R. G. LeTourneau, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1972

200 N.L.R.B. 425 (N.L.R.B. 1972)

R G LETOURNEAU, INC. 425
R. G. LeTourneau , Inc. and Allen G. Smith, Jr.,
Arley Jessie Lewis, Riley W . Wiggs, Oliver Curtis
Walker, Arnold W. Schluter, William Leon Wylie,
Jimmy D. Hall, Joseph T. Grant , Phillip Chaffin,
Jr., Bobby Roosevelt Hunter , Fred F. Davidson, R.
J. Mefford, James Ronald Spencer, Ernest Bush,
and Jerald R. Jones. Cases 16-CA-4348-1,
16-CA-4348-2, 16-CA-4348-3,
16-CA-4348-5, 16-CA-4348-6,
16-CA-4348-8, 16-CA-4348-12,
16-CA-4348-4,
16-CA-4348-7,
16-CA-4353,
16-CA-4354,16-CA-4376 ,16-CA-4377,16-CA-
4386, and 16-CA-4390
November 24, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On June 1, 1972, Administrative Law Judge'
Milton Janus issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs and
Respondent filed a memorandum entitled "Cross-
Exceptions" in response to the General Counsel's
exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,2
findings,3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.4
The Administrative Law Judge found, and we
agree, that Respondent discriminatorily discharged
Fred Davidson in violation of Section 8(a)(3) and (1)
of the Act. However, he declined to recommend that
Davidson be reinstated or made whole for any loss of
earnings due to his discharge, because Davidson, in
applying for employment with Respondent, stated
that he had never been convicted of a felony when in
fact he had been convicted of four felonies. The
General Counsel has excepted to the failure to apply
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 We find merit in the General Counsel's contention that the Administra-
tive Law Judge erred in excluding evidence concerning Respondent's
employment of convicted felons, as such evidence is material to the question
whether Davidson should be denied reinstatement and backpay because he
concealed his prior convictions from Respondent However, we do not view
this error as prejudicial, since, as indicated infra, the question can be
resolved at the compliance stage of this proceeding
3 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
the traditional reinstatement and backpay remedy to
Davidson, leaving to the compliance stage resolution
of his qualification for reinstatement. We find merit
in this exception.
The Administrative Law Judge relied on Southern
Airways Company, 124 NLRB 749, and National
Packing Company, Inc., 147 NLRB 446, in which the
Board denied reinstatement and backpay to discrimi-
natees who, in applying for employment, had
concealed their criminal records. In those cases, the
Board concluded that the discriminatees would never
have been hired if they had given truthful informa-
tion about their past records. Here, however, we
cannot reach such a conclusion on the basis of the
record before us. During the hearing, the General
Counsel sought to introduce evidence that Respon-
dent employed other exconvicts, including at least
one who had falsified his application. The Adminis-
trative Law Judge declined to permit introduction of
such evidence. We are of the opinion that it was
improper to deny Davidson reinstatement and
backpay without consideration of this evidence,
which the General Counsel contends would have
tended to show that Respondent would have em-
ployed Davidson even if it had known of his criminal
record. We note, in addition, that Stahl, who was
Respondent's personnel manager when Davidson
was hired and when he was discharged, admitted that
he had made no effort to check the truth of
Davidson's statements on his employment applica-
tion during the nearly 8 months that Davidson was
employed by Respondent.
As we do not now have before us all information
relevant to resolution of the matter, we agree with the
General Counsel's contention that the question of
Davidson's fitness for reinstatement is appropriate
for determination at the compliance stage of this
case. Accordingly, we shall issue our customary
reinstatement and backpay order as to Davidson.
However, it is not intended to require Davidson's
reinstatement or backpay if it appears in the
compliance stage of this proceeding that he is not
entitled thereto under Board precedent.5
ORDER
Pursuant to Section 10(c) of the National Labor
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
" The Administrative Law Judge, while finding that Respondent violated
Sec 8(a)(4) and (1) of the Act by refusing to reinstate William Wylie
because he had filed charges with the Board, inadvertently failed to include
in his recommended Order and notice a provision directed to the 8(a)(4)
aspect of the violation We shall modify the Order and notice to include
such a provision
5 Cf Horizon Mobile Homes, inc, 181 NLRB 687, 695, and cases cited
therein
200 NLRB No. 66
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dent, R. G. LeTourneau, Inc., Longview, Texas, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified-
1. Add the following as paragraph l(b) and
renumber paragraphs 1(b) and (c) as 1(c) and (d),
respectively:
"(b) Refusing to reinstate, or otherwise discriminat-
ing against, employees for filing charges with the
National Labor Relations Board."
2. Add the name of Fred F. Davidson to
paragraph 2(a) of the recommended Order.
3. Substitute the attached notice for the Adminis-
trative Law Judge's.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
unfair labor practices not found herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act protects employ-
ees in their right to form, join, or assist labor unions
or to refrain from such activity.
WE WILL offer Joseph Grant, Jimmy Hall,
William Wylie, and Fred F. Davidson full
reinstatement, and we will pay them for the
earnings they lost because we wrongfully dis-
charged or refused to reinstate them, plus 6-
percent interest.
WE WILL NOT discharge or discriminate against
any of our employees for joining or assisting
International Molders and Allied Workers Union,
AFL-CIO, or any other union.
WE WILL NOT refuse to reinstate, or otherwise
discriminate against, employees for filing charges
with the National Labor Relations Board.
WE WILL NOT question our employees in a
coercive manner as to whether they are for or
against the Union, or whether they have signed
union cards.
WE WILL NOT threaten our employees that
every time a union campaign starts up, it is
necessary to hire new men
WE WILL NOT order employees to remove union
stickers or insignia from their personal property.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self -organization , tojoin
or assist International Molders and Allied Work-
ers Union , AFL-CIO, or any other labor organi-
zation , to bargain collectively through representa-
tives of their own choosing , to engage in other
concerted activities for their mutual aid or
protection , or to refrain from any or all such
activities.
R. G. LETOURNEAU,
INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 8A24, Federal Office Building,
819 Taylor Street, Fort Worth, Texas 76102, Tele-
phone 817-334-2921.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MILTON JANUS, Trial Examiner: This case was heard at
Longview, Texas, on various dates between October 4 and
November 11, 1971, pursuant to charges filed by 15
individuals,' and a consolidated complaint issued on July
1, 1971. Unless specifically stated otherwise, all dates and
events set out herein occurred in 1971.
The complaint alleges that Respondent kept its employ-
ees' union activities under surveillance, and interrogated
and threatened them, in violation of Section 8(a)(1);
discharged 12 employees, and otherwise unlawfully dis-
criminated against employees in other ways, in violation of
Section 8(a)(3); and refused to reinstate one of the alleged
discriminatees because he had filed a charge under the Act,
in violation of Section 8(a)(4).
At the hearing, I granted the motion of the General
Counsel to withdraw the name of Arley Jessie Lewis, a
Charging Party and one of the alleged discriminatees, from
1 The charges were filed on the following dates Cases l6-CA-4381-1
through 8 and Case 16-CA-4381 -12 on May 10 , Case 16-CA-4353 on May
13, Case 16-CA-4354 on May 14 , Cases 16-CA3376 and 4377 on June 3,
Case 16-CA-4386 on June 11 , and Case 16-CA-4390 on June 15 Amended
charges were also filed in Case 16-CA-4348-6 and in Case 16-CA-4390 on
June 15 and 30, respectively
R Ci. LETOURNEAU, INC. 427
the complaint, and to amend the complaint in other
respects, mainly in changing the dates on which certain
events were alleged to have occurred.2
Upon the entire record, including my observation of the
demeanor of the witnesses, and upon the briefs received
from the General Counsel and the Respondent, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Texas corporation, maintaining an
office and plant at Longview, Texas, where it is engaged in
the manufacture and sale of bomb casings and heavy
construction equipment. During a recent representative 12-
month period, Respondent, in the course and conduct of
its business operations, sold and shipped products valued
in excess of $50,000 directly to customers located outside
the State of Texas. Respondent admits, and I find, that it is
an employer engaged in commerce within the meamng of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Molders and Allied Workers Union,
AFL-CIO (referred to hereafter as Molders or the Union),
is a labor organization within the meamng of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Background
Respondent is engaged in its Longview plant in two
separate production processes, the manufacture of bomb
casings for the Department of Defense in its metal
products division, and the manufacture of earth-moving,
construction, and logging equipment in its heavy equip-
ment division. From January 1970 through July 1971, its
total hourly paid employees gradually rose from about
1,600 to 2,000 employees. In April 1971, when the Union
began an organizing campaign to represent the production
and maintenance employees in the plant, there were about
1,900 workers employed, almost equally divided between
the 2 divisions.3 Production is carried on in five large
buildings, known as domes because of their circular shape.
Two shifts are employed, a day shift ending at 3:30 p.m.,
and an evening shift beginning at 4 p.m.
One of the principal access roads to the plant area is
Nimitz Drive which, in part, is on the plant's private
property. Many employees enter onto Nimitz Drive from a
public road, Farm to Market No. 1845, and it was at the
intersection of Nimitz and 1845 that the Union began its
organizing drive the afternoon of April 8, contacting
employees entering or leaving the plant and passing out
literature and authorization cards. L. B. Beam, the Union's
organizer, continued to solicit the employees every working
2 Jerald Jones, one of the Charging Parties who claimed to have been
discriminatorily discharged, was not named as a discnmmatee in the
complaint
3 Based on figures supplied by Respondent in its exh 6
4 On the first day of the hearing, the General Counsel objected to
Respondent's questioning Beam, the Union's representative, as to whether
day for the next month. He also had meetings with
interested employees at a local motel, the Holiday Inn,
daily between April 24 and May 8. In all , about 400 signed
authorization cards were obtained.
Respondent's officials were immediately informed by its
security guards that union solicitation of its employees had
begun. Thereafter, according to the General Counsel's
theory of the case, Respondent engaged in a massive
campaign to thwart the Union' s organizing efforts by
surveillance, coercive interrogation, threats, and discharg-
es. According to Respondent, it took no illegal steps to
counter the Union's campaign, limiting itself to holding
meetings with its supervisors where its attorneys explained
what they could and could not do with regard to employee
support of the Union, posting notices on bulletin boards
urging employees not to sign authorization cards, holding a
general employees' meeting which was addressed by its
president, and mailing its employees one commumcation
after the president's speech. It also denies that its
supervisors engaged in many of the acts alleged to be
violative of Section 8(a)(1), and, as to others, that they do
not legally amount to coercive action. It also denies that
any of the discharges were made for discriminatory
reasons.
With one exception the testimony on behalf of the
General Counsel regarding the alleged surveillance, inter-
rogation, and threats comes from the individuals named in
the complaint as being discriminatorily discharged. How-
ever, certain evidence offered by the General Counsel to
prove Respondent's strong union animus was not alleged
to be violative of Section 8(a)(1), although it is treated in
the General Counsel's brief as if it were conclusive
evidence of a massive illegal campaign against the Union.
Thus, the General Counsel offered testimony that the
plant security guards patrolled the area of the intersection
of Nimitz and 1845 (hereafter referred to as the intersec-
tion), and on many occasions parked nearby, thus
affording them the opportunity of keeping solicitation
efforts under surveillance. To counteract this evidence,
Respondent introduced testimony that such patrolling,
etc., was for the legitimate purpose of noting traffic
conditions at major access routes into the plant where
tieups could and did occur at shift changing periods. The
issue of whether such activity by the security guards
constituted surveillance was fully litigated, yet I believe
that I should not decide the question since the General
Counsel specifically disavowed any intention of claiming
that it was violative of the Act.4 Nor does paragraph 7(c) of
the complaint, alleging instances of creating the impression
of surveillance, refer in any manner to the activities of the
security guards.
I reach the same conclusion as to another incident
involving the security force. During the 2-week period
when Beam was holding daily meetings with employees at
his room at the Holiday Inn, the Company was involved in
changing its contractor for security service from Pinker-
his solicitation of employees delayed traffic at the intersection His ground
for objecting was as follows
Paragraph 7(b) of the complaint alleges certain specific individuals
were alleged to have maintained surveillance over employees Union
activities in that paragraph there is no allegation as to a security guard
maintaining surveillance [P. 38 of transcript ]
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ton's to Southwestern Security Service. The latter firm had
advertised to hire guards and was interviewing applicants
at a room in the Holiday Inn. One or more of the guard
officers who had been newly hired by Southwestern used a
vehicle displaying the LeTourneau emblem to drive over to
the motel, where it was parked near the room it had rented
for interviewing applicants. This room was in the same
building as the room rented by the Union for its meetings,
but on the opposite side. Some of the employees attending
the union meetings testified that they saw the security truck
parked nearby, but as the evidence was adduced by the
General Counsel only to show company knowledge of the
union meetings, I find that no violation of Section 8(a)(1)
may be based thereon.
