The Babcock & Wilcox Co.

National Labor Relations Board - Board Decisions

Jul 25, 1960

128 N.L.R.B. 239 (N.L.R.B. 1960)

THE BABCOCK & WILCOX COI\IPANY 239
The Babcock & Wilcox Company and International Brother-
hood of Boilermakers , Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO, Local Union No . 903. Case
No. 26-CA-903 (formerly 15-CA-1488). July 25, 1960
DECISION AND ORDER
On March 29, 1960, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that the
,Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other alleged unfair
practices and recommended that the allegations of the complaint with
respect thereto be dismissed. Thereafter, the Respondent, the Charg-
ing Party, and the General Counsel filed exceptions to the Inter-
mediate Report, and supporting briefs.
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
Intermediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The Babcock &
Wilcox Company, West Point, Mississippi, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating employees coercively concerning their union
membership and sentiments; attempting to coerce employees to vote
against the International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union
No. 903; soliciting employees to assist Respondent in preventing other
employees from joining the said Union or to assist in procuring their
withdrawal from it; warning employees to withdraw from the said
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Leedom and
Members Bean and Fanning].
O The Trial Examiner found that Brooks' coercive charge that Redus and'Covington were
union organizers violated Section 8(a) (1) of the Act. As this charge was accompanied
by an implied threat that being seen talking to a union organizer would affect Redus' job,
we agree with the Trial Examiner that this statement was coercive.
128 NLRB No. 36.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and promising benefits to do so; threatening the loss of benefits
and threatening to replace colored employees with white employees
if the said Union should come in; and threatening trouble if em-
ployees should file an unfair labor practice charge.
(b) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist the above-named
Union, or any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post at its plant at West Point, Mississippi, copies of the notice
attached hereto marked "Appendix A." 3 Copies of said notice, to be
furnished by the Regional Director for the Twenty-sixth Region,
shall, after being signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof and maintained by it
for 60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by other material.
(b) Notify the Regional Director for the Twenty-sixth Region,
in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that except as found herein, the com-
plaint be, and it hereby is, dismissed.
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order"
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate employees coercively concerning their
union membership and sentiments; attempt to coerce employees
to vote against International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO,
Local Union 903; solicit employees to assist us in preventing
other employees from joining the said Union or to assist us in
procuring the withdrawal of other employees from said Union;
warn employees to withdraw from said Union and promise bene-
THE BABCOCK & WILCOX COMPANY 241
fits to do so; nor will we threaten the loss of benefits, threaten to
replace colored employees with white employees if the said Union
should come in, or threaten trouble if employees should file an
unfair labor practice charge.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No.
903, or any other labor organization, to bargain collectively
through representatives of their own choosing, or to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection or to refrain from any or all
such activities.
THE BABCOCK & WILcox COMPANY,
Employer.
Dated------------ ---- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations
Act as amended (61 Stat. 136), was heard in West Point, Mississippi , on December
8, 9, and 10, 1959, pursuant to due notice and with all parties represented. The
amended complaint , issued on October 26 , 1959 , by the General Counsel of the
National Labor Relations Board and based on charges duly filed and served , alleged
in substance that Respondent engaged in unfair labor practices proscribed by See-
Ition 8(a)(1) and ( 3) of the Act (1 ) by a series of specified acts of interference,
restraint, and coercion from November 1958 through April 1959 , and (2) by
discriminatorily discharging and refusing to reinstate Tom Avant on November 12,
1958, and Cleo Eaton on January 21, 1959, because of their union membership and
acitvities . Respondent denied all allegations of unfair labor practices.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS ; THE LABOR ORGANIZATION INVOLVED
I find on facts alleged in the complaint and admitted in the answer ( i.e., annual
extrastate shipments of boilers valued in excess of $50 ,000) that Respondent is
engaged in commerce within the meaning of the Act, and that the Charging Union
is a labor organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Introduction and issues
In October 1958 the Charging Union began , through Fred F . George, Jr., district
representative , an organizing campaign at Respondent's West Point plant, which
employed some 600 employees . The management had received prior word from the
Brunswick , Georgia, plant that George had informed it he was moving into West
Point, and George from time to time furnished to A. A. Murray , plant manager, lists
of the names of employees who had joined , aggregating ultimately around 200
members up to January 19, 1959 . An election was held on April 24, which was
won by Respondent 308 to 217 , though the Union's objections are still undisposed of.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Numerous witnesses testified on both sides concerning numerous alleged incidents
of interference, restraint, and coercion which were attributed to Respondent's super-
visors (A. A. Murray, plant manager; C. H. Fields, personnel manager; Lawrence
Brooks, J. B. Gilliland, L. Kinard, Prentiss Brewer, J. W. Gandy, Jack L. Young,
Perry Ford, Ray Bennett, and Darrell Thompson). The issues on those incidents
are mainly factual, though in some instances questions are presented whether Re-
spondent's conduct was, as a matter of law, violative of the Act. The issues con-
cerning the alleged discriminatory discharges of Tom Avant and Cleo Eaton are
also purely factual.
Turning first to the Section 8(a)(1) violations, the evidence will be summarized
under the names of the respective supervisors, to whom ,the statements and conduct
were attributed.
B. Interference, restraint, and coercion
1. The evidence
Darrell Thompson
Billy Frank Faulkner testified that before the election in April, Thompson dis-
cussed the Union with him at Faulkner's home in the presence of Faulkner's wife,
telling Faulkner among other things that he wanted Faulkner to "pull out" and
help the Company to keep the Union from coming in, and that he would help
Faulkner to get a better job (as a leaderman) by speaking to Murray. Faulkner
testified that Thompson talked with him to similar effect on a second visit to his
home.
