Price Brothers Co.

National Labor Relations Board - Board Decisions

Apr 9, 1969

175 N.L.R.B. 277 (N.L.R.B. 1969)

PRICE BROS. CO.
Price Brothers Company and John H . Puckett. Case
9-CA-4655-1 .
April 9, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 1, 1968, Trial Examiner Benjamin
A. Theeman issued his Decision in the
above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor
practices alleged in the complaint and
recommending that the complaint be dismissed, 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, and the Respondent filed a brief in answer to
the General Counsel's exceptions and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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, and the entire record in this
case, including the exceptions and briefs, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner to the
extent that they are consistent with the Decision
herein.
1. The Trial Examiner found that certain
statements made by Supervisor Oleen to employee
Malloy did not warrant a finding of a violation of
Section 8(a)(1) of the Act. For the reasons fully
expressed in the Trial Examiner's Decision, we
agree.
2. The Trial Examiner further found that
employee Puckett was discharged for cause and that
his discharge did not constitute a violation of
Section 8(a)(3) and (1) of the Act. We do not agree.
There is little dispute as to the relevant facts.
Puckett was first hired by the Respondent in April
1966 as a laborer and form setter earning $2.17 an
hour. He was ultimately discharged on November
20, 1967.' The sole issue before us is whether that
discharge was for valid cause or because he
demanded grievance papers and stated that he would
file a grievance in accordance with the provisions of
an existing collective-bargaining contract.'
'Unless otherwise indicated , all dates herein are within the year 1967
`The employees were covered by a contract between the Respondent and
Concrete Product Workers Local Union No 217, Laborers International
Union of North America, AFL-CIO (hereinafter referred to as the Union)
which had been the certified bargaining representative of Respondent's
production and maintenance employees since 1953
277
Puckett missed several days of work about the
second week in November, when he had the flu, and
his doctor advised him to be careful. He reported
for work on November 16 and complained to
Production Superintendent Oleen about the lack of
heat in the building. Lack of heat in the
Respondent's premises has been a problem for
years. The plant is a high open brick building,
approximately a city block in size, with eight large
doors some being 30 by 20 feet and others 15 by 20
feet. There is no central heating and the
aforementioned doors are open a good deal of the
time. Small portable heaters are provided by the
Respondent and the employees move them around
the plant as needed.
Puckett reported for work on Friday, November
17, at 7:30 a.m. The day was cold and drizzly, and
two big doors near Puckett's mixer were open.'
Around 9 a.m. Puckett built a small wood fire on
the concrete floor which burned without incident
until noon. After lunch, Puckett secured a 5-gallon
bucket, punched holes in it, and built his fire in the
bucket. About 2:45 p.m. Oleen came into the area
and found the fire and four or five people gathered
around it. The others left when Oleen arrived, and
Oleen ordered Puckett to put out the fire. Puckett
refused, and Oleen ultimately put out the fire
himself. A loud and excited conversation ensued,
during the course of which Oleen told Puckett that
there was a portable heater at the other end of the
building and that he should go get it. Puckett
refused.
Oleen left the area but returned about 15-20
minutes later. Puckett called him over and asked
"Are you going to give me any heat when I come
into work Monday morning?" Oleen did not answer,
and Puckett asked him for a set of grievance papers,
stating that the only way he would get any heat
would be to follow the grievance procedure. Oleen
replied by asking "Is that a direct threat to me?"
Oleen left, discussed the matter (apparently
without mentioning the possible grievance) with
three other company officials, including the manager
of labor relations; and was told to place Puckett on
indefinite suspension. Oleen returned then and told
Puckett to punch out. He informed Puckett that he
was on an indefinite suspension, not to exceed 5
days, during which his case would be decided.
Puckett checked out, and at his request Oleen
called Gibson, the president of the union local.
Gibson arrived about 4 p.m., and he, Oleen, and
Puckett discussed the matter for about 3 hours.