The General Counsel also relies on a speech which
Richard LeTourneau, the president of Respondent, read to
the assembled employees of each of the two production
divisions on April 30, 1971.5
The speech is unabashedly antiunion, and LeTourneau
did not pretend otherwise. He expressed his opposition to
the Union and all its works, and appealed to the
employees' loyalties to the Company but nowhere threat-
ened them with discrimination if they signed authorization
cards nor promised them benefits if they did not. It shows
that Respondent was strongly opposed to the unionization
of its employees, but it does not prove in itself, as the
General Counsel suggested at the hearing and in his brief,
that Respondent was prepared to go to any length,
including discriminatory discharges, to chill its employees'
desire for union representation .6
ble cause to believe that a violation of the Act, as charged,
had been committed and whether injunctive relief was just
and proper under the circumstances. He decided in the
affirmative on both points.
The standards which a Federal district court uses in
determining whether to grant an injunction under Section
10(1) of the Act are not the standards which the Board and
I must use in deciding this case-our determination must
be based on whether the General Counsel has established
by a preponderance of the testimony that Respondent has
violated the Act.
I have referred to the injunction proceeding then, not
because I am bound by the distract court's order, but only
to clarify references and comments by all parties through-
out this proceeding to the injunction hearing. In cross-
examining witnesses for the General Counsel, counsel for
Respondent had available to him the affidavits furnished
by these witnesses in the General Counsel's investigation of
the case, as well as the transcript of their testimony in the
injunction proceeding, and he used them extensively in
seeking to discredit the testimony of the General Counsel's
witnesses in the instant hearing.
One other point remains to be made in assessing the
district court proceeding. It was heard in 2 days, while the
hearing in this proceeding lasted 8 days. Consequently, the
record in this case, despite some irrelevant material, is
much fuller and more developed than it was in the
injunction proceeding, particularly in that it contains the
testimony of many of the Company's supervisors who did
not testify at the injunction hearing.
B. The Federal District Court Proceeding
Between the issuance of the complaint and the hearing in
this matter, the Regional Director for Region 16 filed a
petition for a temporary injunction under Section 10(1) of
the Act in the U.S. District Court for the Eastern District
of Texas to require the Employer to reinstate 11 of the 12
discharged employees who are alleged as discrinunatees in
this proceeding. On September 3, Judge Justice issued a
memorandum opinion and order in which he granted the
relief asked for. The Employer has appealed the order to
the court of appeals, but, after its motion for a stay was
rejected, it reinstated those of the 11 alleged discnminatees
who wished to return.
The order of Judge Justice specifically notes that he was
not required to determine, in ruling on the petition for an
injunction, whether the employer was in fact guilty of the
unfair labor practices charged, since to do so would require
a weighing of the evidence and a resolution of any conflicts
that might exist, a task within the exclusive province of the
Board. The standard he used in deciding to issue the
injunction was whether the Regional Director had reasona-
5 The text used by LeTourneau is in evidence as G C Exh 9 The actual
speech was also recorded on tape by an official of Respondent, and was
played back at the hearing so that I and the parties could check whether the
spoken words departed in any significant degree from the written text
Except for a few slight word changes, which affected neither the content nor
the import of the speech, I find that the spoken words and the written text
were identical
6 The General Counsel admitted at the hearing that the paragraph in the
complaint alleging that Richard LeTourneau's speech violated Section
8(a)(1) was drawn up before he had read the written text of the speech, and
C. Further General Observations
1. The presupposition underlying the complaint and
the trial of this case by the General Counsel is that the
Respondent had mounted a well-organized scheme to
thwart the Union's organizing drive. All of the discharges
and each allegedly coercive or threatening remark by a
supervisor is viewed as proof of the existence of such a
scheme.
The conspiratorial theory has a surface reasonableness to
it. The Company was opposed to the organization of its
employees. Its union animus is exemplified by President
LeTourneau's speech of April 30; and although the
security guards' patrolling of the intersection during the
entire period is not alleged to be surveillance, it can be
reasonably inferred that it had an intimidating effect on
employees, and that the Company was aware of the effect
it created. The assumption that an illegal antiunion
campaign existed at the plant must, however, be viewed in
perspective.
There were about 200 supervisory employees at the
plant, yet only a handful are alleged to have engaged in
was based on the recollection of employees whom he had interviewed. At
the hearing, a former employee, Wilbert Wills, testified that LeTourneau
had said in the speech to the heavy equipment division employees, which he
had attended, that "signing a card would only cause confusion, hardship
among the employees and cause the employees ' families to suffer and cause
the employees to lose their jobs" I find, after reading the text of the speech
and hearing the tape of what LeTourneau actually said, that Wills was
mistaken and that LeTourneau did not say that signing a union card would
cause hardship to employees and their families and would cause them to
lose their lobs
R. G. LETOURNEAU, INC. 429
surveillance or to have made remarks violative of Section
8(a)(1). Those remarks too, with few exceptions , are alleged
to have been made about the time that an employee was
discharged or dust afterwards . No 8(a)(l ) allegation refers
to an employee other than one who is also alleged to have
been the victim of 8(a)(3) discrimination . One would
expect that if there existed an extensive illegal campaign to
defeat the Union in a plant of 1,900 employees , it would
have manifested itself by inquiries, threats, etc., of more
employees than the 12 or 13 involved here.
Furthermore , if there is a pattern of illegal discharges it is
not self-evident . There were nine allegedly discriminatory
discharges in April, and three in May, the months in which
Beam was actively engaged in organizing . The total
number of discharges throughout the plant was 22 in April
and 14 in May . The number discharged in April was the
highest for the first 7 months of 1971, but there were 4
successive months in the preceding year when the
employee complement was somewhat lower, but where the
number of discharges ranged from 19 to 26 per month. The
lowest number discharged in any month was 6, in October
1970, yet it was preceded by 22 discharges dust a month
before . I do not believe that the discharges of the nine
alleged discriminatees in April and the three in May 1970
has disproportionately swollen the total number of dis-
charges for those months.
2. Beginning in June 1970 , the Company instituted the
practice of granting periodic increases . Every 3 or 6
months (depending on what step he was in his grade) an
employee would receive an 8-cent-per-hour increase.
Perhaps to give the new system an aura of employer
magnanimity , they were denominated "merit" increases,
and the slip announcing it was headed "CONGRATULA-
TIONS! You have been approved for a merit increase." In
fact, almost everybody who was eligible got one-98
percent according to one estimate , or anyone who was not
in immediate danger of being discharged . The General
Counsel, seeking to show that the 12 discnminatees were
all highly satisfactory employees , and to contrast it with
their abrupt discharges , made much of the fact that all 12
had received such increases when due. I am skeptical about
the argument and attach little weight to the fact that an
employee received such an increase , even shortly before his
discharge, since none of them were said to have been fired
for long continued inefficiency , but rather because of some
immediate dereliction or poor performance
I also attach little weight to the fact that some
supervisors had said nice things about some dischargees in
the past . Much of this "praise," as the General Counsel
chose to characterize it, is on the level of a supervisor
writing on a merit increase form , "Doing good work." It
strikes me as an inexpensive form of morale building.
3. Finally, there is the issue which was extensively
litigated of whether leadmen are supervisors . They are
hourly paid, receiving a differential over the highest paid
manual employees, act as setup men, relieve employees,
and pass on foremen ' s orders. They also act as foreman
when the latter is absent for short periods . They do not
attend supervisory meetings. The complaint alleges surveil-
lance by one or two leadmen, and some evidence was
adduced that a few other leadmen were aware of the union
activities of employees in their departments . For reasons
which will be made clear in the rest of my Decision, I find
it unnecessary to resolve the issue of whether the leadmen
were supervisors.
D. The Alleged Violations of Section 8(a)(1), (3),
and (4)
1. Bobby Hunter was employed in June 1968 and was
discharged April 19, 1971. After the institution of the merit
raise system he received 8-cent-per -hour increases in
September and December 1970 and in March 1971. He
could not be eligible for another increase until June.
Hunter drove in a car pool and on April 14, as they were
coming to work on the evening shift , the car stopped at the
intersection and some of the occupants accepted cards
from Beam . The next day Hunter handed his signed card
to Beam at the same place . There is no testimony that any
company supervisor observed them on either occasion.
However, Hunter testified that on the following day,
Friday, April 16, and again on Monday , April 19, he saw a
car parked about 150 yards from where Beam was standing
in which two top plant officials , Tarter and Turner, were
sitting. Hunter also said that on both days he could make
out from his seat in the back of the car a number of
individuals standing near dome 5, which he estimated as
being 300 yards from the point where Beam was standing
and from where he first noticed them. After he reported for
work in dome 5, he saw these four individuals , identified as
Brackeen , Haden , Hall, and Mouton (foremen and
leadmen), standing outside and using two pairs of
binoculars to watch Beam at the intersection.
At one point in his testimony , Hunter said that the four
foremen and leadmen must have been standing on top of
the bombs which were stacked in rows , otherwise he could
not have seen them and they could not have seen Beam,
and anyway he saw their footprints on the bombs . Later in
his testimony , however , Hunter said he had actually seen
them standing on the bombs , passing the binoculars
around and watching Beam , about 300 yards away.
In his affidavit to the General Counsel , given I month
after these events, Hunter claimed that he had seen six men
standing near dome 5 watching Beam . These six were the
four already mentioned plus Tarter and Turner , whom he
did not place in a car 150 yards from Beam as he did in his
testimony. The substance of his affidavit is also the
substance of his testimony at the Federal court hearing.
Brackeen, one of the four or six whom Hunter said he
observed watching Beam , was Hunter's foreman on the
evening shift . Brackeen testified that he and supervisors
from the day shift regularly meet at the turn of the shifts to
count the bombs in the storage area near dome 5 in order
to plan production on his shift. He denied that they ever
climbed on the bombs or that they had ever used
binoculars . It was also his testimony that the intersection
where Beam was standing was too far to be seen from the
bomb storage area.
In the company of counsel for the parties and with their
consent I visited the bomb storage area and climbed onto
the three rows of bombs. I found it was just barely possible
to make out where the intersection was and impossible to
see more than the tops of cars as they passed the point
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where Beam had stood. I estimate the distance from dome
5 to the intersection to be at least a half mile and I find it
incredible that Hunter, seated in the back of a car, could
have seen anything in the bomb storage area from the
intersection.
I did not use binoculars at the bomb storage area but I
strongly suspect that from a distance of a half mile it would
still be impossible to distinguish the car occupants, the
license numbers, or much of anything else. Of course, it is
possible that Brackeen and his companions were using
binoculars, but in view of Hunter's shifting stories and
explanations, I credit Brackeen and find that supervisors
were not trying to watch Beam at the intersection from the
bomb storage area.
Hunter's credibility was further impaired by the varia-
tions between his testimony and his affidavit as to when
and where he saw Turner and Tarter watching Beam. It is
impossible to reconcile his two versions: either they were
seated in a car 150 yards from Beam or they were standing
in the bomb storage area watching Beam with binoculars.
My own belief is that Hunter fabricated the whole story
and he did not see Tarter and Turner at either place.
Hunter's testimony as to his own involvement with the
Union is that he accepted an authorization card from
Beam on April 14 and returned it to him signed on April
15; on April 13 or 14, he first testified, he tried to
encourage his coworkers during the dinner break to sign
union cards while Brackeen was looking in his direction,
but it turned out that this encouragement of a number of
workers only involved his telling one fellow employee,
Glover, where he could contact Beam. This is despite the
fact that Glover rode with Hunter and that they had been
passing by Beam for the past few days.
Brackeen discharged Hunter on April 19, about 11:30
p.m., shortly before the end of the shift. According to
Hunter, he had asked Brackeen about 8:30 p.m. for a raise,
which he would not have been eligible for, and Brackeen
had replied that he had a merit raise slip for him in his
pocket, as well as enough slips to cover everyone in his
department, but he wouldn't give it to Hunter because his
work was unsatisfactory. Brackeen did not say anything
about the Union then, although earlier that evening (as
best as I can make out the sequence of events described by
Hunter) Brackeen had asked him what their reason was for
pushing the Union.7 Also about 8:30, Hunter said that
Brackeen had followed him to the restroom after watching
him closely, and that he also followed him to the restroom
when Hunter went again about 11:30 p.m. When Hunter
emerged, Brackeen was waiting for him at the door and
told him to come to his office with him. There, according
to Hunter, Brackeen said, "I'm going to start with you in
7 At least that is what Hunter testified to on direct examination On
cross-examination, though, Hunter admitted that Brackeen had not actually
accused him of pushing the Union, but that Hunter assumed that that was
the reason why Brackeen was nagging him about his work However, before
making that admission Hunter had also admitted that there was nothing in
his affidavit or in his testimony at the district court hearing about Brackeen
accusing him of pushing for the Union He said he had not said anything
about it on either of those occasions because he had not been asked But
even that answer was false, since just a few minutes later he admitted that
Brackeen had never said anything to him about pushing the Union
8 Although Hunter's testimony about the merit raise slips seems to be
extraneous to the issue of why Brackeen discharged him, it reconfirms my
order to let the others in the department know that I mean
business, and all I know that has signed a union
authorization card will be discharged," and then ordered
Hunter to leave the plant immediately.
