of processing scrap materials and industrial wiping cloths,
valued in excess of $50,000 annually , for shipment in interstate commerce. The
Company admits , and I find, that it is engaged in commerce and in activities affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act , and that the
Charging Party, herein called the Union , is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of Hartford Edwards
1. Circumstances surrounding the discharge
Early in May 1964 certain of the Company' s employees expressed an interest in
having the Union conduct an organizing campaign . Union Representative Felder,
who had conducted a similar campaign in 1962 which culminated in the Union's
defeat in an election , spoke to a few employees at the Company' s plants in early
May. On one such occasion , on Thursday or Friday, May 14 or 15, Felder arrived
at the Company's Liberty Street plant shortly before noon , and about 12.05 he
engaged in a conversation on the street outside the plant with employee Hartford
Edwards, who had cone out on his lunch hour. While Edwards and Felder were
conversing , Sam Friedman , the plant supervisor saw them. According to Felder,
Friedman went into the office and emerged about 2 or 3 minutes later. Felder
continued:
Hartford Edwards and I were still talking. Just as he walked past Hartford
Edwards and myself, he looked back a couple of times at us whilst we was talk-
ing. The foreman goes in the office ; about two minutes later he came out; and
he came out to the front door, he looked back up the street at us again ; then he
goes across the street about a couple minutes later , and then I left.
At the time of this episode , Edwards told Felder that he, Edwards, thought Friedman
recognized Felder; the two had met at the time of the election in 1962.
That afternoon , according to Edwards ' testimony , Friedman asked Edwards "who
the fellow was that [Edwards] had been talking to during lunch," and Edwards replied
that "it was just a friend ." Later that same day, according to Edwards , Friedman
asked Edwards "if that wasn't any Union organizer that [Edwards] had been talking
to," and Edwards replied that if so, he did not know it.
The following Monday, May 18, Friedman discharged Edwards, under circum-
stances which Edwards described as follows:
It was about 1:30 p.m. and I was in the baler on my usual job and Mr. Fried-
man came over-at the time I was about to take out of the baler, I was climbing
out of the baler to tie the bale up, and he asked me if the bale was big enough.
And I told him yes unless he wanted it larger. He said, "What do you mean by
that" He said, "I want you to make them like you have been making them."
I said , "Well, that's what I'm doing. See , I'm getting out of the baler now."
So he asked me, "Do you want to work or don't you?" I said , "I want to work."
In the meantime , I was still working while I was talking, so he tells me, said,
"Well, you just come on with me and leave the baler alone ." So we went to
the office and he called Nelson, the bookkeeper ... and told him to figure my
time up and Nelson figured the time out and Sam gave me my money, and he
told me to, he said , "You can go find a Union someplace else. We don't need
it here."
LIBERTY SCRAP MATERIALS, INC., ETC. 483
The testimony adduced by the Company differed substantially from that quoted
above. Friedman described the discharge episode as follows:
We bale paper across the street. I went across the street and as I come across
to the baler, I asked Hartford how many more wagons-we take wagons off
the trailer and empty them into the baler, and I asked Hartford how many more
wagons were in there and he said, "Well, you ought to know." I said, "I don't
know. I wouldn't ask you." And Hartford said I was standing over his shoulder
or something to that effect, all the time, and I said, "Hartford, that's my job to
know what you're doing." He said, "I'm not going to quit. Fire me." And
that was about it.
Q. Did you fire him?
A. Yes.
Q. How did you fire him?
A. I did. I paid him off. And he asked, "I want my money right away."
And I paid him off.
Q. In other words, you fired him for what reason, in your own words?
A. Just for that. There was no intent. Just for what he answered me back
there at that time. There was nothing prior and nothing afterwards. It was
just right there and then. He said, "Pay me off." I mean, "I won't quit. Fire
me," and I just paid him off and that was it.
Q. All right.
A. Prior to that there was pleasant relations all the way through.
Later in his testimony Friedman substantially repeated this version, adding only that
when he told Edwards it was his [Friedman's] job to know what Edwards was doing,
he also told Edwards, "If you don't like it, you know what you can do," to which
Edwards responded, "Well, I'm not quitting. You fire me." Asked whether he had
intended to fire Edwards when he went up to him on that occasion, Friedman testified:
I had no intention whatsoever because he was a good worker. He worked
all right.
Q. But you decided to fire him. Your first inclination to that effect was when
he said, "You're always over my shoulder?"
A. Right and the way he said it and the time and the words. I don't know
who else was helping, there was somebody else, and I couldn't let it go any fur-
ther. I felt that way.
