Refiners Transport & Terminal Corp.

National Labor Relations Board - Board Decisions

May 16, 1967

164 N.L.R.B. 655 (N.L.R.B. 1967)

REFINERS TRANSPORT & TERMINAL CORP. 655
Refiners Transport & Terminal Corporation
and Kenneth H. McKeel . Case 7-CA-5589.
May 16,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 25, 1967, Trial Examiner Abraham H.
Mailer issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged and
recommending that the complaint herein be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Respondent
filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed.
called the Board, on August 2, 1966, issued on behalf of
the General Counsel a complaint against the Respondent,
alleging that the Respondent discharged said McKeel in
violation of Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended (29 U.S.C. Sec. 151, et seq.),
herein called the Act. In its duly filed answer, the
Respondent denied the commission of any unfair labor
practice.
Pursuant to notice, a hearing was held before me at
Detroit, Michigan, on October 5, 6, and 7, 1966. The
General Counsel and the Respondent were represented
and were afforded full opportunity to be heard, to
introduce relevant evidence, to present oral argument, and
to file briefs with me. Briefs were filed by both parties.
Upon consideration of the entire record, including the
briefs of the parties, and upon my observation of each of
the witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
At all times material herein, Respondent has maintained
its principal office and place of business in the city of
Hinsdale, Illinois, and maintains other places of business
in the States of Michigan, Ohio, Illinois, and Indiana.
Respondent is, and has been at all times material herein,
engaged as an interstate and intrastate common carrier of
bulk commodities. Respondent's terminal located at 3335
Greenfield, Melvindale, Michigan, is the only facility
involved in this proceeding. During the year ending
December 31, 1965, which period is representative of its
operations during all times material herein, Respondent,
in the course and conduct of its business operations,
performed services valued in excess of $500,000, of which
services valued in excess of $8 million were performed in
the furnishing of transportation services of commodities in
interstate commerce and for various enterprises located in
States other than the State of Michigan. Accordingly, I
find and conclude that the Respondent is engaged in
commerce within the meaning of the Act and that it will
effectuate the policies of the Act for the Board to assert
jurisdiction here.
II. THE LABOR ORGANIZATION INVOLVED
I Without resolving the conflict in testimony occasioned by
Terminal Manager Pretari's denial that he made certain
statements attributed to him by three of the General Counsel's
witnesses, the Trial Examiner found that such statements are
"patently ambiguous" and do not constitute an admission that
McKee) was discharged for engaging in concerted activity As we
agree with the Trial Examiner's characterization of the
statements allegedly made by Pretari, we find it unnecessary to
determine the credibility issue Further, we find superfluous, and
hereby disavow, the Trial Examiner's speculations as to why
Pretan would have made those statements attributed to him
Local No. 7-389 , Oil, Chemical and Atomic Workers
International Union , AFL-CIO , herein called the Union, is
and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ISSUE
Whether the Respondent discharged Kenneth H.
McKeel because he had engaged in union or concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.
IV. THE ALLEGED UNFAIR LABOR PRACTICE
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ABRAHAM H . MALLER , Trial Examiner : On June 8, 1966,
Kenneth H . McKeel filed a charge against Refiners
Transport & Terminal Corporation , herein called the
Respondent . Upon said charge, the Regional Director for
Region 7 of the National Labor Relations Board , herein
A. The Contentions of the Parties
McKeel was discharged on December 23, 1965.
Respondent contends that McKeel was discharged
because he had severely beaten another employee,
Joseph R . Bonds, during worktime and while on company
property . The General Counsel contends that McKeel's
assault on Bonds was used as a pretext and that McKeel
was discharged because of his leadership and
164 NLRB No. 99
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participation in a concerted protected activity involving
the efforts of McKeel and certain other employees to
remedy what they considered to be an unjust deprivation
of certain seniority rights.
B. The Fight
McKeel, at the time of the hearing, was 41 years old, 5
feet 11 inches in height and weighed 178 pounds. Bonds,
on the other hand, was 53 years old, 5 feet 9 inches tall and
weighed only 130 pounds. At the time of the altercation,
Bonds was not in good health. He had previously
undergone an operation in which one-half of his stomach
had been removed. In addition, he was suffering from
bursitis. It is a reasonable inference that McKeel knew of
Bonds' physical condition because they had been working
at the same terminal and Bonds had been absent from
work for an extended period of time because of the
surgery.