Hunter admitted that Brackeen had criticized him on
April 13 (before he had taken an authorization card from
Beam) and again on April 16 for "dragging around" and
had told him on the 16th he was going to discharge him
because his performance had fallen off.
Hunter had worked for Brackeen about 1-1/2 years,
performing one particular operation on the conveyor line
which moved the bomb casings through the department.
Brackeen testified that he had reprimanded Hunter in
October or November 1970, and again in February or
March for leaving his station unattended for some 15 or 20
minutes. On another occasion, just 3 or 4 days before his
discharge, Brackeen again spoke to Hunter about prod-
uction and his failure to hold up his end of the job. Then
on April 19, Brackeen again found Hunter's station
unattended and ran his machine for about 25 minutes,
waiting for him to return. He then went to look for Hunter
and found him coming out of the restroom. He asked
Hunter to come to his office, and discharged him.
Brackeen denied knowing whether Hunter had signed a
union card or whether he was active in the Union's
campaign. He also specifically denied saying to Hunter
that he was going to start with him and would discharge
anyone he knew had signed a union card. Brackeen also
testified that he did not recall any conversation with
Hunter concerning a merit increase for him or that he had
such a slip in his pocket but would not give it to him
because his work was unsatisfactory.8
In view of my unfavorable impression of Hunter's
credibility, what weight can I give to Hunter's testimony
that when Brackeen discharged him he said he was doing
so to show others in the department that he meant
business, and that everyone he knew had signed a union
card would be discharged? If Hunter's testimony is true,
Brackeen was frankly admitting to him that he was being
fired because he had signed a union card. On the other side
is Brackeen's specific denial that he had said anything like
that to Hunter, or that he even knew that Hunter had
signed a union card. There is no evidence tending to prove
that Brackeen knew that Hunter had signed a card, since
Hunter picked it up one day directly from Beam and
returned it to him the next day at the intersection, about a
half mile from the point where Brackeen might have
observed it. Of course, there is always the possibility that
Brackeen learned of it some other way-from an employee
informer perhaps-but in the absence of any such evidence
I conclude that Hunter's testimony as to what Brackeen
impression that nothing Hunter testified to can be trusted Thus since wage
increases were almost automatic, given at specified intervals , Hunter was
not eligible for a raise in April, and there was no reason why Hunter should
ask Brackeen for one at that time. Moreover , the merit raise slips did not
originate with the foremen but with the payroll office, so that Brackeen
would not have gotten a slip for Hunter from the payroll office until he
became eligible for a raise Finally, Hunter's story that he saw 28 or 29 slips
in Brackeen 's shirt pocket (exactly the number of employees in Brackeen's
department) is not believable since Brackeen got slips for individual
employees from the office only as they became entitled to the increment
periodically
R. G. LETOURNEAU, INC. 431
told him at his discharge is unsubstantiated and, I find, not
to be believed.
I therefore conclude that the allegations of surveillance
in the complaint which are based on Hunter's testimony
have not been proved, and that it has also not been proved
that Hunter was discharged for discriminatory reasons.
2. Phillip Chaffin, Jr., worked in department 282 on the
evening shift. He was discharged on April 19 by his
foreman, Carroll. Chaffin testified that he drove to work
with three other employees, one of whom was Howard
King. On April 14, all four accepted authorization cards
from Beam at the intersection The next day Chaffin drove.
He stopped his car where Beam was standing and handed
him the four cards. King pointed out that his foreman,
Shaver, and another supervisor, Collins, were sitting in a
Volkswagen several hundred feet away facing in their
direction. As Chaffin drove onto the parking lot, Shaver
and Collins pulled up beside him, got out, and Shaver
asked King whose car it was. Chaffin answered that it was
his. Collins had previously been Chaffin's foreman, and
was also acquainted with the other two riders, both named
Corbin.
King and the other riders in the car did not testify, nor
did Shaver, King's foreman. Collins did, and denied that
he was ever in a Volkswagen or other car with Shaver on
April 14 or any day thereabouts, or that he had seen
Chaffin and his riders talking to Beam, or that he or Shaver
had ever asked the occupants of Chaffin's car who owned
it.
Besides signing an authorization card, as described
above, Chaffin also testified on direct examination that a
day or two later he openly urged about 20 employees in his
department during their lunch break to sign union cards.
He had no cards to distribute then or later, but all 20, he
said, eventually signed cards.9 Chaffin says he knew this
because each of the 20 called him at home after he was
discharged to tell him so. His affidavit does not mention
his talking to 20 employees in his department urging them
to sign cards, and when he was asked at the district court
hearing what union activities he had engaged in, he said he
had forgotten to mention it. I find it strange that so
remarkable a success, getting 20 people to sign cards which
he did not even give them (assuming his direct testimony is
more accurate than that on redirect) and in having each
one of them call him personally to tell him of it at home,
should have remained unnoted until this hearing, 6 months
after the event, and despite two previous opportunities to
mention it. In fact, I find it incredible.
If Chaffin fabricated that incident or grossly exaggerated
it, as I believe he did, what is one to make of his testimony
that Shaver and Collins followed his car, and that Collins
had asked him who owned it. His story is uncorroborated,
although King and the two Corbins who were with him,
were presumably available to testify. It is of course true
that Foreman Shaver was not called to testify either, so
that there is an absence of corroboration on each side of
the question, but since the General Counsel has the burden
of proof, it seems to me that his failure to call anyone to
support Chaffin's testimony weighs more against him than
does the Respondent's failure to corroborate Collins'
testimony. With some lingering doubts, I credit Collins as
against Chaffin and find that no official of Respondent
observed Chaffin hand over signed authorization cards to
Beam.
Chaffin's job the night he was discharged was to inspect
every bomb coming off one of the presses and to send them
down the line to the next operation. There was a major
breakdown of one of the presses that evening and,
according to Chaffin, he went to the restroom dunng the
breakdown and was gone from his station 5 or 6 minutes.
When he returned, his foreman, Carroll, took him to his
office and discharged him, telling him it was for going to
the restroom. Chaffin protested, saying that he hadn't even
stayed the full 10 minutes allowed him. Chaffin asked to
see Collins, his former foreman, and eventually did get to
see him. Chaffin told him his version of the events leading
up to the discharge. Collins said he would check with
Carroll, but then came back and told Chaffin that he
agreed with Carroll's decision.
Chaffin agreed on cross-examination that there was work
to be done even dunng a press breakdown, but said that he
was never assigned any when he returned from the
restroom. He also admitted that dunng other major
breakdowns, surplus bombs might be brought in from
elsewhere to be run through the stations not involved in the
breakdown, but said that it was not done that shift, at least
before he was discharged.
According to Carroll, the foreman in Chaffin's depart-
ment, the breakdown of one of the presses had started at
least an hour before he noticed that Chaffin was 40 to 50
feet from his station. He motioned him back to work.
Carroll said there is always a stockpile of bombs which are
available to be moved in whenever necessary to bypass the
point of breakdown, and that another employee nearby
was trying to do Chaffin's job as well as his own during
Chaffin's absence. After Chaffin returned to his station,
Carroll made a tour of his department, and when he
returned to where Chaffin was supposed to be working, he
discovered him sitting on a box. Carroll then took Chaffin
to his office and discharged him. Collins came by later and
asked him about Chaffin's discharge, and Carroll said that
Collins agreed with his decision.
Here again, it is a question of Respondent's motivation.
If company supervisors knew that Chaffin had signed a
union card, then Carroll's action (assuming that Chaffin
was telling the truth in asserting that he was discharged
only for going to the restroom for a few minutes) appears
so unreasonable as to justify a finding that it was merely a
pretext for illegally discriminating against Chaffin. Howev-
er, if Carroll's testimony is to be believed, he caught
Chaffin on two occasions within a few minutes of being
away from his station when he had work to perform there.
I find Carroll's version more credible than Chaffin's.
Thus, there was no testimony (with one temporary
exception in one department) that there were any pre-
scribed break periods for coffee, restroom visits, etc.
Employees could leave more or less freely for very short
breaks, but for any more extended period they had to
9 On redirect examination Chaffin, however, said that he did have
authorization cards and that he gave them to 20 employees A moment later
he amended this to about 10 employees
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtain a relief operator, either a leadman or their foreman.
I find, as Carroll testified, that the breakdown in his
department was into its second hour, rather than that it
had just happened, as Chaffin implied, when Carroll found
Chaffin away from his station. I assume that during so
lengthy a breakdown the Company would make provision
to keep its men busy and would have shunted its extra
bombs around to keep production moving as much as
possible. I therefore believe that there was work for
Chaffin to do when Carroll twice found him away from his
station, and that he discharged him for that reason. I shall
recommend dismissal of the 8(a)(3) allegation regarding
Chaffin.
3. Ernest Bush was hired on Friday, April 16, began
work on Monday, April 19, and was discharged on April
23, about 2 hours into the shift. Bush testified that he
started to pass out union cards the very day he was hired,
at the plant's front gate on Estes Parkway, and continued
to do so the rest of the week. He also said he went to
employees' homes to solicit for the Union and estimated
that altogether he passed out about 100 cards. Oddly
enough, he did not get any cards from Beam, the Union's
organizer on the spot until April 22, and did not himself
sign a card until that date.10 The card he signed he got
from another employee, Mobley, to whom he returned it.
The cards he says he passed out before April 22 at the main
gate he had left over from his previous place of employ-
ment, East Texas Steel. His testimony about passing out
cards is unmentioned in his affidavit and in the district
court injunction hearing because, according to him, no one
had thought to ask him about it.
It is not quite clear where Bush finally decided that he
had signed a union card on April 22. At one point it was as
he was leaving work, just before he got to the clock alley
where the timeclocks are located, but then he testified that
it occurred past the clock alley in a field or lot inside the
plant fence. At the district court hearing, Bush said he
signed the card in the parking lot, which is outside the
fence. Whereever it was, there was his foreman, Rowland,
observing him from about 50 to 60 feet away.
Rowland testified that he normally leaves the plant
between 4 and 6 p.m., long after the day shift ends, that he
never saw Bush sign a card or pass cards out, and did not
know that he had signed one.
I cannot believe Bush's strange story about passing out
cards at the plant's main gate the very day he was hired
and thereafter without first contacting Beam or getting
cards from him.ii Here too, as in the cases of Hunter and
Chaffin, their unbelievable testimony about the extent of
their union activities throws doubt on their testimony as to
being observed by company supervisors when they signed
their individual cards. I therefore credit Rowland's
testimony that he neither saw Bush sign a card nor knew
that he had when he discharged him on April 23.
The specific facts relating to the discharge can be got
through quickly. Bush worked a hand grinder using an air
gun, and was classified as a laborer. The job of grinder,
according to Rowland, took no more than an hour or two
to learn. There were five or six other employees grinding in
Rowland's department. Rowland testified that on Friday
morning he came out of his office and saw Bush standing
at his station, smoking a pipe, not working. He watched
him a few minutes, came over to him, and asked him what
he was doing. Bush told him he was watching his cousin,
another grinder, in order to learn the job. Rowland says he
then told him he was looking the wrong way, and took him
to his office where he discharged him.
Bush testified that Rowland had not told him he was
standing around or talking too much or working too slow,
but had only said he was going to have to let him go
because he thought work was going to pick up but it
hadn't.
Bush's termination slip, known as a stop card (G.C. Exh.
20), gives as Respondent's reason for his termination:
"Standing talking-seems work has slowed down since he
has been employed." There is also space on the card for the
foreman to indicate whether the employee should be
considered for reassignment to his department, and here
Rowland entered the following: "Not qualified for job.
Does not work." I do not take Rowland 's reason for
terminating Bush to mean, as the General Counsel argues,
that there was less work in Rowland's department, and that
the Company should have transferred Bush to another
department instead of hiring a new employee in the
laborer's classification there. I take Rowland's comment to
mean that Bush was discharged for poor work which
caused production to slow down in his department.
I have credited Rowland's testimony that he did not
know that Bush was involved with the Union in any way
when he discharged him, and I am also satisfied that
Rowland's version of why he discharged Bush is more
credible than Bush's. I find therefore that Bush was
discharged for reasons unrelated to his union activities.
4 and 5. Graham, foreman of the toolroom department
in the metal products division, discharged Joseph Grant on
April 23 and Jimmy Hall on April 26. Graham also
discharged three other employees with Hall, but they are
not alleged to be discriminatees.
Grant had been employed since August 1970. He
testified that in January 1971, before the organizing
campaign began, Graham told him to remove some
Machinists Union stickers which were pasted on his
toolbox, and that he refused to do so. This is alleged to be
an independent violation of Section 8(axl). Graham
denied ever having any conversation with Grant about
union stickers on his toolbox. Grant also said that early in
April while riding with Graham they got into the subject of
long hair during a general conversation, and Graham had
said that although the Company could not fire an
employee because of long hair it could always find some
other reason to discharge him. This bit of testimony was
presumably adduced to show that Graham or the Company
was not beyond engaging in pretextual discharges.