Q. You felt that somebody had overheard you?
A. Well, they were working right there with us and I didn't feel like being
stepped on. I have other employees, too, to take care of. And that was just
at that moment. There was no premeditation whatsoever.
A third version of the episode was supplied by Otis Jetter, an employee called as
a witness by the Company, who testified that he was present when Friedman dis-
charged Edwards and overheard the conversation. Jetter testified as follows:
I was on the trailer and I don't know, when I looked up, they was arguing,
and the next thing I know he told him if he couldn't do it, I don't know, he
could go home. So he said O.K. He told him to punch his card.
Q. Who said what to whom as you recall it?
A. Sam told Hartford if he couldn't do something, I don't know what they
were talking about, that he could go home, and they were arguing some more,
and he told him, he said O.K. Hartford said O.K., and Sam told him to punch
his card, and he said he wasn't going to punch nothing, so Sam said, "Get off."
2. Other evidence bearing on Edward's discharge
As indicated above, a critical factor in the Edwards matter is whether Friedman
recognized Felder as a union representative and saw him in conversation with
Edwards. As to this, Friedman denied recognizing Felder and testified that he had
not seen Felder since the 1962 election, when they were first introduced. On that
occasion Felder was at the polling place in the plant, and Friedman, according to his
testimony, was occupied during the election, calling employees in to vote. On the
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other hand, Felder, in support of his testimony that Friedman recognized him, testi-
fied to an incident a few days after Edwards' discharge when Felder went back to the
plant about noon and Friedman came out. In Felder's words:
I'm sure he recognized me because he stood out there maybe five minutes.
He was watching me and I was watching him. Well, I knew then at that par-
ticular time I wouldn't have any chance to talk to anyone at all so I left.
Edwards testified with respect to Friedman:
A couple of times he asked me if I had been to any meetings, union meetings,
or if I knew of, heard of anybody else going to any.
I told him I did not.
Friedman, on direct examination, gave the following somewhat unimpressive denial:
Q. Specifically, did you ever ask Hartford Edwards whether he had been to
any union meetings or whether he knew anyone who-had attended union
meetings?
A. Not that I can remember.
Q. Well, did you or didn't you?
A. I don't recall if I did or not.
Q. Is there a possibility that you did talk to him about that?
A. Not that I asked him if he was to-a member. I asked-No, not, no, not
that I know of. No, I did not ask him.
After Edwards' discharge, he applied for unemployment compensation. The Ohio
Bureau of Unemployment Compensation approved his application, and its form
recites that the "reason for unemployment is lack of work .. . " The form also
indicates that benefits will be allowed only if the applicant is "unemployed through
no fault of [his] own." In a list of separations prepared by the Company, the reason
for Edwards' discharge is stated as "Did not work full hours as required by Sam-
Lack of Work."
Finally, it should be noted that the Company rehired Edwards on October 13, and
that he had some employment elsewhere between May 18 and October 13. Never-
theless, he filed claims for unemployment compensation in which he alleged he was
totally unemployed during each week from his discharge until November 1, over
2 weeks after he was rehired. Edwards admitted on the witness stand that he had
falsified his applications to that extent.
3. Concluding findings with respect to Edwards
The basic problem in Edwards' case is whether to credit his testimony that upon
discharging him, Friedman said, "You can go find a Union someplace else. We don't
need it here," or to credit Friedman's testimony that he was unaware of union activ-
ity by anyone, let alone by Edwards, and discharged Edwards for displaying an
insubordinate and somewhat truculent attitude. Nothing is more common in cases
under this Act than flat conflicts of this nature, and attempts to find a formula for
resolving them appear doomed to be no more rewarding than attempts to square the
circle. The trier of fact is compelled to comb the record for clues as to the truth or
to rely on that shadowy and unsatisfactory word "demeanor." Cf. N.L R.B. v.
Dinion Coil Company, Inc., 201 F. 2d 484, 489-490 (C.A. 2). Conflicts in testi-
mony are by no means unknown in other areas of the law, but where a jury may,
after long deliberation, return a simple and unexplicated fact finding, and a court
sitting without a jury may issue findings without laying bare the process of ratiocina-
tion, custom, if not law, requires that a Trial Examiner, faced with a crucial conflict
in testimony, set forth for the benefit of reviewing authorities, Board and court, the
considerations which impel him to his choice. Cf. Local 138, International Union of
Operating Engineers, AFL-CIO, et al. (J. J. Hagerty, Inc.) v. N.L.R B., 321 F. 2d
130, 138, footnote 1 (C.A. 2).