Thompson denied Faulkner's testimony and denied that he was ever at Faulkner's
home. He testified that Faulkner once stopped at his home and invited him to go
to a union meeting and that he told Faulkner of his experience with unions and
explained his reasons for not going.
C. H. Fields
Faulkner testified that on January 25 he went to Fields' office as a result of a note
on his timecard, that Fields ordered him to take off his union button, said the
Company would not have a union in the plant, and asked Faulkner to help the
Company to keep from being organized. Fields also referred to Cleo Eaton's dis-
charge and said that Eaton was not the only one who would be fired. He also said
the Company would fire all the union members and if that did not work they would
close the plant down and move back to Barberton.
Fields denied that he had any such conference with Faulkner on January 25 (a
Sunday) or on any other day, and denied making all the statements which Faulkner
attributed to him. He testified that he called Faulkner to his office in March, April,
and May, 1959, that on two of those occasions he discussed Faulkner's absenteeism
with him, and on the other the matter of a bad check charge.
Jack L. Young
Clifton H. Treadgeal testified that in December, Young stated he was surprised
to see Treadgeal wearing union buttons since the Company had paid him $30 a week
for some 5 months while Treadgeal was off (as a result of his accident), and that
Treadgeal should have thought of that when he joined the Union. Young referred
to a letter that Murray had sent to the employees, suggested that Treadgeal quit if
he was not satisfied, and said that it looked as if a lot of the employees were forcing
the Company to put them "out the door." Young then, suggested that Treadgeal
go to Murray's office, tell him of their discussion and that Young had told Treadgeal
to turn in his union buttons, and added that when he (Young) returned from vaca-
tion, he hoped he would not see Treadgeal wearing the buttons. Treadgeal testified
to another conversation in March 1959, when there was reference to a 10-cent raise
Treadgeal had gotten. Young asked if the "union man" would give him 10 cents,
and stated that if the Union came in and got the employees a raise, the Company
would do as the American Box Company in Columbus had done, and lay off 200
employees.
Young denied Treadgeal's testimony of a conversation concerning the Union.
He testified that his conversation related only to Treadgeal's return to work after a
long absence due to an accident, and that only his job and his health were discussed.
Lawrence Brooks
Treadgeal testified that around November 12, Brooks asked him to come to the
office "for a little talk." Brooks there told Treadgeal he thought they understood
THE BABCOCK & WILCOX COMPANY 243
each other better , that he was surprised to see Treadgeal with union buttons on, that
work was short and they were stretching it out among the men , but if the Union
came in they would shut the plant down . Brooks continued that there were some
men he could trust and some whom he could not, and that if Treadgeal would stop
down the road that afternoon and cancel his membership with the man who was
parked there , Treadgeal could go on as if nothing had happened.
Robert Brown, who had once been a leaderman , testified that between December
1 and 10, 1958, Brooks suggested that he read an article on supervising exforemen,
which was contained in the supervisor 's manual , and that Brooks later told Brown
that if he would pull off his union button and "pull out," Brooks would put him in
a "red-circle rate," but that if he did not do so , Brooks would ride him.
George Redus testified that in the first week of November he was called into
Brooks' office and that, after asking whether he liked his job, Brooks stated that
Redus did not seem to care for it because he had seen Redus talking to Covington
(another employee) and that Covington was an union organizer . When Redus
denied discussing the Union , Brooks continued that Covington had already shown
what side he was on and that when Brooks saw them talking , he figured they were
of the same stripe. Brooks called Redus in again in a day or so, stating that they
had him back for talking to two more men, and told Thompson , a supervisor, that
if Redus gave any more trouble to bring him back and they would send him "out
the gate."
Redus testified that he was not discussing the Union with employees during work,
that his work carried him to other areas of the plant , and that there was no rule
against talk among the employees . He admitted on cross-examination that the
subject of both conversations with Brooks was his absence from his place of work
and that Brooks read him a company rule on the subject and a rule against solicita-
tion on company time.
There was also testimony by Charles Shelton, Jr., James Watt, James A. Cherry,
and Jimmy Dunlap concerning reprimands which Brooks had given them about
talking to other employees during working hours, or pushing men around, or
making up their minds for them, and in which he threatened them with loss of
their jobs unless they desisted . However, Dunlap's testimony was explicit that
Brooks warned him about union solicitation on company time, and Cherry's testi-
mony was to the same effect.
Brooks denied the statements which Treadgeal attributed to him . He testified
that he spoke with Treadgeal at the suggestion of Gilliland , because Treadgeal was
unhappy about a demotion, and that at the conclusion of his explanation , Treadgeal
stated that if he had known the circumstances he would not have joined the Union.
Brooks admitted having asked Brown to read the article dealing with exforemen
and explained that Brown appeared depressed about a reduction in rank . He denied
threatening Brown or promising him ,a red-circle rate, and testified he did not know
what it was . On cross-examination , however, Brooks admitted that the article or
the manual which he showed Brown did mention red-circle rates, but repeated his
denial of knowledge of what they were , and explained again that they were not
in effect at West Point.
Brooks admitted that Redus was twice brought to his office, and testified that he
warned Redus about being away from his work area talking with other people, and
that he read him the rule against soliciting on company time. Covington was one
of the employees with whom Redus had been talking , and Brooks testified that
there was no reason for Redus to talk with Covington in doing his job . Though
Brooks testified he could not say that Covington was organizing for the Union,
his testimony contained no denial of Redus' testimony that he referred to Covington
as a union organizer nor of the other statements which Redus attributed to him.
Brooks testified further that Redus admitted that he had not been talking about
his job duties and promised not to do it again . (Darrell Thompson corroborated
the latter testimony.)