As to the immediate circumstances surrounding Grant's
discharge on April 23, Grant testified that he accepted two
,ards from Beam at the intersection on April 21 before
reporting to work at 4 p.m., signed one then and handed it
back to Beam, keeping the other. In his affidavit to the
io However, he was not quite certain whether he had previously signed l l So far as the record shows, no other employee openly passed out cards
two other cards at any of the plant entrances until Davidson did so about May 4
R. G LETOURNEAU, INC. 433
General Counsel, Grant said he accepted the cards on
April 21, signed one at home, and returned it to Beam the
next day. He never attended any union meetings, and does
not recall seeing any supervisors or security guards when
he returned the signed card to Beam.
Grant testified, however, that on April 21, the day he
gave Beam his signed card (if his testimony rather than his
affidavit is correct), Graham asked him while at work if he
was for or against the Union. Grant replied that he was for
the Union, and Graham said it was for his personal use.
The next day, Grant testified, he was taking a prounion
position in a discussion with a fellow employee when he
saw his leadman, Whitlock, 15 or 20 feet away
On April 23, about 11 p.m., Grant testified that Graham
came up to where he was working at his lathe and said,
"Mr. Grant, we no longer need your services. You have
been loafing." Grant testified that he had not been loafing,
had never been warned about it before, was keeping up
with his production, and had not been producing excessive
scrap (another reason stated on his stop card for his
discharge). The General Counsel also brought out that
Leadman Creger had told Grant 4 months before that he
was doing a good job.
Graham testified that early in April he instituted specific
break periods in his department, telling the 20 or so
employees that he would try it out for a few weeks but
would discontinue it if it was abused. Graham was away
from the plant for 3 working days, April 15-19, and when
he returned on Tuesday, April 20, he said he observed the
men weren't starting up promptly after the break, so he
called them together and in effect discontinued the short-
lived practice of giving formal breaks.12
Graham also testified that he had warned Grant before
discharge about producing too much scrap, but it was not
the reason he fired him. On April 23, he said he had
warned him once to get back to his machine and get to
work, but then found him about 10:30 p.m. again away
from his machine and fired him.
Hall had been employed since August 1966 He signed a
union card at the solicitation of Jones in his department,
had spoken to other employees, and had obtained a few
signatures without trying to conceal his activities. About 4
p.m. on April 26, while on the parking lot, he signed up
employee Sellers, the brother-in-law of his foreman,
Graham, and noticed that Leadman Whitlock was watch-
ing them. He and Whitlock had two short discussions
about the Union which are not alleged as either unlawful
interrogation or surveillance. In the first discussion, about
April 16, Hall testified that Whitlock (who was acting
foreman in Graham's absence that day and the following
Monday) had told him that a supervisor named Swimm
had spoken with him earlier that evening; that Swimm was
shook up about the Union and had told him that if he saw
people getting together to see what they were talking about.
In their second discussion, Hall testified that Whitlock had
told him in discussing the Union to be careful whom he
said anything to. Neither Swimm nor Whitlock were called
to testify.
As to his discharge, Hall said that Graham came up to
him at his machine on April 26 about 10:45 p.m. and said
he guessed he was going to have to let him go. Hall asked
why and Graham replied that he had been watching him
all evening, and that in a 30-minute period he had only
ground six drills and that he had also been 7 minutes late
coming back from dinner. Hall said he asked Graham if
that was the real reason and Graham said it was. Hall said
he had never before been criticized, had been praised for
his work on one occasion, and had served as a leadman for
a month. He also said there were no production quotas in
his department, and that other employees, including
Graham himself, had returned late from dinner recently.
Graham testified that he had never discussed the Union
with Hall and did not know whether Hall was engaged in
such activities. He also denied that he had any discussion
about the Union with his brother-in-law, Sellers, whom
Hall had solicited to sign a union card.
As to why he fired Hall, Graham said that after Hall
returned from dinner around 9 p.m. he had to tell him to
start up his machine, and then about 10:30 p.m., after
being out of the department for some time, he returned and
saw Hall and another employee, Jones, talking on one side
of an aisle and two other employees talking on the other
side. He said he was tired of everybody standing around
talking and away from their machines, so he walked up
and fired all four of them. His only reason for discharging
Hall was that he wouldn't stay at his machine and work.
Besides the other three whom he also fired that evening,
Graham said he had fired another employee about 7
months before for the same reason.
The next morning, Hall and Jones went to see Stahl, who
was then personnel manager for the metal products
division, to discuss their discharges. They told him they felt
Graham had discharged them because they were both for
the Union. Stahl asked them how long they had been with
the Company and then, according to Hall, Stahl told them
that it seemed like every time a union started to organize
the plant things like this happened and he had to hire new
men. Stahl then asked them if they would consider
returning to work. Jones said he would, and Hall said he
would too but not in Graham's department. There was
some general discussion about the Union, and Stahl then
told them to check back with him after he had had a
chance to talk to their supervisors. Hall did call back the
next day, but Stahl told him that Graham had recommend-
ed against their being rehired and there was nothing he
could do about it.
At the time of this hearing, Jones was unavailable to
testify because of an automobile accident. His discharge on
April 26, unlike Hall's, is not alleged to be a violation of
Section 8(a)(3). It was stipulated that Jones' testimony in
the federal court proceeding would be incorporated in this
proceeding.
Jones had testified in that proceeding that the employees
in Graham's department had been allowed two coffee
breaks daily for about 5 months before the practice was
discontinued on April 20, but his testimony does not
indicate why it was ended then. He also testified that when
he and Hall went to see Stahl about their discharge, they
12 Hall, whom Graham fired on April 26, also testified on this matter,
corroborating Graham Hall did not say that Graham mentioned union
activity in the department as his reason for discontinuing the breaks
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him that despite what Graham had told them they felt
it was because of the Union. Jones then said that Stahl had
told them that any time the Union was mentioned in the
plant the Company got shook up and he had to hire new
men.
Stahl's version is that Hall and Jones came to his office
to ask for their final paychecks, and that he told them he
didn't have their stop cards yet and would need them
before he was able to pay them off. Either Hall or Jones
then said that he thought Graham had discharged them for
union activities and not for the reasons he had given them.
Stahl said he told them he had no idea why they had been
discharged and would have to wait until their stop cards
came to him. He denied telling them that every time a
union started organizing in the plant things like this
happened and he had to hire new men.
The violations of Section 8(a)(1) alleged in the complaint
involving Grant or Hall are: (a) Graham telling Grant to
remove union stickers from his toolbox; (b) Graham
asking Grant if he was for or against the Union; and (c)
Stahl interrogating and threatening Hall about his union
activities. The 8(a)(3) violations alleged are the discharges
of Grant and Hall and the discontinuance on April 20 of
the 10-minute break periods.
Unlike the testimony of Hunter, Chaffin, and Bush,
discussed above, that of Grant and Hall was coherent,
internally consistent, and not inherently improbable. But
this is equally true of the testimony of Graham and Stahl.
Each side presented a bare-bones recital of events so
dissimilar that there are no important points of conver-
gence. Graham either asked Grant if he was for or against
the Union or he did not; and Stahl either told Hall and
Jones that every time a union started up he had to hire new
men or he said nothing at all like that. And again, Graham
either caught Grant and Hall wasting time away from their
machines, or they were both industriously working when
Graham arbitrarily fired them. Compounding my difficult
task of determining who was telling the truth is the fact
that Graham fired four people, including Hall, in one
swoop, all allegedly for the same reason, but the General
Counsel has proceeded only as to Hall. There may be
adequate reasons for doing so which the General Counsel
need not reveal to me, but it serves to raise doubts in my
mind as to why Graham should fire three other people in
order to reach one union adherent.
However, taking these and other factors into account, I
have decided to credit Grant and Hall on the major points
of their testimony as to their discharges. Specifically, I find
that Graham asked Grant if he was for or against the
Union. Graham may not have known when he asked
Grant that question whether he had already signed a union
card, but Grant's answer that he was for the Union
supplied Graham with information on the identity of at
least one union adherent in his department The Company
was concerned about the Union's campaign-its presi-
dent's speech makes that amply clear-and some of its
supervisors, at the least, would consider it their obligation
to learn what they could by watchful observance and
discreet probings. I consider disingenuous Stahl's testimo-
ny that he told Hall and Jones, when they expressed their
suspicion that they had been fired because of the Union,
that he could not say until he saw their stop cards. Stahl
would not be so naive as to believe that if Graham had
really discharged them because of the Union he would
have put that as his reason on the stop cards. Thus, Stahl's
answer indicates to me that he was concealing the
possibility that Graham might in fact have been motivated
by the Company's opposition to the Union when he fired
Hall and Jones.
I also credit Hall's testimony, corroborated by Jones,
that Stahl told them in effect that an organizing campaign
could result in employees being discharged.
As to the incident involving union stickers on Grant's
toolbox which allegedly occurred in January 1971, I credit
Grant and find that Graham told him to remove them.
Graham's instruction to do so, although ignored by Grant,
was in itself intimidating and a violation of Section 8(a)(1).
When Graham called his employees together on April 20
to announce the discontinuance of the 10-minute break
periods in his department, he did not attribute it to the
advent of the Union. Neither Grant, Hall, or Jones
testified that Graham tied the two together, so Graham's
explanation that he decided to eliminate the breaks
because it took the men a long time to get back to work is
undenied. Graham's explanation is a reasonable one and
the fact that he discontinued the breaks the very day he
returned after his 3-day leave tends to establish that the
employees had taken advantage of his absence to extend
their breaks. I credit Graham on this point and find no
violation of the Act in his announcement and action on
April 20.
6. Oliver Walker had been employed as a machine
operator in department 294 of the metal products division
since February 1970, and was discharged on April 28,
1971. Walker's union activity consisted in picking up an
authorization card from Beam at the intersection and
signing and returning it to him on April 21; attending a
union meeting at the Holiday Inn on April 27; and talking
to two fellow employees before work began on April 28.
There was a plant security truck facing Beam at the
intersection when Walker picked up and returned his card,
but there is no other evidence that Walker was observed in
this or the rather limited union activity in which he had
otherwise engaged.
Walker's job at the time of his discharge was operating
one of the machines in the department which automatically
performed a number of drilling, reaming, and grooving
operations on the bombs. The operator rolled a bomb from
the conveyor line into his machine, lined it up, and pushed
a button which activated the machine to perform its
automatic cycle. The operator then stood by through the
cycle which took 3-4 minutes to complete, watching to see
that nothing went wrong. If it did, he pushed another
button which immediately halted the operation. Thus, with
a 3-4 minute cycle, the machine could process 15 to 20
bombs per hour. The foreman for the department,
Sweatman, estimated that an operator might have to shut
down his machine 8 or 10 times per shift during the cycling
because it was not operating properly. If the operator was
not there to shut the machine off manually when
something went wrong, considerable damage could be
done to the machine or its attachments.
R. G. LETOURNEAU, INC. 435
It is admitted that Walker left his machine unattended
while it was running. He said he went to the restroom and
then stopped to look at a bulletin board , and that
altogether he was away from the machine less than the
time it took to complete one cycle . He said it was not
uncommon to leave the machine running , that he and
other operators had done so in the past with the knowledge
and tacit approval of the leadman or foreman . When he
left the machine on the occasion of his discharge, he had
asked the operator of a nearby machine to watch his for
him.
According to Sweatman, he had warned Walker before
about leaving his machine . Walker had also caused
considerable damage on a similar machine by improper
operation and, according to Sweatman , Walker frequently
asked that maintenance work be done on his machine
which Sweatman felt was unnecessary. On April 28,
Walker 's machine was being repaired between 8 and 9:30
p.m., and as the maintenance men were leaving Sweatman
asked them if the machine was operating properly. They
said that they had run one bomb through a cycle and that
it had operated properly. Sweatman then walked over to
the machine, found it running, and observed Walker
looking at the bulletin board about 100 feet away
Sweatman called a leadman over to run the machine and
told him to send Walker to his office when he returned.
Sweatman estimated that Walker got to the office about 10
minutes later. Sweatman was preparing a stop card and
asked Walker if he knew why he was letting him go.
Walker said he didn't, and Sweatman said he told him that,
as a former setup man , he should know not to leave a
machine unattended while it was running. Walker ex-
plained that he had asked the man next to him to watch it
for him and Sweatman replied that he could not watch his
own machine and Walker's too. Sweatman said Walker
had also been goofing off on his job and had not satisfied
him since he had been in the department Sweatman
denied knowing that Walker had signed a union card or
had engaged in other union activities.