Neither Friedman nor Edwards impressed me as witnesses who would put their
duty to truth above their self-interest. Of the two, Edwards would have impressed
me the more favorably, but the revelation that he lied to the State authorities in con-
nection with his claim for unemployment compensation destroys whatever advantage
his "demeanor" might have given him. On the other hand, I am unwilling to infer
that those falsehoods, which he openly admitted, brand every statement he made as
untrue.
As both Friedman and Edwards were "interested" witnesses, I would be inclined
to give greater weight to the testimony of the comparatively disinterested fetter.
LIBERTY SCRAP MATERIALS, INC., ETC. 485
But Jetter, who was still in the employ of the Company, admitted that he was unwill-
ing to give a pretrial statement to Union Representative Felder because of fetter's
•concern for his family. It seems fair to infer that Jetter was eager to testify in
accordance with what he thought were his employer's desires. And, unfortunately
from the standpoint of both the Company and fetter, his version of the discharge
episode does not corroborate Friedman's, for fetter has Friedman telling Edwards
that if Edwards "couldn't do something ... that he could go home . . . and Sam told
him to punch his card, and he said he wasn't going to punch nothing ...... If any-
thing, this version is a little closer to Edwards' than to Friedman's. Although fetter
denied hearing the phrase about the Union, Edwards placed that part of the episode
as occurring in the office and not in fetter's presence.
General Counsel's case rests not only on the closing remark which Edwards attrib-
uted to Friedman, but also on the fact that Edwards was discharged on the second
working day after his conversation with the union organizer, a conversation in which
Friedman saw them engaged. As to this, Friedman denied recognizing Felder as
an organizer, and denied interrogating Edwards as to Felder's identity. At the very
least, it is highly plausible that Friedman, who had met Felder at the Board election
in 1962, recognized Felder as a familiar, if not a fully identifiable, face, and that after
some further cogitation Friedman was able to recall where he had seen Felder before.
General Counsel's burden is one of proof, not of showing plausibility. But if Edwards
correctly quoted Friedman's parting shot about the Union, then the burden of proof
is met, and the fact that Friedman saw Felder and Edwards in conversation furnishes
an explanation of Friedman's awareness of Edwards' union activity.
Further help in resolving the basic credibility issue comes from two unlikely
sources- the unemployment compensation form, and a list of separations compiled
by the Company. The former recites as to Edwards that the "Reason for unemploy-
ment is lack of work ...... The latter recites that Edwards was terminated because
he "Did not work full hours as requiied by Sam [Friedman]-Lack of Work." In
short, the Company, in one form or another, is responsible for several conflicting
versions as to the reasons for discharging Edwards. Friedman's testimony ascribes
it to an insubordinate resentment of supervision, leading to an unpremeditated dis-
charge. fetter's testimony ascribes it to an argument over Edwards' ability to "do
something." The unemployment compensation form refers to "lack of work." And
the list of terminated employees prepared by the Company lists what appear to be
mutually inconsistent reasons, not working "full hours as required" and "lack of
work." The conflicting stories emanating from the Company, and the contradiction
between its records and Friedman's testimony tend to discredit the latter. Under
all the circumstances, therefore, I credit Edwards rather than Friedman, and, as a
consequence, find that Edwards was discharged to discourage union activity and that
the Company thereby violated Section 8 (a) (3) and (1) of the Act.
Edwards has been reinstated, and I therefore need not pass on whether his false
statements to the State authorities reveal such moral turpitude as to disqualify him
from employment. I have considered whether his transgressions in that regard war-
rant withholding from him the customary backpay remedy. But backpay is awarded
in the public, not the private, interest, and appropriate redress for Edwaids' miscon-
duct in the unemployment compensation matter can be left to forums more appro-
priate for that purpose than this.
B. The discharge of Brown and Mack Johnson
Jesse Brown and Mack Johnson, two of the more active union members and early
supporters of the organizing movement, were discharged on May 25, a week after
the discharge of Edwards, and some 3 weeks after the renewal of union activity.2
2 The Company, in its brief, adverts to the timelag between the May discharges and
the filing of the unfair labor practice charge in August, and also notes that as late as
June 16 the Union wrote the Company advising of the organizing campaign and caution-
ing the Company against committing unfair labor practices From these facts, the
Company argues that in June the Union did not believe the discharges were unlawful,
and that it filed the charge in August, after losing an election, merely to harass the Com-
pany I reject these contentions. The charge was filed well within the 6 months
permitted by the statute, and the merits of the case turn on the evidence in the record,
and not on the Union's pretrial evaluation of the facts. For all the record shows, the
'union official who wrote the June letter was not aware of all the details surrounding the
discharges. It may well be that had the Union won the election, it would have handled
these matters by negotiation rather than by filing a charge. But these speculations
neither add to nor detract from the evidence adduced at the hearing , on which this
Decision rests.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As in Edwards' case, the testimony is in sharp conflict as to the events preceding and
surrounding the discharge.
