Universal Packing & Gasket Co.

National Labor Relations Board - Board Decisions

Apr 9, 1965

151 N.L.R.B. 1528 (N.L.R.B. 1965)

1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Universal Packing & Gasket Company and District No. 37,
International Association of Machinists, AFL-CIO. Case No.
23-CA-1820. April 9, 1965
DECISION AND ORDER
On January 6, 1965, Trial Examiner Ramey Donovan issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He further found that Respondent had not engaged in
certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, the
Respondent filed limited exceptions to the Trial Examiner's Deci-
sion. The General Counsel filed exceptions to certain portions of
the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
modification.
Unlike the Trial Examiner, we find that Respondent discharged
employee Robert Butler on May 22, 1964, because of his prominent
union activity, in violation of Section 8(a) (3) and (1) of the Act.
The record shows that Butler was a. prominent union advocate,
a fact of which Respondent was at all times well aware. He se-
cured 60 of the 90 union cards signed by employees of Respondent's
2 plants, and served as the Union's observer at Respondent's Humble
plant during the election of October 11, 1963.
Thereafter, based upon the Union's objections to the conduct of
the election, that election was set aside and a second election ordered
for January 23, 1964. However, the Union withdrew its petition
on January 22, and a second election has not been held. Following
withdrawal of the petition, Butler continued his activity on behalf
of the Union and spoke to some 50 to 60 employees in order to main-
tain their interest in the Union. Butler credibly testified that he
conducted this activity in the open and made no effort to conceal it
from Respondent's officials.
151 NLRB No. 146.
UNIVERSAL PACKING & GASKET COMPANY 1529
It is apparent from the record, and we find, that Respondent,
which was strongly opposed to the unionization of its plant, knew
of Butler's continued activity on behalf of the Union. It is further
apparent that Respondent was continuously apprehensive that the
Union would resume its organizational campaign.1 Passage of the
6-month limitation upon the Union's refiling of a representation
petition was approaching, and a renewed organizational drive ap-
peared likely when, on May 22, Respondent discharged Butler, a
proven union campaigner. The record also reveals that Butler was
considered, apart from his union activity, a desirable employee as
indicated by a merit increase granted him by Respondent in April
1964.
It is in this context of Respondent's opposition to the Union and
Butler's status as a good worker that we turn to an examination of
Respondent's contention that it discharged Butler because of an
injury to his back and an alleged misstatement on his original em-
ployment application form. Respondent asserts that it was under
pressure from its insurance carrier to reduce the continuing work-
men's compensation claims from Respondent's employees, some of
which involved back injuries. The Trial Examiner found that the
insurance company had, in fact, criticized Respondent for not taking
effective steps to reduce its liability against such claims. The record
reveals, however, that Respondent's zealousness in dealing with But-
ler was an isolated incident in an otherwise continuing refusal to
cooperate with the request of its insurance company. A representa-
tive of the carrier testified that the Respondent has actually become
even more lax in recent years than previously, and that it has
refused the carrier's suggestion that it give physical examinations to
applicants for employment 2 Further, it is admitted that Respond-
ent presently employs persons with various physical disabilities, in-
cluding back ailments. Accordingly, we cannot accept Respondent's
attempted reliance on insurance company pressure as support for its
discharge of Butler.
Additional doubt is cast upon the bona fides of Respondent's
defense by certain of the testimony offered by its witnesses with
respect to events of May 22, 1964, the day of Butler's discharge.
On that date, when General Manager Heathcott was advised by
Superintendent Jaetzold that Butler had been granted a week's vaca-
tion in advance in order to receive medical treatment for what
Jaetzold described as a "bad back" of some duration, Heathcott
1 As Indicated by General Manager Heathcott ' s testimony, be regularly warned new
hires of this possibility . Indeed , it was in the context of so warning Sim and Ross that
Heathcott voiced threats which are herein found violative of Section 8(a) (1).
2 Heathcott testified that he merely asks applicants to bend over and touch their toes
or walk up a flight of stairs ahead of him , and that this enables him to determine if
they are physically able to work.
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examined Butler's 1962 employment application and noted that But-
ler had not indicated any back problems at that time. He then made
a photostatic copy of Butler's application. The Trial Examiner
correctly observes that Heathcott must have anticipated a confronta-
tion with Butler, who had previously told Jaetzold that he would
pick up his check at the Humble plant on May 22. This would seem
to be the only logical inference to be drawn from the fact that
Heathcott made the photostat and took it with him to the Humble
plant. Yet, inexplicably, Heathcott testified that he did not expect
to see Butler when he visited the Humble plant to pay the employees.
Later that day, during a discussion between Heathcott and Butler,
Heathcott testified that Butler told him that he had headaches and
neck and back trouble and that "it's old injuries." The long dura-
tion of Butler's supposed back injury is a subject dwelt upon by all
witnesses to the Butler-Heathcott conversation. Yet, Butler testified
that he had suffered from the condition for only a short period of
time prior to May 18, when he first consulted Dr. Boyd, and that
he had had no similar trouble previously. Dr. Boyd corroborated
Butler's testimony in this regard and stated that symptoms such as
those from which Butler was suffering when he first saw Butler on
May 18 usually appear suddenly, and that Butler could not have
worked in that condition for a substantial period of time prior to
May 18.
Other of Respondent's witnesses insisted that Butler stated that
he had a back. condition and that it had existed for 2 years or more.
These versions, however, conflict with one another and with the tes-
timony of Butler and Dr. Boyd. Jaetzold testified, for example,
that when Butler asked hint on May 19 for advance vacation time
in order to receive treatments from Dr. Boyd, Butler told him that
the condition had existed for over 2 years. On cross-examination,
he then said that Butler stated that the condition existed for "over
21/2 years." Also on cross-examination, when asked to repeat the
entire conversation with Butler, he omitted any reference to the
2-year period. We think the Trial Examiner properly entertained
"doubts" about Jaetzold's testimony that Butler told him his condi-
tion had existed for 2 years.
The testimony of certain of Respondent's supervisors, who were
present at the Heathcott-Butler conversation on May 22, is similarly
doubtful. Russell Landes testified that Butler told Heathcott that
he had been bothered with back and neck trouble and headaches for
more than 2 years. Lawrence Hickman extended the period to "two
and a half or three years." John Chambers, in his version, attrib-
uted statements to Butler concerning a "whiplash" injury and a visit
UNIVERSAL PACKING & GASKET COMPANY 1531
to his family doctor before going to Dr. Boyd (a chiropractor)
which are at odds not only with Butler's testimony but with that
of all of Respondent's witnesses to the incident.
Finally, with respect to Heathcott's motivation for terminating
Butler, we deem it significant that, in spite of Butler's repeated
denials to Heathcott on May 22 that he had any form of back trou-
ble either then or when he filled out his employment application,
Heathcott made no attempt to call Dr. Boyd to determine the truth
or falsity of Butler's protestations. Rather, only after the instant
unfair labor practice charges were filed did Heathcott bother to con-
tact Dr. Boyd to learn the nature of Butler's conditions.
In view of all the above circumstances, including Respondent's
firm opposition to the Union and Butler's role as a leading union
advocate, we find that a preponderance of the evidence sustains the
General Counsel's contentions that Butler was discharged because
of his union activity, in violation of Section 8(a) (3) and (1) of the
Act, and that Respondent's asserted reasons for his discharge are
merely pretexts.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Order recommended by the Trial Examiner and orders
that the Respondent, Universal Packing & Gasket Company, Hous-
ton, Texas, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, with
the following modifications :
1. Add the following as paragraph 1(a), the present paragraphs
1(a) and 1 (b) being consecutively relettered :
"(a) Discouraging membership in, or activities on behalf of, Dis-
trict No. 37, International Association of Machinists, AFL-CIO, or
any other labor organization, by discharging or otherwise discrimi-
nating in regard to hire or tenure of employment or any term or
condition of employment of any of its employees."
2. Change the present paragraph 1(b) to read as follows:
"In any other manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed in Section 7 of
the Act."
3. Add the following as paragraphs 2(a), 2(b), and 2(c), the
present paragraphs 2(a) and 2(b) being consecutively relettered:
"(a) Offer to Robert Harvey Butler immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and notify
the above-named employee, if presently serving in the Armed Forces
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the United States, of his right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Univer-
sal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces."
"(b) Make whole Robert Harvey Butler for any loss of pay he
may have suffered by reason of the discrimination against him, by
payment of a sum of money equal to the amount he normally would
have earned as wages from the date of his discharge to the date of
Respondent's offer of reinstatement, in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289, and with
interest thereon as prescribed by the Board in Isis Plumbing ci
Heating Co., 138 NLRB 716."
"(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 records necessary to analyze the amount of backpay
due under the terms of this Recommended Order."
4. Substitute for the notice contained in Appendix A to the Trial
Examiner's Decision, the notice attached hereto.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL offer Robert Harvey Butler immediate and full rein-
statement to his former or a substantially equivalent position,
without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay he may have suffered
by reason of the discrimination against him.
WE WILL NOT discourage membership in, or activities on
behalf of, District No. 37, International Association of Machin-
ists, AFL-CIO, or any other labor organization of our em-
ployees, by discharging or otherwise discriminating in regard
to hire or tenure of employment or any term or condition of
employment of any of our employees.
AVE WILL NOT Interfere with, restrain, or coerce any of our
employees by stating that loss of employment or replacement
could or would be the consequence of joining District No. 37,
International Association of Machinists, AFL-CIO, or any
other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights guaranteed
in Section 7 of the Act.
UNIVERSAL PACKING & GASKET COMPANY 1533
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of District No. 37, International
Association of Machinists, AFL-CIO, or any other labor organization.
UNIVERSAL PACKING & GASKET COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston,
Texas, Telephone No. Capitol 8-0611, Extension 4271, if they have
any questions concerning this notice or compliance with its provisions.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
The charge in this case was filed by District No. 37, International Association of
Machinists, AFL-CIO, herein referred to as the Union, on May 27, 1964. The
General Counsel issued a complaint under date of July 16, 1964. On September 15
and 16, 1964, the case was heard before Trial Examiner Ramey Donovan in Houston,
Texas. The issues were some allegedly coercive statements and interrogation and
the alleged discriminatory discharge of employee Robert Butler.
Upon the entire record and observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE JURISDICTIONAL FACTS
Universal Packing & Gasket Company, herein called Respondent or the Company,
is a Texas corporation with its office and place of business in Houston, Texas.
Respondent also has a plant in Humble, Texas, which is within the general area of
Houston. At the two plants, Respondent is engaged in the manufacture, production,
and sale of mechanical packings and gaskets and related products. The operations of
the two plants are interrelated.
In a representative annual period, Respondent purchased and caused to be trans-
ported, at its Houston place of business, goods and materials valued in excess of
$50,000, and these goods and materials were transported and delivered to Respondent's
Houston place of business directly from points outside Texas.
Respondent is engaged in commerce within the meaning of the Act and the Union
is a labor organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent has two plants in the Houston, Texas, area. One plant, known as the
Humble plant, employs approximately 150 to 160 production and maintenance
employees, and the other plant, referred to as the Houston plant, has 25 to 30 such
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. The two plants constitute an integrated operation. Heathcott is general
manager in charge of operations at both plants, Jaetzold is plant superintendent at
Humble, while Dolch occupies the corresponding position at the Houston plant.
The Union, on August 2, 1963, filed a petition for certification as bargaining agent
for Respondent's production and maintenance employees in a single unit comprised
of the production and maintenance employees at the two aforementioned plants.
The Board's Regional Director issued a Decision and Direction of Election on Sep-
tember 17, 1963, and on October 11, 1963, an election was held. The Union received
73 valid votes and there were 81 votes against the Union.
Objections to conduct affecting the results of the election were filed by the Union
on October 16, 1963. There were two grounds advanced to support the objections.
One ground was that the payroll list of names was not submitted to the union repre-
sentative and observer until 15 minutes before the election and this allegedly provided
inadequate time "to appraise the list ...... In a Supplemental Decision, dated Novem-
ber 18, 1963, dealing with the objections, the Regional Director found the foregoing
objection to be without merit. The Decision described the circumstances referred to,
including the fact that the check of the voting list had been completed before the
voting commenced. There was also found to be no indication or claim that ineligible
persons had voted.
The second ground of objection was that on the day of the election, before the elec-
tion, the Employer issued paychecks to the employees from which it had deducted $5
and placed $5 in cash in separate envelopes that the employees received with their
checks. The statement of earnings and deductions slips that the employees also
received showed a $5 deduction. An accompanying notation stated that the $5 repre-
sented the monthly union dues that the employees would be obliged to pay if the
Union won the election.
The Regional Director, in his Supplemental Decision found that $4 monthly dues
was representative of the Union's dues among comparable groups in the area. The
Decision went on to state that "The Employer states that certain employers in the
area advised the Employer their employees represented by Petitioner [Union] pay $5
per month dues. The Employer did not advise its employees ... that other groups
represented by Petitioner pay less than $5 per month dues." Because of the mis-
representation of the foregoing facts and the timing thereof, which did not afford the
Union an opportunity to reply, the election was set aside.'
Pursuant to the setting aside of the October 11 election, a second election was
scheduled for January 23, 1964. On January 22, 1964, the Union withdrew its peti-
tion for certification and the election scheduled for January 23, 1964, was canceled.
B. Employee Butlers discharge
Butler was hired by Respondent in October 1962. In August 1963, and until his
discharge on May 22, 1964, Butler was employed at the Humble plant.