If Walker's testimony is true, that it was not uncommon
for operators of his machine to leave them running
unattended with the knowledge of leadmen and foremen,
then Sweatman's action in firing Walker seems so arbitrary
as to be pretextual. On the other hand, if as Sweatman said,
it is a serious breach of the accepted practice in a machine
shop to leave a complicated and expensive machine
running unattended, then Walker's action in doing so,
particularly when it had dust been repaired moments
before, seems much less justifiable and to that extent
Sweatman 's discharging him becomes that much less
arbitrary.
I am persuaded to credit Sweatman over Walker because
there is no evidence that Walker's rather minor activities
on behalf of the Union ever came to Sweatman's attention
or to that of any other company supervisor. I shall
therefore recommend that this allegation of the complaint
be dismissed.
7. William Wylie was employed as an inspector in the
quality control department of the metal products division
from October 1966 to April 28, 1971. The complaint alleges
that he was discriminatorily discharged on April 28 and
was discriminatorily refused reemployment on or about
May 11 because he had filed charges under the Act, in
violation of Section 8(a)(3) and (4).
According to Wylie, he had taken a union card from a
fellow employee on April 13 at work and as he was reading
it Leadman Clark looked over his shoulder and asked him
if he was going to sign it. Wylie said he didn 't know yet.
Between April 13 and 28, Wylie said he passed out about
50 union cards to other employees during lunch and after
work. 13 He had also attended union meetings at the
Holiday Inn and was on the Union's organizing commit-
tee. About April 22, Wylie testified, Leadman Clark asked
him if he had signed a union card. Wylie admitted he had
and also told Clark he had been distributing cards to other
employees. On April 26, another leadman in his depart-
ment , Crager, asked him if he had enjoyed a recent union
meeting. Neither Clark nor Crager testified , but their
interrogations of Wylie are not alleged to be violations of
Section 8(a)(1). The complaint does allege that Clark by
virtue of his position as a leadman was in fact a supervisor.
There is no evidence that Martin , Wylie's foreman, nor
anyone else whom Respondent admits to be a supervisor,
was aware of any of Wylie's activities on behalf of the
Union, at least before a copy of his charge was served on
Respondent on May 11.
If Clark and Crager are supervisors within the meaning
of the Act, and if Wylie 's uncontradicted testimony on the
point is credited, then the knowledge which Clark and
Crager acquired as to his union activities is attributable to
the Respondent. But even if knowledge of Wylie's union
activities is attributed to Respondent, it must yet be shown
that the motivation for his termination was his adherence
to the Union. Respondent denies that it was , and claims in
fact that Wylie voluntarily quit his job rather than transfer
to another inspection job which Martin , his foreman, had
ordered him to take
Wylie testified that he has a back problem and that his
doctor has prescribed muscle relaxants for his condition.
The inspection job to which Martin wanted to transfer him
on April 28 was operating a machine which tested how
much pressure the bomb casing could withstand. Wylie
had operated this machine on a few occasions , but always
under protest. About 2 years before, Martin had assigned
Wylie to the Hydrotest. He had gone to the station , worked
there about a half hour and then told Martin he wanted to
quit his job because of his back problem. Martin talked
him out of quitting but sent him back to the station, where
he completed the day without incident . In August 1970,
Martin again wanted to place Wylie at the Hydrotest
station, and again Wylie said he could not do it because of
his back problem Martin ordered him to clock out and to
get a statement from his doctor indicating what work he
could do. Wylie went to his doctor and got a statement
from him saying that X-rays and an examination had
revealed no abnormalities, and that he responded well to
muscle relaxants . Wylie was cleared by the company nurse
but Martin then assigned him to another inspection
13 In the Federal court proceeding he testified that he had passed out
about 20 cards during the same period
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
station. In January or February 1971, Martin again
assigned Wylie to the Hydrotest station and Wylie worked
there for 2 days. Wylie testified that his back still troubled
him and Leadman Crager then took him off the Hydrotest.
According to Martin, his regular Hydrotest operator had
been on vacation at the time and he rotated a number of
his men on the machine, including Wylie, to give them
experience on it.
According to Martin, one of his inspectors, who operated
a Bernel test machine, was called away from the plant on
April 28 because of a family emergency. Martin transferred
his regular Hydrotest inspector to the Bernel station,
thereby requiring someone to operate the Hydrotest. He
came over to Wylie and told him to take over that station.
Wylie apparently said he wouldn't or couldn't, and Martin
again ordered him to. Wylie testified that he then told
Martin he didn't want to quit but that Martin was forcing
him to. Martin then told him to clock out and prepared a
stop card for him.14
The record does not make it clear whether Martin told
Wylie that his transfer to the Hydrotest was a temporary
one, until the Bernel operator returned, or whether Wylie
thought he was being permanently assigned to that station.
It is an important point, since it bears on whether Martin
deliberately made the assignment of Wylie to the Hydro-
test, hoping or expecting him to react unfavorably to it as
he had in the past, and thereby perhaps setting him up for
discharge Unfortunately, what now appears to be a critical
element in the situation was not fully developed at the
hearing.
There is no need to describe the Hydrotest operation in
detail, or to speculate on whether the physical exertion
required could affect a weakened back. Wylie himself
eventually repudiated his own earlier testimony that it
required a dead-weight lift of 100 to 150 pounds. In fact,
the physical exertion needed to operate the machine seems
to be slight: the operator rolled or twisted the bomb over
from the conveyor onto a cradle by inserting two fingers in
a bomb hole; the cradle was mechanically lowered into a
vat of water, while the operator rocked the bomb once or
twice as it was descending, in order to expel the air inside.
That is not to deny, of course, that Wylie may have found
it uncomfortable or taxing to operate with his back
condition, but since his doctor had said that taking muscle
relaxants would alleviate his condition, it seems to me that
Wylie was not justified in refusing the assignment on April
28, since he had been able to perform the job just a few
months before without suffering harm.i5
I therefore find that Wylie quit rather than accept the
Hydrotest assignment and that, under the circumstances,
his quit did not constitute a constructive discharge. I
recommend dismissal of the Section 8(a)(3) allegation
regarding Wylie.
On May 10, nine charges, including Wylie's, were filed
with the Board's Regional Office alleging discriminatory
discharges on various dates in April and May. On May 11,
Wylie received a copy of his charge in the mail, and the
Company received copies of the nine charges filed the day
before. Either on May 10 or 11, Wylie phoned Gross,
manager for quality control, who was two supervisory
levels above Martin, and asked him if he could have his job
back. In Wylie's affidavit and in his Federal court
testimony, Wylie said he called Gross on or about May 10;
in this proceeding he was sure he had called Gross on May
11 because he had his copy of the charge by then.
According to Wylie, when he asked Gross if he could
have his job back, Gross told him he didn't think so
because of the charge he had filed and because of the
union problem. According to Gross, he did not know when
Wylie called him, that Wylie had filed a charge, and he did
not discuss the Union with him. The extent of their
conversation, according to Gross, was that Wylie had quit;
Wylie asked him again if he could return to work and
Gross repeated that Wylie had quit.16
I find that Wylie called Gross the evening of May 11,
after receiving his copy of the charge. I do not consider his
testimony that he called Gross on May 11 inconsistent with
his previous statements that he had called on or about May
10, since he clearly associated the date with what he
regarded as a new development regarding his charge; that
is, the date on which he was notified that it had been filed.
I note that all nine charges were filed on May 10, although
they were signed on various dates in April and May. Wylie
himself signed his charge on April 30, so that he may not
even have known when the charge was forwarded to the
Regional Office, presumably by the Union.
The receipt by the Company on May 11 of the first nine
charges to be filed against it was obviously an event out of
the ordinary. I consider it likely that the news would
quickly be made known to Respondent's top supervisors,
of whom Gross was one. Thus, when Wylie called him that
evening at home, Gross would be likely to associate the call
with the receipt of the charge, and to refer to it when Wylie
asked to be reemployed. I therefore credit Wylie's
testimony that Gross told him on May 11 that he didn't
think Wylie could have his job back because of the filing of
the charge and the union problem, and I find that
Respondent thereby violated Section 8(a)(4).
8. Arnold Schluter was hired as a mechanic in May
1968, but in June 1970 was placed on light duty and was
transferred to the job of materials coordinator in depart-
ment 888, heavy equipment division, under the supervision
of Foreman Brooking. He ordered and received incoming
materials and parts for the department and kept the
necessary records. He had a desk in Brooking's office.
Schluter accepted a union authorization card from a
fellow employee in his department, Mefford, before work
began, on or about April 16. He did not sign or turn it in
until he attended a union meeting at the Holiday Inn after
work on April 27. However, Schluter testified that in the
interval between taking a card for himself and signing it
(about 10 days) he passed out cards to other employees
soliciting them to sign, both at and away from the plant.
This significant item is not mentioned in his affidavit in
14 When Wylie applied for unemployment compensation after his 2 days' work on the Hydrotest, he filed a workman 's compensation claim,
termination he wrote on the form as the reason for his termination "I quit apparently alleging that his back condition wasjob-connected or had been
because I was assigned to a job that I could not do My foreman told me aggravated by work on the Hydrotest
that I had to do it anyhow I had no alternative to quit " 16 Gross was aware of Wylie's termination since he had discussed the
15 After Wylie was terminated, and about 3 months after completing his matter with Martin in Wylie's presence on April 28.
R G. LETOURNEAU, INC. 437
which he stated that Mefford was the only one in his
department to pass out cards. There is no evidence that his
possession or the signing of his card or his solicitation of
other employees, if that did occur, came to the attention of
any company supervisor.
Nonetheless , Schluter 's testimony is the basis for a
number of Section 8(a)(1) allegations regarding conversa-
tions with Foreman Brooking, some of which seem to turn
on Brooking knowing that Schluter was a union adherent.
The first of these conversations took place in the
departmental office on April 26, the day before Schluter
signed his own card . Schluter testified that Brooking had
said he understood there was a lot of union talk going on
and he didn't understand why the employees would want
outsiders to act as their go-between, to which Schluter
replied that he had worked both union and nonunion and
felt that he had done better in a union shop, and that a
good union would help both employer and employees. The
next day, Schluter testified, Brooking had said to him that
he had heard that Schluter had been having outside
activities, that he might be forced to let him go, and that he
didn't want that to happen. Brooking went on to say that
company policy in the past had been that if anyone leaned
toward or was for a union they were fired because the
Company felt that if anyone was pushing for a union they
didn't need them.
This conversation too, it will be noted, occurred before
Schluter had signed a union card. The next day Brooking
told Schluter, according to the latter, "Don't tell them I
sent you, but it would be to your benefit if you would tell
Don Jones and Falvey Whitehurst that you were not
having any union activities." Schluter said he would if he
got a chance but never did. Jones and Whitehurst are high
officials at the plant.
The next day, Brooking discharged Schluter at the end of
the shift by handing him a stop card which read "Not
doing your job satisfactorily." Schluter said that Brooking
had brought up an incident which had happened several
months before Schluter recalled the incident that Brooking
had referred to but could not remember what Brooking
had said to him about it Brooking then took him to the
personnel office and on the way back he said he was sorry
and would help him any way he could.
Brooking denied knowing whether Schluter had engaged
in any union activities or had signed a union card. He
admitted having a conversation about April 26 with a
group of employees including Schluter. Brooking said that
he mentioned an incident many years ago involving a local
and its International Union in Stockton, California, the
point of which was that the members of the local were
eventually displaced by other members of the Union.
Brooking denied asking why the employees would want
an outsider to represent them, or that Schluter had said he
preferred a union shop. He admitted that he had spoken to
Schluter late in April about his outside activities, but says
that it was based on complaints from supervisors in two
other departments informing him that Schluter had been
wasting time there distracting their employees, and that
Brooking had told him it could not be tolerated. Brooking
denied telling Schluter during their conversation about
"outside activities" that it had been the Company's policy
in the past to fire anyone who leaned toward a union, and
he also specifically denied telling Schluter to tell Jones and
Whitehurst that he was not engaged in union activities.
Brooking had spoken to Schluter a number of times
about the difficulties he was having in keeping up with his
job, which seems to have been primarily clerical. On one
occasion , Schluter told Brooking that if he couldn 't satisfy
him with his work he would like to be transferred, and
Brooking had responded that he could not ask another
department to take a man who wasn 't performing
satisfactorily for him . At this time , a written reprimand was
placed in Schluter's personnel file. A short time later,
however , Schluter was given an increase when his wage
interval had passed , because as Brooking explained it, to
deny him an increase then would have destroyed his
motivation to improve.
Brooking said he discharged Schluter on April 29,
because he discovered two serious errors that day which
Schluter had committed . The first was failing to order steel
for the department from the mill and then , after being
twice reminded , ordering only half of what was needed.
Second , Brooking learned that day that Schluter had failed
to write a return merchandise order on some expensive
valves which the Company wanted to return to the vendor,
after obtaining its permission to do so a month before. Due
to the delay, which affected the shelf life of the valves, the
vendor refused to accept them resulting in a $2 ,000 loss.