1. Events preceding the discharge
According to Brown, a few days before their discharge, Company President Liebo-
witz came up to Johnson and Brown at work, criticized Johnson for moving too
slowly, and said that both Johnson and Brown were "nothing but troublemakers."
Brown further testified that Liebowitz told Johnson, in Brown's presence, that he,
Liebowitz, "wasn't afraid of the Union and nobody down there." According to
Brown, Liebowitz apparently started to discharge Johnson at that time and then
changed his mind.3 On another occasion later that day, according to Brown, Liebo-
witz said to him and to employee Lucas, "I'm going to find out 4 who is the head of
that Union and run his ass away from here." Brown also testified to overhearing
Liebowitz tell Miller, a supervisory employee, that he, Liebowitz, knew the employ-
ees were trying to organize as two men had given him cards.5 Brown, who had dis-
tributed union authorization cards, did not receive cards back from two of the
employees to whom he had given them.
Mack Johnson's testimony in general corroborated that of Brown with respect to
the episode in which Liebowitz had criticized Johnson's work and had started to
discharge him. According to Johnson, on that occasion Liebowitz "invited [Johnson]
to go to the office and get [his] pay." Johnson's testimony continues:
"So on the way in, then, he stopped and told me he wanted me to quit messing
around, said Jesse and I were trying to start a Union. He had known about it
some way or other. And he kept on shouting and talking, one word led to the
other, and he said if I kept on messing around like I was, he was going to kick
my ass out of there. And he went on to say that he wasn't afraid of nobody
down at the union hall; that he didn't need anyone; he said he didn't need me
around there; didn't need my kind around there. He said if I kept on as I was
going, he was going to kick my ass out the door.
Q. What happened?
A. Then he told me to go on back, to shake my ass down, and I went on
back and continued to do as I was doing.
Liebowitz denied the statements attributed to him by Brown and Johnson, and
denied knowledge of any union activity at the plant until some weeks after their
discharge. Miller also denied that Liebowitz ever told him two men had brought
him union cards.
2. The circumstances attending the discharge
On Saturday, May 23, neither Mack Johnson nor Brown reported to work. Brown,
who testified that he was at home sick, had no telephone within a half mile from his
home and did not call in. Johnson, who had car trouble that day, telephoned to,
report that he would be late, and was told that activity was slack and he should take
the day off. Thus far the testimony is in substantial agreement. But as to what
happened on Monday, May 25, the day of the discharge, the conflicts in testimony
are so sharp as to make it regrettably clear that either Johnson and Brown on the
one hand, or Liebowitz and his office manager, Weinberg, on the other, are deliber-
ately falsifying. Brown, testifying that he and Johnson arrived at work at 7:25 a.m.
that day, continued as follows:
So we had a dressing room beyond the office so we went through the office
and changed clothes, and I came back around to get my card and I looked in
the rack and it wasn't there. So I looked up Mr. Liebowitz and I asked him
why was my card pulled. He said he thought I had quit, and I asked him why
did he think that. He said, "Well, you didn't come in Saturday, so I just thought
you had quit, and you didn't call in so I thought you had quit."
3 At first Brown testified that the "troublemaker" episode and the "near discharge"
episode occurred at separate times on the same day. Later be testified that they occurred
in the same conversation.
* Transcript page 95, line 11, reads "fire" for "find out." My penciled note made at
the hearing reads "find out." See also transcript pages 116 and 129, where Brown,
testifying to this episode, used the expression "find out." I hereby correct the record
at page 95 to correspond to my notation.
s According to Brown, Johnson also overheard that conversation. Neither Mack John-
son nor James Johnson was asked to corroborate Brown on that matter.
LIBERTY SCRAP MATERIALS, INC., ETC. 487
So I asked him was I fired. He said, "Yes."
So then I asked him why, He said, "Well, I told you you was fired."
So, I don't know, a minute or so later Mack Johnson came in and asked him
why was he fired, and Mack told him, "Well, I called in; you told me to go
ahead and take the day off. Why am I fired?"
He said, "Well, you might as well take a rest You're fired, too."