The union organizational effort at Respondent's plant evidently commenced
around July or August 1963. Butler and five other employees were appointed to the
union organizing committee in August 1963. The committeemen engaged in soliciting
fellow employees on behalf of the Union and securing employee signatures on union
authorization cards. This activity occurred at the plants, evidently on nonworking
time, and there were also visits to the homes of the employees. Of approximately 90
union cards that were signed by employees from both plants, Butler testified that he
had secured 60. Forty or forty-five of these sixty cards were secured by Butler alone
and he secured the balance when some other committee member or members was or
were also present.
Shortly after the union campaign commenced, Superintendent Jaetzold asked Butler
if everyone was welcome to attend a union meeting that was scheduled for that same
evening. Butler testified that he said to Jaetzold, "Yes, and you too." Jaetzold came
to the meeting that night but, when he arrived, Corley, the union representative, and
Butler, advised him that they believed his presence would have an inhibiting effect
upon the employees present. Jaetzold then left. The evidence indicates that the fore-
going incident had no connection with General Manager Heathcott and when Jaetzold
i Subsequent to the filing of its objections, the Union alleged that the Company had
granted a general wage increase on September 27, 1963, before the election, for the pur-
pose of affecting the election. After briefly referring to some of the evidence on both sides
of this particular contention, the Regional Director found that the matter had not been
alleged timely and therefore found that it was not properly within the scope of his
investigation or decision.
UNIVERSAL PACKING & GASKET COMPANY 1535
narrated how he had gone to the union meeting, Heathcott thought that he was
"kidding." Heathcott promptly contacted the company's attorney and issued a notice
or orders that no company representative was to attend any union meeting.
The only significance of the foregoing incident is that Jaetzold, in speaking to Butler
about the scheduled union meeting, apparently regarded Butler as an employee of
some prominence in union affairs relating to the plant.
Butler testified that, about a month before the October 11, 1963, election, Heathcott
came into the preforming department where Butler worked. Heathcott asked Butler if
he knew who the artist was who had drawn a picture on a particular union handbill.
Butler said he did not. Heathcott then said that "if the Union won the election, that he
would fire the employees that voted for the Union or shut down the plant, and that
he would go to any means within or outside the law to keep the union out of the
plants." Butler states that he informed Heathcott that he, Butler, "would fight just
as hard to see the union got into the plant." No one else was present.
Heathcott testified that early in the union campaign, before the October 1963
election, there were some cartoons that were put out by the Union which he considered
to be rather clever. While walking through the plant he asked Butler who the car-
toonist was. Butler said that he did not know. Heathcott said that he would like
to know who the man was because he might want to have him do some work for him
too. According to Heathcott, he was speaking in a rather jocular tone. Butler
replied that he was doing work for Heathcott also. Heathcott said that if Butler
worked for Heathcott like he did for the Union he would be a mighty good employee
and then Heathcott left. There was nothing else said and nothing about closing the
plant or terminating the union employees.
The sharp conflict of testimony between Butler and Heathcott wherein the former
attributes to the latter the statement that "if the Union won the election that he
[Heathcott] would fire the employees that voted for the Union or shut down the
plant, and that he would go to any means within or outside the law to keep the Union
out of the plant," is apparent. The alleged statement is a very strong expression of
antiunion sentiment. In fact, it is about as strong a statement as an employer can
make to an employee in opposition to a union. By its content, the alleged statement
constituted a clear violation of Section 8(a) (1) of the Act but since the charge was
not filed until May 27, 1964, after Butler's discharge, the alleged violation was
excluded by Section 10(b) of the Act. The General Counsel adduced the evidence,
regarding Heathcott's alleged statement, in support of the Section 8(a)(3) allegation
as to Butler's discharge, since the statement would tend to show employer animus,
intention, and motivation.
The record reveals, in the entire period from August 2, 1963, when the Union filed
its petition, through October 11, 1963, the date of the election, no statement or con-
duct by Heathcott or any other supervisor that is even remotely comparable to that
attributed to him by Butler. This was a period of approximately 21/2 months of an
election campaign that culminated in a close election. Experience would indicate
that union election campaigns quite commonly evoke statements or conduct from
employers in opposition to the Union, including statements that overstep permissible
limits. An employer who has allegedly told one employee about a month before the
election that he would discharge all those who voted for the Union, close the plant,
and would resort to all legal or illegal means to keep out the Union, would normally
be expected to make some comparable remarks to at least a few other employees.
Employees who were not fully committed to the Union or who were undecided would
be particularly susceptible to even a hint about the plant closing or the loss of a job.
And if it be said that the absence of other evidence is explainable by the possibility
that the employer was being careful and circumspect, this hardly jibes with the con-
tention that the top management official, Heathcott, made the clear unqualified threat
attributed to him to Butler. Butler was an intelligent and articulate employee and
known to be the chief or one of the chief union activists among the employees.
Butler was in close communication with the union representative or representatives
and circumspection by management in its opposition to the Union is hardly consistent
with Heathcott's alleged brash statement to Butler.
In this same connection we have described in some detail the circumstances per-
taining to the result of the election. The Union lost and filed objections. Pre-
sumably the grounds of objection were the best or the sole grounds that were avail-
able. The objections were twofold. One, that the payroll had not been submitted
2 As seen, Butler places the conversation as about a month before the October 11,
1963, election. The General Counsel's brief uses the phrase, "about September 1963."
The Union's petition for certification was filed August 2, 1963.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
far enough in advance to permit adequate perusal by the union representative and
observer (Butler was the union observer at the Humble plant ). This ground was
found by the Regional Director to be without merit. The second objection, which
was sustained , was, in effect , that, before the election , the Company had issued
literature to the employees to the effect that if he Union won the election the employ-
ees would have to pay $5 monthly dues whereas the more representative dues figure
was $4 a month.
The election, the objections , and the Regional Director 's decision are not an issue
here and, in any event , I do not question the decision therein . We do note , however,
that, beforehand , no one filing such objections , experienced in labor law or even with
some experience in the field , would characterize the two grounds of objections as
particularly strong. Even on their face , the grounds of objection were not a "sure
thing" insofar as it could be confidently predicted that they would inevitably lead to
the overturning of the objection . Moreover , on objections and such matters, it is
customary to use the best grounds of objection rather than to take a chance on some
less potent allegations .3
The best objection and, in my opinion , the objection that on its face would neces-
sarily lead to the setting aside of the October 11 election , was the September statement
attributed to Heathcott by Butler in his testimony in the instant case . But this state-
ment is not mentioned in the objections to the election and was not mentioned even
when the Union filed a later , but untimely , additional ground of objection.
This is not a situation where the Union had many strong grounds of objection to
the election and where it might, therefore , understandably omit some additional
incident . Nor is it a situation where unawareness of the Heathcott alleged threats
might be attributable to the fact that the statement was made to some obscure
employee not identified with the Union or to an employee not particularly close to
the union representatives . Nor is it a situation where no one but an expert could be
expected to know the significance of Heathcott 's statement . The alleged Heathcott
statement was made to the most active of the union committeemen and a man who
was alert and articulate . Butler was also the union observer in the election and, in
our opinion , must have been aware of and, in some degree , a participant or source of
information regarding grounds for objecting to the election ? But notwithstanding all
the foregoing , the record shows that the Heathcott threats were not advanced as an
objection to the election but, instead , the best that was advanced was the two grounds
previously described. On a comparative basis, the objections consisted of bird-shot
with an uncertain and unpredictable effect, whereas , if Butler's testimony is credited,
a blockbuster of an objection was at hand which, in our opinion , would have with
predictable certainty , overturned the election or any Board election that was preceded
by such threats.5
3 As noted , the Union was apparently seeking to make its objection case as strong as
possible and it filed an additional ground of objection ; namely, a wage increase given-
prior to the election. This objection , however , was filed too late to be considered.
4 One of the objections was, as we have seen , that the payroll list was not given to
the union representative and observer sufficiently far in advance of the voting to insure
adequate checking.
5 A subsidiary portion of my appraisal was the following : Both Heathcott and Butler-
agree that the former asked Butler the name of the union cartoonist who had evidently
drawn some union -oriented illustrations on a union - organizing leaflet or message I be-
lieve that Heathcott's inquiry and his other remarks indicated that he regarded the
cartoons as effective It would seem altogether natural that an activist like Butler, in
frequent contact with the union representative , would probably mention that " our" cartoons
are striking home because Heathcott asked "me about our cartoonist." It would also
seem likely that in the same conversation Heathcott ' s threats would be mentioned if such
had been made The threats were, as we have seen, unique in the whole preelection cam-
paign and this, plus the brashness and severity of the threats , would both be factors,
that would seem worthy of communication by Butler to others in the union movement.
Also considered was the possibility that the Heathcott statements were not urged as an
objection because it was felt that there would be a credibility issue that would take time
to resolve . However, the regional processes of the Board are relatively rapid even on
conflicting issues of such a nature . Moreover , the record reveals no great effort by the
Union for a prompt second election and even the January 23 , 1964 , date for the second
election, almost 2 months after the overturning of the first election , was such that the
Union withdrew its petition and that election was canceled.
UNIVERSAL PACKING & GASKET COMPANY 1537
It is axiomatic that the appearance and demeanor of the witness as well as the
analysis of the evidence and circumstances are the tools that are available in resolving
credibility issues. Demeanor and appearance are subjective intangibles . They are
also the exclusive ken of the trier of fact as compared to a reviewing board or court.
But however unassailable credibility resolutions may be when the trier of fact empha-
sizes the personal impact of respective witnesses, not all cases present situations
where credibility is resolved solely by some inner intuition vouchsafed to the trier
of fact. The instant case is one where demeanor and all relevant factors and circum-
stances have been considered. I entertain a very substantial doubt regarding the evi-
dence attributing to Heathcott the threats allegedly uttered to Butler in September
1963, as aforedescribed. We therefore do not find that such statements were made by
Heathcott.
Aside from the conversation between Butler and Heathcott above mentioned, the
record contains evidence of two public speeches made by Heathcott in the period
between August and October 11, 1963, prior to the election. Both these speeches were
made to the Humble employees as a group. The evidence regarding the content of
the speeches is brief but uncontroverted. Heathcott informed the employees on those
occasions that nobody would ever be discharged from the Company for working for
the Union unless it was on company time; that they must not work for the Union on
company time; and what they did on their own time was their business.
There is one other incident that may be mentioned. Here, again, the evidence is
brief and uncontroverted. Sometime between August and October 11, 1963, an
employee reported to management that Butler and another employee had tried to
force him to sign a union card and had drawn a knife in the process. Heathcott did
not receive the report directly but when he was informed of the affair he told Butler
and the other employee that he would not stand for such conduct and he discharged
them. Evidently thereafter, on the same day, Heathcott learned that the man involved
was Buckner, not Butler, and that the employee who had been threatened had mis-
takenly named Butler. According to Heathcott, "I got in my car and went to Mr.
Butler out on the highway and apologized to him and told him what had happened
and brought him back, myself."
Before concluding a description of the events during the union organizational drive,
up to the election of October 11, 1963, the following is also pertinent. As stated by
me in my analysis of the Heathcott-Butler conversation, there is no doubt of Butler's
prominence in the Union and of Respondent's awareness of this fact. Respondent
admittedly was awaie that Butler's name, as well as those of some other employees,
appeared on the various union leaflets. Butler's name was prominent. The conversa-
tions between Jaetzold and Butler, and Heathcott and Butler, during this preelection
period, previously described, also indicate Respondent's awareness of Butler's promi-
nence in the Union. Butler was, as we have seen, the union observer at the Humble
plant for the October 13 election.
With the possible exception of another conversation that is in dispute and which
will be discussed hereinafter, we have now come, chronologically, to the election of
October 13 and the period following.
Butler testified that after the October 13 election he signed up a few employees into
the Union. The witness said "we" were working on this signing up "just three or four
days" and then Corley, the union representative, told them to discontinue this card
signing. Further, when Butler turned over to Corley the cards that had already been
secured in this brief period, Corley said "there wasn't any sense in keeping them
because we hadn't started a campaign yet." Butler did not specify the period when
the foregoing occurred other that it was subsequent to the October 11 election. After
the Regional Director, on November 18, 1963, set aside the election of October 13,
a new election was not immediately scheduled. At some time, not shown in the rec-
ord, but quite clearly subsequent to November 18, a second election was scheduled
for January 23, 1964. As we have seen, the Union withdrew its petition on January 22
and the second election was canceled.6 Butler states that from January 22, 1964,
to the date of his discharge on May 22, 1964, he spoke to 50 to 60 employees about
the Union. He also states that during this period he attended union committee meet-
ings in the union hall about once a month and that he was in frequent contact with
Corley, the union representative.
6 The withdrawal of the petition was approved by the Regional Director with a provision
that "any petition filed by (the Union) within 6 months of January 22, 1964, whereby
this Union seeks an election in the unit found appropriate . . . will
unless good cause is shown to the contrary."
not be entertained
783-133-66-vol. 151-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aside from Butler's testimony, and some other testimony of the same nature, there
is no evidence regarding the union situation at Respondent's plants after the Octo-
ber 11 election. The filing of the objections and the decision of the director thereon, on
November 18, would indicate continued union interest during that period. It would
also appear that, subsequent to November 18 and the date thereafter when a second
election was scheduled, the union situation was at least fluid until January 22, 1964,
when the Union withdrew its petition and the election was canceled. I believe that it
is illogical to believe that, in the period after October 13 when the Union was filing
objections to the election and up to January 21, 1964, when a second election was
still scheduled, Corley would have told Butler to discontinue signing up employees
in the Union and would have told him that there was no sense in retaining the few
new cards already obtained, because Corley and the Union had not yet started a new
campaign. The foregoing position and statement by Corley, in our opinion , probably
occurred after January 23, 1964, when the second election was canceled by reason
of the Union's action in withdrawing its petition for an election and certification.