On December 17, Bonds had completed his deliveries
and returned to the terminal to refuel the truck he drives
before parking it and making out his waybills.' When he
drove into the terminal , the fuel islands were blocked by
other trucks, and he was unable to get to the gas pumps.
After waiting about 10 minutes, Bonds went to the drivers'
room to find out whose trucks were parked near the
pumps. John McLaughlin, another driver, told Bonds that
one of the trucks was his and one was McKeel's. Shortly
thereafter, McLaughlin moved his truck, but at that point
another driver, Martin Becker, came through the terminal
gate, and, not knowing that Bonds was waiting for the
space, pulled directly up to the fuel island , again blocking
Bonds. Bonds then got out of his truck and drove McKeel's
truck out of the way. He then proceeded to fuel his truck
and check the tires and oil. Finding that oil was needed, he
picked up an oil can and started for the garage. About this
time, McKeel came out of the drivers' room and asked who
moved his truck. Bonds replied that he had. As McKeel
drew close to Bonds, he pointed his finger at him and said,
"Who do you think you are moving my truck?" Bonds
pointed his finger at McKeel, intending to ask him who he
thought he was parking his truck in front of the pump and
leaving it there. However, all he was able to say was, "Who
.. " when McKeel said, "Don't point your finger at me,"
and proceeded to beat Bonds with his fists and his knee.
Bonds was severely beaten on the head and chest. He
testified that there was a big patch of skin torn from his
cheekbone, that his eye was black and blue, his nose was
bleeding, his upper and lower lips were cut, that he had a
bruise on the right shoulder blade that was about the size
of a baseball, black and blue and very sore, and had a knot
on his head as big as a hen's egg. Bonds was knocked flat
by the onslaught. He made an effort to rise but was
apparently unable to do so and fell back. McKeel with the
assistance of Becker picked him up. As he did so, McKeel
' It was the duty of the drivers to service their trucks and make
out the waybills before leaving work each day
2 The foregoing account is based upon the credited testimony of
Bonds, supplemented and corroborated in various respects by
employees Becker, McLaughlin , and Hoffman , none of whom
witnessed the entire incident McKeel admitted striking Bonds,
but claimed he acted in self-defense, testifying that Bonds had
"doubled up his fist and he started to draw it back, and when he
did, I hit him I did this to protect myself." I do not credit
McKeel's testimony. Considering the comparative size and
physical condition of the two men and the severity of the beating
administered by McKeel, I find it impossible to believe that
McKeel was acting in self-defense or even thought so McKeel's
told Bonds that he was sorry. Becker said to McKeel, "Go
ahead and I will take care of him." McKeel replied, "I'm
afraid now if I leave go, he will hit me." To this Becker
replied, "He isn' t going to hit you, just go ahead and I will
take care of him." Becker then helped Bonds into
Foreman Steinseifer's office. He testified, "I didn't exactly
carry him but ne stumbled along like a man in a drunken
stupor." Becker asked Bonds if he wanted a doctor, and
Bonds replied in the negative . He said that he had more
work to do on his truck, that he had not put oil into it, and
Becker replied that he would take care of that for him.2
Some time later Bonds, accompanied by Becker, drove to
the Melvindale police department, where Bonds filed a
complaint against McKeel.
The fight was reported to John Pretari, Respondent's
Detroit operations manager , about 7 p.m. that day, by
either Foreman Steinseifer or Union Steward Leonard
Grauman, who telephoned Pretari and told him that there
had been a fight and that Bonds wanted to talk to him.
Bonds told Pretari that he had been "pretty badly beaten."
Pretari asked to talk to McKeel, but the latter had already
left the premises.
The next morning, at approximately 8 a.m., Pretari saw
Bonds at the terminal garage and noted that the latter's
face "was pretty well beaten." Pretari then telephoned
Respondent 's main office in Hinsdale and spoke with
George Lesley, safety director and personnel manager of
the Respondent. They agreed that the matter should be
held over until Monday when they could discuss it with
Donald H. Weddle, vice president in charge of operations.
The next day, Saturday, Pretari discussed the matter
with some of the employees and expressed the opinion that
"as it stacked up at the present time I would have to say
that Ken McKeel was in line for a reprimand."
On the following Monday, Vice President Weddle
telephoned Pretari and instructed him to suspend both
drivers until there could be a hearing and investigation.
Pretari thereupon suspended both drivers and set up a
meeting for Thursday, December 23 at 11 a.m. McKeel
asked for, and obtained, permission to bring witnesses.
Union Steward Grauman also asked and received,
permission for himself and J. Roy Johnston, secretary-
treasurer of the Union, to attend the meeting.
On December 23, McKeel, Bonds, and the witnesses
and observers appeared at Pretari's office. McKeel was
accompanied by drivers McLaughlin and Hoffman, and
one Jerry Morrow. Pretari asked McKeel who Morrow was
and, on learning that Morrow was there as a character
witness for McKeel, told Morrow that he "didn't think it
would be necessary that he testify because he was actually
not connected with this at all."3
Prior to the hearing Pretari told McKeel and Bonds that
he would interview each person separately without
confrontation by the principals . Both agreed to this
later statement , when Becker told him to let go of Bonds, that he
was afraid Bonds would hit him, indicates a fear of retribution
rather than self-defense McKeel's alleged fear that Bonds would
hit him after having been severely beaten is somewhat
incomprehensible in the light of McKeel's own testimony that
when Bonds "attempted to get up again , he was dizzy, or
appeared to be dizzy, groggy, and I thought possibly he fell back
and hit his head and had a concussion "
3 According to McKeel, Pretari told him that Morrow's
testimony would be unnecessary because "there would be nothing
coming out of this investigation" and told the same thing to
Morrow Morrow did not testify in the instant proceeding I do not
credit McKeel's testimony in this regard.
REFINERS TRANSPORT & TERMINAL CORP. 657
procedure.' Pretari took notes of the testimony of each
witness and then transcribed them on a typewriter.
Following the hearing, Pretari called Vice President
Weddle in Hinsdale, read his notes to him and discussed
the matter. During the telephone conversation, it was
decided that Bonds be reinstated and that McKeel be
discharged. Pretari then announced the Respondent's
decision to McKeel, Bonds, and the Union's
representatives. Pretari also told McKeel that the union
officials were still present and that McKeel could confer
with them if he desired. McKeel met with them for about
10 to 15 minutes and then left.
Subsequently, McKeel called Johnston and requested
arbitration. Thereupon Johnston wired the Respondent to
that effect. Later, at a statewide meeting, the Union, the
membership, by secret ballot voted not to arbitrate
McKeel's grievance, and Johnston so notified the
Respondent.
As previously indicated, Bonds filed criminal charges
against McKeel in the Melvindale Municipal Court. After a
trial, McKeel was convicted of assault and battery and
fined $25 and $2 50 costs. McKeel appealed the conviction
to the circuit court. Bonds appeared at the Wayne Circuit
Court and after talking to Detective Green, assigned to the
case, withdrew the charges for the reason that he had no
desire to cause any trouble to McKeel.
C. The Seniority Dispute
McKeel had been employed as a truckdriver by the
L. A. Smith Company for a number of years when, on
March 1, 1959, the Respondent purchased the assets of
the L. A. Smith Company and took over its operations.
From March 1, 1959, until December 1, 1963, McKeel was
employed at a terminal site in River Rouge, Michigan,
which had served as a terminal site of the L. A. Smith
Company. After the 1959 acquisition, McKeel and the
other drivers formerly employed by L. A. Smith Company
continued to perform their duties in essentially the same
manner, except that they were now in the employ of the
Respondent. The Union continued to represent the Smith
employees as their collective-bargaining agent.
During November 1963, the Respondent initiated
operations at a new terminal in Melvindale, Michigan. At
that time, Respondent closed an old terminal located at
Dearborn, Michigan, and transferred to the new
Melvindale terminal approximately 35 of the employees
formerly stationed there. On or about December 1, 1963,
the Respondent terminated its operations at the River
Rouge terminal and transferred the former L. A. Smith
employees to the Melvindale terminal, thus effectuating a
combined work force of both former L. A. Smith
employees and Refiners Transport employees.