Brooking then decided that Schluter was unsuited for the
job and had to be discharged. Brooking obtained the
concurrence of his superior , Flanagin , and discharged
Schluter at the end of the shift . The General Counsel
recalled Schluter as a rebuttal witness after the testimony
of Brooking was in the record, and, although Schluter
testified on another matter , the General Counsel did not
ask him to explain or controvert the reasons which
Brooking had given for his discharge . I take it then that the
General Counsel could not refute Brooking 's testimony on
the matter.
In view of the discrepancies between Schluter 's affidavit
and his testimony in this proceeding regarding his
solicitation of a few employees in the plant area , I find that
Schluter's union activity was probably limited to signing a
card on April 27. As I pointed out before , there is no
evidence that his signing, or whatever else he may have
done, came to the attention of any supervisor, except for
Schluter's saying that Brooking had told him about the
Company's policy with regard to those who lean toward a
union and his later advice that Schluter tell two top
officials that he was not engaged in any union activities.
If I were to credit Schluter on what Brooking had said to
him, it would follow that Brooking was discreetly letting
Schluter know that the Company knew or suspected, from
whatever secret means it had for obtaining such informa-
tion , that Schluter was involved with the Union in some
way. The issue of whom to believe , Schluter or Brooking,
has given me a great deal of trouble , but I have finally
decided to credit Brooking. I find it difficult to verbalize
my own internal processes on the matter , and therefore
leave it simply to that conventional and convenient
formula of deciding on the basis of their respective
demeanor.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schluter also testified to an alleged instance of surveil-
lance on April 29. He had gone to Beam 's room at the
Holiday Inn soon after he was discharged, and when he
left the room he observed a company supervisor , Burgess,
standing on a balcony 200 to 300 feet away looking down
toward the room. He went back to tell Beam about it and
when he again emerged, Burgess was gone. Schluter
testified that the man he identified as Burgess was not
wearing eyeglasses.
Burgess testified that he always wears glasses , and that
the only time he had ever been at the Holiday Inn was
about a year before the incident described above. He said
that on April 29, he had gone directly home from work to
prepare for an out-of-town trip the next day to attend his
parents' 50th wedding anniversary.
I find that Schluter's identification of the man standing
on the balcony at least 200 feet away as Burgess, was
incorrect , and I shall recommend dismissal of the Section
8(a)(1) allegation concerning any surveillance by Burgess.
It also follows from the fact that I have credited Brooking
over Schluter that I also recommend dismissal of the
Section 8(a)(3) allegation regarding Schluter.
9. Allen Smith , Jr., worked as a welder in department
284 which was supervised by Foreman Baughn . Smith had
been employed about 6 months before he was discharged
on April 29. He had received a wage increase on April 5 at
which time Baughn had told him he was doing a good job.
Baughn had also told him he was doing a good job a few
weeks before that . At the hearing, Smith testified that
between April 9 and 29 he had encouraged about 10
employees in his department , at their work station and
during lunch , to sign union cards . This was despite the fact
that he had no cards in his possession . He himself took a
union card from Beam on April 18 when he took the card
home. He signed it a few days later and gave it to a fellow
employee who handed it back to Beam . On Saturday, April
24, he said he had gone to the Holiday Inn to attend a
union meeting but there was no one there at the time. He
had not attended the meeting on the 17th, although his
affidavit given to a Board agent on May 18 states that he
had. There is also nothing in his affidavit nor in his
testimony at the Federal court hearing about soliciting
other employees to sign union cards.
Smith testified that work in his department had been
falling off the last month or so, and that on one occasion
Baughn had told him to make the bombs last, to stay busy
but not to work too hard on them. Then , about 2 weeks
before he was discharged , Smith said that Baughn had
gone around the department and had told the employees
that there might be a layoff , and that the only fair way to
accomplish it was to select men who weren't doing their
job. Smith said he had not noticed that his particular work
had decreased . He also denied that he had ever neglected
his work or been warned about loafing.
Baughn testified that he had had to reprimand Smith a
number of times about his work habits , mainly for leaving
his work station to talk to other employees. On the day he
discharged Smith , Baughn said he saw him early in the
shift talking to a forklift driver, and found him about 30
minutes later still engaged in conversation . As Baughn
started toward them, Smith went back to his station. A half
hour later, Baughn again found him away from his work
area talking to another welder. As Baughn started toward
them they broke it up, and Smith went back to his station.
Baughn then began to keep track of Smith 's activities and
estimated that in the next 4 hours before the meal break,
Smith did no work for about an hour and a half. About
2:30 that afternoon, Baughn decided to discharge Smith.
He told him that he had been messing around too much
and showed him the notes he had been keeping on him that
morning. Baughn denied knowing whether Smith had
signed a union card or had engaged in other union
activities.
Between April and July, when other work was added to
his department , Baughn testified that four men had been
transferred out because of a lack of work. After July, some
new men were added to his force , while two were
discharged for poor job performances. There have since
been further layoffs and employment is down to about 21
from a high of 34.
I find that Smith , like most of the alleged discriminatees,
has exaggerated the extent of his union activities . At most,
he signed and returned his card secretly, and he may have
expressed an interest in the Umon to a few employees
without actually soliciting them to sign cards. In any event,
there is no evidence that any of this came to the attention
of company supervisors.
The testimony of Smith and Baughn as to Smith 's loafing
on April 29 is sharply at variance , but Smith himself
admitted that just 2 weeks before , Baughn had told the
employees that he would select those who were not doing a
goodjob if work in the department continued to slack off. I
have taken into account that when work did slack off in
Baughn 's department, before July , four employees were
transferred out rather than being discharged, so that
Smith's discharge seems to be abnormal. However, it is not
so arbitrary or unreasonable , if Baughn is to be believed,
that a presumption has to be made that Smith 's discharge
was pretextual.
Because there is no evidence that Smith 's minimal
activity on behalf of the Umon was known to the
Company, I shall recommend dismissal of this 8(a)(3)
allegation of the complaint.
10. Riley Wiggs worked as an inspector in the metal
products division under Foreman Martin. He was dis-
charged on May 6, allegedly for failing to comply with a
plant safety rule requiring employees to wear side shields
on their safety glasses.17
Wiggs testified that after work on April 13, he and
another employee picked up authorization cards from
Beam at the intersection . They noticed a plant security
truck parked about 150 feet away. Between that date and
May 6 Wiggs testified that he passed out about 200 cards
both inside the plant during lunch breaks and in the
restrooms and on the parking lot after work . He said he
never tried to hide his distribution activities from manage-
ment but could not say that any supervisor observed him
while he was so engaged . About April 23, the manager of
11 Side shields are plastic discs which clip on to the ear pieces of the
safety glasses for protection of the temples
R G. LETOURNEAU, INC. 439
quality control, Gross, came up to him where he was
working on a machine line and pointing to a poster put up
by the company urging employees not to sign union cards,
asked him if he had signed one. Wiggs said he hadn't and
didn't care one way or the other.18 On April 24, Wiggs
went to a union meeting at the Holiday Inn and signed up
on the organizing committee. On May 3 he attended a
meeting in Beam's room, and at that time noticed a car
with two men in it about 50 feet away. He recognized the
car's occupants as Bolton, superintendent of dome 4, anti
the other as a supervisor whose name he did not know.1D
On May 6, Wiggs was working in a shipping and
receiving area, inspecting shipments of material He
testified that his foreman, Martin, came up to him and
asked him where his side shields were. Wiggs said he didn't
have any and Martin then took him to Gross's office.
Martin told Gross that he had issued Wiggs nine pair of
side shields in a week and a half, and said he didn't need
him any more. Gross asked Wiggs what he had to say, and
Wiggs answered that there wasn't much to say because if
he told Martin that he hadn't issued him nine pair of side
shields, it wouldn't make any difference anyway. Gross
then told him he was fired. Wiggs asked Martin why he
hadn't brought other shipping people in who also were not
wearing side shields but Martin did not answer. Wiggs told
Gross and Martin that the true reason he was being fired
was for union activities. They made no reply to that. Wiggs
said that none of the other employees in the shipping and
receiving area were wearing side shields
Wiggs said that he had never worn side shields until the
beginning of the union campaign, about April 13. He
picked up a pair voluntarily because he wanted to make
sure that he wasn't doing anything wrong However,
between that date and May 6 there were occasions on
which Wiggs did not wear his side shields. He said that
supervisors saw him without side shields during this period
and also saw many other employees not wearing them.
During this 3-week period, Wiggs testified that he broke
a pair of side shields which he had gotten earlier and went
to the tool crib for another pair but was told that they had
to be issued through a leadman or foreman. He said he
went to his leadman, Crager, who said he would get him
one but never did.20
Sometime during this period, apparently soon after April
13, when Wiggs said he started wearing side shields, he
came to the plant one morning without them. He said he
voluntarily told Martin he had forgotten his side shields
and wanted to go home to get them. Martin gave him
permission to do so. He denied that Martin had sent him
home to get them.
The Company had a published rule, issued in April 1969,
reaffirming its past policy that all employees in the
munitions division were to wear protective ear cotton,
safety shoes, and proper eye protection It also provided
that employees who failed to comply with the rule would
receive a verbal warning for the first offense, would be sent
18 Gross denied asking Wiggs if he had signed a union card or ever
having a conversation with him in which he asked anything about his
signing a card He said that he had not talked to Wiggs at all about union
activity since the campaign started at the plant
19 Bolton specifically denied being at the Holiday Inn on May 3 The
only times he was ever at the Inn, he said, were on May 25 and 27 when he
home for the remainder of the shift without pay for the
second offense, and would be discharged the third time.
The published rule refers only to "eye protection" which
undoubtedly meant safety glasses but does not specifically
set out that the wearing of side shields was mandatory.
The affidavit which Wiggs gave to the General Counsel
during the investigation of this case states that the
Company had instituted a policy in the past 2 or 3 years
that employees wear safety glasses and side shields. In his
testimony, however, Wiggs said that he didn't know how
that statement had gotten into the affidavit, but affirmed
that the Company enforced its rule on safety glasses
although not as to side shields. One of the other alleged
discriminatees, Hall, testified, contrary to Wiggs' testimo-
ny, that the Company did enforce its rule on the wearing of
side shields by first giving a verbal warning, then a three
day layoff and then discharge. Hall did not indicate that
the rule on side shields was enforced less stringently than
the requirement about safety glasses. The General Counsel
did not question any other witnesses from the Metal
Products Division with respect to the existence or enforce-
ment of a rule regarding side shields.
According to Martin, Wiggs came to work without his
side shields on April 28 and was given a pair by Leadman
Crager. The next morning, Wiggs again came to work
without side shields, and Martin then instructed him to
clock out and go home for them. He clocked out, went
home, and returned in about 30 minutes. The following
week, on May 6, Martin said that Wiggs again came to
work without side shields. Martin asked him where they
were and Wiggs said that he had forgotten them. Martin
said he reminded Wiggs that it was a company safety
policy that the third time without side shields resulted in
automatic dismissal. He took Wiggs to Gross's office,
prepared a stop card and discharged him.
Martin claimed that he enforced the rule on eye
protection strictly, and that all the employees under his
supervision except Wiggs wore side shields the day he fired
him. Martin also testified that he had no knowledge of
union activities on the part of Wiggs or whether he had
signed a union card.
I have previously noted Wiggs' testimony that although
he had never worn side shields before, he began to do so in
mid-Apnl because he did not want to do anything wrong. I
take this to mean that Wiggs recognized there was a
requirement that side shields were to be worn. Does it also
mean that enforcement of the rule was lax, in the light of
his testimony that he had never worn them before the
inception of the union campaign and had not always worn
them even then, with Martin's knowledge? Besides the
predictable testimony of Martin that the rule was strictly
enforced, there is also the testimony of Hall, himself a
union adherent, as to stnct enforcement. Finally there is
Wiggs' puzzling testimony that he voluntarily told Martin
one day that he had forgotten his side shields and went
home to get them. There is no explanation why he should
had lunch there with a representative of a company supplier
20 Davidson, the tool crib attendant , testified that he had told Leadman
Crager that Wiggs wanted him to issue him a pair of side shields, and that
Crager had told him he had already issued Wiggs nine pairs the last week,
and wouldn't give him any more
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have done so unless he knew he was supposed to wear
them while on duty I find Martin's story on this point
more probable and more credible-that he told Wiggs to
punch out and go home for them and thereby suffer the
penalty of not being paid for that period.
I find, based on the foregoing, that the company policy
on eye protection required that side shields be worn, that
Wiggs knew it and had failed to conform a number of
times even after April 13. I cannot tell whether the
Company's policy was enforced more harshly against
Wiggs than against others. If it had been, it could have
been because of Wiggs' prounion activities. But here again,
evidence of company knowledge is not there. Even
assuming that Wiggs was not exaggerating the extent of his
distribution of authorization cards, there is no evidence
that it ever came to the Company's notice. If Gross asked
Wiggs, as the latter testified, whether he had signed a union
card, Wiggs' answer that he had not furnished Gross with
nothing to tie Wiggs in with the Union.