Moreover, it is noted that although Butler specifically alluded to the period from
January 22 to May 22, the date of his discharge, as a period when he talked to people
about the Union and attended committee meetings, he says nothing about card sign-
ing activity during this period.? The apparent explanation for this is the instruction
aforedescribed from Corley, after Butler signed up a few new cards, that a new
campaign for an election had not yet been started.
Although I credit Butler in his testimony about his union activity after January 22,
there is no reliable evidence that Respondent was aware of this activity. However,
Respondent was fully aware of Butler's prominence in the union campaign that cul-
minated in the October 11 election and Respondent had no reason to doubt Butler's
continued association with the Union thereafter, at least while the union situation
was still fluid. For the reasons discussed above in some detail, I am of the opinion
that on January 23, 1964, and through May 22, 1964, the Union threat to successfully
organize Respondent's plants was lacking in any immediacy, certainly insofar as
Respondent was aware. The potential however, was present and Butler would be
a factor in any union potentialities. As far as appears, and as Corley told Butler,
there was no point in signing up new employees or in keeping the new cards already
obtained because the Union had not started a new campaign. The petition had been
withdrawn, the election canceled, and there was a 6-month period before a new peti-
tion could be filed. No new petition was filed between January 22 and the inception
of the instant hearing in September 1964. The testimony of Wheeler, a union com-
mitteeman, indicates that the union campaign recommenced after Butler's discharge,
probably sometime in June 1964, at least insofar as card signing was concerned.8
Heathcott testified that when the union petition was withdrawn and the January 23,
1964, election was called off he thought that the matter was finished, at least until
the Union filed a new petition at some time in the future. The witness also testified
without contravention that, as far as he was aware, no union literature was passed
out to the employees after the October 11, 1963, election. Heathcott stated that he
learned, in August 1964, that employees were being visited in their homes about the
Union.
Butler testified that about the middle of April 1964, 4 or 5 weeks before his May 22
termination, he asked Jaetzold for a pay raise. According to Butler, Jaetzold told
Butler that he had caused quite a bit of friction among employees in the plant, trying
7 Card signing is a normal activity when a union is campaigning in preparation for an
election. Butler testified that from August to October 11, 1963, he secured 60 cards prior
to the first election. He was apparently aware of the significance of such activity as
illustrative of his union activity. But in illustrating his union activity in the period
after January 22 Butler says nothing about card signing
8 Wheeler had been a union committeeman for a brief period prior to the first election.
He testified on September 15, 1964, that he was again on the union committee and had been
so placed for about the past 23/2 months. This would be about July 1964 and no earlier
than June 1964. Wheeler also stated that for the past 3 months "I have been getting
cards signed so we could try to get in another election out there at the plant
Maxine Dudley, the union observer at the Houston plant during the October 11, 1963,
election, testified that since January 22, 1964, she had attended committee meetings and
had talked to employees in their homes about the Union For some unexplained reason,
however, in early August 1964 she made the following remark: She was in a brief con-
versation with two other employees. One of these two employees asked Dudley, "When
is the union coming back in?" The other employee answered his fellow worker by saying
that the Union was not coming back in and Dudley affirmed this statement.
UNIVERSAL PACKING Sc GASKET COMPANY 1539
to get some of them to vote for the Union , which some of the employees did not want
to do. Butler states that he informed Jaetzold that , if that was to be held against him,
he should be discharged . Jaetzold then said that he could not hold it against Butler
for doing what Butler thought was right. Jaetzold said that he would see about getting
a raise for Butler. Butler states that he also advised Jaetzold that he intended to
keep right on with his union activities.
On cross-examination Butler, in substance , repeated his testimony aforedescribed
with the exception of the remark to Jaetzold that he intended to continue with his
union activities . Butler admitted , however, that in two pretrial affidavits that he gave
on different occasions to two Board agents investigating the case, there is no refer-
ence to any conversation with Jaetzold about union matters along the lines he
described in both his direct and cross-examination . When asked to explain the
omission , Butler stated:
... there was no reason to put them [the remarks of conversation between Jaet-
zold and Butler] in an affidavit because this was between I and Mr. Jaetzold.
This was for a raise. This was not containing anything about the union.
Butler went on to say that he had mentioned Jaetzold's conversation to one of the
Board agents but opined , "I guess he figured it wasn 't anything he needed , I mean, this
was just for a raise in wages is what it was."
Jaetzold testified that about 4 weeks before Butler's discharge he was walking
through the plant and Butler asked him if his work was satisfactory and Jaetzold
said it was . Butler asked if he was eligible for a raise and Jaetzold replied that he
would see what he could do about it. This was the extent of the conversation accord-
ing to Jaetzold and nothing was said along the other lines testified to by Butler.
Butler's version on direct examination would tend to show continued awareness
and concern on Respondent 's part about Butler's union role. It would tend to bridge
the apparent hiatus in the union situation , insofar as Respondent was concerned,
between January 23 , 1964, and the date of Butler 's discharge on May 22, 1964.
Other than the foregoing, the conversation was unexceptional . In a plant where 73
employees voted for the Union and 81 against , there probably was some "friction"
between employees on the two sides. Butler , as the most active union organizer,
probably, and legitimately , did try to persuade employees opposed to the Union to
change their views and to vote for the Union . Jaetzold's alleged remark that he
was not holding Butler's union activity against him would, in any event, negate what-
ever significance (which is little or none ) might be attached to his other remarks.
Thus the most material aspect of Butler's version on direct examination would be
his communication to Respondent that he intended to continue his union activities.
The credibility issue on the Butler -Jaetzold conversation is, like the other credibility
issues in the case , not an easy one. A careful consideration of all the elements
involved leaves me with a substantial doubt concerning the accuracy of Butler's tes-
timony. Faced with uncertainty of this nature I am unable to find that the contents
of the conversation as described by Butler should be credited in preference to Jaet-
zold's version . It may be mentioned in concluding this episode that the record shows
that Jaetzold did speak to Heathcott about Butler 's request for a wage increase and
Heathcott advised Jaetzold that if Butler's work warranted a raise it should be given
to him. Butler then received a wage increase about 2 or 3 weeks before his discharge
on May 22.
Butler testified that about 3 or 4 weeks before his termination he happened to be in
the plant restroom when Heathcott was also present . This was shortly after Butler's
conversation with Jaetzold about a raise as aforedescribed . Butler states that Heath-
cott told him that he thought that Butler "had a lot of guts sticking up for what I
[Butler] thought was right and doing what I thought was right for my family and
the people in the plant and not backing down during this campaign ." Butler testified
that he then asked Heathcott if his work was satisfactory and Heathcott said it was
very satisfactory and he had nothing against Butler's work . Butler states that he
then told Heathcott that he intended to continue his union activities.
On cross-examination , when asked about any conversations that he had had with
company supervisors, Butler referred to the conversation with Heathcott around
September 1963 and the conversation with Jaetzold about a raise in April 1964 .9
The witness was then asked if, before the May 18 conversation with Chambers, he had
had any conversation with any other supervisor about the Union other than the con-
9 There was also a conversation referred to with Assistant Superintendent Chambers
on May 18, 1964, which we will describe at a later point
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
versations he had described on cross-examination.10 The witness answered, "No, sir,
not that I recall." He was then asked, again,
Q. . You had this one conversation with Mr. Heathcott when you all talked:
about the artist who did the leaflets, then you had the conversation with Mr. Jaet-
zold about the raise, and you can't recall having any discussions with any other
supervisor prior to May 18?
A. No, sir, not that I recall.
On redirect examination, Butler recalled that he had had two conversations with
Heathcott, one in the performing department in September 1963 and one in the rest-
room around the end of April 1964. He was not asked to repeat the contents of the-
conversation at that point.
On recross-examination, Butler repeated the Heathcott conversation in the rest-
room about the latter's commending Butler for his "guts" and for not backing down.
The witness said that nothing else was mentioned about the Union by either party.11
Heathcott's version of the restroom conversation with Butler is that it occurred
in October or November 1963 and not in April 1964. Heathcott states that 2 or 3
weeks after the October 1963 election he came in the restroom and encountered
Butler. Heathcott said, "I am glad this thing is kind of straightening itself up.
Maybe we will get along a little better." 12 Butler then asked how he, Butler, stood
with the Company and what were his chances for a raise. Heathcott replied that they
thought a lot more of him for taking the stand that he did and admitting where he
stood than of others who lied about where they stood. Heathcott testified that the
conversation was brief and there could have been something said about Butler's work
since Heathcott had no criticism of his work and he regarded Butler as a good worker.
Heathcott states that neither party referred to the Union or union activities and he
could recall nothing about Butler expressing his intentions about future union activity.
Both Butler and Heathcott place the conversation in the restroom and both agree
that Heathcott commended Butler for having stood up for what he believed in, an
obvious reference to Butler's union activity. They disagree as to the time of the
conversation and the reference to Butler's alleged expressed intention to continue his
union activity.
Regarding Butler's version, placing the conversation around the end of April 1964,
I have difficulty in understanding why, at that time, Heathcott should commence
talking, out of the blue, about how much he admired Butler for having stood up for
his union convictions. The election had been held in October 1963. The Union
had withdrawn its petition in January 1964 and the second election had been can-
celed in that same month. Heathcott's version that the conversation occurred a few
weeks after the October 1963 election and that, in effect, he was commending Butler
10 The September 1963 conversation with Heathcott and the April 1964 conversation with
Jaetzold.
U Butler testified as follows:
Q. What else do you recall about this conversation
A. That is about the extent of it.
• c m s s s r
Q. . . . But my question is do you recall whether anything else was said to you
besides this.
A. No, there wasn't nothing else said about the union or-[sic, as in transcript
of testimony].
a • s w s s
Q. . . . What you have just told me was the entire conversation of what occurred,
that occurred in the restroom?
A. That is about it.
i • t t R t i
Q. The conversation began by Mr. Heathcott telling you he had a lot of respect
for you for sticking up for what you thought was right?
A. Yes . . . . And he said-I asked him if my work was satisfactory and be said
he was satisfied with my work.
s a t t x
Q. That is the entire conversation?
A. (No response) [Sic]
Q. Pardon?
A. Yes, air.
12 Heathcott testified that he meant that the election was over.
UNIVERSAL PACKING & GASKET COMPANY 1541
for his forthright union partisanship in the campaign that had culminated in the
election, and with the hope that the matter was now disposed of, seems more
reasonable under all the circumstances. 13
It is apparent that the significance of Butler's testimony on direct examination is
his alleged statement to Heathcott a few weeks before his discharge that he intended
to continue his union activities. This, like the alleged remarks to Jaetzold in the same
vein, would tend to bridge the vacuum of the dearth of Respondent's awareness of a
renewed or continued union effort to organize and Butler's role therein during the
period from January 22 through May 22, 1964, the date of the discharge of Butler.
If Butler's remark about his intention to continue his union activity occurred in
October or November 1963, it has much less significance since Respondent, during
that period and up to January 22, 1964, was aware of the objections to the election,
the setting aside of the election, and the scheduled second election. Presumably,
Respondent would have reason to believe that Butler and the Union were still actively
engaged during that period and would not need any express affirmation of the fact
from Butler.
But, aside from the date of the conversation , the contents thereof, under Butler's
version on direct examination , is subject to serious doubt . Under cross -examination
by Respondent's counsel, Butler, more than once, described the conversation with
Heathcott without any reference to a remark by Butler that he intended to keep on
with his union activities. As in the case of the Jaetzold conversation, where I was
aware that a variation between statements in affidavits and testimony at the hearing
on the part of an employee was to be viewed judiciously together with all other facts,
and that credibility was not to be resolved by some simple "discrepancy" formula, so,
too, we are fully aware, that variations in direct and cross-examination are not in
themselves dispositive. However, after weighing all factors, I find Heathcott's testi-
mony regarding the restroom incident to be the more credible. On this, as well
as on the Jaetzold matter, Butler's testimony may be accurate but, lacking the ability
to penetrate men's minds, I am unable to credit the witness on the records and factors
before us.
We now come to the discharge itself of Butler.
At the outset , it is appropriate to describe briefly the respective contentions.
Respondent asserts that Butler was discharged for having a bad back and for not
admitting it on his application for employment. Heathcott's position was that he
considered either of the foregoing sufficient for discharge and that both were the sole
reasons for the discharge. Evidence was adduced to show past experience with
employees having bad backs and workmen's compensation liability as a result, as well
as insurance company pressure againt Respondent 's past lax screening of employees
with physical defects. The General Counsel asserts that Butler was discharged
because of his prominent union activity. It is asserted that Butler did not have a bad
back either when he was first hired or when he was discharged and that his physical
illness or problem in May 1964 was pretextuous reason for his discharge.
13 In support of Butler's testimony that the conversation took place in April or early
May 1964, the General Counsel argues that the election was not "over" until January 22,
1964, since prior to that time objections were pending. Therefore, Heathcott would
not have said anything to Butler in November 1963 along the lines of the union matter
being settled It is true that objections were pending but the election concerning which
all the campaigning had occurred, including Butler's activity for the Union, had been held.
From that point on, including the filing and pendency of the objections, these was some-
thing of an anticlimax and the Union's cause was waging an uphill battle Ileathcott
may well have felt that the objections would not prevail or that in any event the Union
might not do any better in a second election Moreover, the statement about being "glad
this thing is kind of straightening itself up" was not inaccurate and, to the extent that
an election had been held, it could be said that "this thing is hind of straightening
itself up" Fiom the fact that Heathcott states that Butler asked him for a raise, the
General Counsel asserts that since Butler had asked Jaetzold for a raise shortly before,
in April 1964, it is natural that he would also ask Ifeathcott the same thing. One of
the difficulties with this is the fact that Butler did not testify that he asked Heathcott
for a raise during the conversation. If Butler did ask for a raise and did so after he
had spoken to Jaetzold about the same matter, it would seem that in speaking to Heath-
cott, Butler would have said something along these lines: "Mr Heathcott, I asked Mr.
Jaetzold for a raise a short time ago and he said that he would look into it, I wonder if he
mentioned it to you" ; or "I would like to make the same request to you" ; or "I wondered
how you felt about my getting a raise "
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Butler telephoned the Humble plant on Monday, May 18, 1964. He spoke to
Chambers, assistant plant superintendent under Jaetzold. According to Butler, he
informed Chambers that he would like to have the day off in order to see a doctor,
explaining that he was experiencing headaches and neck trouble. Chambers told
him to go ahead. Butler testified that the aforedescribed condition had been bother-
ing him for 3 to 4 months prior to May 18 but had become particularly severe during
the preceding week. He testified that he had never been to the doctor before
concerning this condition.
Chambers affirms that he had received a call from Butler as described except that
Butler had told him that the reason he was going to the doctor was that he had been
in bed over the weekend because of his neck and back.
On May 18, after his conversation with Chambers, Butler visited Dr. Luther Boyd,
a chiropractor.14 Butler had not previously been a patient of Dr. Boyd. Although
Butler had a family physician, a Dr. Carey, he had not consulted or visited Dr. Carey
in this May 18 period.15
After considering the testimony of Butler and Dr. Boyd, as to what occurred on
the occasion of the May 18 visit, I find as follows: Butler came to Dr. Boyd com-
plaining of headaches; nausea; nervousness; inability to sleep; stiffness of the neck
and pains in the neck down to and into the shoulders; he was vomiting; his eyes were
dim; and, as the doctor testified, "he was sick." Dr. Boyd testified that Butler informed
him that this was his first illness of this nature-that he had the attack for the past
3 weeks but the last week and May 18 was the most severe period. The doctor made
a complete physical examination of Butler and he also asked him some questions.
He asked if Butler had ever been in military service and Butler replied that he had
been a paratrooper.16 The next question was whether Butler had ever been in an
automobile accident. Butler replied that he had been and that the accident had shat-
tered the cartilage in one of his hips. I believe that Butler in replying to the last-
mentioned question also gave some details of the accident (as he did in his testimony),
either in his initial response to the question by the doctor or because the initial ques-
tion and response were followed by questions relating to the nature and circumstances
of the accident. Butler disclosed that in the accident, which occurred in 1958 or 1959,
another car had backed into him and that he had been hospitalized for 7 or 8 days.
Dr. Boyd also asked Butler what type of work he did. Butler explained that he stood
over a preforming press table most of the day with his head bent down, operating a
press that pressed material in a mold and ejected it. The doctor said, "Let's get a
picture of your back" and he then took X-rays of Butler's back.
Dr. Boyd testified that he X-rayed the thoracic spine and the cervical spine which,
he said, would include down to the rib cage. The X-rays revealed "a thinning or com-
pression of the discs between the vertebrae, mostly in the neck or cervical spine .. .
and some in the upper dorsal." The doctor stated that his diagnosis "at that time
[May 18] was stiffness of the neck complicated with spasms of the muscles of the
cervical spine causing compression of all the vertebrae." 1 7
14 Dr. Boyd testified at the hearing He has been a chiropractor for 15 years and is
quite evidently a qualified chiropractor. Thus, he has had 3 years of junior college
and 4 years in Texas Chiropractic College He has passed an examination of the Texas
State Board of Chiropractic and is licensed to practice chiropractic in the State of Texas.
Other than Dr Boyd's testimony, there is no other professional evidence in the record
either from a medical doctor or chiropractor. Dr. Boyd appeared to be objective and
competent in the area concerning which he testified.
15 Butler so testified I was not impressed by Chambers' testimony that on May 22
Butler stated in the presence of Chambers and four other supervisors, including Heath-
cott, that he had first gone to his family doctor and was refeiied by him to a chiroprac-
tor. All the foregoing supervisors testified regarding the May 22 conversation but none
except Chambers mentions the foregoing aspect Moreover Butler's family doctor was
evidently not a chiropractor and quite probably was a medical doctor since Butler dis-
tinguishes between his family doctor and his going to a chiropractor on May 18 It
appears doubtful that a medical doctor would refer a patient to a chiropractor, certainly
not in the first instance, if at all.
16 This was during the Korean conflict
17 Webster's New International Dictionary furnishes the following definitions:
Back-In human beings, the hinder part of the body, extending from the neck to
the end of the spine ; .. . .
Neck-The part . . . connecting the head and the trunk or body; the cervical
region ... .
UNIVERSAL PACKING & GASKET COMPANY 1543
After questioning Butler about his habits and his work , and on the basis of the
physical examination and the X-rays, Dr. Boyd states that he concluded that Butler's
work, with the head and body in a stooped position , placed "a continued strain on the
muscles of the neck, with muscle spasm compressing those disks , causing nervous
interference , resulting in nausea , dimness of vision and a lot of other symptoms that
go along with it." At another point, the doctor described his diagnosis as compres-
sion or thinning of the disks between the cervical vertebrae , between the vertebrae of
the cervical spine, by reason of constriction stress and spasms of the upper part of
the trapezius muscles. The doctor referred to the trapezius muscles as fan shaped
and by way of illustration he placed his hand on the back of counsel at a point in the
approximate center of the back below the shoulder blades and almost as far down
as the waist and ran his hand up to the shoulder to the neck.
Dr. Boyd testified that he did not consider that Butler had a back injury . He stated
that a back injury would exist where a jar or shock had misaligned the vertebrae of
the spine or injury to the bone, such as a slipped or ruptured disk, or injury to the
spine, or a broken back. The doctor testified that he considered Butler's condition
to be temporary , not chronic , since most of the symptoms disappeared within about
four treatments in that number of days.18 He did not attribute the condition to But-
ler's paratroop service in Korea, which entailed jumping and landing , because, in his
opinion , if the condition had occurred back in the early 1950's the symptoms would
have appeared before they did.19 The doctor stated that Butler, in his opinion, could
not have been for 18 months in the condition in which he was on May 18 because he
could not have endured the condition that long.
On May 18, Chambers reported to Jaetzold that Butler would not be in that day
because he was going to the doctor . Chambers said nothing about the nature of
Butler's illness . Jaetzold apparently made no comment and regarded the report as
a routine matter. Butler came to the Humble plant on May 19 and, according to his
testimony , asked Jaetzold if he could be given his vacation that week while he was
being treated by a doctor for headaches and neck trouble . 20 According to Butler,
Jaetzold asked him what his trouble was . Butler said that he did not know but that
the doctor had taken X-rays of his back; that the doctor has asked about his military
service and he had told him about being in the paratroopers ; that, when asked about
being in any car accident , he had told the doctor about an accident in which he had
been involved that had resulted in the shattering of the cartilage in his hip ; and that
the doctor asked about the nature of his work and he had told him . Jaetzold then
looked at his vacation list and observed that Butler was not scheduled for vacation
until the latter part of September . Jaetzold said , however, that he would advance
Butler's vacation so he could apply it to the current week while going to the doctor.
Thorax-The part of the body . . . situated between the neck and the abdomen,
and supported by the ribs . . . , also, the cavity contained in it, in which the heart,
lungs, esophagus , etc. are situated.
Dorsal vertebrae-The vertebrae between the cervical and lumbar vertebrae
Lumbar vertebrae-The vertebrae situated between the thoracic vertebrae above
and the sacrum below
Sacrum-That part of the vertebral column which is directly connected with, or
forms a part of, the pelvis . . .
Spine-The backbone , or spinal column.
18 The treatments consisted of "adjustment of the area , the cervical spine, with traction
and heat , rest."
u, The following is an additional portion of the doctor ' s cross-examination:
Q. But Mr. Butler had a problem with the muscles in his back?
A And his neck.
Q But his back, also. The muscles in his back, there was something wrong causing
the condition in his neck, as I understand it . .. .
A. Yes , that 's right
Q. But you would not technically classify that as a back injury?
A. No, sir
Q. You would refer to it as a back condition?
A. Muscle strain and spasm.
Q. And that would be a back condition?
A. Not-you can't separate the two because every muscle is attached to the
spine . . . .
° Butler received treatments by Dr. Boyd on May 18, 19, 20, 22, 23, 25 , and 27 r
June 2, 9, 17 and 24; and September 12.
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Butler asked when and where he should pick up his vacation paycheck. Jaetzold said
that it did not matter. Butler stated that he would come to the Humble plant on
Friday (May 22) to pick up the check.
Jaetzold 's testimony regarding the May 19 affair coincides with Butler's regarding
the vacation aspect and he admits that he understood that Butler was to come out to
the plant on May 22 to pick up his check. Regarding his inquiry to Butler as to what
Butler's trouble was, Jaetzold states that Butler replied that he was having severe
headaches and pain in his back and neck; that the doctor had taken X-rays of his spine
and it showed that he had no cartilage between his vertebraes and Butler had said
that he also had no cartilage in his hip. Later, when testifying as to what had
occurred on May 22, when he, Jaetzold, was telling Heathcott what Butler had said
on May 19 about his condition, Jaetzold testified that Butler had also told him on
May 19 that he had had his condition over 2 years. On cross-examination, when
asked to repeat the entire conversation between himself and Butler on May 19, Jaet-
zold made no reference to Butler having said that he had had his condition over 2
years. Jaetzold admitted that on May 19, after the conversation with Butler, he did
not regard Butler's condition as serious or as more than temporary for he "just thought
it was one of those things, that a man might be off a week or 10 days because of some
illness .... It was just one of those everyday things that occurred." Consistent with
the foregoing, Jaetzold did not mention the matter to Heathcott, his superior, and
granted Butler the advancement of the vacation requested.
On Friday, May 22, payday, Heathcott was in his office at the Houston plant signing
the paychecks as was customary. He noticed that there was a vacation check for
Butler and he thought that it had not been long since Butler had his last vacation.
Heathcott called the bookkeeper and secured the date of Butler's hire.21 He then
ascertained that Jaetzold had authorized the May 19-22, 1964, vacation for Butler
and he telephoned Jaetzold at the other plant. Considering Heathcott's and Jaet-
zold's testimony regarding their telephone conversation, it appears that the former
wanted to know why Butler was granted his vacation before it was due. Jaetzold
explained that Butler was going to be off for a week anyway, going to a doctor, and
Jaetzold simply, in effect, advanced the vacation date. Heathcott pointed out that
Butler had not completed his 2 years' employment. Jaetzold acknowledged that he
had not realized that fact and in effect admitted his error.22 Heathcott then asked
Jaetzold what was the matter with Butler.
According to Heathcott, Jaetzold said that Butler had informed him that he was
going to a doctor because he was having headaches and neck and back trouble and
that Butler did not have any cartilage in his vertebrae or in his hip. Heathcott said,
"What," and asked Jaetzold to repeat what he had said and Jaetzold did so. Heath-
cott asked Jaetzold why he had not told him about this and Jaetzold said he thought
Heathcott knew it or something like that , "I don 't remember his exact words."
Jaetzold states that he told Heathcott what Butler had told him about the doctor
taking a picture of his spine and having no cartilages between his vertebraes and hav-
ing severe headaches. Heathcott asked why Jaetzold had not informed him of Butler's
back trouble and Jaetzold told him that Butler had said it was just a "temporary deal"
and not too serious. Heathcott hung up, finished signing checks , and got out Butler's
application for employment. The printed application had a section headed, "To your
knowledge do you have any of the following ailments (check yes or no)," with "yes"
and "no" boxes next to a list including , "Ruptured", "Kidney trouble", "Illness due
to working with chemicals", "Back trouble", and so forth. Butler had checked the
"no" box under back trouble. Heathcott telephoned Jaetzold again and, according
to the former , on cross-examination , he asked Jaetzold how long Butler had said he
had had his condition Jaetzold said that it was an old injury from sometime back.
Heathcott said that Butler had not shown on his employment application that he had
back trouble.
That same afternoon, May 22, within the next 2 or 3 hours, Heathcott had a photo-
static copy made of Butler's application and took it with him when he went to the
Humble plant with the paychecks. He arrived there sometime around 2:30 p.m.
"October 1962.
As a result of experience with advancing vacations to some employees before they
had completed the required length of employment and having the employees quit after
receiving their advanced vacations , the Company had instituted a policy that an employee
had to complete 2 years of employment before he was entitled to his 2-week vacation.
In short, Jaetzold had not simply advanced a week of vacation or changed a vacation date
that had already accrued, but had advanced or granted a vacation before it had accrued.
UNIVERSAL PACKING & GASKET COMPANY 1545
Heathcott placed the checks on Jaetzold's desk and then held a meeting with
Jaetzold, Chambers , Humble Plant Engineer Landes, Hickman , the machine shop
foreman, and Churchill, who was in charge of maintenance . The principal topic
of discussion , according to Heathcott , was a machine that was causing some
trouble.23 During the course of the discussion , some of the above-mentioned super-
visors were in and out of the office . Around 3:15 p.m., Heathcott happened to look
up and saw Butler outside the glassed portion of the office . He motioned Butler to
come in.
Butler testified that he went into the office and saw Heathcott , Jaetzold , Chambers,
Landes, and Hickman. After greeting Heathcott and Jaetzold , he asked the latter
if he had his check. Jaetzold asked how he was feeling and Butler said that he felt
fine and was ready to go back to work on Monday . Heathcott then spoke up and
asked Butler if he recognized his employment application which Heathcott produced.
Butler acknowledged the document and Heathcott pointed to where Butler had
marked, "No back ailments ." Butler said that was correct and he had no back ail-
ments when he was first employed and had back ailments at the present time. Heath-
cott said that he understood that Butler was being treated by a doctor for back ailments.
Butler stated that he was being treated for his neck and headaches . Heathcott replied
that Jaetzold reported that the treatment was for back ailments . Butler again denied
that such was the fact . Heathcott said that if Butler had shown on his application that
he had back ailments he would not have been hired. Butler again denied having
or having had back ailments . Heathcott said that he did not think the insurance com-
pany would go along with the situation and therefore he would have to terminate
Butler. Butler stated, ". . . Mr . Heathcott , if I try to get a job some other place and
I mark `yes ' for back ailments , which I will have to do because you say I have them,
I won't get a job," elsewhere , "If I go look for another job and mark in my application
that I have back trouble or had back trouble , I won 't be able to get a job." 24
On cross-examination , Butler stated that "at one time" Dr. Boyd had told him
that his condition could have been caused by something a long time ago or something
very recently . In telling Butler what his trouble was, the doctor, according to Butler,
had used long words that Butler did not understand , but the doctor had told him that
the muscles and nerves in his neck were tensed up and that was the cause of the
headaches . Butler stated that the doctor told him that he believed that Butler's con-
dition was occupationally caused, something relating to his work. Butler also testified
on cross-examination that, on May 22 in the office , he had told Heathcott he had no
cartilage in his hip and had also informed Heathcott of the doctor 's inquiry regarding
military service and of being in an automobile accident and that Butler had told of
his paratroop service and the automobile accident in which he had been involved.
Heathcott testified that when Butler walked into the office on May 22 he asked
Butler what was his trouble . Butler replied that he was having headaches and neck
and back trouble , and that it was old injuries. Heathcott asked what he meant.
Butler said that he had been a paratrooper, had done a good deal of jumping, and
observed that jumping is pretty hard on a person and that one gets some pretty hard
jolts. Butler also mentioned having been in an automobile accident and said some-
thing about possible whiplash .25 Heathcott asked him if he had not secured partial
23 The reason for the presence of all those supervisors, Heathcott testified, was that
Hickman's men were performing the work, with engineering supervision by Landes, and
the machine was for the production use of Superintendent Jaetzold and his assistant,
Chambers. Churchill, as the maintenance supervisor, was also present.
i4 Later, in the hearing, Butler was recalled by the General Counsel to explain what
he meant by these remarks. Butler stated that since Heathcott said he was terminating
him for back trouble, "I [Butler] would have to put down that I have back trouble be-
cause that is what he's firing me for."
Q. Why would you say you would have to put that down?
A. If I don't I would be lying.
Q. What do you mean by that?
A. Because if they checked with Mr. Heathcott and he told them I had a back
injury and I put on there that I didn't have a back injury, I never would get a
job....
Z On cross-examination Heathcott said that Butler did not state that he knew what
had caused his condition but that Butler said that it could have been the paratroop
service and the jolts connected with jumping or that it could have been from the auto-
mobile accident but he did not know and that his back was not giving him trouble.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disability status when he was discharged from military service and Butler said he did
not think so. When asked why he had not secured partial disability at the time of his
military discharge, Butler replied that he did not give the matter much thought at
the time and was in a hurry to get out. Heathcott said back trouble was serious and
Butler said he did not consider that his condition was serious or that he did not think
that it amounted to anything. Heathcott then showed Butler his application, observ-
ing that he had not mentioned his back trouble therein. Butler said that his condi-
tion did not amount to anything and that it did not bother him at the time. Heath-
cott said that he considered back trouble to be serious and would not have hired
Butler if he had known of his condition. Butler repeated that his condition was not
serious or that it did not amount to anything. Heathcott said that anyone who had
to take off and to go a doctor for a week for such a condition must have a pretty
serious condition. Heathcott said the insurance company 26 was giving him enough
trouble already and he would have to let Butler go. Butler asked how could he make
a living if he lost his job. Heathcott said he and Jaetzold would give Butler a good
work reference and would not volunteer any mention of his back to a prospective
employer unless asked about it. Heathcott told Butler that if he was not terminated
and later on had back trouble he could sue Respondent. Butler said he would never
do that but Heathcott replied that if Butler was in the hospital, his family might
institute a suit and the Company would be "stuck."
Heathcott testified that he discharged Butler because Butler had told Jaetzold that
he had a back ailment, and, after talking with Butler, Heathcott had verified the fact
and Butler had not stated on his application that he had back trouble. In short,
Heathcott stated that the discharge was due to two factors, either or both of which
he considered sufficient; to wit, Butler had a bad back and had not admitted the
fact on his application. Jaetzold, Hickman, Chambers, and Landes were in the office
during the May 22 conversation between Heathcott and Butler. Some of them were
in and out of the room at various points and they paid varying degrees of attention
to the discussion. In substance, they corroborate Heathcott on material aspects of
the conversation and the general tenor, nature, and substance thereof.
The Union filed its charge against Respondent on May 27, 1964. Shortly after
receipt of the charge, apparently in the same week, Heathcott telephoned Dr.
Boyd. I find that Heathcott asked the doctor whether he had treated Butler and what
he considered to be Butler's trouble, and inquired particularly about his neck and
lower back. Dr. Boyd testified that he told Heathcott substantially what he
testified to in the instant hearing described above.27 The doctor said that Butler was
not having trouble in his lower back. Heathcott stated that the doctor used some
terms that he did not fully understand but in substance it was that Butler was having
trouble, principally headaches and muscular tension in the neck and shoulders.
Butler secured a job with another company in August 1964 where he performs
substantially the same type of work as he performed at Respondent's plant. For this
new job, according to Butler, the company doctor gave Butler a physical examination
but took no X-rays and asked nothing about his past physical history and Butler
volunteered no information. Butler testified that he was experiencing no headaches
or neck problems at the time.
About the latter part of August 1964, two young men, Sim and Ross, applied to
Respondent for employment. They were together and both spoke to Heathcott. The
latter expressed an unwillingness to hire them because of their youth but they per-
suaded him of their need for a job and at length he agreed to hire them. This
conversation took place in the hall outside Heathcott's office.
Having informed the two men that they would be hired, Heathcott took them
into his office and gave them application forms to fill out. After looking over the
completed applications, Heathcott, then, according to Sim and Ross, brought up the
subject of the Union. He said there had been a union election at the plant in 1963
when the Union unsuccessfully tried to get in and there might be a further union
effort. Heathcott said that he was opposed to having a union in the plant but the
two men could do as they pleased, either go for the Union or stay away from it, and
he could fire them or anybody else and get a whole new crew.
Heathcott's testimony is substantially the same as that of Sim and Ross except that
he denies saying anything about the consequences of joining the Union or about
firing, laying off, or hiring a new crew. Heathcott states that he told the two men
what he tells every new employee after he is hired, such as opportunities in working
for the Company and the benefits. Heathcott also said that he would prefer that
25 The company that carried Respondent's workmen's compensation insurance.
211 believe that the doctor's statement to Heathcott was not as detailed or as ramified
as his testimony.
UNIVERSAL PACKING & GASKET COMPANY 1547
they did not join the Union. He testified that the union subject was raised by him
because he had experiences with hiring persons in the past without referring to the
union situation in the plant and then had some of the newly hired employees come to
him later and complain that he had not told them that they were walking into a plant
where a union campaign was going on.
I note that , in August 1964, Heathcott had become aware of a renewal of the
union organizational effort, including visits to employees ' home by union advocates.
There is no evidence of any bias by Sim and Ross or affiliation with the Union and
they were hired at a time that removes them from the prior 1963 period when the
union advocates and those opposed were contending among the employees . Heath-
cott had, in effect, done Sim and Ross a favor by hiring them in spite of his initial
reluctance because of their ages . Under all the circumstances , I discern no reason
why the two witnesses should deliberately attribute to Heathcott statements such as
they described if such statements had not been made. Accordingly , it is found that
Heathcott did remark that he could terminate Sim and Ross or anybody else and
could start a new crew of employees . This statement was made in a context where
Heathcott expressed his opposition to the Union , albeit mentioning that Sims and
Ross had a choice of either side on the union question . In context , the threat, in
our opinion , was clear, and as such was in violation of Section 8(a) (1) of the Act.
C. Conclusions regarding Butler 's discharge
It is my opinion , on the evidence in this record , that Butler did not have a back
condition in the sense that he had trouble in his lower back. I also believe that
Dr. Boyd's detailed diagnosis and explanation , furnished at the hearing , does not
represent the diagnosis given to or understood by Butler on May 18. I believe
that such preliminary or tentative diagnosis as was furnished to Butler on the occasion
of his first visit was both less definitive and certainly less clear to Butler as a layman
than was the doctor 's diagnosis given at the hearing . The last-mentioned diagnosis
was based on substantially more information and I believe that it resulted from
experience in treating Butler over a period of time and the response of the patient
thereto. I regard the situation as of May 18 as being in a different posture.
Without specifying the time, Butler testified that "at one time" Dr. Boyd had
told him that his condition could be due to something that had occurred a long time
ago or to something very recent . In view of the doctor's ultimate diagnosis, which
eliminated an old, past occurrence as the cause of the condition , I believe that it was
on May 18 that Butler was told that the condition was attributable to some event in
the past or to something very recent , That would be a prudent initial and tentative
diagnosis. It was broad and it was safe. Future visits of the patient to the doctor and
a series of observations and treatments would then make possible a more definitive
statement. But whatever the later conclusion , it would presumably fit within the
broad outlines of the initial statement that the patient 's condition was attributable to
something in the past or to a more recent situation.
In addition to the aforementioned specific reference to either past or more recent
causation , the doctor, on May 18, by his questions regarding military service and
automobile accidents , as well as Butler's current present type of work , again was indi-
cating past or present possibilities of causation . Accompanying the foregoing was
the doctor 's statement about, and action in , taking X -rays of Butler 's back. I regard
Butler's reference to the doctor 's use of some big words that Butler did not understand,
and the doctor 's testimony regarding what the X -rays revealed , as an indication that
the doctor told Butler on May 18 that there was a thinning or compression of the
discs in the vertebrae , mostly in the cervical spine and some of the upper dorsal.
There may well have been a reference to the upper trapezius muscle or muscle below
the cervical spine. The doctor was under no injunction not to use the word "back"
or "muscle" and I believe that he may have used such words in the above context.
In short, it is my opinion that on May 18, as Butler testified , he was not given a
definitive statement as to the cause of his condition . Butler had been suffering severe
pain for at least a week . This he knew . He knew that he had headaches , severe neck
pains, and I do not believe that he knew or believed that the pain stopped precisely
at the portion of the cervical spine where it joined the remainder of the spine and the
shoulder and upper back . Butler testified that the pains in his neck went into his
shoulders . On May 18, on his visit to the doctor, Butler was immersed in a broad
medical spectrum ranging from the past , with paratrooper service and an automobile
accident that destroyed the cartilage in his hip , to the present , with a job that entailed
bending in a forward position at his work . The spectrum included back X-rays and
words about thinning and compression of vertebrae , cervical spine , upper dorsal, and
so forth.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coming now to the Butler-Jaetzold conversation on May 19, I view the situation as
follows: Butler was asking for a favor or at least some extra consideration in having
his vacation advanced so he could go to the doctor for a week without loss of pay.
Jaetzold asked him what was his trouble. Now there is Butler, a layman, paraphrasing
or giving his understanding and interpretation of what had transpired with, and
what was said by, the doctor on May 18. The actual situation on May 18, which has
been previously described, was imprecise enough, but now, on May 19, there is a lay-
man's description imposed thereon. Butler's interpretation or paraphrasing is given to
another layman, Jaetzold, who, in turn, paraphrased or interprets to himself what
Butler says.
I believe that Butler, on May 19, told Jaetzold about his visit to the doctor and all
aspects of the visit. I doubt that Butler said that he had had the condition for 2 years.
It is plausible, however, since Butler testified that he had been bothered by the condi-
tion for about 3 or 4 months, although not with the severity of the week before
May 18, that he conveyed this information to Jaetzold. At least, I believe, he prob-
ably said something about being bothered or being affected by the condition for some
time. In this same conversation the various areas of the doctor's interest and in-
vestigation were mentioned, including past paratroop service, automobile accident,
destroyed cartilage, compressed vertebrae, X-rays of the back, muscular spasm, and
pain in the head and neck. I believe that whether or not Butler ever expressly said
anything about pain in the back or in his shoulder, as well as in the neck, there was no
special focus upon the word "back" as verboten or irrelevant to the situation. In other
words, neither expressly nor subconsciously, were either Jaetzold or Butler saying to
themselves, Butler's back is not involved, or, that all these matters about paratroop
services, automobile accident, no cartilage, compressed vertebrae, and back X-rays,
can have nothing to do with Butler's back but relate only to some precise point not
involving the back. What occurred on May 19 was a paraphrased account by a lay-
man of a tentative and wide-ranging medical exploration by Dr. Boyd on May 18.
In my opinion, the extent of Jaetzold's interest in Butler's problem on May 19 was
that Butler had told him enough to justify Butler's request to receive his vacation pay
for the week that he was going to the doctor. I believe that Jaetzold gave very little
or no attention to mulling over the significance or lack of significance or possible
significance of what Butler had told him. I base this upon my appraisal of Jaetzold
as well as other evidence. Jaetzold was not oriented to, or responsible for, some of
the things that industrial management would, in many or most cases, be alerted to.
This was because Heathcott was, in effect, personnel manager, industrial relations and
labor relations man, and general manager, rolled into one. In addition, Heathcott
appears to have all or most of the other responsibilities that an individual proprietor
(which he was not) concerns himself with in a small enterprise. Jaetzold was almost
exclusively a production man and because of Heathcott's wide-ranging field, Jaetzold,
in my opinion on May 19, neither particularly evaluated Butler's condition as serious
or as not serious. He simply believed at the time that Butler was genuinely receiving
medical treatment and that his vacation could justifiably be advanced for that purpose.
It is my opinion that, on May 22, when Heathcott, in the course of signing pay-
checks, noticed the vacation check for Butler, the event was wholly fortuitous. Heath-
cott's call to Jaetzold about the matter revealed that Jaetzold had made an error.
Jaetzold had not simply advanced the date of a vacation that was already due but had
granted a vacation with pay before it was due. Jaetzold admitted his error to Heath-
cott. Heathcott did not dwell on the matter but then asked the natural question,
what was wrong with Butler.
Jaetzold had not expected any call or inquiry from Heathcott about Butler and, but
for the fortuitous circumstance of Heathcott noticing the vacation check, Jaetzold
probably never would have heard from Heathcott on the subject. Jaetzold, in my
view, had not given a thought to Butler or his ailments since May 19 and on that date
had not been particularly involved in the precise details of Butler's explanation. Now,
on May 22, Jaetzold is unexpectedly asked by his superior, what is wrong with Butler
so that he needed a week's vacation to go to the doctor. Jaetzold had already been
obliged to confess one error in judgment regarding the granting of the vacation.
Subconsciously, does he now think in terms of minimizing Butler's condition (and
perhaps raising an additional question about his, Jaetzold's, judgment), by telling
Heathcott that Butler simply had headaches and some neck pains or does Jaetzold
under the immediate pressure of the unanticipated inquiry, recall the more "dramatic"
details of what Butler had told him. I believe the latter is true, not only because the
more "dramatic" aspects of Butler's situation would more readily come to mind.
These more impressive aspects are what, in my opinion, entered into Jaetzold's report
to Heathcott on May 22 concerning Butler's condition. Jaetzold, in my opinion,
recalled, without exact precision, that Butler and the doctor had gone into the fact
UNIVERSAL PACKING & GASKET COMPANY 1549
that Butler had been in the paratroopers; that he had been in an automobile accident;
that there were X-rays taken of the back; that he had no cartilage in his hip; that
there was something about the spine and compressed vertebrae involved; and pains
in the head and neck and at least some overall reference to the aura of the spine and
back. I do not believe that it was Jaetzold's intention to distort the facts or that he
was out to "get" Butler. I do believe that he did give Heathcott a picture of Butler's
condition substantially based on his, Jaetzold's, recollection of the above factors and
that he probably said among other things that Butler had been having, for some time,
headaches and pain in his neck and back. Since the details, I believe, were to some
degree garbled, although not deliberately, I think it not unlikely, as Heathcott testi-
fied, that Jaetzold told him that Butler was having headaches and neck and back
trouble and that he had no cartilage in his vertebrae and hip and that these ailments
went back some time.
The factual posture, therefore, at the end of the JaetLold-Heathcott conversation
on May 22 was as follows: (1) Butler's ailments had been surveyed in broad scope
as to possible cause by the doctor on May 18, with interest displayed in both Butler's
past and present experiences; (2) Butler assimilates and interprets all the foregoing;
(3) Butler paraphrases, describes, and interprets (1) and (2) for the benefit of
Jaetzold on May 19; (4) Jaetzold assimilates and interprets Butler's description and
interpretation; (5) Jaetzold, on May 22, paraphrases, describes, and interprets to
Heathcott what Butler has told him; and (6) Heathcott assimilates and interprets in
his own mind what Jaetzold has told him.
After careful consideration, it is my opinion that Jaetzold's report to Heathcott on
May 22 regarding Butler's illness had an overall impact on Heathcott to the effect
that Butler had back trouble and that this back trouble had a past history connected
with such things as paratroop service, automobile accident, missing cartilages, and
missing or affected vertebrae in the neck and general back area.
When Heathcott had checked Butler's application form on May 22 and ascertained
that Butler had stated thereon that he had no back ailment, it is my opinion that
Heathcott had pretty well made up his mind to terminate Butler because of Butler's
present, and as Heathcott believed, on the basis of Jaetzold's report, his (Butler's)
long-existing bad back. Heathcott testified that he had not made up his mind at that
point. While I believe that he had not made a final decision and that he did intend
to speak to Butler before final action, it would have taken some rather strong evidence
from Butler to alter the situation. The fact that Heathcott had a photostat made of
Butler's application and took it with him on May 22 when he went to the Humble
plant with the paychecks indicates to me that Heathcott anticipated a basic confronta-
tion with Butler on the fact, as Heathcott believed, that Butler had not mentioned his
long-existing back condition on the application.28
While the evidence does not show that Heathcott knew that he would see Butler
on May 22 when he took the application with him on going to the Humble plant, the
evidence indicates that Heathcott anticipated the possibility or the probability that
he would see Butler on that occasion. Butler had gone to some pains to arrange to
receive a paycheck, a vacation check, for the week when he was going to the doctor.
Heathcott signed the checks and carried them to Humble on May 22 He knew
therefore that Butler could not secure his check earlier than the time when Heathcott
arrived at Humble with the checks. It was highly probable that Butler would come
for his check on May 22, payday, and Butler had so informed Jaetzold. While Butler
could have arrived after Heathcott had left Humble, there was at least a good pos-
sibility that Heathcott would still be in the office when Butler arrived. Indeed, this
is what actually occurred.
Heathcott and the supervisors who were conferring with him on May 22 at Humble
all testified to the subject of the meeting as relating to a plant operational problem,
more specifically a machine and matters of physical change in the plant. The General
Counsel, in his brief, states that the fact that all the supervisors were present to witness
the conversation between Butler and Heathcott on May 22 is "not above suspicion."
I agree that it is not above suspicion and has borne this factor or possibility in mind
in analyzing the discharge in all the circumstances of the case.
I have earlier described the conflict in testimony between Butler, on the one hand,
and Heathcott, Jaetzold, and the other supervisors, on the other hand, as to what was
said on May 22 between Butler and Heathcott in the Humble office. There is a
subsidiary conflict which is not mentioned by counsel in their briefs and which was
not emphasized or focused upon at the hearing. Butler testified that when he walked
'a There is no explanation in the record and none in Respondent's brief as to why
Heathcott took Butler's application with him when he went to the Humble plant on
May 22 after his conversation with Jaetzold.
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the office he asked Jaetzold about his check. Whereupon Heathcott said to Butler
that he wanted to talk to him about his application, where he had marked no back
ailments, and Heathcott showed him the application. Then ensued Butler's version
of the conversation that followed. Without any focusing upon this aspect by their
counsel, Heathcott, Jaetzold, and the other men who were present, testified that
Heathcott initially asked Butler what his trouble was. Then follows their version of
Butler's remarks and it is only after Butler has explained that whole situation that
Heathcott showed the application form to Butler and asked him why he had not
mentioned his back trouble thereon. I note that the General Counsel, in his brief
(p. 5), in setting forth Butler's version of the May 22 events, states that after Butler
spoke to Jaetzold, Heathcott asked Butler what his rouble was and Butler went on to
describe his condition and the things in which the doctor had shown interest. "Heath-
cott then said he would like to speak to Butler about his application .... He showed
the application to Butler ...."
I am convinced that Heathcott did not commence the conversation, as Butler testi-
fied, by showing Butler his application and asking him why he had not indicated back
trouble thereon. I believe that Heathcott commenced by asking Butler what his
trouble was and that it was after Butler had given an explanation of the doctor's
examination, the matters pertaining to Butler's past history in the paratroopers and in
an automobile accident, and the various aspects that Butler previously described to
Jaetzold on May 19, that Heathcott confronted him with his application and asked
him why he had not mentioned his back ailments thereon.
I believe that Heathcott after listening to Butler's account of his past and current
medical history asked Butler why he had not mentioned his back ailments because
the overall impact of Butler's account on Heathcott was that there was a general con-
firmation of what Jaetzold had told Heathcott who already was at least 90 percent
convinced that Butler had a back condition whose antecedents extended into a past
characterized by paratroop jumping, automobile accident, destroyed or affected
cartilages and vertebrae in hip and part of the spine, and with current illness that
entailed X-rays of the back. Butler's account on May 22 did not dissipate the exist-
ing impression but confirmed it. It was when Heathcott, already persuaded as afore-
described, asked why Butler had not mentioned his back ailment in his application,
that Butler first became aware of the significance to Heathcott of anything in Butler's
present or past history relating to the area of the back. I believe that Butler then
said, either that his back was giving him no trouble at the time he had filled out the
application and that it was not troubling him now, or, he said that he had no back
trouble and had had no back trouble at the time of the application. Whatever his
exact terminology or denial, I believe that it was unconvincing to Heathcott coming
at the stage that it did Heathcott had first asked Butler what his trouble was. Butler
expounded as previously described and it all spelled longstanding back trouble to
Heathcott. Convinced of this fact, he confronted Butler with his application.
Butler's denial of back trouble at that point, in my opinion, was unconvincing to
Heathcott since it had the earmarks of an attempted recovery by a man who, until
that time, had not realized the significance of things that he had said or the significance
of anything directly or indirectly pertaining to his back in the minds of his auditors.29
As appears above, I was uncertain about the nature of Butler's denial to Heathcott
of a back condition even after he was confronted with his application form. One of
the reasons for this uncertainty was Butler's testimony that he told Heathcott on
May 22 that if he looked for another job and said that he had back trouble, he would
not get the job. Butler testified that he would have to show that he had back trouble
on a new application to another employer because otherwise he would be "lying" since
Respondent was discharging him for back trouble. I can understand that if
Respondent laid off Butler for lack of work or some such reason or allowed him to
resign, it might be easier for Butler to secure another job. I also can understand
that if Butler was discharged for back trouble and if he was asked and did not men-
tion this fact on a new application and the prospective employer checked with
Respondent, Butler would have some explaining to do and, with or without an oppor-
tunity for explanation, he might not get the job. But I do not understand why an
employee who was discharged for back trouble and who believed or knew that he did
not have back trouble, would state or feel obliged to state on an application to
^ Butler's version of course was that Heathcott had started off asking him why he
had not marked "back ailment" on his application and 'Butler denied having a back ailment
and Heathcott kept saying he did and Butler kept denying it Butler repeated this on
cross-examination and it was only later in the cross-examination that he mentioned that
he had told Heathcott about the doctor's questions concerning his paratrooper experience
and the automobile accident.
UNIVERSAL PACKING & GASKET COMPANY 1551
another employer that he did have back trouble. On Butler's premise that the
prospective employer would not hire a man with back trouble, it is clear that if
Butler said he had back trouble on the new application he would not get the job.
But, if Butler knew and believed that he did not have back trouble and so stated on the
new application he might well get the job. If the prospective employer, however,
checked with Respondent and confronted Butler with the fact that Respondent had
said that Butler had back trouble, Butler, it would seem, would deny the fact. He
might offer to produce a doctor's certificate certifying that he had no back trouble.
He or the prospective employer might propose an examination by the latter's doctor.
And if Butler had in fact no back trouble, as asserted and ascertained under the fore-
going circumstances, he would presumably not be disbarred from the new job. The
type of reasoning offered by Butler, as set forth earlier in this discussion, is that if
employer A discharges an employee for a particular reason , for instance, that the
employee does not possess the skill and experience to perform third-class machinist
work, the employee is obliged to state to another employer that the foregoing is the
fact. This, despite the fact that the employee has been a machinist for 20 years, with
7 years as a first-class machinist, and despite the fact that the employee knows and
believes that he is a highly skilled machinist. I cannot logically follow Butler's
explanation of his testimony that in applying for another job he would have to state
that he had back trouble and that, if he did not, he would be "lying." If he knew
and believed that he had no back trouble there is no logical reason for saying that he
did have such trouble when applying for another job.30
In the course of his conversation with Heathcott on May 22 Butler, as we have
seen , had explained about his going to Dr. Boyd and the various questions and
statements made by the doctor. The General Counsel asserts that Heathcott's failure
to check with Dr. Boyd before discharging Butler illustrates his lack of good faith
and discriminatory motivation. Although not spelled out, the reasoning appears to
be this: Butler at no time said anything to Heathcott (or to Iaetzold who had earlier
informed Heathcott of what Butler had told him) which in any way warranted a
conclusion that Butler had or had had a bad back condition and the only legitimate
conclusion that Heathcott drew and could draw was that Butler had recently been
treated for headaches and neck pains. In view of the foregoing, therefore, when
Heathcott said that he was terminating Butler because of his back condition and
because of his failure to mention that condition on his application, Heathcott did not
call Dr. Boyd because he knew that nothing that Dr. Boyd would say would in any
way support Heathcott's asserted belief that Butler had a back condition. If the
foregoing is the fact, the question arises why Heathcott called Dr. Boyd a few days
after receiving a copy of the original charge in this case. The premise is that as early
as May 22 Heathcott knew that Butler's condition had nothing to do with a bad back
condition and therefore he avoided checking with the doctor since such a checking
would secure from the doctor clear confirmation that Butler's condition had nothing
to do with his back. Presumably, the same state of mind, i.e., that Heathcott still
knew that the purported back condition was a figment of his imagination and would
find no confirmation from a call to Dr. Boyd. Why therefore did Heathcott call the
doctor after receipt of the charge and ask him if he had treated Butler and the nature
of Butler's illness, particularly asking about the back or lower back.31
The most reasonable explanation of the fact that Heathcott did not contact Dr.
Boyd until after receipt of the charge, is that, prior to the last-mentioned event,
Heathcott had entertained no doubt about the validity of the discharge and the
existence of the back condition. When the charge was received, Heathcott was in
the position of a man who had taken certain action on the basis of certain factors
about which he had previously entertained no doubts. Then he finds himself con-
fronted with a situation-the charge-that directly challenges the whole premise on
which he had acted. Heathcott reacted to the charge, it would seem, by, in effect,
saying to himself-did I dream that Butler had a back condition and that he told us
about it or did the whole thing never happen, including the treatment by the doctor
and so forth? To answer the question, Heathcott then, for the first time, contacts
Dr. Boyd. As indicated previously, if Heathcott knew that the entire matter of
Butler's back was something conjured up by Heathcott in order to get rid of Butler
and that the back condition had no possible basis in fact, Heathcott would not have
called the doctor at any time unless it was to induce him to give false testimony or
"See, supra, setting forth Butler's testimony and explanation in detail.
31 Dr. Boyd testified that he told Heathcott substantially what the doctor testified to
in the instant hearing. Heathcott states that the doctor used some technical terms that
Heathcott did not fully understand and said that Butler had headaches and tension in
his neck, shoulders, and back, but that the lower back was not involved.
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
something of that nature. But such was not the case. The inquiry to Dr. Boyd
by Heathcott was in terms the inquiry of a man who was seeking to confirm his own
prior understanding of Butler's condition that had been undisturbed until the receipt
of the charge.
The evidence, previously analyzed, persuades me that, on May 22, Heathcott had
no doubt that Butler's illness was attributable to, in whole or in part, or was closely
associated with, a back condition that had its antecedents in past paratroop service
and an automobile accident. This belief had its inception and was planted rather
strongly in Heathcott's mind by the perhaps oversimplified and garbled report that he
had received from Jaetzold, his superintendent, and a man whose words he had no
reason to doubt. With his mind in this state, Heathcott then heard from Butler him-
self about his past history, the doctor's interest therein, what the doctor had done and
had said, and, evidently, at least, that Butler did not know exactly what was the cause
of his condition.
Although Butler testified that the doctor had once told him that his condition could
have been caused by something a long time ago or something very recent, and that,
at another time, the doctor had told him that his illness was occupational, i.e., caused
by his work of bending over a preforming press, Butler never stated to Heathcott or
to any other representative of Respondent that the doctor had informed him that his
illness was occupational. Butler's accounts to Heathcott and the others always
involved the whole broad field of his past and present medical history. He never
stated that his illness had no connection with his past medical history and that it was
an illness caused by his present occupation. Certainly, one explanation is that the
picture was not a clear one to Butler and he did not know the exact answer. But the
failure to state to Heathcott and the others that the doctor had told him that his condi-
tion was an occupational one may be due to another factor. If a man works in a
leather factory and has an illness and debilitation for a week and the doctor determines
that it is an occupational illness; i.e., that he is allergic to leather, the man's employer,
if informed of this fact, may have considerable doubt about continuing him in his
leather factory. Respondent might well have had some concern, from the standpoint
of potential workmen's compensation liability, if Butler had told him that his illness
was occupational, that is, attributable to working at a press that entailed bending
forward during most of his work hours. Since such was the nature of the job,
Butler's susceptibility to the job conditions might be something to consider.
In any event, on May 22, Butler's broad account of his medical history and condi-
tion, in my opinion, did not create any doubt in Heathcott's mind that he had some
kind of a back condition with roots in the past. It was after Butler had given his
account that Heathcott confronted him with his application and asked why he had
not mentioned his back condition thereon. At that point, the issue of a back condi-
tion became evident and it was only then that Butler undertook to meet the assertion
that he had a back condition. But, by that time, in Heathcott's eyes, Butler's hands,
figuratively speaking, were already covered with jam and his attempts to wipe them
off were unconvincing to Heathcott.
I have been fully aware that Heathcott was firmly opposed to having a union in
his plant. Heathcott impressed me as a mature, seasoned, and industrially sophisti-
cated man and I have never considered that he was not capable of illegal discrimina-
tion or wholly bereft of any disposition to discriminate against Butler. But my
observation and the record confirm the view that in the period of a year commencing
about July 1963, when the union situation was most active, Heathcott was, at least,
very prudent in dealing with both union adherents and the union situation generally.
It is my opinion that if Heathcott entertained any doubts about the nature of Butler's
ailment on May 22 and the contemplated grounds for discharging him, he would have
consulted his attorney (which he did not do) and would have checked with Dr.
Boyd. Even if Heathcott was intent on discrimination, he would have been, in my
opinion, a careful discriminator, and would have wanted to appraise the situation that
he might find himself in as a consequence of the discharge. This would have entailed
contacting the doctor before the discharge.
In the foregoing connection, I note that, when Jaetzold, who, in our opinion and
appraisal of the man, was relatively industrially unsophisticated,32 went to a union
meeting after asking Butler if he was invited, Heathcott upon hearing of the occur-
rence, consulted his attorney, and issued a notice forbidding such activity. I mention
this minor matter to illustrate Heathcott's prudent and careful approach. Confronted
by word from Jaetzold as to what he had done (which was not very much considering
12 The term is used with reference to personnel and industrial relations matters.
UNIVERSAL PACKING & GASKET COMPANY 1553
the circumstances previously described earlier in this Decision), Heathcott saw some
possible repercussion from the labor law standpoint and he acted very carefully to
obviate any possibility of Respondent being placed in a vulnerable position.
Again, in the August-October 1963 period, when Heathcott discharged Butler
because it had been reported to him that Butler and another had threatened an
employee with a knife, Heathcott immediately corrected his action, upon learning that
it was a man named Buckner and not Butler who was involved. This incident, aside
from illustrating care and prudence in a man who may have been (I shall assume
for the sake of illustrating the present point) discriminatorily minded, also has a
bearing not only on the man's prudence and care but also the question of his disposi-
tion to discriminate. The discharge occurred in the crucial period before the election.
'There was a legitimate reason for the discharge at the time it was made. If Heathcott
had allowed the discharge of Butler to stand, it would have been an effective blow to
the Union and its adherents, coming as it did before the election. The discharge of
the leading union man could certainly dampen a good many potential union votes.
Even if the discharge was ultimately vulnerable, it is extremely unlikely that any resort
to litigation could have restored Butler to his job before the election. If Heathcott
discharged Butler on May 22, 1964, believing that Butler had no kind of a back
condition, it indicates considerable ruthlessness and it indicates a man not overly con-
,cerned with true facts and it indicates a man intent in getting rid of Butler and taking
his chances in subsequent litigation. But, in May 1964, there was not even a union
petition on file, no union campaign, and no union activity of which Heathcott was
aware. This is to be contrasted with the preelection 1963 period. In that period,
Heathcott had already gotten rid of Butler for a legitimate reason. If he was the same
man who conjured up a fictitious back condition to discharge Butler in 1964, he cer-
tainly could have conjured up some reason for not reinstating Butler in 1963 when
he had already discharged him. And he could have at least sat out the course of
litigation and not promptly and voluntarily gone out and recalled Butler as he did.
Nor can I close my eyes to the fact that Heathcott gave Butler a discretionary
merit wage increase about 3 weeks before his discharge. If there was any reprisal or
discrimination planned by Heathcott after the 1963 election, the denial of a discre-
tionary wage increase would appear to have been the easiest and most obvious place
to start. Proof of discrimination in such a denial is extremely difficult if not impos-
sible. Moreover, a good worker like Butler who is denied a wage increase in April
1964, when he is convinced that his work merits an increase in wages, may see the
handwriting on the wall insofar as his future with the Respondent is concerned.
The employee might quit his job. If he was not so quickly discouraged, the employee
might remain with Respondent and renew his request for an increase 3 or 6 months
later. A discriminatorily motivated employer could no doubt find a reason to once
more deny the increase and, again, proof of illegal discrimination would be difficult.
The employee might well quit his job and in any event he and his fellow workers
would get the message that active unionists did not fare very well, paywise, with
Respondent.
Since Butler was a good worker and, as far as appears, not vulnerable on the score
,of work performance or conduct, Respondent, in April 1964, had no reason to
believe that, other than the denial of a wage increase, it would have another oppor-
tunity to exert discriminatory pressure on Butler. The subsequent illness of Butler
and all its details was not and could not be anticipated by Heathcott. Despite this
situation, Respondent, in April 1964, in granting Butler an individual wage increase,
was passing up an easy and a rare opportunity to discriminate, assuming Respondent's
basic discriminatory attitude. As a matter of fact, although I did not credit Butler
,on this aspect, I can assume his version, arguendo, that in April 1964, in asking
Jaetzold for a raise and in speaking to Heathcott, Butler made it defiantly clear to each
that he was continuing to work for the Union. But he received the raise thereafter
when it could have easily been denied him.
I also take note that neither on May 22 nor thereafter did Butler suggest that
Heathcott telephone Dr. Boyd regarding Butler's condition or assert that he would
secure a statement from the doctor regarding his condition. While this factor is not
determinative, it is not to be wholly ignored particularly since I have examined at
,some length the point urged by the General Counsel that Heathcott did not call
Dr. Boyd before discharging Butler.
The matter before me is not the responsibility of rendering an ultimate medical
verdict regarding Butler's condition on May 22, 1964 Whether Butler had a bad
back or a back condition with antecedents in his past medical history is not the
issue. The existence or nonexistence of a back condition depends to some extent
upon what the particular person involved means by a back condition or a bad back.
783-133-66-vol. 151-99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is attributable in part to the integration and interrelationship of the spine and all
the related structures and muscles. Dr. Boyd's testimony has been described in detail
and it establishes, at least to the extent that there is no controverting medical evidence,
that Butler did not have anything wrong with his lower back. Heathcott did not
have Dr. Boyd's testimony before him on May 22. He had Jaetzold's report and
Butler's statements.
Whether Heathcott, if he had had the doctor's instant testimony before him on
May 22, would have concluded that Butler had a bad neck and that the back was in
no way involved and that Butler's past history had not relationship thereto, I do not
know
In connection with Butler's discharge, the matter of Heathcott's asserted concern
and sensitivity to certain ailments of job applicants and employees was considered.
Prior to 1962, Respondent used an application form that asked no questions about
applicant's past medical history or ailments. Heathcott admitted that in the past the
Company had not made any particular effort to screen applicants with respect to their
past medical history. However, Respondent began encountering a high incidence of
workmen's compensation liability and, from about the first part of 1962, perhaps
earlier, the insurance agency that placed Respondent's workmen's compensation with
various insurance carriers was regularly and continuously critical to Respondent con-
cerning its lax screening of applicants and of Respondent's high incidence of liability.
Mrs Gertrude Cobb, proprietor of the insurance agency that placed Respondent's
insurance with various carriers, testified that Respondent's workmen's compensation
liability record was extremely bad. She had difficulty in placing the insurance since
it was unprofitable to the carriers. One carrier, with whom she endeavored to place
the insurance, gave an outright refusal A company with a good record in workmen's
compensation, Cobb testified, is rewarded by a dividend relating to its premiums but
Respondent had received a dividend only once and that was 4 years ago. A high
liability incidence results not only in an absence of dividends but also in penalties
reflected in the cost of the insurance. Cobb referred to a back injury incurred by one
of Respondent's employees in July 1962. This matter was in process or in litigation
thereafter, with the insurance company finally paying the claimant $10,700 in June
1964 Cobb stated that she had repeatedly remonstrated with and criticized Respond-
ent, speaking to Heathcott, regarding Respondent's laxity in not taking measures to
screen out poor risks The witness specifically mentioned having done so in January
of 1962, 1963, and 1964 It was made clear to Respondent, that unless its record on
workmen's compensation claims improved, it was in danger of losing its insurance
coverage.
It was as a result of this situation that, in 1962, Respondent adopted an application
form, secured from Cobb, that contained questions regarding the applicant's past
medical history. Although Cobb also urged Heathcott to refer applicants to a desig-
nated medical center and physician, this was not done. The questions about medical
history were continued thereafter, howevei, on the application forms.