During the course of that discussion, according to
the credited testimony of Gibson, Oleen admitted
that he was upset because of Puckett's statement
that he was going to file a grievance. Thus, Gibson
quoted Oleen as saying: "if you were a plant
manager of a department and you were new and a
man asked you for a grievance form what would
'Puckett had become a first -class mixer operator earning $2 49 per hour
175 NLRB No. 47
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you do?"" and "Definitely it [the threat to file a
grievance] had a bearing on the case. Naturally ...
if you was in my shoes what would you have done."
Following a subsequent discussion among
Respondent officials, a letter was sent to Puckett on
Monday, November 20, signed by Oleen, informing
him that he was discharged for insubordination, to
wit: refusal to put out the fire.
The Trial Examiner concluded that Oleen was
upset and annoyed by Puckett's threatened
invocation of the grievance procedure, but that he
determined to discharge Puckett because of his
insubordination in refusing to put out the fire and
refusing to go to the other end of the plant to get a
portable heater. He was of the view that Puckett's
behavior during the second conversation led Oleen
to reappraise Puckett's earlier insubordination and
to escalate his response thereto. We think the Trial
Examiner has adopted a strained view which rejects
the obvious and clear interpertation of the facts.
This more natural construction thereof leads us
inescapably to a different conclusion.
Both the order to extinguish the fire and the order
to get the portable heater ( assuming arguendo that
the latter was an order) occurred during the first
confrontation between Oleen and Puckett - a
confrontation which ended when Oleen walked away
doing nothing in the way of disciplinary action. It
was only after the second conversation between
Oleen and Puckett that Oleen set in motion the
machinery that led to Puckett's discharge. Thus, it
is patent that Oleen was undisturbed until Puckett
requested grievance papers and indicated that he
would follow the grievance procedure. It was only
because of this request that Oleen, becoming
incensed, reported the prior dispute to higher
management and it was ultimately decided to
discharge him. The validity of this conclusion is
evidenced by Oleen's instant reaction to Puckett's
mention of grievance papers ("Is that a direct threat
to me?") and Oleen's statements at the time of
Puckett' s suspension , noted above in the credited
testimony of Gibson. ("If you were a plant manager
of a department and you were new and a man asked
you for a grievance form what would you do.")
We conclude, therefore that the real reason, the
motivating reason, why Respondent discharged
Puckett was his threatened invocation of the
grievance procedures Filing of grievances is among
the employee activities protected by Section 7 of the
Act. When an employer discharges an employee
because of his utilization of, or attempted utilization
of, his right to file a grievance, that employer has
violated Section 8(a)(3) and (1) of the Act.`
Accordingly, we find that the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
Puckett because he stated he was going to file a
grievance.
THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of the Respondent set forth above,
occurring in connection with the Respondent's
operations have a 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.
THE REMEDY
Having found that Respondent engaged in an
unfair labor practice in violation of Section 8(a)(3)
and (1) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully
discharged John H . Puckett , we shall order that
Respondent reinstate him to his former or a
substantially equivalent position of employment
without prejudice to his seniority and other rights
and privileges and to make him whole for any loss
of pay he may have suffered as a result of
Respondent ' s unlawful conduct . Backpay shall be
computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest
added thereto in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Price Brothers Company, Dayton, Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging activity having for its purpose
the submission, presentation, and processing of
grievances pursuant to the terms of a
collective-bargaining agreement, by discharging,
refusing to reinstate, or in any other manner
discriminating against any of its employees in regard
to their hire or tenure of employment, or any term
or condition of employment.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the right to self-organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7
'Oleen was hired by the Respondent on October 1, 1967, as production
foreman of Puckett's department and was promoted to plant production
superintendent on November 13, the same week in which Puckett was
suspended
'It is immaterial whether or not Oleen discussed Puckett 's stated
intention to file a grievance with higher authority , for Oleen initiated the
disciplinary procedure and we have found he was motivated by the
threatened grievance Sears Roebuck and Co , 172 NLRB No 246, fn. 1
'Farmers Union Cooperative Marketing Assn . 145 NLRB I
PRICE BROS . CO. 279
of the Act, or to refrain from any or all of such
activities, except to the extent that such rights may
be affected by an agreement requiring membership
in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed
to effectuate the polices of the Act:
(a) Offer John H. Puckett immediate and full
reinstatement to his former or substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and make
him whole for any loss of earnings, in the manner
set forth in the "The Remedy" section of this
Decision.
(b) Notify the above-named employee 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, as
amended, after discharge from the Armed Forces.
(c) Preserve and make available to the Board or
its agents all payroll and other records necessary to
compute the backpay and reinstatement rights, as
set forth in "The Remedy" section of this Decision.
(d) Post at its Dayton, Ohio, facility, copies of the
attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director
for Region 9, shall, after being duly signed by
Respondent, be posted immediately upon receipt
thereof, in conspicuous places, including all places
where notices to employees are customarily posted,
and be maintained by it for 60 consecutive days.
Reasonable steps shall be taken 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 10 days from the date of this Order,
what steps Respondent has taken to comply
herewith.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights to self-organization, to form labor
organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
any other activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities
WE WILL offer John H Puckett immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other
rights and privileges previously enjoyed, and make him
whole for any loss of pay he may have suffered by
reason of the discrimination against him.
WE WILL notify the above-named employee 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, as
amended, after discharge from the Armed Forces
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of any
labor organization of their choice.
PRICE BROTHERS
COMPANY
(Employer)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
'In the event that the Board's Order is enforced by a decree of a United
States Court of Appeals , there shall be substituted for the words "a
Decision and Order" the words "a Decree of the United States Court of
Appeals Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT discourage our employees from
engaging in activity having for its purpose the
submission, presentation, and processing of grievances
pursuant to the terms of a collective-bargaining
agreement, by discharging, refusing to reinstate, or in
any other manner discriminating against any of our
employees in regard to their hire or tenure of
employment, or any term or condition of employment.
BENJAMIN A. THEEMAN, Trial Examiner. The
complaint, as amended at the hearing, alleges that
Respondent Price Brothers Company by certain
statements to employees and by unlawfully suspending and
discharging John H. Puckett has engaged in and is
engaging in unfair labor practices within the meaning of
Sections 8(a)(1) and (3) and 2(6) and (7) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et
seq. (the Act) Respondent in its answer denies the unfair
labor practices.
A hearing was held before the duly designated Trial
Examiner after due notice on July 22, 1968. All parties
appeared and were represented by counsel. They were
given full opportunity to participate, adduce evidence,
examine and cross-examine witnesses, and argue orally.
The General Counsel and Respondent submitted briefs
which have been fully considered.
Upon the entire record in the case and from my
observation of the witnesses I make the following-
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent is a Michigan corporation engaged in the
manufacture of concrete products at its plant located in
Dayton, Ohio During the 12 months preceding May 29,
1968, which is a representative period of its operations,
Respondent had a direct inflow in interstate commerce of
goods and products valued in excess of $50,000, which it
caused to be shipped directly to its Dayton, Ohio, plant
from points outside the State of Ohio. During the same
period, Respondent had a direct outflow in interstate
commerce of goods and products valued in excess of
$50,000 which it sold and shipped from its Dayton, Ohio,
plant directly to points outside the State of Ohio.
Accordingly, it is found that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II THE UNION
Concrete Product Workers Local Union No. 217,
Laborers ' International Union of North America,
AFL-CIO (the Union), is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether on November 17, 1967, John H Puckett,
the Charging Party was suspended and on November 20,
1967, discharged by Respondent (a) legally for
insubordination because he refused to obey orders given
by Richard Oleen, his supervisor;' or (b) in violation of
the Act because he expressed the wish to file a grievance
with his Union.
2. Whether Oleen in violation of the Act (1) told one of
Respondent's employees, that "if he gets rid of the Union,
he'll have it made," and (2) threatened employees to lower
their classification and corresponding pay grades because
they engaged in union activities.
B. General
Respondent's plant in Dayton, Ohio, is a high brick
building with a galvanized tin roof occupying
approximately a city block. There is a clear space from
floor to roof and no central heating The building is more
than 60 years old In the autumn and winter the building
is cold and drafty because its eight doors, some 30 by 20
feet and others 15 by 20 feet, are open a good deal of
time.
The heat problem has existed for many years and has
been generally a controversial matter between the
Respondent, the Union, and the employees. During cold
weather the employees and the Union have complained.
The Respondent maintains a number of small portable
heaters and makes them available to the men The heaters
are carried from place to place in the building as needed
Since 1953 the Union has been the certified bargaining
representative of the production and maintenance
employees. Labor contracts for 2- or 3-year periods were
negotiated and became operative. Many grievances were
'Oleen is admittedly a supervisor within the meaning of Sec 2 ( 11) of the
Act
filed by employees and acted upon by Respondent. There
appears to have been amicable labor-management
relations between the Respondent and the Union.
Customarily, Respondent has released employees to
engage in union activities; negotiation of contracts, etc.
Puckett was first hired by Respondent in April 1966.
He was twice discharged. The first time was on June 28,
1967; the second time on November 20, 1967. The second
discharge is the subject of this proceeding.
The first discharge became a grievance matter which
was settled between counsel. Puckett was reinstated
sometime in October 1967 with half backpay and all
seniority rights During this first period of employment,
Puckett was a union steward. In late May or early June
1967 he filed about 10 to 14 grievances over hiring
practices of the Company. On reinstatement, Puckett in
agreement with union officials relinquished his
stewardship.
Puckett was first hired as a laborer and form setter at
$2.17 per hour By the time of his second discharge he
had become a first-class mixer operator at $2 49 per hour
On October 1, 1967, about a month before Puckett's
reinstatement Oleen was employed by Respondent as
production foreman of the department in which Puckett
was employed. On November 13, 1967, he became
production superintendent of the plant.
For many years, it has been a plant rule that
insubordination is a ground for discharge. The persons
mentioned herein were, at all times, aware of this rule.
C. The Events of November 17, 1967; the Suspension
and Discharge of Puckett
About the second week in November 1967 Puckett was
ill with "the flu" and stayed home for several days. The
doctor advised him if he didn't take care of it, he would
"probably catch pneumonia "
On November 16, 1967, Puckett reported for work.
During the day he spoke to Oleen about the need for heat
at the mixer and Oleen said he would try to get him some.
,In the past, Puckett, to warm himself had used one of the
portable heaters that the Company supplied the workers.
On November 17, 1967, Puckett reported to work at
7 30 a.m It was a cold, drizzly day with the temperature
about 50 degrees Two of the big doors near the mixer
were open. Puckett worked till 9 a.m., took a break, and
returned about 10 minutes later He then built a small
wood fire on the concrete floor about 10 to 15 feet from
his mixer to give him heat. The fire was about 10 to 15
feet from a 50 gallon steel drum containing air intrate, a
combustible material. The drum was on a rack about 5
feet off the ground. At lunch time Puckett put out the
fire.
On his return from lunch about 12 o'clock Puckett got
a 5-gallon bucket, put some holes in it, and built a fire in
it. About 2:45 Oleen came into the area where the fire
was located. At the time, four people were warming their
hands at the fire, three of whom were employees of the
Respondent. At Oleen's arrival the four dispersed. Oleen
told Puckett to put out the fire.' Puckett refused. Oleen
responded that if he didn't put it out Oleen would.
Puckett responded, "I'm no fireman." Oleen picked up a
bucket containing a mixture of air intrate and water to
douse the fire. Puckett warned him that it might cause an
'Puckett testified that Oleen told him to "put out the fire hazard " Oleen
testified that he told Puckett to put it out because Oleen considered it, "a
safety hazard "
PRICE BROS . CO. 281
explosion. Oleen instead used a water hose.'
Puckett told Oleen he shouldn't have put out the fire
because it had been burning all day, and that the only
reason he put out the fire "was there was quite a few guys
standing around it." Oleen and Puckett continued the
conversation in a loud and excited manner. Puckett asked
about heat Oleen told him there was a heater at the other
end of the building to go and get it. Puckett refused,
saying, "Well, if you're going to use that tone of voice at
me, slavery went out in 1865. If you're going to use that
tone of voice, I wouldn't get it for anything." After some
more excited exchange Oleen left
About 15 or 20 minutes later Oleen returned to the
area. Puckett yelled at him and asked him to come over
Puckett told him, "Are you going to give me any heat
when I come into work Monday morning?" Oleen did not
respond and Puckett asked him for a "set of grievance
papers" saying, "If I'm going to get any heat I'm going to
have to go through the grievance channel " Oleen was
upset and annoyed. He asked "Is that a direct threat to
me," and walked away. He discussed the matter with
three other company officials including the manager of
labor relations. He was told to place Puckett on indefinite
suspension. Oleen returned and told Puckett to "punch
out", that he was "on an indefinite suspension not to last
over 5 days during which the case was to be decided."
Puckett punched out at 3:45 p m. He asked for
permission to call Gibson, the president of the union local.
Oleen called and Gibson arrived in about 20 or 30
minutes. Puckett, Collins, and Gibson conferred and then
held a meeting with Oleen, which lasted till about 7
o'clock Gibson was told by Oleen that the suspension of
Puckett had been authorized by "higher channels "
Gibson asked Oleen whether Puckett's asking for a
grievance form was what made up his mind to take the
action he did.' Oleen admitted that he was upset because
of Puckett's statement that he was going to file a
grievance He answered Gibson "if you were a plant
manager of a department and you were new and a man
asked you for a grievance form what would you do?"
Gibson asked, "Well, did that help you make up your
mind." Oleen said, "Definitely it had a bearing on the
case Naturally . . if you was in my shoes what would
you have done."5 Gibson attempted unsuccessfully to
settle the dispute and the meeting adjourned
'Collins, a fellow employee and union steward was present during this
episode He died prior to the time of the hearing
'Puckett testified that during this discussion the following occurred
And I asked Mr Oleen again for, I said, "Where ' s my grievance papers
I asked for9" And then it dawned on me what he said downstairs I said,
"Didn't you say downstairs that you was going to take this as a direct
threat9" Well, immediately his face gets kind of real flushed And his
voice changed again And he says , " If you hadn ' t asked for those
papers," he said , " I probably wouldn ' t have took this course of action "
He said , " I probably wouldn ' t have used this type of disciplinary action
And Mr Gibson said, "Wait a minute Wait a minute What do you
mean by thNsO" And Mr Oleen says, "Well ," he says, " if he hadn't of
asked for these grievance papers I would probably have let the whole
matter drop right on the spot " " But," he said , "when he asked for these
grievance papers," he said, "I'll have to take that" - well , like he said,
it was a direct threat to him And then we started, you know, haggling,
arguing back and forth
Although pressed several times by the attorneys for the General Counsel
and the Union , Gibson did not corroborate either the "type of disciplinary
action" or the "direct threat " statement Oleen denied making the
statements I do not credit Puckett
'Oleen denies making these statements He testifies that the request for
the grievance papers had no bearing on this case , but he admits that he
"made the statement that any time a man says he's going to file a
grievance against someone naturally it upsets you " In view of the fact that
At a meeting held the following Monday, November
20, 1967, officials of Respondent including Oleen, decided
to terminate Puckett for insubordination (disobeying a
direct order) The discussion centered around the
disobedience.' The filing of the grievance was not
mentioned at all. The following discharge letter signed by
Oleen was sent to Puckett:
As you know, I placed you on indefinite suspension
on the afternoon of November 17, 1967, with the advice
that the decision concerning disposition of your case
would be made within 5 work days.
You were suspended because you refused, in the
presence of a witness, to extinguish an open fire which
you had started, which was a safety hazard.
Your conduct in this matter is an inexcusable
offense, namely insubordination, specifically refusal to
obey a direct order, and you have left me no choice but
to discharge you effective immediately.
D The Conversations Between Malloy and Oleen
This portion of the case deals with two alleged
conversations between Oleen and a maintenance employee,
Malloy. The first is alleged to have occurred in November
1967, the day after Puckett's discharge. The second
occurred during the first week in December
1. The November conversation
Malloy testified that on the day following Puckett's
discharge he had a conversation with Oleen during a
coffeebreak. No one else was present. Malloy stated that
Oleen "said something about he had got rid of John
[Puckett] and if I get rid of the Union then I'll have it
made." Oleen denies the conversation. Because of the
inconsistencies generally in Malloy's testimony, I credit
Oleen and doubt that the conversation occurred.
Accordingly, the allegation in the complaint based on this
conversation is dismissed.
2. The December conversation
In the early part of December 1967 Oleen and Malloy
discussed the temporary use by Respondent of employees
in better paying jobs without receiving the higher pay For
the past year or so, Respondent employed two crane
operators. One of them was Sorrels, a chief steward for
the Union, who was then out on sick leave due to an
accident at the plant. During the past year, because of this
sick leave, the taking of a 6-week vacation period,' and
attendance at union duties," Sorrels had been away from
work a considerable portion of time.
Malloy had been trying to get Oleen to classify another
employee as a crane operator because Sorrels was on sick
leave. According to Malloy, Oleen said it looked like he
would have to classify another operator because he had
been going over Sorrels' record and with his sick leave,
vacation , and union activities, Sorrels "didn ' t work eight
months out of the year." He figured he "was going to
Oleen admits to some statement with regard to the filing of the grievance
and the vagueness of his testimony with regard to what it was, I credit
Gibson in this instance
'Welch , production manager, was present at the meeting He confirmed
this statement
'Sorrels earned a 3-week vacation per year The reference is to the fact
that he took the previous year's vacation and the current year 's vacation
"back to back" making 6 weeks in one stretch
He was a member of the negotiating committee
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have to break Sorrels' back" (reclassify him downward),
and move another man up. According to Oleen, he told
Malloy that he had been looking over Sorrels' record, and
noted that Sorrels was absent a good deal. In a "kidding"
fashion, Oleen continued, "it might be a good idea to
break him back and get somebody else running the crane
But of course you know I'd never do that . . it would be
like the shot heard round the world or something in that
nature."
Nor is it necessary to determine whether Oleen's
statement about downgrading Sorrels was made in jest or
not. For, I do not find that Oleen's threat, if it was a
threat, was directed against Sorrels because of his union
acitivy. Both Malloy and Oleen were concerned about
Sorrels' extended absences The total of which was a
composite of three items, one of which was union
activities But there is no evidence that it was more
accented than the other two causes. extended vacation or
sick leave This is clear from Malloy's testimony He was
aware that union activities was one of the contributing
factors of the Oleen statement to break Sorrels' back. Yet
on cross-examination he showed that as he understood the
situation it was the overall absences that could give rise to
the declassification.' He testified.
Q. Mr. Sorrels was absent quite a bit. Is that
correct?
A. Well, he had six weeks vacation. He was on sick
leave at the time.
Q. And he was on sick leave at the time)
A. He got hurt on the job with a steam line, open
steam line on the fob.
Q. And Mr. Oleen said he probably would have to
classify someone else in addition to Mr. Sorrels as a
crane operator. Is that right?
A. Yes, sir Because of Mr. Sorrels' record He
figured he'd go ahead and classify someone. But he
thought he would have to break [Sorrels] back.
Under the above circumstances, I do not consider the
statement by Oleen with regard to Sorrels to be coercive
within the meaning of Section 8(a)(1) of the Act.
The conversation between Malloy and Oleen continued
Oleen did not testify as to the continuation. Malloy gave
several versions of what was said , and I credit the
following version Malloy stated he didn't think the
downgrading of Sorrels would be necessary. Then he said,
"Well, the same thing will happen to me if I get tied up in
union activities." Oleen answered, "Yes ... if you get tied
up and I need a maintenance man I 'll get one."'° The
testimony in the margin shows that Malloy did not
consider the statement that Oleen would get another
maintenance man as a threat to downgrade him. It
appears that Oleen was giving Malloy what he was asking
for, at least insofar as maintenance men were concerned.
Should Malloy be away because of his union activities,
Oleen indicated he would get another maintenance man,
i e., for the temporary vacancy and the man would
already be drawing the pay of the job he was going to fill.
Oleen threatened no downgrading nor did Malloy
understand that such a threat was made Under these
circumstances , I do not regard the Oleen statement to
Malloy about making another maintenance man to be
coercive within the meaning of Section 8(a)(1) of the Act.
'On redirect examination Malloy was led by counsel to include again
Sorrels' union activities as one of the causes of absence
"Malloy also testified as follows
And I said something him, I said , " If you ' re going to break Sorrels
back," I said, "the same thing should happen to me then" And he said,
E. Analysis and Conclusions
1. Puckett's suspension
The General Counsel contends that Puckett's
suspension and discharge were "a reprisal for his threat to
file a grievance concerning the lack of heat in his work
area " Respondent contends that insubordination was the
basis for the suspension and discharge
The General Counsel and Puckett admit that Puckett
refused to put out the fire and refused to get the heater,
i.e., he "disobeyed an order."" Puckett took no further
action to obtain heat for that day. Oleen took no action
with regard to Puckett's conduct. Thus, it is reasonable to
infer that, at this stage of the events, Oleen, recently made
production superintendent, was willing to overlook and
not report Puckett's insubordination ' 2
That Oleen had no intention of referring to the matter
again is evident from his return to the area in about 20-30
minutes and not speaking to or going to Puckett. Not so
Puckett Puckett had no information as to the kind of
weather Monday would bring. Yet, in an unpleasant
manner and at an unreasonable time, Puckett asked for
assurances for heat for Monday. The pugnacious and
aggressive attitude that had characterized Puckett's
previous insubordination was renewed. A public exhibition
of authority already flouted was being revived. In
addition, he added the threat that he would file a
grievance, an action that is protected under the Act. But
in this context, Puckett was using the right given to him
under the Act, not as a shield but as a sword (or to be
more to the point - a needle), not for protection but to
further the harassment of the Respondent on the heat
question.
Oleen, as a new production superintendent, was upset
and annoyed by the threat to file a grievance. The new
eruption of Puckett's apparently caused him to take a new
view of Puckett's behavior. As stated above, Oleen had
decided to condone Puckett's public refusals to obey his
orders; he had thought the heat question was closed.
Where Puckett provocatively opened the question again,
the feeling that Oleen had to condone the insubordination
became dissipated. Thus, the direct result of Puckett's
request for heat for Monday including the grievance threat
was to cause Oleen to change his mind. Instead of
condoning the insubordination, he decided to make
management aware of Puckett's actions.
Oleen then consulted with other and superior
management officials. Though not shown in the record,
there can be no doubt that his recital of the facts included
the item of the grievance threat. He was told by officials
"Yes." he said, "if you get tied up in your activities, your union
activities, and I need another maintenance man I'll make one "
I credit the version in the body of this decision particularly in the light of
Malloy's testimony as follows
Q Regarding his conversation with you and referring to you
specifically Was there any mention made of union activities in reference
to you9
A. That was the only mention I mentioned it myself, that if I get tied
up in union activities I said the same will happen to me
Also Malloy's further testimony when asked if Oleen had said anything
about breaking him back, Malloy answered, "1 didn't say that If I said
that he'd break me back I didn't mean to say that " See also fn 14
"Puckett, at the hearing, stated that under the same circumstances he
would again "disobey the order."
"According to Oleen, he had anticipated no problem He was going to
ask Puckett to put out the fire as "an unnecessary safety hazard with men
working around . . I thought it would be perfectly simple to solve And
PRICE BROS. CO.
"higher up" to suspend Puckett He did so. As Oleen
testified he "worked on the idea that he [Puckett]
disobeyed a direct order. And that's the only thing I was
trying to take into consideration at this point." This is the
attitude he maintained throughout the meeting with
Gibson, Puckett, and Collins later the same day. At the
meeting of the company officials the following Monday,
only Puckett's insubordination was discussed. The
grievance question was not brought up at all. The decision
to discharge Puckett for refusal to obey orders resulted.
On the record as a whole, I am convinced that
Puckett's refusal to obey the two orders of Oleen, plus his
exaggerated demand for heat for the following Monday
are the motivating factors leading to his suspension and
discharge, and that Puckett's threat to file a grievance
about the heat caused Oleen annoyance but did not
motivate the discharge." Accordingly, I conclude from the
preponderance of substantial evidence on the record as a
whole that, in fact, Puckett was first suspended and then
discharged for insubordination This conclusion is
buttressed by (a) the fact there is no antiunion animus
shown by the Respondent to its employees; (b) a long
history of amicable and peaceful relations between the
Union and the Respondent; and (c) the fact that, in the
past, many grievances were filed by employees and
handled by the Respondent without evidence of friction.
2. The Malloy-Oleen conversations
The General Counsel contends that the following
account of the December conversation is a violation of
Section 8(a)(1)
Approximately three weeks later Malloy was sitting
in the cafeteria and was asked by Oleen to remain after
the break had ended. . . The two men discussed the
possibility of establishing another crane operator's
position to fill the vacancy left by the sickness of chief
Union steward Sorrels. Oleen stated that he had gone
over Sorrels' record and that with his sick leave,
vacations, and union activities, he only worked about
eight months of the year. He added that Sorrels would
probably be reduced in classification and a new man
moved up. Malloy argued against this proposition and
finally added that if this could happen to Sorrells, the
same thing could happen to him. Oleen replied, "Yes, if
we'd get that other heater and that would be it "
"Cf K 0 Steel Casting , Inc, 172 NLRB No 216 See also Salinas
Valley Broadcasting Corp v N L R B, 334 F 2d 604 (C A 9), Boaz
Spinning Company v NLRB , 395 F 2d 512 (C A 5)
283
you get tied up in your activities , your union activities,
and I need another maintenance man, I ' ll make one."
Because the General Counsel ' s account is ambiguous, the
Examiner has doubts that this account constitutes a
violation of Section 8(a)(1). "An unlawful purpose is not
lightly to be inferred ." N L.R B. v. T. A. McGahey, Sr.,
d/b/a Columbus Marble Works, 233 F.2d 406, 413 (C.A.
5), cf. Block-Southland Sportswear , 170 NLRB No. 101;
Drapery Manufacturing Co., 170 NLRB No. 199. See
also Louisville Chair Company , Inc., 146 NLRB 1380,
1381. However , as shown in section III, D, above, the
Examiner does not adopt this version . The possibility of
downgrading Sorrels was based on his composite absences
not his union activities absences . It was Malloy and not
Oleen who selected and emphasized absence based on
union activities . Malloy was never under the impression
that he would be downgraded .' ° In these circumstances
and upon the record as a whole, there is insufficient
evidence to warrant a finding that Oleen violated the Act
in his conversations with Malloy."
Upon the foregoing findings of fact" and on the record
as a whole, I make the following:
CONCLUSION OF LAW
The Respondent in suspending and discharging Puckett,
and in holding conversations between Oleen and Malloy
has not violated the Act as alleged in the complaint within
the meaning of Section 8(a)(1) and (3) of the Act.
RECOMMENDED ORDER
I therefore recommend that the complaint be dismissed.
"In another instance on cross-examination Malloy testified-
Q And I think you also said that he told you that if you got tied
up so that you couldn 't, for any reason , perform the work That
he'd have to get somebody else also in there and classify them as a
maintenance man Is that nght'i
A. Yes, sir He didn't tell me that he would break me back But he
told me that if I was tied up in my activities and he needed a
maintenance man that he would get him another one.
"See N L R B v Great Dane Trailers , 388 U S 26, 34
"Whether ( 1) building fires by employees was customary or not, (2)
Respondent had a rule regarding such fires , (3) other fires were present in
and out of the building on November 17, 1967, (4) the heaters supplied by
Respondent were an adequate source of heat , (5) the fire in the bucket
extended 6 inches or more above the bucket ; and (6) Puckett did or did not
obtain grievance papers are facts immaterial to the main issues Findings
concerning them are deemed unnecessary and have not been made