Brooks admitted that he also warned Shelton, Watt, Cherry , and Dunlap about
soliciting for the Union on company time and that if they were caught it would
cost their jobs or lead to discharge.
J. B. Gilliland
Treadgeal testified that when he began wearing a union button around November
10, Gilliland asked to look at it and then upbraided him for treating the Company
that way in view of the fact that Treadgeal had been out some 6 months because of
an accident. Gilliland told him how much it was costing the Company to furnish
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insurance and such other things as soap and towels, and stated that if the Union
came in, the Company would take such benefits away.'
Moses Reese testified that in November Gilliland, his supervisor, commented that
he had seen Reese's name on a list of members the Union had sent to the Company,
that he was surprised that Reese had joined, and that if the Union came in the
Company would take out the coke machines and the washing powders in the
washrooms.
King David Roby testified that about 3 weeks before the election (on April 24),
Gilliland asked him whether he was having anything to do with the Union, told
him not to have anything to do with it, and to tell other employees not to do so.
kGilliland returned in a few minutes and upbraided Roby for lying to him, stating
that he had seen Roby's name on the sheet sent in by the Union. Gilliland also
stated that he had been helping Roby, but if the Union came in, it would be every
man for himself, and that Gilliland could not help him. Gilliland also upbraided
Reese for using some of the money which he lent Reese (to buy a car tag) to
join the Union.
Gilliland denied the statements which Treadgeal attributed to him, denied that
Treadgeal was wearing a union button or that the Union was mentioned at the
,time, and testified that their conversation related only to Treadgeal's classification
following his return to work after an injury. Gilliland testified that Reese came to
him a number of times to discuss the Union, stating at first he did not intend to
have anything to do with it. There were further discusions after Reese began to
wear a union button, with Reese explaining why he changed over. Gilliland denied
the various statements which Reese attributed to him but testified to nothing affirma-
tively which he said to Reese during the discussions. Gilliland admitted that he
questioned Roby twice concerning his union membership after seeing his name on
the Union's list, that Roby first denied and finally admitted it, but Gilliland denied
the other statements which Roby attributed to him. He admitted, however, that he
,charged Roby with using part of his (Gilliland's) money to pay union dues.
A. A. Murray
Faulkner testified that on December 15 he was sent to Murray's office, where
Murray ordered him to take off his union button and promised him a leadman's job
at the first opportunity if he would do so and would help others from being organized.
Murray also said they would close the plant and move it to Barberton before they
would have a union in the plant. Murray added that if Faulkner decided to change
his mind and pull off the button, to come back in and he would be taken care of
and all would be forgiven, but if Faulkner did not comply, Murray would find some
excuse to discharge him which would not relate to the Union.
Roby testified that about 1'/2 months before the election Murray asked him in
,the plant what the matter was "with all you boys" and what the Company had done
to them. When Roby answered "Nothing" to both questions, Murray continued,
"Well, you know what to say, go on ahead and talk to the boys. You know what
to tell them."
Treadgeal testified that on April 23 Murray talked with him in the plant, stating
he knew of Treadgeal's union activities because the men in the shop had informed
him; that the best thing for Treadgeal to do to keep his job so that Murray would
know how he voted was to stay away from the plant the next day (election day).
Treadgeal testified that he met Murray downtown after the election, that Murray
referred to a report that Treadgeal was at the plant and voted, and when Treadgeal
acknowledged he had, Murray stated that they had ways of dealing with him.
Watt testified that Murray talked with him in Brooks' presence after Christmas
about his activities in signing up employees and warned him to "lay off" or he
would be "through" if he were caught. Watt also testified that Murray again dis-
cussed the Union with him on April 23. Murray asked first whether he could
not find anymore buttons to wear (he was wearing three at the time) and why he
got himself and the rest of the boys messed up in it. Murray stated he did not
think it would do any good to try to talk Watt out of it, but Watt had better pray
the Union did not get in, because if it did, "you colored boys won't have a job," and
that he would replace the colored help with white employees.
There was testimony by five other colored witnesses who were called separately
into Murray's office, like Watt, on the day before the election, all of whom testified
to coercive statements which Murray made . Roosevelt Cooperwood ( mispelled
1 Treadgeal was discharged in June 1959 , on the ground of physical disability, and filed
an unfair labor practice charge which was dismissed by the Regional Director. A sub-
sequent charge was pending at the time of the hearing.
THE BABCOCK & WILCOX COMPANY 245
"Cooperhead" in the record) testified that Murray said if the Union came in, the
employees working where he was would be replaced with white people and that
he could not live in Mississippi anymore. Julius Poston testified similarly that
Murray said he would take all the colored help off the machines and put them in
the yard or lay ,them off if the Union came in. Murray also asked Poston why he
joined the Union, and told him to go out and talk to the employees and try to get
them off the Union. Murray also threatened Poston with serious trouble if Poston
tried to file an unfair (labor practice) charge against him.
William Adamn, Jr., testified that Murray said that if the "colored fellows" signed
a union card, he would replace them with white labor. Robert Taylor testified that
Murray asked why he joined the Union and if he knew how to fix his ballot in the
election. Taylor replied that Mr. Fitzgerald had shown him how to vote against
the Union. In a subsequent conversation in Fitzgerald's presence, Murray said to
Fitzgerald that he should see how Taylor voted and that he voted against the Union.
(Fitzgerald was not called as a witness.) Sylvester Hollis testified that Murray
asked him why he signed a union card, and that when he answered he had probably
done wrong to sign one, Murray told him he had a right to sign or not to sign.