So about that time I called him back in his office and I asked him again why
was I fired so he said, "I just told you you was fired." So I asked him had
Eddie and John gave him the two cards that I gave them and he said what made
me think that he had cards, so I didn't say nothing, so I asked him again, I asked
him, why was I fired. I asked him did they tell him I was trying to get a Union.
He said, "Never mind who told me. I got it " So by that time I walked back
outside and Nelson was getting my pay ready. So first he tried to give us our
cards, to sign the cards and take cash, but we asked for a check, so then he gave
us a check.
So as I was leaving I went back through the work shop and I ran upon Mr.
Liebowitz again so I told him I wanted to see him outside before I go and I
asked him again why was I fired. He said, "I told you you was fired." And
I asked him had Eddie and John told him about us trying to get a Union. I asked
him the same thing again. So he said, "I told you never mind who told me,
I got it," and he said, "I also warned you, too, that I wasn't afraid of the Union
and nobody down there." He said, "I don't need nobody." And he also said,
"I told you if there was any more trouble I was going to kick your ass out," and
by that time he was talking so that when he finished, I left.
Johnson's testimony, quoted below, is substantially the same as Brown's:
The following Monday, Jesse and I came in 25 after and went in and changed
clothes which is most likely shoes. We already had the rest of our clothes on.
And he went to proceed to his timecard and I went to mine which was right
alongside the door. So I seen the card was gone. I went in the office and asked
why I was fired. And by that time Jesse and Izzy Liebowitz was coming in the
office so they had a conversation between the two, and I stood and looked and
watched as they talked. He was telling James Brown he was fired because he
didn't call in that Saturday, the following Saturday.
I was standing listening to them while they talked and I knew I was off the
Saturday, too, and I guessed he was going to give me some information as to why
I was fired, too. So I said, "I presume I was fired. You have my card out of the
rack." So he talked on. So after they got through talking, I said was I fired,
too? He said yes, you might as well take a rest, too.
I said, "I called in."
He said, "Yeah, you called in but it's all right, you just take a rest too. You're
fired, too."
Q. Do you recall any more of that conversation?
A. In the office there?
Q. Yes, sir.
A. No. Jesse and he went in, in his little office, and I don't know what was
said.
Q. Do you recall anything further that Mr. Liebowitz said that morning?
A. Yes. As we was leaving out, James Brown called him, asked him could
he see him outside. He said yes, so he came on outside, and James mentioned
again why he was fired. He said because of the Union. He said he advised us if
we kept on messing around like we was messing around, he was going to kick
our ass out.
Liebowitz' version bears little resemblance to the episode described by the employ-
ees. He testified that he noticed Brown and Johnson were not at work that morning,
and that about 8:15 a.m. he instructed the bookkeeper to remove their timecards from
the rack, as he wanted to see them when they came in. According to Liebowitz, his
purpose was to reprimand them before they started work, and he did not intend to
discharge them. Liebowitz testified that they arrived between 8:30 and 8:45 a.m.
and he continued as follows:
A. I asked them how come they didn't come to work.
Q. What did they say to you?
A. Well, this and that. They were feeling pretty good. They were prac-
tically drunk, I'd say.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. What do you mean by "they were feeling pretty good?"
A. Well, they started to holler and this and that, "You're going to fire us?"
.I said "No, no. No reason in the world."
Q. Did you notice anything unusual about their behavior?
A. Oh, yeah, they were drunk.
Q. You mean in your opinion they had been drinking?
A. Positively.
Q. What else was said? Did you say thing else to them or did they say any-
thing else to you?
A. They simply asked me if they were fired again. They said, "Are you going
to fire us?"
I said, "What for? There's no reason to fire you." So-
Q. Did they say anything?
A. They didn't say anything.
Q. What did you do?
A. I went in the other room, and Nelson was in the office, I mean the main
-office, and then I went in the other room and Nelson came in, he says, "The boys
-don't want to work. They want to quit. What are we going to do?"
I said, "Pay them off."
Q. Was it your intention to fire them when they did not show up for work?
A. No.
Q. On Saturday"
A. No. Positively.
Q. Did you intend to fire them Monday morning?
A. No.
Q. Did you have any reason for firing them?
A. No.
Q. Did you fire them?
A. They fired themselves. They didn't want to work.
Q. At that time did you know that either Brown or Johnson were involved
in the Union?
A. No, sir.
Nelson Weinberg, the office manager, corroborated Liebowitz' testimony, and con-
curred in the opinion that Johnson and Brown had been drinking. According to
Weinberg's testimony:
Well, they still would not give Mr. Liebowitz any direct answer after Mr.