Heathcott's testimony confirms that, particularly since 1962, he had been under
continuous piessure from the insurance people to tighten up in his screening of
applicants. He stated that although he had always tried to be careful in hiring, it was
in 1962 that he became particularly conscious of the risks entailed in lax screening of
applicants. Heathcott testified that back ailment injuries and claims had cost the
Company as much as all the other claims put together Cobb testified that back
injuries were her great concern and that such claims were the most expensive from
the insurance standpoint.
Although Respondent employed amputees and persons with artificial limbs, Heath-
colt explained such situations as ones where the disability was definitely established.
He asserted that kidney ailments, back conditions, lead poisoning situations, and some
others, presented great difficulty in proving or disproving responsibility in the event of
litigation Heathcott asserted that he would not employ persons with such ailments.33
About 6 years ago Respondent was obligated to compensate an employee for a back
injury After doing so, Respondent did not terminate the employee and within a year
there was a recurrence of the injury Respondent paid a second claim to the same em-
ployee but thereafter refused to continue him in its employ Another employee sustained
a back injury in 1963 and Respondent refused to employ him thereafter Regarding
Coulter, an employee in Respondent ' s employ since about 1949 or 1950 , Heathcott stated
that it continued Coulter in the Company , despite a back condition that arose in 1955,
because it was unwilling to make its more recent stricter policy apply retroactively to
an old employee
UNIVERSAL PACKING & GASKET COMPANY 1555
In the course of evaluating the situation, I have among other things, posed to myself
the following: Suppose that in 1962, when Butler applied for employment, he had, in
the preceding week, undergone the same type of physical illness and treatment as
subsequently occurred in 1964 At the time of application, assume that Heathcott
received the same description of Butler's condition, including background, as he had
subsequently received in 1964 from both Jaetzold and Butler. It is my opinion that
Heathcott would not have hired Butler in 1962 under the circumstances that I have
posed. While it is true that in 1964 Heathcott knew that Butler had been a very
good employee for over 11/2 years, the evidence does not convince me that
the belief in and concern with Butler's physical condition was pretextuous. The evi-
dence tends to show that Heathcott discharged Butler because as a layman he not
unreasonably believed that Butler had a back condition that had roots in Butler's past
medical history. In my opinion, the General Counsel has not sustained the burden of
proving by a preponderance of the evidence that the discharge was discriminatory. It
is therefore recommended that the complaint allegation of discrimination against
Butler be dismissed.
D. The Wheeler incident
Wheeler had been a union committeeman since about July 1964. He worked on
the night shift in the pressroom with about six other employees. The total number
of employees on the night shift was about 35 or 40. Ordinarily, the shift worked 40
hours a week, 9 hours a night for 4 nights and 4 hours on Friday nights. The starting
time on Fridays was 4 p.m., ending at 8 p in. Overtime was a rare occurrence, taking
place only a few times a year.
On Friday, August 28, 1964, the status of the plant's production was such that
management had decided that some overtime work was in order on that particular
night. About 7:30 p.m., the night foreman came around and asked the employees
individually if they wanted to work overtime that night until 1 p.m. Apparently all
the night-shift employees, with the exception of the seven men in the pressroom,
including Wheeler, were willing to work overtime and did so. The seven pressroom
employees gave various reasons why they would not or could not work overtime. For
instance, one man said he had brought his supper and others gave other individual
reasons. Wheeler said that he had a fever and was not feeling well. Accordingly, the
seven men did not work overtime.
On Monday, August 31, a few minutes before the start of the night shift, Jaetzold
asked the seven men who had not worked overtime the preceding Friday to come to
the office. Heathcott was in the office when they arrived. Heathcott said that it
appeared that the men did not need any overtime pay. He asked them how much
advance warning they needed in order to work overtime. Most of them said they
needed a day's notice. Heathcott asked the men why they had gone home on Friday
instead of working overtime and they gave their individual reasons. Heathcott told
Wheeler that he had been informed that Wheeler had instigated the men going home
without working overtime and that it was part of the union program or activity.
Wheeler denied these assertions. Wheeler said that he had been absent on Thursday
because of illness and that on Friday he had been drowsy because of medication given
him by the doctor. Wheeler asked if Heathcott would have preferred that Wheeler
had remained for work on Friday and had run his arm up in the press. Heathcott
replied that he had worked when he was ill and did not feel a bit sorry for Wheeler.
He remarked that if Wheeler ran his arm up in the press he, Wheeler, should make
certain that his head was in there with it. Heathcott also remarked that Wheeler and
Johnson, another employee, "had been talking an awful lot out there on the job"
but that Heathcott "did not give a damn if the union did come in ... maybe he could
keep us boys closer together [if it did]." Heathcott then said that-he was not mad at
anybody and told the men to go back to work.
Wheeler remained in the office a few minutes after the other employees had left.
He asked Heathcott who had reported that he had instigated the refusal to work over-
time but Heathcott refused to tell him. Heathcott asked Wheeler if it was not true
that he was working for the Union and Wheeler said, yes, but not on company
time 34 Heathcott then said to Wheeler that he was not mad at him and remarked
that he, Heathcott, might have said some things to him that he should not have said.
Heathcott told Wheeler to go back to work.
The General Counsel points to the Wheeler incident, aforedescribed by Wheeler,
as coercive interrogation in violation of Section 8(a)(1) of the Act. Although
34 Heathcott states that he asked Wheeler if he was working for the Union on company
time
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have credited Wheeler substantially including his assertion that he did not instigate
the refusal to work overtime, I do not find illegal interrogation or other illegal
conduct in the incident.
When the only employees who refused to work overtime all came from the press
department, Heathcott not unreasonably suspected that more than individual coinci-
dence was involved. He evidently knew or suspected that Wheeler was active in the
Union and suspected that Wheeler was responsible for something in the nature of a
partial strike. Heathcott was displeased and irritated about the refusal of the men
to cooperate with the Company by working overtime on one of the few occasions when
overtime was, in the Company's opinion, necessary. Whatever Heathcott's exact
words, his question about union activity, in the light of the entire record, was directed
to union activity on company time, working time, and was so understood by Wheeler
as is evinced by his reply. Viewed in the entire context of the incident and the entire
conversation I find no illegality.35
E. The Dudley incident
Maxine Dudley had been in the Company's employ since 1959 in the Houston
plant. She had been the union observer at the Houston plant Board election in 1963;
she was also a committeeman and her name had appeared on various pieces of union
literature. Respondent was aware of her prominent union role.
On August 4, 1964, during working hours, employee Johnson came up to Dudley
and inquired as to when the Union was coming back into the plant. Another
employee, Danner, joined in the conversation and said that the Union was not return-
ing. Dudley, according to her testimony, then confirmed to Johnson what Danner
had said about the Union. Heathcott was coming through a door of the department
when the foregoing three-way conversation was taking place. He observed the inci-
dent but was too far away to hear the conversation. Either because they had observed
Heathcott or because the conversation was completed or both, the three individuals
aforementioned then went their separate ways. Dudley states that soon afterwards
she observed Heathcott speak to Johnson and Danner.36 Thereafter, Heathcott came
over to Dudley.
Considering the testimony of Dudley and Heathcott, it is found that when Heath-
cott spoke to Dudley both parties knew that he was referring to the incident afore-
described involving Dudley and the two other employees. Dudley states that Heath-
cott said he had proof from several people that she was talking union and that he
would discharge her the next time she did so. Dudley testified that she replied that
she never talked union on Heathcott's, or the Company's, time, and that if he wanted
to discharge her for union activity on her own time he had better know what he was
doing. Dudley states that Heathcott told her that she was a good worker and that he
did not want to lose her. She also admitted that Heathcott told her to do all the union
work she wanted to on her own time or when she was away from "here."
Heathcott states that he told Dudley that he had reports on several occasions that
she was working for the Union on company time and that on this particular occasion,
August 4, he knew she was talking union. He warned her that she would be dis-
charged if she again continued her union work on company time and he told her to
restrict her union activity to her own time.
I am convinced that Heathcott made it clear, and that Dudley understood, that
she was not being warned about her union activity in general and that she was not
threatened with discharge unless she ceased all union activity. Respondent, in effect,
warned Dudley against engaging in union activity during working time and I find
nothing illegal in such a position. I simply cannot agree with the proposition
advanced by the General Counsel in his brief that, absent a company rule being in
effect that restricted union activity, an employer may not take action against an
employee "for engaging in union activity, even during working hours." I am also
of the opinion that the cases cited by the General Counsel on this point are dis-
tinguishable on their facts and that they do not stand for the proposition cited.
On a somewhat broader front, the General Counsel has also argued that Respond-
ent has promulgated and enforced an illegal no-solicitation rule since the rule did
not distinguish between working time and nonworking time. The "rule" that is
35 The reference to sticking his, Wheeler's, head in the press, at the particular juncture
of the conversation, was expression of irritation, and, in our opinion, was not intended
and was not understood in any literal sense
11 Johnson and Danner did not testify
UNIVERSAL PACKING & GASKET COMPANY 1557
apparently referred to is the statement of Heathcott in two speeches in 1963 where
he told the employees that they must not engage in union activity on company time
but what they did on their own time was their own business . The General Counsel
also apparently refers to the Dudley incident in this same connection.
The Dudley incident , previously described , makes it clear that both Heathcott and
Dudley were aware that she was being warned about what she did during working
time. The entire incident manifests this fact even though the term "working time"
was not used. The other evidence in the case also makes it clear that both the
Respondent and the employees were aware that they were not to engage in union
activity during working time and that the reference to company time was used in
that context only. Thus, Butler testified that he engaged in his union activities "at
the plant, before working hours and at lunch time and after working hours" and
away from the plant, and was not interfered with . Wheeler testified that he con-
ducted his union activities on nonworking time. When Wheeler informed Heathcott
that he was working for the Union but not on company time , he was not further repri-
manded or accused and both parties understood that Heathcott 's objection was to
union activity on company time, which , in context , meant working time. Although
the night shift apparently had a paid 15-minute lunch period , there is no evidence
that any employee was told that he could discuss only company work during the lunch
period. The evidence as a whole in the instant case warrants the conclusion that
both Respondent and the employees were aware that the orally announced statements
about no union activity on company time referred to working time and that Butler,
Dudley, and other active unionists were aware that the prohibition did not apply to
nonworking time such as the lunch period and other nonworking periods before and
after work .3 7 Accordingly , I find no illegal no-solicitation rule as urged by the
General Counsel.
III. THE REMEDY
Having found that certain conduct of Respondent 's top operating official was in
violation of the Act , the customary remedial step of posting a notice is recommended.
CONCLUSIONS OF LAW
As stated and as found above, certain statements by General Manager Heathcott
to employees Sim and Ross on August 28, 1964 , were violative of Section 8(a)(1)
of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and upon the entire
record, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, it is recommended that Respondent , Universal Packing & Gasket Company,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with, restraining , or coercing its employees by stating that loss
of employment or replacement could or would be the consequence of joining the
International Association of Machinists Union or any other union.
(b) In any like or related manner interfering with, restraining , or coercing its
employees in the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Post at its Humble and Houston , Texas, plants , copies of the attached notice
marked "Appendix ." 38 [Board's Appendix substituted for Trial Examiner 's Appen-
dix.] Copies of said notice , to be furnished by the Regional Director for Region 23,
shall, after being duly signed by Respondent , be posted immediately upon receipt
thereof, and be maintained for a period of 60 consecutive days thereafter , in con-
"In the vital months preceding the Board election or at any subsequent time, there
is no evidence of an employee being prevented from engaging in union activity on com-
pany nonworking time . The objections to the election contained nothing about an illegal
company rule prohibiting union activity on nonworking time.
If this Recommended Order is adopted by the Board , the words "a Decision and
Order" shall be substituted for the words " the Recommended Oider of a Trial Examinee"
in the notice . If the Board ' s Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals , Enforcing an Order " for the words "a Decision
and Order."
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spicuous places at the Humble and Houston plants, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by other material.
(b) Notify the aforesaid Regional Director, in writing, within 20 days from the
receipt of this Decision, what steps Respondent has taken to comply herewith.39
"If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 23, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
American Newspaper Guild , AFL-CIO, and Youngstown News-
paper Guild No. 11 , American Newspaper Guild , AFL-CIO
and Vindicator Printing Company. Case No. 8-CB-854. April
1 2, 1965
DECISION AND ORDER
On February 8, 1965, Trial Examiner George A. Downing issued
his Decision in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, Respondents filed excep-
tions to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, 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 rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptioins and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as modified below.'
i In footnote 2 of his Decision the Trial Examiner stated that he rejected Respondents'
contention that employees of Youngstown Art Engraving Company entered the building
with the cooperation of Respondents, who removed the picket line to permit passage of
these employees. The record shows that Art Engraving leased space in the Vindicator
building, and that on August 20 and 21, Respondents utilized mass picketing in order
to prevent employees and managerial personnel from entering the building. However, on
both of these occasions after a few hours of discussion and upon obtaining a promise
from Art Engraving's management that Art Engraving would not perform any services
for Vindicator, Respondents made no attempt to bar the passage of Art Engraving per-
sonnel into the building. Thereafter, Respondents and the management of Art Engraving
made daily agreements until September 8, consistent with that reached on August 20 and
21, and Respondents made no effort by picketing or otherwise to prevent ingress to the
Vindicator building by Art Engraving employees or managerial personnel. Therefore, to
the extent that footnote 2 of the Trial Examiner's Decision may imply that Respondents
totally prevented access to the building by Art Engraving employees, we do not
adopt it.
151 NLRB No. 154.