I credit Wiggs on this matter, and find that Gross'
question whether Wiggs had signed a union card was
violative of Section 8(a)(l). I do not, however, find that
Wiggs' discharge was for discriminatory reasons and I shall
therefore recommend dismissal of that allegation of the
complaint.
11. Fred Davidson worked as a tool crib attendant in
the tooling department under Foreman West. He is the
only 1 of the 12 alleged discriminatees of whose union
activities the Company was admittedly aware. Beginning
on May 3, a few days before his separation from
employment, Davidson openly distributed authorization
cards at the close of both the first and second shifts at the
two principal intersections of access roads to the plant.
Except to mention that Davidson was elected chairman of
the union organizing committee in late April, I see no need
to relate his earlier efforts on behalf of the Union. There is,
however, no evidence that his union adherence had come
to the Company's attention before May 3.
On Friday, April 30, West came to the tool crib where
Davidson was working about an hour after the shift began.
He found Davidson pale, gasping, and holding on to his
desk.21 West called for someone to replace Davidson in the
tool crib and drove him to the first-aid station to have the
nurse examine him The nurse took his blood pressure, had
him rest awhile, and then told him to go home and to see a
doctor. She called his wife to come for him because she did
not want him driving home alone. Davidson went out to
his car.
West, who had been out of the nurse's office, came back
and told her that Davidson had told him that a Coke he
had been drinking might have been spoiled or drugged.
The nurse, now even more concerned, went out to get
Davidson, but he had already driven off. Later, she called
him at home and told him to go see Dr Wensley, a
physician whom the Company used, at the Company's
expense. Davidson did so that afternoon and Dr. Wensley,
21 Davidson testified he was not feeling ill, only tired, but I find that
West was clearly concerned about his appearance and believed him to be ill
22 The company practice was that checks not delivered on Friday could
be picked up at the guard shack over the weekend, but were then returned
to the personnel office Monday noon
23 Mrs Davidson apparently also talked to Stahl, the personnel manager,
after examining him, told him he needed a more complete
examination from his own physician. Davidson then
returned to the plant to listen to the speech which the
company president gave that afternoon to the assembled
employees. Davidson saw West and showed him the slip
which Dr. Wensley had given him about needing a
complete examination. West also told him he could pick up
his paycheck (Friday being payday) at the guard shack.
Monday morning, May 3, Davidson arrived at the tool
crib ready for work, but West told him he would need a
clearance from the nurse before being allowed to return.
They then went to see the nurse, who told Davidson he
needed a complete examination by his own doctor.
Davidson balked at the expense, saying he could not afford
the $75 he thought it might cost, but West said, according
to Davidson, that he thought Blue Cross would pay for the
examination.
That afternoon Davidson went to see his own physician,
Dr. Moser, who gave him an examination in his office and
told him he would need laboratory tests before he could
decide about his returning to work. That afternoon,
Davidson began passing out union cards openly at the
main access routes to the plant. Also that afternoon, Mrs.
Davidson phoned Swimm, a supervisor one level above
West, to ask him about her husband's paycheck. Swimm
told her she would have to get it at the personnel office.22
Neither Swimm nor Mrs. Davidson testified, but West said
that Swimm had told him that Mrs. Davidson had
responded to this information by saying that she always
knew the Company would try to beat her husband out of
his last paycheck, and then hung up.23
From Tuesday through Thursday Davidson was engaged
in arranging for and taking the laboratory tests prescribed
by his doctor and in openly passing out union literature.
He did not call the Company during these 3 days. On
Thursday afternoon, May 6, Foremen West and Swimm
met with officials from industrial relations to discuss
Davidson's 3-day absence. They decided to check with the
Company's attorney, apparently because of Davidson's
open union activities, and he told them to treat Davidson
like any other employee who was absent for 3 days without
reporting in and to terminate him. No one apparently
thought it necessary to call Davidson to find out why he
had not come back with a doctor's clearance, so the
decision was reached to write out a stop card terminating
his employment.24
The next day Davidson called the personnel office and
was told he had been terminated. He then went to see Stahl
to learn why. Stahl said he had quit but Davidson denied
it, telling Stahl that he had been completing his laboratory
tests Davidson asked Stahl if he didn't know where he had
been, and Stahl replied that he knew where he had been
and what he had been doing. Stahl said the Company
would need the reports to show to Dr. Wensley before he
could do anything further.
The following Wednesday, May 12, Davidson brought in
about the check Stahl did not say that Mrs Davidson complained about
the Company trying to beat her husband out of his last check
24 West testified that he did not believe that Davidson intended to get a
physical examination in view of his balking at the cost, or that he intended
to return to work in view of his wife's comment to Swimm about the
Company trying to beat him out of his last paycheck
R. G LETOURNEAU, INC. 441
an EKG tape and other laboratory reports, but no
statement from his own physician summarizing the results
or stating his conclusions. Stahl asked for the reports to
show to the company safety supervisor so that he could
discuss them with Dr. Wensley, but Davidson said he
would not let them out of his sight. Stahl then asked him to
take them to Dr. Wensley. According to Davidson, he said
he would if the Company would pay for the visit, and Stahl
replied that he would have to find out if it would.
According to Stahl, he told Davidson to take the reports
to Dr. Wensley but said nothing about who would pay for
the visit Davidson and Stahl both agree that Stahl said he
would call Davidson between 4 and 5 p.m. that day, but it
was Davidson's understanding that Stahl was to let him
know if the Company would pay for the visit, while it was
Stahl's understanding that Davidson was to go immediate-
ly to Dr. Wensley, that the doctor would then let Stahl
know what the tests showed, and that Stahl would then call
Davidson to let him know whether the Company would
reinstate him Stahl said he called Dr. Wensley to tell him
that Davidson was coming to see him with the test reports,
and that Wensley should let him know what they showed.
Davidson did not go to Dr. Wensley's office that
afternoon, and at 5 p.m. Wensley phoned Stahl to tell him
that Davidson hadn't shown up. Stahl did not phone
Davidson. The next morning, Davidson came to see Stahl
and asked why he hadn't called him as he had promised.
Stahl replied by asking Davidson why he had not gone to
see Dr. Wensley as he had said he would. Davidson said
there was a "hell of a lack of communication between two
English speaking persons," took off his badge and handed
it to Stahl, saying that he knew that they weren't going to
put him back to work.
The Company has a policy of terminating employees
who are absent for 3 days without reporting in to explain
their absence. It contends that it treated Davidson lust as it
had treated others for like cause. But there is an obvious
difference between an employee who does not come to
work for 3 days nor call in to explain his absence, and an
employee who is taken ill while at work and is told that he
needs a doctor's clearance to return. For the Company to
terminate the latter employee because he has not called in
is to equate the employee's nonnotice with nonknowledge
on the Company's part The Company in fact knew why
Davidson had not come to work-West had even refused
to let him return on Monday, May 3-and for the
Company to claim that it did not know why he was absent
is simply untrue. If the Company had been genuinely
interested in learning on May 6 whether Davidson was
delaying his return unduly, it had only to call him, since it
was they who had forced him to leave on April 30 and on
May 3 Nor is it a sufficient answer that the Company
recognized no obligation to call absentees, since David-
son's absence was caused by the Company's own action
and its own requirement that he get a doctor's clearance.
21 Davidson had shown West on April 30 the slip he had gotten from Dr
Wensley that he needed a complete physical checkup, and Davidson himself
never said anything about quitting In fact , he reported for work on May 3
but West would not permit him to return without a clearance
26 On the other hand, I am certain that he did not do it too openly Since
he worked closely with Mefford, and Mefford had also solicited his card, I
would presume he operated as Mefford said he himself did Mefford
I find therefore that the Company, knowing of David-
son's open distribution of union cards, terminated him on
May 6 for that reason rather than because he had not kept
them informed as to his progress in getting a physician's
clearance. I also find that the belief of company officials
that Davidson had decided to quit before May 6, even if
sincerely held, does not excuse their failing to call him to
learn what his intentions were . In any event, their belief
that he had quit was based on such shaky inferences that I
cannot believe it was sincere.25
Without conceding that it terminated Davidson for
discriminatory reasons, the Company also argues that it
was prepared to reinstate him on May 12 when he brought
in the lab reports if Dr. Wensley would clear him. I find
this more persuasive than its previous argument, that
Union considerations did not enter into its decision to
terminate him on May 6, but still not persuasive enough. I
think there was a lack of communication between Stahl
and Davidson on May 12, when Davidson showed up with
the lab reports, as to when Davidson was to see Dr.
Wensley. I do not believe that Stahl was trying to trick
Davidson into not going to see the doctor that afternoon,
but the situation was unchanged the following morning
when Davidson returned to the office to complain that
Stahl had not called him. All Stahl had to do then was to
send Davidson to Dr. Wensley immediately, thereby
resolving the whole problem. Instead, he stood by silently,
leaving Davidson with the firm impression that the
Company was determined to rid itself of him one way or
another. I find that Stahl did not take the single step that
would have disabused Davidson of that impression,
because in fact he preferred that Davidson's previous
termination for discriminatory reasons not be abrogated. I
find that the Company thereby brought about Davidson's
separation in violation of Section 8(a)(3).
12. James Spencer was discharged on May 21, allegedly
for leaving his department without excuse or permission.
He had worked in department 888, heavy equipment
division, as a welder and setup man, principally as helper
to Robert Mefford, a master welder. Their supervisor was
E. C. Brooking.
Spencer had signed a union card some weeks before his
discharge, and had attended a few meetings at the Holiday
Inn. At or after one of these meetings , Spencer saw a plant
security guard on the grounds of the motel, and at two
other meetings he saw a couple of men whom he
recognized to be company supervisors , although he could
not identify them by name . Beginning about May 10, he
passed out cards in domes other than his own during lunch
periods without trying to hide his activities.26
Since Spencer could not identify the supervisors whom
he said he observed at the Holiday Inn during union
meetings , the Company could not call anyone to refute his
testimony. It may be that Spencer was telling the truth, but
I cannot find, based on his testimony alone, that the
testified at one point that he never tried to hide his union activities, but
another time testified that it was common practice to hide union activities
and that he made it a point to carry on such activities when supervisors were
not around If these two seemingly contradictory approaches can be
reconciled , it must be that the solicitors for the Union operated warily,
preferring to talk to other employees when they believed no supervisor to be
close by
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company was aware of Spencer's attendance at these
meetings. His foreman, Brooking, specifically denied
knowing that Spencer had engaged in any union activity.
About 11 a.m. on May 21, Spencer and Mefford left on a
three-wheeled cart to deliver some parts they had just
fabricated to a department in another dome. According to
them, they were gone 5 minutes or so, proceeding directly
to their destination, dropping off the parts and returning
without stopoffs or side trips. Spencer testified that he did
not need permission to leave the department, and had done
so in the past He said that Mefford had not told him or
asked him to come with him on the cart but that he had
done so on his own so that he would know where that
department was in case he ever had to go there while
Mefford was on vacation.
When they returned, Brooking said nothing to them.
Then just before quitting time at 3:30 p.m., Brooking told
Spencer to come with him to Supervisor Flanagan's office
where he was discharged for leaving the department
without permission and because he was not putting out the
work he was capable of.
Mefford testified that it was normal practice for his
helper to go along with him when he was delivering parts to
a department that the helper was not familiar with. Just
after Spencer was discharged, Brooking gave Mefford a
written reprimand for having influenced Spencer to leave
the department without permission. When Brooking gave it
to him, Mefford did not defend against the reprimand by
pointing out to Brooking that it was normal practice for his
helper to accompany him to other departments, nor did he
defend Spencer for going along with him, either of which
would seem to be the expected response against an
unjustified reprimand or discharge. Instead, all that
Mefford said to Brooking about the reprimand was to ask
Brooking if he had asked Spencer whether Mefford had
influenced him to leave the department. This seems to me
to imply that Mefford was denying any responsibility for
Spencer's action
According to Brooking's version of these events, he gave
Mefford permission to use the cart to deliver the parts (the
distance between the two departments was about 300 feet),
and 10 minutes later he noticed that neither Mefford nor
Spencer were at their work stations. After waiting another
10 minutes, he went to the department Mefford had gone
to but could not find them. As he was returning to his own
department he saw them returning on the cart from
another direction. Brooking later questioned Mefford as to
how long it had taken him to deliver the parts and why
Spencer had gone with him. Mefford told him that he had
not asked Spencer to come with him
Brooking said he also asked Spencer why he had gone
and that Spencer had merely said he wanted to, and that he
had no specific reason for going. Brooking then accused
him of joyriding and Spencer said, according to Brooking,
that that was about it. Brooking then talked the matter
over with his superior, and they decided to discharge
Spencer for leaving the department without permission.