Murray denied in toto the testimony of Faulkner and Treadgeal, testifying that
he had not in fact spoken with Treadgeal since the death of the latter's father in
July or August 1958. Murray also denied the conversation which Roby testified to,
though he testified that Roby ponce volunteered that he joined the Union because of
pressure but would not vote for it. Murray told him that if he were bothered on
company time, to let Murray know. Murray admitted having warned Watt about
signing up employees on company time and that he was subject to discharge if he
broke the Company's rule in that regard.
As for Watt and the other five witnesses who testified to being called into
Murray's office the day before the election: Murray testified that as a result of
complaints from Eugene Brooks, a colored employee, that he was being threatened
by other colored employees in the shop (corroborated by Brooks), and because of
other rumors concerning the manner in which the election would be conducted, he
called some 13 (out of 55) of the colored employees separately into his office, asked
them whether they had any questions concerning their right to join or not to
join the Union, told them the election would be by secret ballot, and answered their
questions. He denied asking whether they had joined the Union, denied threatening
any of them, and denied in toto all allegations of the complaint which related to him.
Murray also denied specifically the statements which Cooperwood, Poston, Adamn,
and Taylor attributed to him. He also denied the coercive content of the statements
which Watt and Hollis testified to, though he admitted asking Watt ("who looked
like a Mexican general") why he could find no more buttons to wear, and admitted
telling Hollis (who volunteered that he signed a card ) that it was his business
whether he signed or not.
Murray testified that though he intended to talk to all the colored employees that
day, his attorney , Smith, arrived around 9 a.m. and advised him that it was not
"legal" to do it as he was doing, and that as a result he later called all of them
together in a group and read them a written statement which Smith prepared (and
which the General Counsel disclaims as violative of Section 8(a) (I)).
Perry Ford
Artie Bert Hunter testified that on April 23, Ford asked if it was true he was
president of the Union (he had been elected in January), and told him that if the
Union were voted in the next day, the Company would close the plant.
Ernest E. Jeffcoat, a member of the Union's committee, testified that on April 23,
Ford inquired whether worry about the Union was affecting his work and stated
that he (Ford) would like to see Jeffcoat get out before he got messed up and
that he would talk to Jeffcoat again before the election. The next day, Ford
told him in part that knowing how Jeffcoat hated the night shift, he would
put Jeffcoat on a straight day shift if he would pull off his union button and vote on
company time. Ford also said he had just heard that if the Union won the
election, the plant would be closed and moved back to Barberton, but that if Jeffcoat
got on the Company's side, that fact would become known and he would not have
any trouble getting a job if the plant should move away. Jeffcoat took off his
button, threw it on the floor, and later voted on company time.
Ford admitted that he asked Hunter (who was wearing a union button at the
time ) if he had been elected president of the Union , but denied telling him the plant
would be closed if the Union came in . Ford flatly denied Jeffcoat 's testimony. He
admitted that after the election he put Jeffcoat on another (day) job, but testified
577684-61-,vol. 128-17
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it was a matter of coincidence , as he needed an experienced man on the
other job and as Jeffcoat was entitled to it as the senior man in the department.
J. W. Gandy
Jeffcoat testified that in November, Gandy questioned him about why he decided
to join the Union, told him he let Gandy down, and suggested he talk to Murray,
pull off his button, and get out before he got messed up. Gandy also said that
there was a chance of prounion employees being fired despite Murray's assurances
to the contrary.
Brown, who was secretary-treasurer of the Union, testified that on the night
before the election, Gandy reported as "good news" that if the Union won the elec-
tion the next day, the Company would close the plant and move it back to Barberton,
Ohio, but if Brown would help the Company defeat the organizing campaign by
not serving as the union observer the next day and would pull off his button, he
would give Brown back his leaderman's job when the election was over. Gandy
also said that Brown would have a hard time finding a job near West Point, because
everyone knew of his connection with the Union.
Gandy denied having any conversation with Jeffcoat concerning the Union.
Though admitting that he discussed the Union with Brown (and with other em-
ployees who approached him on the subject), he denied making the statements
which Brown attributed to him. He testified that he told Brown (and others) his
experiences with unions and stated his opinion that the Union would not help
them any.
Prentiss Brewer
James Watt testified that on two occasions in November Brewer questioned him
about whether he had joined the Union and told him his name was on a list in
the office. Watt denied membership the first time, but when he admitted it on the
second, Brewer told him he had better try to get out of it. Watt also testified that
about a week before Avant was fired Brewer criticized him for spending too much
time out of the shop and for having a long conversation with "Tom," stating he
had heard that Watt and "Tom" were both union organizers. Watt testified that
the only Tom he knew was Tom Avant, and answered the General Counsel's leading
question that he had had "that conversation" with Avant.
Brewer denied Watt's testimony and testified further that he did not know Avant
and knew no Tom who was a union organizer. Brewer testified, however, that he
twice reprimanded Watt for leaving his job, because he assumed Watt was soliciting
membership for the Union, that he told Watt he heard that he was an organizer,
and warned him against soliciting on company time. He denied questioning Watt
about his union membership or suggesting that he get out of the Union. Brewer
testified further, however (and this testimony seems directly related to Watt's first
testimony above summarized), that he once asked Watt whether Watt was being
mistreated and told Watt that he did not need a union.
Ray Bennett
James Gilreath testified that on April 23 Bennett asked him what made him turn
against the Company and told him, "Don't you know if you vote this union in they
will close this plant down and move it." Gilreath refused to discuss union activity
further on company time and property.
Bennett flatly denied Gilreath's testimony. He testified that Gilreath and many
other welders under his supervision wore union buttons.
2. Concluding findings
As the foregoing summary shows, a credibility question is presented on virtually
every statement of coercive content which was attributed to Respondent's witnesses.