Prior to December 1, 1963, the former L. A. Smith
employees were given full credit for their seniority
obtained during the employment with the L. A. Smith
Company. However, when notified of their transfer to the
Melvindale terminal, they were informed by the
Respondent that they would carry seniority relating back
to March 1, 1959, only. This announcement was in accord
with the provisions of a collective-bargaining agreement
entered into between the Respondent and the Union,
effective November 12, 1962.5
Subsequently, a grievance was filed by employee Gerald
Lamoureux on behalf of the former Smith employees. The
grievance was rejected by the Respondent, and the Union
by a vote of its members at a statewide meeting voted
against taking the grievance to arbitration.
A meeting was then held of all former Smith employees
who decided to pursue their seniority rights through legal
proceedings. To carry out this object, a committee
consisting of McKeel as chairman, and Lamoureux and
William S. Keeley, was elected. The committee retained
an attorney, Dee Edwards, who on February 20, 1964,
wrote to the Respondent requesting processing of the
grievance and expressing the willingness of the employees
to go to arbitration. The letter, inter alta, named the
committee. In due course, the letter came to the attention
of Vice President Weddle.
On or about April 1, 1964, Attorney Edwards filed a
class action in the name of William S. Keeley, as plaintiff,
against the Respondent and the Union, alleging a breach of
contract by the Respondent and conspiracy with the
Union, by its action in reducing the seniority credit of the
Smith employees. Subsequently, the suit was transferred
to the United States district court where it is still pending.
Attorney Edwards was later replaced by Attorney
Ellsworth K. Hanlon.
McKeel participated in the legal proceedings, attending
deposition hearings, court proceedings, meetings in the
judge's chambers, and settlement conferences which were
attended by representatives of both the Respondent and
the Union, at which conferences he acted as spokesman
for the Smith group. A pretrial conference was set for
December 22, the day before McKeel's discharge.
With regard to the attempts to settle the lawsuit, I am
satisified that the Respondent took the position that the
seniority question was an intraunion matter in which it had
no real interest other than refusing to accept a solution
which would require two separate dispatch systems. Thus
Abraham L. Zwerdling, attorney for the Union in the
lawsuit, testified as follows:
. it was the position of Mr. Butler [attorney for the
Respondent], as he stated it to me, probably a couple
of times, as I remember it, it was his position they
didn't care how we sliced it, the only thing was ...
about one proposal which related to what is described
as having two separate boards, he said the company
couldn't go for that but short of that, they didn't care
how it was worked out so long as it was worked out
internally, which is a typical employer position in a
seniority situation.
The uncontradicted testimony of Pretari
The pertinent provisions are set forth in article IV, seniority,
section 1 , as follows
(b)(1) in accordance with the Successor and Assignees'
Clause from the former L A Smith Company contract, it is
mutually agreed and understood that the former employees
of the L A. Smith Company (purchased by Refiners
Transport & Terminal Corporation in March 1959), at its
River Rouge and Napoleon , Michigan, terminals , who are
presently employed under the terms and conditions of this
Agreement , shall retain all past seniority and benefits
accrued while being employed by said L A Smith Company
(2) It is further agreed and understood that the River Rouge
and Napoleon, Michigan, employees shall not use their
seniority to displace Refiners Transport & Terminal
employees on a local or state-wide basis, except employees
who were hired on or after March 1, 1959
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This was substantially corroborated by Attorney Hanlon
who testified that the Respondent rejected two settlement
proposals because it would not accept any proposal which
would require two dispatch systems, that the Union
rejected two other settlement proposals, and that the
Respondent had no objection to the fifth proposal of
settlement in which the Smith group offered to take half of
the seniority.
D. Concludtng Findings
The record is devoid of any evidence of animus on the
part of the Respondent toward McKeel. The litigation had
been pending for more than a year and a half before he was
discharged. I find it strange to believe that, had the
Respondent desired to discharge McKeel because of the
seniority dispute or the litigation, it would have waited so
long to find a pretext to accomplish that purpose.
There are only two events adduced by the General
Counsel which it is contended relate McKeel's discharge
to the seniority dispute and/or the litigation. These involve
alleged admissions by Manager Pretari to that effect.
One is alleged to have occurred on February 15, 1966,
under the following circumstances: Subsequent to his
discharge, McKeel filed a claim for unemployment
compensation under the Michigan Employment Security
Act (MESC). The MESC hearing was scheduled for on or
about February 15 at its offices in Detroit. Representing
McKeel was Attorney Hanlon. Only Manager Pretari
appeared on behalf of the Respondent. The initial hearing
was very brief, as Pretari did not bring certain records
requested by Attorney Hanlon, and a postponement of the
hearing was agreed to in order that Pretari could bring in
the requested records. After the hearing was adjourned,
Pretari, Attorney Hanlon, and McKeel proceeded from the
hearing room toward the elevator. According to Attorney
Hanlon and McKeel, the following then occurred: As the
three men were waiting for an elevator, Attorney Hanlon
placed his hand on Pretari's shoulder and said: "You must
feel pretty proud of yourself, Mr. Pretari, firing a man with
15 years service with your Company for something which
you have never fired anybody before ... You have to shave
in the morning and you have children. How do you look in
the morning and how do you justify this to you
conscience?" After they got into the elevator and as the
elevator descended, Attorney Hanlon continued in the
same vein. As he left the elevator, Manager Pretari said, "I
have taken my lumps in this 15 years or so that I have been
with the Company." Hanlon then said, "Mr. Pretari, I
understand these things, somebody makes these balls and
you have to fire them." Pretari responded, "Look, I will
tell you why McKeel lost his job. It wasn't the fight. It was
over the lawsuit. Hell, the people in Chicago knew all
about this when I called them. I hadn't even told them
about it but they knew all about it. I never would have fired
McKeel. McKeel is one of the best workers I ever had.
McKeel is above average in everything he does and he has
been a responsible, level-headed man, and I would have
never fired him." When Pretari left, Hanlon took a pad of
paper from his briefcase and made notes of Pretari's
alleged remarks.
In this connection, it may be noted that Attorney
Hanlon's memorandum differs from his testimony. In his
testimony detailed above, Hanlon quoted Pretari as
saying: "I will tell you why McKeel lost his job. It wasn't
the fight. It was over the lawsuit." However, the pertinent
part of the memorandum reads: "I'll tell you what cost
Ken McKeel his job. It's the argument between the two
groups." It thus appears that Attorney Hanlon's testimony
is exaggerated in this regard. Clearly, his memorandum
made shortly after the event is more reliable. Moreover,
McKeel's version of the incident agrees with Hanlon's
memorandum, rather than with his testimony. According
to McKeel Pretari attributed McKeeFs_discharge to "the
argument between the two groups."
Pretari's version of the incident was substantially
different. According to Pretari, Attorney Hanlon said,
"You have to look yourself in the mirror when you shave
... you and your company should be ashamed of
yourselves for depriving a man of making a living." To this
Pretari replied, "Hanlon, you are not blaming me for what
Ken McKeel did." Hanlon answered "Yes, I am." As they
walked from the elevator to the street, Attorney Hanlon
asked several questions and answered them himself.
Before they parted, Pretari asked McKeel whether he was
working. Hanlon said, "Don't worry about Ken McKeel.
He will get along." Pretari then said, "Well, I don't doubt
that at all because I have always classified Ken McKeel as
one of the better drivers and as far as I am concerned Ken
McKeel is better than average in anything he ever done for
me, driving, records and appearance. I have never had
anything to say about Ken, and as far as that goes, Ken,
anytime you want my recommendation I will go as far as I
can for you." Pretari specifically denied saying that
McKeel lost his job because of the argument between the
two groups. He also denied saying that his superiors in
Chicago knew about the fight before he told them.
The other alleged admission involves a statement
allegedly made by Pretari to employee William S. Keeley,
a member of the Smith group and the plaintiff in the
litigation. During his cross-examination , Pretari denied
that he had ever told any employee that, if the decision
were left up to him, he would never have discharged
McKeel. On rebuttal, Keeley testified that on or about
December 27, shortly after McKeel's discharge, Pretari
was talking to him about certain contract negotiations that
were then in progress. During the conversation Keeley
remarked, "That was some Christmas present McKeel
got, wasn't it, and he got fired 2 days before Christmas."
According to Keeley, Pretari said, "Yes I feel real had
about that," and continued:
I want you to understand that this wasn 't my decision,
that if it was left up to me Mr. McKeel would have
gotten a reprimand or possibly three days off at the
most but that's all, that the Company is the one that
discharged Mr. McKeel . you know the real
problem behind this whole thing is the seniority
problem ... I wish they would let me take a couple of
you guys and a couple of guys from the other side and
go into a room and I guarantee we could thrash this
thing out and come out with a solution.
The key language in the foregoing statement: "the real
problem behind this whole thing is a seniority problem," is
patently ambiguous. If by the phrase "this whole thing,"
Pretari was referring to the discharge alone, his statement
would constitute a damaging admission . However, I
believe that "this whole thing" implied something more
than the discharge, that Pretari meant that the assault by
McKeel, a member of the Smith group , upon Bonds, a
member of the Refiners group, was caused by the deep-
seated antagonism between the two groups of employees
resulting from the seniority dispute. To say the least, the
statement attributed to Pretari is ambiguous , and this
ambiguity detracts from the force of the statement.
REFINERS TRANSPORT & TERMINAL CORP. 659
Normally, I would attach great weight to admissions.
However, these statements must be weighed against the
following considerations: (1) The seniority dispute and the
litigation had been pending for more than a year and a
half; (2) the Respondent during all that time had never
exhibited any animus toward McKeel or any of the
members of the Smith group; (3) in view of great
probability that none of the members of the Smith group
was perfect, the Respondent could have found some
reason to discipline or discharge one or more of them
during- that period, if it sought a pretext to weaken the
group's efforts; (4) the Respondent took a neutral attitude
toward a dispute which was purely an intraunion matter;
(5) McKeel viciously assaulted Bonds during working time
and on company premises, an event which, in itself,
justified his discharge; and (6) Respondent did not
discharge McKeel out of hand; rather, it suspended both
McKeel and Bonds immediately and then held a hearing
during which it heard from the participants and the
witnesses and then discharged McKeel only after a
telephone conference between Pretari and Vice President
Weddle, in which Pretari read his notes of the hearing to
Weddle.6 In these circumstances, I cannot believe that
Pretari's admissions represented the truth. One might
therefore appropriately ask: What would prompt Pretari to
make admissions which were contrary to fact? The answer
probably lies in the surrounding circumstances. Thus, the
statements made to Attorney Hanlon appear to be the
conduct of a man who sought to escape Hanlon's
badgering by shifting the blame from himself to his
superiors. In the case of the statement to Keeley, even if
arguendo it is construed most favorably to the General
Counsel's case, it might well have been prompted by a
desire to maintain a good personal relationship with the
Smith group with whom Pretari would have to continue to
work. This is evidenced by his concluding statement to
Keeley: "I wish they would let me take a couple of you
guys and a couple of guys from the other side and go into a
room and I guarantee we could thrash this thing [the
seniority dispute] out and come out with a solution."
In view of all the foregoing, I find and conclude that
McKeel was discharged because of his assault upon Bonds
and not by reason of the seniority dispute and/or the
lawsuit. "The Act does not protect violence, and fighting is
not a protected activity even if union activity gives rise to
it." (Continental Can Company, Inc., 136 NLRB 1135,
1137.) Even if the Respondent had desired to discharge
McKeel because of the seniority dispute and/or the
lawsuit, his discharge for fighting would not constitute a
violation of Section 8(a)(3) of the Act. In Klate Holt
Company, 161 NLRB 1606, the Board said:
The mere fact that an employer may desire to
terminate an employee because he engages in
unwelcome concerted activities does not, of itself,
establish the unlawfulness of a subsequent discharge.
If an employee provides an employer with a sufficient
cause for his dismissal by engaging in conduct for
which he would have been terminated in any event,
and the employer discharges him for that reason, the
circumstance that the employer welcomed the
opportunity to discharge does not make it
discriminatory and therefore unlawful.
I therefore find and conclude that the Respondent did
not violate the Act by discharging McKeel.
RECOMMENDED ORDER
For the reasons above set forth and on the entire record,
it is hereby recommended that the complaint be dismissed
in its entirety.
6 In his brief, the General Counsel casts some aspersion upon
the nature of the hearing conducted by Pretan in that Pretari did
not confront McKeel or Bonds with the contradictory version
given by each and did not question any witness as to conflicting or
inconsistent statements The General Counsel's position is
without merit Respondent was not required to hold a hearing.
Moreover, the nature of the hearing and the procedure adopted by
Pretari had been agreed to in advance by both McKeel and Bonds.
298-668 0 -69-43