Liebowitz twice asked them what happened, and Mr. Liebowitz started to go into
the back office, and as he was going into the back office both of them said they
are not going to have to get on their knees to beg anybody for a job. And I said,
"Well, Mack and Jesse," I said, "that's not the point. Mr. Liebowitz just wanted
to know what happened to you boys."
"Well, if he doesn't want us to work, he can pay us off."
At that time, I went back in the back office there, and I saw Mr. Liebowitz
and I said, "Mr. Liebowitz, what do you want to do with these boys?"
Mr. Liebowitz then said, "Well, they don't seem to be in any physical condition
to work and they're asking to be fired." He said, "Nelson, you might as well
pay them off."
I said, "O.K " and went back to the office there, and I told the boys to wait,
I'm going to make out their checks, and I made out a couple of checks for them,
paid them off.
According to employee James Johnson, about 1 week after the discharge of Brown
and Mack Johnson, he overheard Liebowitz tell Supervisor Miller that Liebowitz
bad "fired the wrong two men because of the Union." Miller and Liebowitz denied
any such conversation.
3. Concluding findings as to the Brown-Johnson discharge
As in the case of Edwards, the only real problem with respect to the Brown-Johnson
discharge is to determine which set of witnesses told the truth. If anything, the
difficulty in this instance exceeds that in Edwards' case. And the critical nature of
the determination serves only to heighten the inherent self-skepticism with which
any human being conscious of his own fallibility approaches the issue. It is all very
well for an appellate court judge to quote a learned treatise to the effect that credi-
bility issues are incapable of being reduced to rules, and that "the miscarriages of
justice in which [trial judges] will be involved by reason of it [credibility errors) must
LIBERTY SCRAP MATERIALS, INC., ETC. 489,
be set down to the imperfection of our means of arriving at truth." N.L R.B. v.
Dinion Coil Co., supra, at 489. A Trial Examiner may have to acknowledge this
Olympian truth, but it is no comfort to realize that if one errs in his judgment, he
may be in good company. Nevertheless, the task cannot be shirked nor the issue
avoided, and not all the decisions and treatises yet written afford the slightest degree
of assistance in discharging the responsibility vested in the Trial Examiner who must
make, and should explain, his resolution.
I am convinced that as to the predischarge matters, notably the antiunion statements
of Liebowitz to Mack Johnson, Lucas, and Brown, the latter's testimony is to be
credited. Brown stood up well under rigorous cross-examination, and certain perti-
nent, if superfluous, details in his testimony (e.g., his repeated description, whenever
he described an episode, of a certain gesture of Liebowitz) tended to persuade me
that he was testifying honestly on the matters at issue.6 As an original proposition, I
should be hard put to it to choose between the two conflicting versions of what hap-
pened on the day of the discharge. But at this point, having found that the Company
discharged Edwards a week earlier for union activity (thus rejecting the claim that
the Company was unaware of the organizing effort); and having found that Liebowitz
is not to be credited in his denials of his statements to Johnson, Lucas, and Brown
in the few days preceding the Johnson-Brown discharge, I lean toward crediting the
employees' version of the events immediately surrounding this discharge. Even
assuming that they were late for work that day, Liebowitz' action in "pulling" their
cards so that he would be sure to see them when they arrived suggests that something
more than normal discipline awaited them. Jetter testified that he was late as often
as once a week, and the record generally attests the Company's lenient policy with
regard to attendance. Both Liebowitz and Weinberg testified that the men appeared
to be drunk, but even assuming this to be the fact, it was apparently a first offense for
each of them (according to Weinberg), and the Company did not even have a firm
policy of discharging employees for reporting to work drunk but would sometimes
simply tell them to go home and return when sober. Taking all the facts into con-
sideration, including not only the above, but also that the Company considered'
Brown and Johnson to be good workers, and that their discharge occurred shortly
after they became active in the Union, I am led to the conclusion that the activity
played a role in their discharge, which was therefore violative of Section 8(a)(3) and'
(1) of the Act. This is not to say, of course, that the employees' union activity gave
them any immunity whatsoever from discharge for cause. Manifestly, if Johnson
and Brown showed up drunk on May 25 and, in effect, invited Liebowitz to discharge
them, their union activity would furnish no bar to his doing so. But on this record,
assailed as I must necessarily be by doubts arising out of the sharply conflicting testi-
mony, I do not accept Liebowitz' and Weinberg's testimony that this is what occurred.
C. The discharge of James Johnson
James Johnson was discharged July 30, some 3 weeks after the July 10 election at
which he was an observer for the Union, and in which the Union was defeated.
According to Johnson, Weinberg told him the morning of the election that he (Wein-
berg) "wouldn't think that it would be a good idea" for Johnson to be an observer.
Weinberg's version of the conversation is as follows:
He came up to me and said, "Nelson, I want to tell you something."
And I said, "O.K., James, what is it you want to tell me?"
He said, "Well, I'm a checker for the Union and I don't know if I'm doing
right."
I said, "What do you mean, not doing right?" I said, "If you're a checker for
the Union and that's what you want to do," I said, "that's perfectly all right."
I said, "Not only that, you vote any way you want to." And I said, "I also told
you previously," I said, since he wasn't working due to his hand injury I had
occasion for him to call me two, three times to see how things were, whether his
Workmen's Compensation came through yet, and I reminded him also that,
"When the Union has the election, be sure to come up and vote." ... I told him
also, he seemed to me like he was concerned about his future with the Company
because of being checker, I told him absolutely not, I said, "You're voting or
being a checker for the Union would have nothing to do with your job or
jeopardize your job-you in your job in any way." I tried to make it real
plain to him on that.
"I do not credit all of Brown 's testimony as he seemed evasive on certain nonessential
matters such as whether he was really 111 on May 23, and why he wanted his final pay
to be by check rather than in cash.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday , July 27, Johnson, according to his testimony , was sick and so advised
the Company by telephone . He testified that he was still sick on Tuesday and again
telephoned . Later that day he came to the plant to borrow some money. On Wednes-
day he did not report to work or telephone , and that evening a friend telephoned
him to report that another man had been hired , perhaps in Johnson 's place. When
Johnson reported for work on Thursday , July 30, he found that he had been dis-
charged . He was rehired early in October.
According to Weinberg , on Monday , July 27, Johnson telephoned that he was too
drunk to come to work. The next day he came in and borrowed some money.
Wednesday he did not report . Weinberg testified that on Thursday morning, July 30,
Johnson telephoned to ask if he still had a job. Weinberg 's testimony continues:
I told him, "Wait , one minute ." I got hold of Mr. Liebowitz , I told him, "Mr.
Liebowitz, Johnson is on the phone there and he's requested whether he has a
job left."
Mr. Liebowitz, said, "No , Nelson, that's about it ." He said, "I can't-" some
words of the sort- "I'm not going to take any more about him the way he's not
coming in to work and so on ." He said , "Just tell him he's discharged."
On consideration of the entire record, I do not credit Johnson's version of Wein-
berg's remarks on the day of the election . With this removed from the case, and
bearing in mind that the Company loaned Johnson money only 2 days before his
discharge , I find that General Counsel has failed to sustain his burden of proving that
Johnson 's discharge on July 30 was attributable to his union activity . The complaint
as to him should therefore be dismissed.
D. Other alleged interference , restraint, and coercion
The discriminatory discharges of Edwards , Brown , and Mack Johnson violated
Section 8(a)(1) as well as Section 8(a)(3). Likewise violative of Section 8(a)(1)
were Friedman 's interrogation of Edwards as to whether the latter had been talking
to a union organizer ; Friedman 's parting shot as he fired Edwards that the latter
should "find a Union someplace else. We don't need it here"; Liebowitz ' statements
to Brown and Mack Johnson that they were "troublemakers"; his statement to Mack
Johnson , anent the Union , that Liebowitz did not need Johnson's "kind around there"
and if Johnson "kept on as [he] was going , [Liebowitz] was going to kick [his ] ass out
the door"; and Liebowitz ' statement to Lucas and Brown that he was "going to find
out who is the head of the Union and run his ass away from here."
In addition , General Counsel alleges that Company Counsel Katz, in a speech to
the employees on the eve of the election , threatened to withdraw benefits if the Union
prevailed . Katz denied making such statements . It is clear that Katz made a speech
in which he listed employee benefits under existing conditions and pointed out what
he regarded as the disadvantages of representation by the Union . Katz testified, how-
ever, that he did not threaten to withdraw any benefits . I am inclined to credit Katz.
In any event , the violations already found warrant the issuance of a broad cease-and-
desist order , so the effect of sustaining the Company in this respect is simply to elimi-
nate specific reference to such threats from the notice and order. Any future threats,
whether or not Katz' speech overstepped the bounds , would violate the order as well
as the statute.
III. THE REMEDY
I shall recommend the conventional remedy for the violations found in this case;
namely, ( 1) a cease and desist order sufficiently broad to encompass not only the
specific violations here committed , but also, in view of their serious character, to
protect against other invasions of employee rights under the Act; and (2) backpay
for the victims of discrimination, together with an order of reinstatement in Brown's
case, for, while all three men were rehired in October, there is some suggestion on
this record that the job given Brown was inferior to that which he held before his
May discharge. Backpay should be computed in accordance with the formulas set
forth in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
CONCLUSIONS OF LAW
1. By discharging Hartford Edwards, Mack Johnson, and Jesse James Brown
because of their union activity, the Company has engaged in unfair labor practices
affecting commerce within the meaning of Sections 8(a)(3) and ( 1) and 2(6) and
(7) of the Act.
2. By interrogating and threatening employees with respect to their union activity,
as found above , the Company has further engaged in unfair labor practices affecting
commerce within the meaning of Sections 8(a) (1) and 2 ( 6) and (7) of the Act.
LIBERTY SCRAP MATERIALS, INC., ETC. 491
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is hereby ordered that, Respondents, Liberty Scrap Mate-
rials, Inc., Absorbent Sanitary Wiper Company, and American Barrel & Cooperage
Company, Cincinnati, Ohio, their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against any employee for having joined, or engaged in activ-
ity on behalf of, Ice, Storage, Scrap Material & Grain Warehousemen's Local Union
No. 105, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America.
(b) Interrogating or threatening employees as to their union membership or
activities, or in any other manner interfering with, restraining, or coercing employ-
ees in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) To the extent they have not already done so, offer to reinstate Jesse James
Brown to his former or substantially equivalent position without prejudice to his
seniority or other rights and privileges, and make him, Mack Johnson, and Hartford
Edwards whole in the manner described in the portion of the Trial Examiner's Deci-
sion entitled "The Remedy" for any loss of earnings suffered by reason of the dis-
-crimination against them.
(b) Notify Jesse James Brown if he is serving in the Armed Forces of the United
States of his right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at their plants at Cincinnati, Ohio, copies of the attached notice marked
"Appendix." 7 Copies of such notice, to be furnished by the Regional Director for
Region 9, shall, after being duly signed by an authorized representative of the
Respondents, be posted immediately upon receipt thereof, and be maintained by
them for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondents to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondents have taken to
comply herewith.8
The complaint insofar as it alleges discrimination against James Johnson should
be, and the same hereby is, dismissed.
I In the event that this Recommended Order is adopted by the Board, the words "As
ordered by" shall be substituted for the words "As recommended by a Trial Examiner
of in the notice. In the further event that the Board's Order be enforced by a decree
of a United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order of" shall be substituted for the words "As ordered by "
B In the event that this Order is adopted by the Board, this provision shall be modified
to read, "Notify said Regional Director, in writing, within 10 days from the date of
this Order, what steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board,
we are posting this notice to inform our employees of the rights guaranteed them
in the National Labor Relations Act:
All our employees have the right to join or assist Ice, Storage, Scrap Material
& Grain Warehousemen's Local Union No. 105, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
They also have the right not to join or assist a union.
WE WILL NOT question our employees as to whether they are members of, or
supporters of, a union, and we will not discharge them for doing so, or interfere
with them in any way because of their union activity.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL give Hartford Edwards, Mack Johnson, and Jesse James Brower
backpay for any wages lost as a result of their discharges in May 1964, and, to,
the extent , if any, that we have not already done so, we will offer Jesse James
Brown his former job.
LIBERTY SCRAP MATERIALS , INC., ABSORBENT SANITARY WIPER
COMPANY, AND AMERICAN BARREL & COOPERAGE COMPANY,
Employer.
Dated------------------- By------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify Jesse James Brown if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Room
2023, Federal Office Building, 550 Main Street , Cincinnati , Ohio, Telephone No. 381-
2200, if they have any questions concerning this notice or compliance with its
provisions.
American Oil Company and Office Employees Association. Cases
Nos. 13-CA-6545 and 13-CA-6560. May 7, 1965
DECISION AND ORDER
On November 13, 1961, Trial Examiner C. W. Whittemore issued his
Decision in the above cases, finding that Respondent had not engaged
in the unfair labor practices alleged in the complaint and recommend-
ing 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 Trial Examiner's Decision and a supporting
brief. The Respondent filed cross-exceptions and an answering brief
in support of the Trial Examiner's Decision and the cross-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 these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
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 General Counsel's exceptions, the Respond-
ent's cross-exceptions, the briefs, and the entire record in these cases,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
the complaint herein be, and it hereby is, dismissed.
152 NLRB No. 49.