Resolution of those questions turn on a variety of factors, including in part corrob-
oration or lack of it, preponderance or weight of countertestimony, demeanor,
interest or bias, and inherent probabilities and improbabilities. Consideration of
those and other factors, including the preponderance of the evidence on the entire
record, have led me to certain conclusions which narrow considerably the field in
which credibility must be resolved on the face of disputant testimony.
Because their testimony bordered on the improbable and was otherwise sug-
gestive of bias or extreme interest, I am unable to accept (absent corroboration
and over the denials of Respondent's witnesses) the testimony of Billy Frank Faulk-
ner and Clifton H. Treadgeal. In Faulkner's case it is notable that available cor-
THE BABCOCK & WILCOX COMPANY 247
roboration was not called to support his claims of Thompson's two visits to his
home and of the conversations there.
Though a number of witnesses testified to warnings from supervisors (particularly
Brooks) about discussing the Union or signing up employees, I am persuaded from
the entire evidence that on most of those occasions the supervisors were calling at-
tention to the Company's rule against soliciting membership during work time
and to vulnerability to discharge for violating it .2 The testimony of the General
Counsel's witnesses was usually reconcilable with that view, particularly Watts'
concerning Murray's warning, and Dunlap's and Cherry's concerning Brooks' warn-
ing. Redus, too, admitted that Brooks read him the rule against solicitation on
company time.
On the other hand, the preponderance of evidence lies plainly against Murray
concerning his individual interviews with colored employees on the day before the
election. Five of them testified to substantially similar effect that in addition to
questioning them about why they joined the Union, Murray threatened them with
replacement by white employees if the Union were voted in. Murray's denials are
not credited over the cumulative weight of that testimony, particularly in view of his
admission that he desisted on the advice of counsel that his conduct was not legal.3
The foregoing findings eliminate the unfair labor practices charged to Respondent
through the conduct of C. H. Fields, Darrell Thompson, and Jack L. Young, and
much that is charged through Brooks. In Murray's case the findings, for and against,
cover all the evidence concerning his conduct except for Roby's testimony that
Murray suggested he "talk to the boys," but that testimony was not explicit enough
to support a finding that Murray was referring to the union?
There remain in Brooks' case the issues on Brown's testimony, as well as that
portion of Redus' testimony as to the first conversation with Brooks concerning
Covington. What is persuasive on the Brown conversation are Brooks' admission
that he gave Brown the manual to read and his denial of knowledge of what a red-
circle rate was, despite his admission when confronted with the manual that the
subject was covered in it . I therefore find Brooks' explanations and denials to be
unpersuasive, and I credit Brown's testimony.
Brooks also admitted or failed to deny the substance of Redus' first conversation
concerning Covington. Though Brooks could properly warn Redus against solicit-
ing for the Union on company time, his conduct went beyond that. His charge
that Redus and Covington were of the same stripe as "union organizers" was plainly
intended to inhibit and restrain legitimate organizational activity.
In Gilliland's case there remains the testimony of Reese and Roby. Though
Gilliland admitted the conversation with Reese and testified in some detail as to
what Reese said to him on the subject of the Union, he mentioned nothing which
he said in reply save that it was Reese's business as to how he felt. It was plain
from his description of the conversations that his participation was not so limited.
Gilliland admitted further that he was in fact surprised at Reese's action, though he
continued to deny that he told Reese that he was. Gilliland also admitted the fact
and some of the substance of Roby's testimony, including his reputed pursuit of
Roby concerning his union membership, his resentment concerning Roby's use
of his money to pay union dues, and his charging of Roby with that fact. As
Gilliland's testimony tended to support and confirm much that Reese and Roby
testified to as above summarized, their testimony is credited.
Coming to Perry Ford, Ford's admitted inquiry whether Hunter had been elected
president of the Union appeared to be only a casual inquiry, devoid of coercive
intent, which cannot be found violative of the Act. And once Hunter affirmed his
office, it is improbable that Ford would have made the bold threat which Hunter
attributed to him. Absent corroboration, Hunter's testimony cannot be credited
over Ford's denials. Similarly, because of the improbabilities in the testimony of
Jeffcoat (a committeeman) and the absence of corroboration on any point ( includ-
ing the throwing of his union button on the floor) Jeffcoat's testimony cannot be
credited over Ford's denials.
In Gandy's case, Jeffcoat's testimony, having been previously rejected where not
corroborated, is again rejected in view of Gandy's denials. Brown's testimony con-
cerning Gandy's alleged threats and promises also bordered on the improbable in
2 The General Counsel makes no contention that the rule was unlawful.
3 Murray's fallibility thus exposes the weakness in Respondent's argument, in support of
the credibility of all its supervisors, that Attorney Smith had previously instructed them
as to what they could and could not lawfully do
* It is to be noted, however, that Murray made the suggestion explicit to Poston on
April 23, that Poston try to talk the employees out of the Union.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
view of his known connection with the Union. In the absence of corroboration,
Gandy's denials are credited.
In Brewer's case the content of the conflicting testimony given by him and Watt
must alone be relied upon in resolving credibility, there being no other guide or
apparent aid in the record. Analysis of that testimony persuades me that each must
be credited in part and disbelieved in part .5
Watt's testimony, insofar as it concerns Avant, is suspect on a number of scores.
First, the time was prior even to Avant's earliest claim of union membership. Avant
offered no corroboration of Watt's claim of a conversation between them and
testified to no warning from the Company concerning soliciting on company time,
though admitting numerous interviews on other subjects (see section C, 1, infra).
Furthermore, it was not plain from Watt's initial testimony (prior to leading) that
Brewer's alleged reference was in fact to Avant. Under the circumstances, Brewer's
testimony is credited in his denial of Watt's testimony concerning a union organizer
known as Tom.
However, Brewer's other testimony cannot be credited. He endeavored to ex-
plain his discussions of the Union with Watt on the basis of warning him against
soliciting union membership on company time because he had heard Watt was a
union organizer. However, his own testimony disclosed that the discussions were
not so limited. Thus he admitted asking Watt on one occasion whether Watt was
being mistreated, and then telling Watt he did not need a union . That conversation
had no logical connection with his warning about solicitation, and it tended to
confirm Watt's testimony concerning Brewer's pursuit of him on the subject of his
union membership. Watt's testimony is therefore credited that Brewer interrogated
him as to his membership in the Union and warned him that he had better get out.
In Bennett's case there is nothing in the record which helps to resolve the head-on
conflict. As the General Counsel offered no direct corroboration and no evidence
of any similar statements made by Bennett to other employees, Bennett's denials are
credited.
On the basis of the foregoing credibility resolutions and the other findings made
above, I conclude and find that Respondent engaged in interference, restraint, and
coercion within the meaning of Section 8(a)(1) of the Act by:
(a) Murray's interrogation of employees on April 23, 1959, concerning their union
membership and sentiments, his threats to replace colored employees with white
ones, his attempt to coerce Taylor to vote against the Union, his solicitation of
Poston to talk employees out of the Union, and his threat of trouble if Poston should
file a charge.
(b) Brooks' promise of benefit to Brown if he would remove his union button
and withdraw from the Union and his coercive charge that Redus and Covington
were union organizers.
(c) Gilliland's threat that Respondent would take away the coke machines and
soap powders if the Union came in, and his solicitation of Roby's assistance in
preventing other employees from joining the Union.
(d) Brewer's interrogation of Watt concerning his union membership and his
warning that Watt should withdraw from the Union.
C. Discrimination
1. Tom Avant
Tom Avant was discharged on November 12 by C. H. Fields, personnel manager,
who (Avant testified) informed Avant he was being discharged because of calls
from business people (including Sears, Roebuck) that he was behind in his bills. It
is unnecessary to make a detailed summary of the evidence for it is plain that the
record as a whole will not support a finding of a discriminatory discharge for two
reasons: (1) the General Counsel failed to establish knowledge of Avant's union
membership (if, indeed, he was a union member at the time), and (2) the evidence
established that Avant was discharged for the cause assigned by Respondent, i.e.,
.creditor complaints of delinquent accounts.
(1) Avant testified specifically that he joined the Union on November .11 (1 day
before his discharge) but later identified his card which purported to bear the date
November 6, and testified that he signed the card away from the plant on the
6 "It is no reason for refusing to accept everything that a witness says, because you do
not believe all of It; nothing is more common in all kinds of judicial decisions than to
believe some and not all" . .. N L.R.B v. Universal Camera Corporation, 179 F 2d
749, 754 (C.A 2) ; H. N. Thayer Co., 115 NLRB 1591, 1593-1594, footnote 5, and cases
there cited.
THE BABCOCK & WILCOX COMPANY 249
solicitation of Hook Brown, another employee. On cross-examination, however,
concerning the word "Hold," which appeared at the top of the card, Avant testified
that he directed Brown to hold the card and not to turn it over to George (the union
representative) until he could ascertain how many employees had joined the Union,
because he did not want the Union to divulge his name to the Company until more
members were signed up. Though he never told Brown when to release the card,
he was informed later that it was released.
George's letter of November 8 to the Company listed the names of some 125-odd
members, but did not list Avant, whose name was first contained on an additional
listing in George's letter dated November 15. Avant testified to no other knowledge
on Respondent's part before his discharge, and his description of his participation
in union activities forms an insufficient basis for inferring knowledge in view of the
size of the plant (approximately 600 employees). The only other evidence of
knowledge was Watt's testimony that Brewer once reprimanded him concerning a
conversation with "Tom," a "union organizer," but Brewer' s denial of that testimony
has been credited for reasons stated under section B , 2, supra.
(2) Respondent offered uncontroverted evidence of a long history of complaints
from business concerns about Avant's delinquent accounts and garnishments and of
repeated warnings which Fields had given him. Avant's record in that respect was
much worse than that of any other employee, including James Watt, who testified
in rebuttal to some four sessions with Fields concerning creditor complaints. What
finally triggered Avant's discharge was a complaint from Firestone Home and Auto
Supplies, dated October 28, threatening renewal of an old garnishment, and a letter
from Sears, Roebuck & Company, dated November 8, complaining that Avant had
not met his obligations to it. Sears had made a similar complaint in December
1957. Fields testified that he called in Avant, reviewed his record with him, re-
minded him he had been repeatedly warned and given a final warning, and that he
discharged Avant on the basis of the two pending letters. Millard Long who was
present, corroborated Fields' testimony, including the reference to the previous
warnings, and testified that Avant acknowledged the truth of Fields' statements.
That testimony is credited over the uncorroborated testimony of Avant, which was
not greatly in conflict as to his record of delinquent accounts and his previous sessions
with Fields.
The foregoing findings make immaterial testimony by Avant and George con-
cerning their visit on November 13 to Sears' store and their efforts to get a letter
or a statement from Fields' wife, who was Sears' credit manager, and from Mrs.
Ganns, manager of the store, concerning the status of Avant's account. Also im-
material was the testimony of Avant and Fields concerning Avant's efforts to obtain
reinstatement on November 13 and Fields' refusal to reconsider.
It is therefore concluded and found that aside from failing to establish knowledge
of union membership, the General Counsel failed to establish by a preponderance
of the evidence that Avant's discharge was discriminatorily motivated.
2. Cleo Eaton
The evidence concerning Eaton's discharge on January 21 presents a somewhat
closer question. Knowledge of union membership was here undisputed. George's
first letter to the Company on November 8 had listed some six Eatons among the
union members, including C. Eaton. Calvin Leon Eaton went to Murray's office
in November, apparently to straighten out some report that his name was on the
list, and informed Murray that he was not the C. Eaton on the list, but that it was
his cousin Cleo.
Cleo Eaton had worked for Respondent since 1952, and was a class B welder
under L. D. Kinard at the time of his discharge. Eaton testified that he had con-
versations with Kinard as early as November about his work "being unsatisfactory
and about unions," that on November 14 or 15 Kinard asked if he had heard about
James Hubert Eaton taking off his pins and withdrawing from the Union 6 and told
Cleo he would have to do the same if he expected to continue to work for Kinard.
Kinard continued that if Eaton would comply, and would do what he could to get
the other Eatons to withdraw from the Union, he would have a steady job with the
Company, and Kinard would see that he had an A welding test soon; otherwise he
would be fired. Kinard also told Eaton that Murray was making an example of the
Eatons, and that would go a long way towards defeating .the Union's drive. When
6Although Eaton testifled that his statement (furnished to the Board by the Union)
Included references to hearsay statements made by James Hubert Eaton to the effect that
Murray had ordered him to remove his union buttons and withdraw from the Union
under threat of discharge, James was not called as a witness.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.Eaton rejected Kinard's suggestion, Kinard concluded, "You'll be sorry, you wait and
.see."
The only other conversation which Eaton testified to was on January 20, when
_Kinard told him his work was not satisfactory, that no man could wear a union pin
-and continue working under him, and that Eaton should take off the pin or suffer
-the consequences. Eaton testified that because of the noise in the plant he had
.trouble hearing, and that he therefore asked Kinard to step outside. Kinard asked
.if Eaton was trying to threaten him, but Eaton stated that he wanted to go outside
so he could hear and understand better. At that time Brooks came up and Kinard
!reported that Eaton had threatened him. Eaton repeated his explanation, and
Brooks stated that there was a conference room especially for such discussions.
Kinard told Brooks that Eaton's work was not satisfactory, and Eaton replied that
he could do no more than time permitted. Eaton admitted that despite the noise
he heard everything that Kinard said. While testifying as a witness he exhibited no
difficulty in hearing normal conversational tones.
The next morning Brooks took Eaton into Fields' office and Fields paid him off,
telling him he was discharged because of disrespect for supervision. Eaton did not
ask what Fields was referring to.
Eaton admitted that Perry Ford had once criticized his work and that they argued
about it. He denied that he had otherwise been warned about his work or about
disrespect for supervision. However, on cross-examination Eaton admitted that
Kinard had criticized his work on "a few little occasions" and once criticized him
for going to the washroom too often. And though stating his opinion that Kinard
was "picking on" him more than anyone else because of his union button, Eaton
admitted that some 25 of the 50-odd men under Kinard wore buttons. Eaton denied
on cross-examination, and later on rebuttal, having made statements to other em-
ployees to the effect that he was going to whip some supervisor if they did not quit
riding him about his work.
Kinard flatly denied the alleged November conversation. Kinard testified that in
January he had been watching Eaton's work because it had been slack for several
days, and that on the 20th he charged Eaton with not giving him 8 hours of work.
Eaton's reply was that his work was all right, he was doing all he could, and he was
working for B & W, not for Kinard. When Kinard told him he would nevertheless
have to satisfy Kinard, Eaton became upset, reared back, and said they could discuss
the matter better on the outside. Kinard judged from Eaton's attitude and manner
of speaking that Eaton was asking him out to give him a whipping. Brooks came
up, and Kinard reported what Eaton had said.
Brooks corroborated Kinard, testifying that Eaton was in a belligerent frame of
mind, and that though he claimed he could not hear Kinard, he had no difficulty
hearing their conversation conducted in a normal tone of voice. Brooks informed
Eaton that he knew that Kinard was going to speak to him concerning his job per-
formance and that he (Brooks) knew that Eaton deserved "a talking to."
Brooks went to the personnel office and reported the incident to Fields, stating
that Eaton was too belligerent to handle on the floor, and Fields directed that he and
Kinard submit written reports. After submitting the two reports to Fields,? Brooks
took Eaton to Fields' office the next morning and was present when Fields told
Eaton he was being discharged for willful disrespect to supervision.
Fields' testimony was corroborative of Brooks', though he testified he told Eaton
he was discharged for willful disrespect of and insubordination toward supervision.
Fields testified that he had previously reviewed the reports made by Kinard and
Brooks and that he based the discharge on those reports (which were in substantial
accord with their testimony on the stand). Murray testified that at Fields' request,
he reviewed Eaton's personnel folder and directed Fields to discharge Eaton.
Respondent offered the testimony of several witnesses in substantiation of Eaton's
attitude toward supervision. James R. Calder. Sr., a supervisor, testified to a cor-
rective interview with Eaton in September 1958, when he criticized Eaton's job per-
formance and told him he would have to improve his work. Eaton defended his
output, and said among other things he did not like to be "chewed out" by anyone.
7 Brooks' report concluded as follows
Based upon Eatons sour attitude to all supervision and his proneness to belligenev
to supervision in their efforts to seek (this mans) Eaton's cooperation for more
efficient production I recommend Eaton be discharged before he loses control of him-
self to the extent of doing harm to some one in a supervisory capacity because he
has made statements to fellow workers that he would lick any one of the bosses who
caused him to lose his job.
THE BABCOCK & WILCOX COMPANY 251
Melvin Moore, who once worked with Eaton, testified that after Calder's talk with
Eaton, Eaton seemed upset and stated he was not going to take anything off any
leader or foreman and that "before this was over he was going to whip somebody,
some of the foremen or leadermen." Moore reported the conversation to Calder.
Spurgeon Clitte, Jr., testified that on one occasion when he passed on to a group
of employees Kinard's criticism that they were not turning out enough work, Eaton
informed him that he and Calder had had a "run in" before, that he was tired of
people talking about his work not being satisfactory, and that it was going to be
"too bad" for any of his leadermen if they should fire him or lay him off. Clitte
admitted, however, that he did not report Eaton's statement to Kinard until a couple
of days after Eaton's discharge. John R. Smith testified to an occasion when Eaton
complained that Ray Bennett, a supervisor, had not spoken to him, and stated that
people like Bennett were the first ones who would be gotten rid of "after we get
our union in." Supervisors J. W. Gandy and Perry Ford testified to occasions when
they had corrective interviews with Eaton for loafing on his job and for his work
performance, and Calvin White, a former supervisor, testified that Eaton was gen-
erally disagreeable and difficult to work with.
Eaton, called in rebuttal, denied that Fields mentioned the word "insubordination"
in discharging him, denied threatening to beat any of his supervisors, and testified
he could recall no conversation with Clitte or threatening to get even with Calder.
He made no denial of the testimony concerning the corrective interviews. John E.
Hardy gave vague, indefinite, and immaterial testimony about seeing Kinard and
Brooks talking together on some occasion which he assumed was the day before
Eaton's discharge.
Concluding Findings
Determination of the question whether Eaton was discriminatorily discharged
turns entirely on a resolution of the credibility issues between the respective wit-
nesses for the General Counsel and the Respondent. Preliminarily, it should be
noted that Faulkner's testimony concerning Field's alleged reference to Eaton's dis-
charge has been rejected for reasons stated under Section B, 2, above.
We therefore start with Eaton's testimony (and Kinard's denial) about a conver-
sation in November during which Kinard allegedly ordered him to remove his union
pin and withdraw from the Union under threat of discharge unless he complied, and
the further threat (which Kinard allegedly attributed to Murray) to make an ex-
ample of the Eatons Though Eaton linked Kinard's threats to a similar incident
between Murray and James Hubert Eaton, the latter was not produced to lend even
circumstantial corroboration to Eaton's claims. Furthermore, Eaton not only
ignored Kinard's alleged threats for over 2 months without incident, but he admitted
that some 25 of the 50 employees under Kinard wore union buttons. Significant
also was the absence of any evidence that Respondent was making an example of
the Eatons, six of whom remained in Respondent's employ at the time of the hearing.
Eaton's testimony concerning the allegd November conversation is therefore
rejected on the basis of the foregoing reasons and the additional ones which are set
forth in resolving the issues concerning the discharge incidents.
Going to January 20, Eaton claimed, significantly, that Kinard repeated his No-
vember statement that Eaton could not continue to work under him unless he
removed his union pin (Eaton and 25 others had worn pins since the alleged No-
vember conversation). Aside from that claim, there was nothing in his testimony
that would support a finding of a discriminatory discharge. Indeed, the rest of his
testimony was about as favorable to Respondent's theory as that of its own witnesses.
Thus Eaton admitted he heard everything that Kinard said, that Kinard mentioned
his unsatisfactory work, that he invited Kinard to step outside (a traditional form of
invitation to settle differences by fisticuffs), that Kinard charged him with making a
threat, that Kinard immediately reported to Brooks that Eaton had threatened him,
and that he asked for no explanation when Fields told him he was discharged for
disrespect for supervision. Significantly also Eaton made no claim either to Brooks
or to Fields that Kinard had ordered him to remove his union button under threat,
though Brooks participated in part of the conversation.
The foregoing facts are persuasive of acceptance of Kinard's denial that he made
any reference to Eaton's union button. That resolution leaves without substantial
support, the General Counsel's case that Eaton was discharged because of his union
membership and activities, since Eaton's other testimony did not differ greatly from
that of Kinard, Brooks, and Fields as to the circumstances of his discharge. When
the foregoing facts are coupled with the testimony of other employees and super-
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visors as to Eaton 's general attitude of resentment toward criticisms by supervisors
and his threats to whip or to get even with those who reprimanded him, they estab-
lish that Eaton was discharged for the cause assigned . It is so found.
III. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type conventionally ordered in such cases, which I find necessary to
remedy and to remove the effects of the unfair labor practices and to effectuate the
policies of the Act. I shall also recommend that the complaint be dismissed insofar
as it charges Respondent with unfair labor practices under Section 8(a)(3) of
the Act.
Upon the basis of the above finding of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Charging Union is a labor organization within the meaning of Section
2(5) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)( I) of the Act.
3. The aforesaid unfair labor practices having occurred in connection with the
operation of Respondent 's business as set forth in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States and substantially affect commerce within the meaning of Section 2(6) and (7)
of the Act.
4. Respondent did not engage in unfair labor practices proscribed by Section
8(a) (3) of the Act as alleged in the complaint.
[Recommendations omitted from publication.]
Caroline M. Layton White , d/b/a Layton Oil Company and Oil,
Chemical and Atomic Workers International Union of North
America, AFL-CIO. Case No. 16-CA-1249. July 25, 1964
DECISION AND ORDER
'On December 17, 1959, 'Trial Examiner John F. Funke issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.,
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
'The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
1 The Respondent has requested oral argument . As the record and brief adequately
present the issues and the position of the parties , the request for oral argument is
hereby denied.
128 NLRB No. 27.