I credit Brooking's account of what led up to Spencer's
discharge. Spencer's testimony that it was normal practice
for him to accompany Mefford when delivering parts is
inconsistent with other testimony of his that he went along
with Mefford only to learn where the other department was
in case he ever had to go there while Mefford was on
vacation. Further, that part of his story sounds improbable
because his ever needing to go there again was remote.
Finally, Mefford's failure to defend Spencer by pointing
out to Brooking why Spencer thought he had to accompa-
ny him, indicates that Mefford himself considered Spen-
cer's alleged reason to be inadequate.
The evidence as to Spencer 's union activities does not
persuade me that the Company knew of it , and the
testimony I have credited as to the reasons for Spencer's
discharge leads me to conclude that the allegations of the
complaint have not been proven. I shall therefore recom-
mend that the allegations relating to Spencer be dismissed.
13. Robert Mefford, who has been mentioned above in
connection with Spencer 's discharge , was a master welder
in department 888, supervised by Brooking . He voluntarily
quit the Company's employ some months after the
incidents involving him which are alleged as violations in
the complaint.
The 8(a)(1) allegations relating to him are that on or
about May 4 Brooking coerced and interfered with his
union activities by telling him in effect that he was a bad
influence on the other employees in the department
because he was for the Union; and on or about May 17
Brooking created an impression that Mefford' s union
activities were under surveillance , threatened him with
discharge, and urged him to quit because of his union
activities.
Mefford talked to Beam at the intersection on April 14
and offered to solicit employees in his department. From
that date to May 21, Mefford solicited fellow employees in
his department and elsewhere to sign union cards, and
distributed union literature on two occasions.27
Mefford testified that on May 4 he was in Foreman
Brooking's office and during their conversation Brooking
told him he was under pressure from higher management
because his department was strong for the Union, that
Mefford was a bad influence on the employees because he
was for the Union, and that he had a poor attitude toward
the Company.28
About 2 weeks later, Mefford testified , he went to
Brooking's office to ask him why he had not received the
merit raise which had come due for him about that time.
Brooking told him that he and Flanagan, Brooking's
supervisor, had decided that he didn't merit an increase
and that their reasons for denying him the raise had been
written up and sent up front and when the paper was
returned he would give it to Mefford to read . Mefford said
he asked Brooking if he was trying to pressure him into
quitting, but that Brooking did not answer him, telling him
instead about a union strike somewhere . Brooking also
said, according to Mefford, that the Company had decided
it didn't want a union at the plant . Mefford said that
employees still had a right to free speech and assembly,
27 I have previously noted that Mefford said at different times that (a) he union material only when supervisors were not around
made no attempt to conceal his activity, but (b) it was common practice to 21 Mefford testified that about 5 of the 12 or 13 employees in his
hide the same activities from supervisors and he made it a point to distribute department had signed union cards
R. G. LETOURNEAU, INC. 443
and that Brooking then told him that when you choose
sides you had to suffer the consequences , and that
LeTourneau would take action against anybody to keep
the Union out. Mefford then told Brooking that he had
gone to the union meetings out of curiosity , but Brooking
replied that he had received a lot more credit than that.
According to Mefford, Brooking then said that he realized
that what he was saying could be used against him.
Mefford again asked Brooking if he was trying to pressure
him into quitting and that Brooking said it would be a lot
more convenient for the Company if he did.
The next day, Brooking sent Mefford to see Flanagan.
Flanagan gave him a warning card which said that
Mefford had a poor attitude and had threatened to quit his
job. Mefford said he then told Flanagan that he had
neglected to write on the card that it was Brooking who
had suggested to him that he quit . Flanagan then asked
him when he was quitting and Mefford asked if Flanagan
was trying to pressure him into it. Flanagan told him he
wanted him to make up his mind, and Mefford said he
wanted a little time to look for anotherjob. Flanagan then
told him he was satisfied with his work but not with his
attitude or that of Spencer's
Flanagan did not testify, so that Mefford's story that he
was given an official warning allegedly because of his poor
attitude and his threat to quit his job stands undenied.
Mefford did not say that he had ever indicated to Brooking
or Flanagan that he wanted to quit , but I assume from the
fact that Flanagan told him he wanted him to make up his
mind and that Mefford said he wanted time to look for
another job, that Mefford had earlier let it be known that
he was thinking of quitting. Mefford did not testify that
Flanagan attributed either his poor attitude or his threat to
quit to his union activities, although it would follow, if
Mefford's testimony is to be credited, that Brooking had
made it plain to him the day before that the Company
wanted him to quit by denying him a merit increase and by
telling him that one who chooses sides must bear the
consequences, and that LeTourneau would take action
against anybody to keep the union out.
Brooking testified that he denied Mefford a merit
increase in May because Mefford, while doing some
welding had failed to remove the slag in an axle housing
where it could have ruined an expensive electric motor if it
had not been accidentally discovered in time. Brooking
said he told Mefford about it and that Mefford admitted
his oversight. Mefford denied however that Brooking had
given him any reason for being refused a periodic or
"merit" wage increase. Mefford was not asked specifically,
since his examination preceded that of Brooking, whether
Brooking had ever talked to him about his leaving slag in
the axle housing at some time other than when he was told
that he was being denied an increase.
As for Mefford's testimony that Brooking had told him
that he wa,, under pressure from management because his
department was strong for the Union, Brooking's version is
that he had told Mefford only that he was under pressure
because of the appearance of his department and his laxity
in letting employees leave early for their lunch break.
Brooking also denied saying to Mefford that when an
employee chooses sides he must take the consequences, or
that LeTourneau would take action against anyone who
supported the Union. Brooking also said that Mefford had
once in a general conversation told him he had attended a
union meeting out of curiosity, but that he had let the
subject drop because he knew from the supervisors'
meetings that it was illegal to question employees about
their attendance at such meetings.
My impression of Brooking , based on his testimony and
demeanor , was that he was kindly disposed toward
employees in his department (an attitude not uniformly
shared by LeTourneau supervisors), and somewhat unsure
of himself, as evidenced by his doing nothing concerning
personnel in his department without first checking with his
supervisor , Flanagan . He engaged in conversations with his
employees in which unions were discussed, and he drew on
his own past experience or assumed knowledge to point out
that unions could create problems in a plant, but I believe
that he would feel inhibited about going any further than
general arguments over the benefits or efficacy of unions.
I believe that Mefford had let it be known that he was
thinking of quitting but wanted to find another job first,
and that Brooking and Flanagan were on him to let them
know what he was going to do and when. It is possible that
Mefford's leanings toward quitting were due to what he felt
was the Company's antiunion attitude , but I believe that
Brooking and Flanagan honestly considered that his
attitude toward his work was poor, and that was why
Flanagan gave him a written warning on May 18.
The question of why Mefford was denied an increase in
May when he would have normally become entitled to one
is not easy to resolve. If it were definite that Mefford had
almost ruined an expensive motor because of carelessness
in not removing welding slag, then Brooking 's refusal to
give him a raise would be obviously justified. Mefford said
Brooking never told him that it was because of that
particular incident , while Brooking said he not only told
Mefford about it but that Mefford admitted he was at
fault.
I have decided to credit Brooking 's testimony on this
matter , as well as on his denials of Mefford's testimony
regarding his being a bad influence because he was for the
Union; that if you choose sides you must take the
consequences; and that LeTourneau would take action
against anyone to keep the Union out. Few credibility
resolutions in this case have been easy, but determining
what Brooking said both to Schluter and to Mefford has
been particularly difficult because he seems to have said
more to his employees than other supervisors said to theirs.
It is easy to assume that smoke implies fire , and that a
supervisor who speaks about a union or unionism at all has
on some occasion overstepped the limits of legitimate
discussion by uttering some veiled threat or by making
some inquiry as to an employee's union sentiments. There
is no doubt that it happens frequently enough I am just
not satisfied that it happened here, and I shall therefore
recommend dismissal of those allegations of the complaint
which are based on Mefford's testimony.
CONCLUSIONS OF LAW
I By discriminatorily terminating Joseph Grant, Jim-
my Hall, and Fred Davidson, thereby discouraging
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in the Union, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
2. By discriminatorily refusing to reinstate William
Wylie because he had filed charges under the Act,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(4) and (1) of
the Act.
3. Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by
Supervisor Graham interrogating Joseph Grant in a
coercive manner if he was for or against the Union and by
telling him to remove union stickers from his personal
property; by Supervisor Stahl threatening Jimmy Hall and
Jerald Jones that a union organizing campaign could result
in employee discharges by telling them that every time a
union started up he had to hire new men; and by
Supervisor Gross interrogating Riley Wiggs in a coercive
manner if he had signed a union card.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and from other
invasions of the employees' Section 7 rights, and to take
certain affirmative action.
I have found that Respondent illegally discriminated
against four employees in violation of Section 8(a)(3) or
(4); Joseph Grant, Jimmy Hall, William Wylie, and Fred
Davidson. Pursuant to the district court's order, granted on
the Regional Director's petition for an injunction under
Section 10(1), and after Respondent's motion for a stay was
denied, Respondent offered reinstatement to the 11 alleged
discriminatees named in the petition.29 Some of these 11
accepted the offer while others declined it. I do not know
who did and who did not. The normal procedure for
remedying the violations of Section 8(a)(3) and (4) found
here would be to direct the Respondent to offer immediate
and full reinstatement to all those who were discriminated
against , but certain modifications are necessary here.
Grant, Hall and Wylie have already been offered reinstate-
ment under the Court's order, which remains in effect
pending the Board's final disposition. I shall therefore
order Respondent to offer these three reinstatement unless
they have already declined Respondent's previous offer,
pursuant to the order of the district court. In any event,
each of them is also entitled to backpay computed on a
quarterly basis, as prescribed in F W. Woolworth Company,
90 NLRB 289, plus interest at 6 percent per annum, from
the date of the discrimination practiced against him, until a
date 5 days after the date on which an offer of
unconditional reinstatement was made to him.
29 Fred Davidson is the only I of the 12 alleged discnmmatees in this
proceeding who was not included in the Regional Director' s petition for an
injunction
30 Southern Airways Company, 124 NLRB 749, 752, National Packing
Company, Inc, 147 NLRB 446, 458
31 In the event no exceptions are filed as provided by Sec 102 46 of the
Davidson falls into a different category. It was stipulated
at the hearing that prior to his employment with Respon-
dent, he was convicted four times for serious criminal
offenses. The facts relating to these convictions are set out
in General Counsel's Exhibit 32. It was also stipulated that
Davidson's application for employment with the Company
was a complete fabrication , designed to conceal his past
criminal record. Nevertheless, if there were no Board
precedents on the issue of reinstatement and backpay for
persons with criminal records, I would have directed that
Davidson be at least reinstated, if not also made whole for
his loss of earnings, on the ground that the falsification of
his employment application and his past criminal record
should not forever deprive him of the opportunity to lead a
useful , self-supporting life. I consider, however, that I am
not free to disregard the few Board precedents which deny
reinstatement and backpay to discriminatees with previous
criminal records.30 I trust that it is not presumptous of me
to suggest that an exception might well be made here. But
whether or not the Board chooses to do so, I would also
commend to the Company that it condone Davidson's past
conduct, in the light of the religious and moral principles
and acts of charity which R. G. LeTourneau, its founder,
practiced, and for which he is justly remembered.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 3i
ORDER
Respondent , R. G. LeTourneau, Inc., its officers , agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Molders
and Allied Workers Union, AFL-CIO, or in any other
labor organization of its employees , by discriminatorily
discharging or refusing to reinstate any employee , or in any
other manner discriminating against any employee in
regard to hire , tenure, or any other term or condition of
employment.
(b) Interrogating its employees in a coercive manner as
to whether they were for or against the Union or had
signed union cards, threatening them that every time a
union campaign started up it had to hire new men, and
ordering employees to remove union stickers from their
personal property.
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their right to self-
organization , to form labor organizations , to loin or assist
the above-named labor organization , or any other labor
organization , to bargain collectively through representa-
tives of their own choosing, to engage in other concerted
activities for the purpose of mutual aid or protection as
guaranteed in Section 7 of the Act, or to refrain from any
or all such activities.
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order , and all objections thereto shall be
deemed waived for all purposes
R G. LETOURNEAU, INC. 445
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Joseph Grant , Jimmy Hall, and William
Wylie immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to
their seniority or other rights and privileges , and make each
of them whole for any loss of earnings suffered by reason
of the discrimination practiced against him, all in the
manner set forth in the section entitled "The Remedy."
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement , upon application after
discharge from the Armed Forces , in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records , timecards,
personnel records and reports, and all other reports
necessary to analyze the amount of backpay due, and the
right to reinstatement.
(d) Post at its plant and office in Longview, Texas, copies
of the attached notice marked "Appendix." 32 Copies of the
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by an authorized
representative of the Respondent, shall be posted immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of receipt of this
Decision, what steps Respondent has taken to comply
herewith.33
IT IS FURTHER RECOMMENDED that the allegations of the
complaint regarding any violations not found herein, be
dismissed.
32 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
33 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 16, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith "