U.S. Corrections Corp.

National Labor Relations Board - Board Decisions

Feb 11, 1993

310 N.L.R.B. 431 (N.L.R.B. 1993)

431
310 NLRB No. 57
U.S. CORRECTIONS CORP.
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
The eighth sentence of fn. 12 of the judge’s decision should read,
‘‘Ballard did not squarely refute Fuson’s testimony, but did aver that
at the time, he would not have known that this was so.’’
2 Consistent with his dissent in U.S. Corrections Corp., 304 NLRB
934 (1991), Member Devaney would not assert jurisdiction over the
Respondent. On that basis, he concurs with his colleagues in their
dismissal of the complaint.
1 Errors in the transcript have been noted and corrected.
2 In its duly filed answer, the Respondent contests the Board’s ju-
risdiction under the standards articulated in Res-Care, Inc., 280
NLRB 670 (1986). This assertion was previously rejected by the
Board in its Decision and Direction of Election in an earlier rep-
resentation case. See U.S. Corrections Corp., 304 NLRB 934 (1991).
The record in this proceeding does not furnish a foundation for any
different result. ‘‘It is established Board policy, in the absence of
newly discovered or previously unavailable evidence or special cir-
cumstances not to permit litigation before a trial examiner in an un-
fair labor practice case of issues which were or could have been liti-
gated in a prior related representation proceeding.’’ M. N. Clark’s
Discount Department Store, 175 NLRB 337, 338 (1969). Thus,
precedent reflects an injunction against the instability and procedural
morass that would ensue if an administrative law judge were per-
mitted to review collaterally a prior Board determination. Here, the
Respondent has not produced evidence showing either special or
changed circumstances, nor has it litigated any additional facts quali-
fying as newly discovered, previously unavailable evidence. Accord-
ingly, clearly at this level, the Board’s decision in the representation
case is binding. See Salvation Army of Massachusetts, 271 NLRB
195, 197 (1984).
U.S. Corrections Corporation and International
Union, United Plant Guard Workers of Amer-
ica, UPGWA. Case 9–CA–27744
February 11, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
At issue is whether the Respondent unlawfully dis-
charged two employees. On September 2, 1992, Ad-
ministrative Law Judge Joel A. Harmatz issued the at-
tached decision. The General Counsel filed exceptions
and a supporting brief, and the Respondent filed cross-
exceptions and a supporting brief. The Respondent also
filed an answering brief to the General Counsel’s ex-
ceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings, and con-
clusions2 and to adopt the the judge’s recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the complaint is dismissed.
Mark G. Mehas, Esq., for the General Counsel.
Joseph A. Worthington, Esq. (Smith & Smith), of Louisville,
Kentucky, for the Respondent.
Scott A. Brooks, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Lebanon, Kentucky, on June 4 and 5, 1991,
upon an original unfair labor practice charge filed on August
6, 1990, and a complaint issued on February 25, 1992, alleg-
ing that the Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Gabriel Spalding and Charles
Caldwell. In its duly filed answer, the Respondent denied
that any unfair labor practices were committed. Following
close of the hearing, briefs were filed on behalf of the Gen-
eral Counsel, the Charging Party, and the Respondent.
On the entire record,1 including my opportunity directly to
observe the witnesses and their demeanor, and after consid-
ering the posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Kentucky corporation, pursuant to con-
tracts with various governmental agencies is engaged in the
operation of private correctional facilities, including the Mar-
ion Adjustment Center in Marion County, Kentucky. During
the 12-month period ending December 31, 1991, the Re-
spondent, in the course of that operation, purchased and re-
ceived at said facility goods valued in excess of $50,000
shipped directly from points outside the State of Kentucky.
The complaint alleges and I find that the Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.2
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the International Union, United Plant Guard Workers of
America, UPGWA (the Union) is a labor organization within
the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
This case arises from the discharge of two correctional of-
ficers, Gabriel ‘‘Goober’’ Spalding and Charles Caldwell.
Both were terminated during incipient stages of an organiza-
tion campaign among the previously unrepresented guards at
the Respondent’s correctional facility in Marion County,
Kentucky. At times material, this facility housed minimum
security inmates pursuant to contract with various govern-
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Unless otherwise indicated, all dates refer to 1990.
4 The timing of this directive is based on the credited testimony
of Ballard. Spalding claims that it occurred later on May 4, a date
which would have provided the Respondent broadened opportunity
to detect his involvement in union activity, while lessening his cul-
pability in failing to comply before May 8. In contrast, Ballard’s
written report places his intervention on Tuesday, May 1 (G.C. Exh.
6) and his testimony indicates that it occurred on that date at shift
change when Spalding reported for work. It is certainly conceivable
that the incident would have occurred on a Tuesday, since Spalding
acknowledged that Sunday and Monday were his regular days off.
More important, however, is the manner in which Spalding’s testi-
mony was elicited. Documentation in the hands of the General
Counsel prior to the examination of Spalding indicated that the Re-
spondent placed the directive on May 1. Yet, Spalding was not af-
forded the opportunity to contradict this evidence spontaneously and
independently. Instead, it was the General Counsel that defined the
May 4 date to Spalding through a prejudiciously leading question.
Aside from my basic doubts as Spalding’s reliability, his affirmation
of the date suggested by the attorney does not measure up to the
proof offered by the Respondent, and is unworthy of credence.
5 Thompson was also terminated, but the complaint does not chal-
lenge the legitimacy of his discharge.
6 Spalding seems to acknowledge that the conduct he imputed to
Fuson was a bit out-of-character. For, he testified that this was the
first time that Fuson had ever cursed him. He describes Fuson’s al-
leged conduct as ‘‘a little irregular, because he’s usually a pretty
nice fellow or always has been towards me.’’
7 Spalding testified that he used this term because he was angry,
that Fuson got ‘‘snotty,’’ and he thought that Fuson was trying to
provoke a ‘‘fight’’ with Spalding, who at only 5’8’’ weighs 300 lbs.
mental sectors of the State of Kentucky under authority of
legislation fostering the privatization of prisons.
Spalding and Caldwell were among five early employee
organizers that attended an initial meeting on April 30,
1990,3 with George Squire, the president of the Union’s
Local 110. They at that time obtained blank union authoriza-
tion cards. They claim to have solicited signatures from nu-
merous coworkers, with Spalding testifying that he obtained
18 to 20 and Caldwell asserting that he secured three or four.
The employment of both ended during the week ending May
11. An election petition was filed by the Union on Monday,
May 14.
The General Counsel contends that Spalding and Caldwell
were terminated in reprisal for union activity, while the Re-
spondent defends on grounds that both were discharged for
legitimate cause in consequence of their misconduct on May
8.
B. Events Leading to the Discharges
1. Gabriel ‘‘Goober’’ Spalding
On Tuesday, May 1, Jerry Ballard, the Respondent’s unit
manager, and Spalding’s superior, informed Spalding that he
needed a haircut.4 Spalding avers that he replied, ‘‘Well, I’ve
been pretty busy on the farm and all. I’d get it cut when I
could.’’ According to Spalding, Ballard indicated, ‘‘within a
week,’’ whereupon, according to Spalding the discussion
ended with his stating, ‘‘Yes sir, I’ll try to get it cut within
a week.’’
On Tuesday, May 8, Spalding reported for work. Although
the previous Sunday and Monday were his days off, he re-
ported without having complied with Ballard’s direction.
Ballard recognized this himself, and approached Spalding,
stating, ‘‘Goob, you haven’t got your hair cut.’’ Spalding ex-
plained, ‘‘I’ve been pretty busy . . . I’m going to get it
cut.’’ Ballard then sent Spalding home, telling him to get a
haircut, and then report to Jan Fuson, the director of the fa-
cility.
The second alleged discriminatee, Don Caldwell, rode to
work with Spalding. As Spalding left his work area, he ad-
vised Caldwell that he would have to get a ride from some-
one else that evening. At Caldwell’s request, Spalding then
informed Nicky Thompson that Caldwell needed a ride
home.5
Spalding left the premises, but, then, decided that he want-
ed to see Director Fuson right then and there. As shall be
seen, this resulted in an ugly confrontation with Fuson. The
facts show that when Spalding reentered the grounds, Fuson
was standing in the driveway with Associate Director David
Donahue. Spalding was driving in excess of the posted speed
limit of 10 mph. Fuson, without knowing who was driving,
shouted ‘‘Slow the car down.’’ Spalding then came to a halt.
What occurred next is subject to major conflict. According
to Spalding, Fuson spoke first, asking, ‘‘What did you do,
come back to whip my ass.’’ Spalding avers that this remark
made him angry. He testified that he then told Fuson, ‘‘Hold-
up. I just want to talk.’’ Fuson allegedly then said, ‘‘Get
your ass off [the] grounds, until you get a haircut and then
come and see me.’’6 Spalding claims to have then said,
‘‘Well, wait a minute, I’m here, I might as well talk to you
now.’’ Fuson then said, ‘‘If you want to talk, you go see Mr.
Ed Wheatley, otherwise, get your ass off [the] grounds.’’
Spalding then admittedly called Fuson a ‘‘mother fucker’’7
declaring that he was ‘‘not a kid’’ and that Fuson ‘‘wasn’t
treating me like a dog.’’ With this, Spalding left the prem-
ises.
Fuson testified that Spalding got out of his car in what
Fuson described as a ‘‘very agitated state.’’ Spalding fiddled
with his shirt, allowing it out of his trousers, as he took a
few steps toward Fuson, shouting that he hadn’t time to get
a haircut as he had been farming. Fuson claims that he did
not respond to the outburst initially. However, after hearing
the words ‘‘God-damn it’’ and ‘‘mother fucker,’’ he told
Spalding to leave the grounds and see him the next day.
Fuson was forced to repeat this instruction several times over
Spalding’s continuing protestations, causing Fuson to join the
shouting exchange. Finally, Spalding quit shouting, got back
into his car and left the facility. Fuson was of the impression
that the incident took place within earshot of nearby inmates,
and later received reports that the yelling was heard well
within the adjoining dormitory.
In characterizing the incident, Spalding blamed Fuson for
his outburst. He downplayed his own negative state of mind,
on returning to the facility, without first having gotten a hair-
cut, first by denying, on inquiry from me, that he was
prompted by anger:
Q. [Y]ou testified that when you came back, you
weren’t angry, but you were upset?
A. I was upset. I wasn’t mad. I mean they told me
to get a haircut, big deal.
And second by offering a temperate explanation for the re-
turn:
433U.S. CORRECTIONS CORP.
8 The General Counsel engaged Fuson in argumentative cross-ex-
amination in which Fuson is taken to task for the language he used
in his disciplinary report. Although that document does not reflect
that Spalding disobeyed Fuson’s order that he leave, the facts reflect
that he resisted these directives, but ultimately did leave. I have no
doubt that this conduct weighed into the decision and is within the
disciplinary report’s charge that Spalding conducted himself in ‘‘a
disrespectful manner.’’ I see no major substantive inconsistency be-
tween Spalding’s misconduct, that which was discribed in the report,
or the testimony of Fuson as to what he relied on.
9 On cross-examination, Thompson volunteered that it was he that
called Bickett.
10 The document is in evidence as G.C. Exh. 14. With respect to
Spalding, it states:
Gabriel Spalding may not enter the grounds except during the
regular business hours but only with the intentions [sic] of see-
ing the Directors [sic] or the Deputy Directors.
11 G.C. Exh. 4(a). Brady reaffirmed the statements attributed to
Thompson and Spalding in his testimony. He also avers that he
typed up this report the next day. Minor revisions were made that
do not alter the substance. (G.C. Exh. 4(b).)
12 Spalding’s testimony is consistent with a representation con-
tained in a position paper submitted by the Respondent’s legal coun-
Continued
Q. Now, after Mr. Ballard told you to get your hair
cut and see Mr. Fuson, did you get in your car and
drive off the premises.
A. Yes, sir, I went out the gate.
Q. And did somebody tell you to come back?
A. No, sir. I thought, ‘‘Well, I’ll talk to Jan
[Fuson].’’ Jan’s a reasonable guy, I’ll just stop and talk
to him.’’
. . . .
I thought . . . he’ll tell me, just go get a haircut and
come back and that would be it.
He explained, however, that this all changed when he
‘‘stopped to see Mr. Fuson and he [Fuson] got cocky.’’
I credit Fuson over Spalding. The latter’s testimony that
Fuson was trying to provoke a fight struck as absolute non-
sense. The remarks he attributes to Fuson hardly suggest an
intention on Fuson’s part to take on this man of enormous
girth and obvious strength. Besides, Fuson had no reason to
initiate belligerent behavior toward Spalding, who had simply
been told to get a haircut and return, and whose reaction to
that instruction is best described as an emotional, uncon-
trolled, attempt at rebellion. While it would have been a sim-
ple matter to comply with Ballard’s order and get a haircut,
Spalding elected to return to the facility. If not driven by
anger, the question arises as to just what Spalding hoped to
accomplish. Since May 1, he had not complied with
Ballard’s directive. What was there to discuss? I am con-
vinced that Fuson’s involvement in ‘‘yelling’’ was in reac-
tion to the provocative actions of Spalding, including his
driving on the parking lot at excessive speed and his
unprovoked aggressive behavior.
The evidence substantiates that Spalding returned to the
facility before getting a haircut, thus violating Ballard’s di-
rect order, and also, ‘‘engaged in conduct unbecoming, by
using language, such as mother fucker in a loud, boisterous
and disrespectful manner.’’(G.C. Exh. 7.)
In any event, the disciplinary reports constituting the as-
signed cause for Spalding’s termination are in evidence as
GeneralCounsel’s Exhibit 6 and 7. The first was issued by
Ballard, and indicates that he sent Spalding home on May 8
after the latter failed to comply with his May 1 directive that
he get a haircut. The second was signed by Fuson and out-
lined Spalding’s offenses of May 8, including his disobeying
an order that he leave the premises until getting a haircut and
his abusive conduct toward Fuson. The document rec-
ommended dismissal.8 I find that these documents accurately
portray the conduct by Spalding that actually took place.
Spalding asserts that, after leaving the prison, he arrived
at his home about 4:30 p.m. Shortly thereafter, Caldwell and
Nicky Thompson, who were assigned to Spalding’s shift, ar-
rived at his house. Caldwell reported that he too had been
sent home following a ‘‘heated argument’’ with Ed
Wheatley, the deputy director of the facility. Thompson ap-
parently walked off the job to give Caldwell a ride home.
Spalding claims that he then called Unit Manager Bickett, in-
quiring as to whether they had been fired.9 Bickett allegedly
replied that Caldwell and Thompson had been fired, but that
Spalding could return after obtaining a haircut and talking
with Fuson.
According to Spalding, all three then went to Sergeant
Norman Brady’s house. Brady advised that a memo had been
distributed indicating that Caldwell and Thompson were
barred from the grounds, and that Spalding would have ac-
cess to the grounds only during regular working hours under-
stood to be between 8 a.m. and 4 p.m.10
Sometime that evening, Sergeant Barry Brady testified
that, while on duty, he received a telephone call in which he
spoke to Thompson and Ballard. His handwritten summation
of the call states as follows:
On 5–8–90 at approx., 1630 hrs c/o Lanham Radioed
me . . . and stated that I no longer had a unit D offi-
cer, that c/o Thompson just walked out the front door,
and stated that he was leaving.
At Approx. 1715 hrs c/o Thompson called and said
he just left work to take c/o Caldwell home. C/o
Thompson said to use his vacation time or comp time
for his absences. I informed c/o Thompson I could not
authorize that to be done.
I also spoke to c/o Spalding, he said that they would
be in Friday to pick up their checks and didn’t want to
be fucked with.11
Spalding testified that he could have called Brady that
afternoon, but could not be sure. He denied being present
when Thompson made such a call, and further denied any
conversation with Brady concerning his check. Thompson
denied calling or even talking to Brady concerning this mat-
ter. I believed Brady, and reject the implication that his re-
ports were manufactured.
Fuson, having received a report as to the content of this
phone call, instructed either Wheatley or Ballard to contact
all three to make sure that they bring their uniforms and
badges in on Friday or else their paychecks would not be re-
leased.
Spalding testified that Ballard called him at home about
3:50 p.m. on Wednesday, May 9. He claims that he was in-
formed that he had been terminated, and was to bring in his
uniforms and keys when he reported to pick up his check on
Friday.12
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sel, dated September 27, 1991. That document unequivocally states:
‘‘Mr. Ballard informed Spalding of his discharge by phone on May
9, 1990.’’ While I have my doubts that these unsworn statements,
made prior to the issuance of a complaint, are a fundamentally sound
source of truth on matters of detail, in this instance its accuracy is
confirmed. Fuson, while obviously without knowledge of what
Ballard actually told Spalding, or the others, insists that he did not
instruct Ballard to inform them that they had been terminated. How-
ever, he admits that he did not instruct Ballard to refrain from telling
them that they had been discharged. Ballard did not squarely refute
Ballard’s testimony, but did aver that at the time, he would not have
known that this was so. He admitted, however that, at the time, he
knew that the men were not returning to work. In any event, his
recollection of the exchange was so feint that he admitted to the pos-
sibility that he might have testified, only 2 months after the dis-
charges, at an unemployment compensation hearing, that he did in
fact inform Spalding on May 9 of his discharge. I find that this was
the case.
13 Thompson testified that shortly after this session, Caldwell in-
formed him that ‘‘he was told to leave and not to come back until
his attitude changed.’’ He did not testify that Caldwell mentioned
Wheatley’s use of abusive or profane language.
14 At the time, Caldwell admittedly was angry. The General Coun-
sel sought to mitigate this aspect of Caldwell’s conduct by eliciting
testimony that he dropped them only a short distance—‘‘at arms
lengths . . . from about my knee.’’ Initially, Caldwell testified that
he did not hand the radio, holster, and keys to Vota because he was
seated at the desk writing. Ultimately, on cross-examination,
Caldwell admitted that he did not offer them to Vota because he was
‘‘upset.’’ The General Counsel also elicited testimony that other offi-
cers had ‘‘tossed or dropped’’ their radios. There was no evidence
that this had ever occurred deliberately out of pique. Thompson had
accompanied Caldwell to the security office. He testified initially
that they ‘‘didn’t want to make no fuss, and just laid them [their
radios] down and left.’’ Later, Thompson admitted that the radios
were dropped, but only ‘‘maybe a foot.’’
This, however, might well have been a tactical error on
Ballard’s part. Thus, Spalding concedes that on May 9, he
had not left home by 3:50 p.m. He admits that at that time
he normally would be on the premises preparing for work.
He knew he could not return until he got the haircut, and,
as of that time on May 9, this hurdle had not been cleared.
He does not deny that he had no intention of reporting for
work on May 9, and his excuse includes a tacit admission
that this was the case. Thus, he explains that he had not left
for work because Norman Brady told him of the memo that
Spalding was not to be allowed to enter the grounds after 4
p.m. However, Spalding could not have understood that this
memo was designed to interfere with his working that
evening. He admits that Bickett told him the night before
that Caldwell and Thompson were discharged, but that he
could return after getting a haircut and reporting to Fuson.
In disclosing what Spalding told him about this conversation,
Caldwell testified:
After Spalding got off the phone, he told me that
Charles Bickett had told him that me and Nicky
Thompson had been fired.
And that he was allowed to go back on grounds, be-
tween the business hours of eight to four. . . . if he got
a haircut, to speak to Mr. Fuson.
Simply put, the memo offered no excuse for Spalding’s
failure to comply with Ballard’s direction and his refusal to
report to work on the evening of May 9.
Thus, the General Counsel’s case is also beclouded by evi-
dence that, prior to being informed of his discharge on May
9, Spalding might well have quit his employment. His refusal
to get a haircut and report for his shift that afternoon were
not merely a smarting gesture. The evening before, in his
conversation with Sergeant Brady, he aligned himself with
Thompson and Caldwell, who he knew had been discharged,
advising Brady that all three would appear on Friday, May
11 to collect their checks. It is certainly arguable that in
doing so, Spalding had communicated that he, like the oth-
ers, did not intend to return to work, and, hence, that the
May 11 paycheck would be his last.
2. Charles Caldwell
Caldwell’s termination also is traceable to May 8. Like
Spalding, he worked the second shift. At the time of his dis-
charge, he had no transportation, and was living in
Spalding’s home because dependent on Spalding for a ride
to work. On that date, at about 4:10 p.m., Spalding informed
him that he had been ‘‘asked to leave’’ and was going home.
Caldwell requested that Spalding inform Nicky Thompson
that he would need a ride.
A few minutes later, Caldwell, who was working in the
Bluegrass unit, was sent him to the St. Mary’s unit to pick
up supplies. He took the van, arriving at the St. Mary’s unit
at 4:15, where he was approached by Randy Johnson. The
latter was the deputy director of programs. He reported di-
rectly to Fuson. He had no authority over corrections offi-
cers. According to Caldwell, Johnson ‘‘jokingly’’ told him to
‘‘Find a job.’’ Caldwell, also jokingly, responded that he was
looking for a job and he ‘‘meant’’ it. Caldwell then contin-
ued on his way back to the Bluegrass unit. According to
Caldwell, there was nothing more to the conversation.
Caldwell’s testimony reveals that after his return to the
Bluegrass unit, he was summoned to the office of Charles
Wheatley, the deputy director of security. Randy Johnson
was in Wheatley’s office. Wheatley asked Caldwell what his
problem was. Caldwell asked what he meant. Wheatley stat-
ed that Johnson reported that he had ‘‘broke an attitude’’
with Johnson when the latter told Caldwell to have a nice
day. Caldwell denied this was the case, reiterating his version
of the exchange with Johnson concerning his seeking another
job. After Wheatley asked why Caldwell was still working
there, both grew loud, with Caldwell explaining that he had
bills to pay. According to Caldwell, Wheatley then asked
what Caldwell expected of him, whereupon Caldwell replied,
‘‘from you, I don’t expect nothing.’’ Wheatley allegedly then
told Caldwell to ‘‘get the fuck out of there.’’13
Caldwell then drove back to the St. Mary’s unit where he
ran into Nicky Thompson, stating that he needed a ride home
because Wheatley had told him to leave. Thompson said he
probably would be next, so he elected to leave his post to
take Caldwell home. They then went to the security office
where Steve Vota, a guard apparently was on duty. Instead
of delivering his radio, holster, and the van keys to Vota,
Caldwell dropped them on the floor, telling Vota that they
told him to leave and he was leaving.14
After leaving the facility, they went to Spalding’s house
where at about 6 p.m., in consequence of the latter’s phone
call to Unit Manager Bickett, Caldwell claims that Spalding
435U.S. CORRECTIONS CORP.
15 This report was inconsistent with the fact that he had merely
been suspended by Wheatley. Yet, Caldwell made no attempt after
May 8 to clarify his employment status with any responsible official
of the Respondent. Is it possible that Caldwell anticipated that his
conduct after leaving Wheatley’s office might have altered his situa-
tion?
16 There is no indication that, prior to this incident, Caldwell had
received word that Thompson could give him a ride home.
17 Caldwell could not explain how this reference could have ap-
peared in the affidavit if it did not occur. In any event, he would
latter admit that on the occasion in question he explained to
Wheatley that he felt ‘‘burnt out’’ and needed a change, acknowl-
edging that he probably had ‘‘slacked off’’ on his job, while indi-
cating that he would accept a transfer to the Bluegrass unit.
18 The extent of Caldwell’s hostility is evident from the fact that
it had not relented by the next day. Thus, though he admitted that
Wheatley told him to come back the next day if his attitude had
changed, he declined because as he put it:
I didn’t want to go back mad. And he had me mad. And I
didn’t want to go back mad. I was upset with Mr. Wheatley, so
I didn’t go back . . . that next day.
reported that he had been discharged.15 On Friday, May 11,
when given his check, Caldwell also received ‘‘a final dis-
ciplinary notice.’’
Wheatley testified that on May 8, after Spalding had been
sent home, Johnson reported that he had asked Caldwell how
he was doing. According to Wheatley’s information,
Caldwell allegedly displayed a ‘‘very upset attitude’’ advis-
ing Johnson that he was looking for another job. Wheatley,
only a week earlier, had occasion to meet with Caldwell to
counsel him verbally concerning his attitude. On May 8,
prompted by Johnson’s report, he again met with Caldwell
and as he commented to the latter on his attitude, Caldwell
became upset, growing louder and louder to the point of bel-
ligerence, stating that he was working for the Respondent
only because he needed a paycheck and that he was looking
for something else. Wheatley claims that it became impos-
sible to reason with him. With the interview making no
progress, Wheatley became convinced that Caldwell could
not conduct his duties as correction officer in his frame of
mind, so Wheatley told Caldwell: ‘‘Go home, calm down,
think about your priorities and come back tomorrow.’’ After
Caldwell left, Wheatley asserts that he received a report that
Caldwell had walked into the security office, throwing his
keys and radio onto the floor before leaving with Thompson.
Wheatley, who denied authority to discharge on his own, that
same evening prepared a disciplinary report in consequence,
which recommended dismissal, and stated as follows:
Conduct unbecoming of an officer
On 5-8-90 at approximately 4:15pm deputy Director
Johnson reported to me that he had talked to you prior
to the above time. Mr. Johnson stated that he asked you
how you were doing and you stated that you were look-
ing for a job and you also stated that you meant it. You
and I had a conversation just a week prior to this inci-
dent regarding your attitude and your belligerent insub-
ordination. You were asked to come to my office again
at approximately [sic] 4:35pm on the 8th of May to
again discuss your attitude. You at this time explained
to me that you were trying to find another job, and that
you were only working here because you needed to pay
some bills. You again, began to get upset and I in-
structed you to go home and think about your priorities
and to return the next day to talk again. At this time
you stormed out of my office and proceeded to St.
Mary [sic] security office and threw your radio and van
keys on the floor and left the grounds with C.O.
Thompson.
Due to your belligerent attitude and your conduct un-
becoming of an officer, I am recommending that your
employment be terminated immediately. [G.C. Exh. 10]
Caldwell denied that he was ever insubordinate to a supe-
rior, that he held a belligerent attitude, or that he ever re-
fused a direct order. Although disciplined in the past,
Caldwell testified that he had never been informed that a
failure to take corrective action might lead to discharge.
While I have no reason to doubt that Caldwell’s employment
had not previously been threatened, there is little in his story
that was believable.
While Johnson was not called as a witness, Caldwell’s
version of their exchange made no sense. I cannot imagine
that this high-ranking manager, whose responsibilities in-
cluded counseling services, but not security areas, would
joke about a correction officer’s employment security on that
or any other occasion. Also difficult to believe is the testi-
mony that Caldwell, having actively engaged in proselytizing
for the Union, and having just learned of his coorganizer,
friend, and car sharer’s suspension, would have had the equa-
nimity to treat such a remark as a joke. It is far more likely
that, Caldwell, who had previously expressed unhappiness
with his job, a condition no doubt exacerbated by what he
had just learned about Spalding,16 snapped at Johnson, after
the latter simply sought to initiate an exchange of pleasant-
ries. This interpretation is consistent with the fact that John-
son carried the matter to Wheatley, and then joined the latter
in confronting Caldwell in a disciplinary interview. It is un-
likely that any of this would have been triggered by a jocular
exchange.
Caldwell’s testimony was flawed on other grounds as well.
He denied Wheatley’s assertion that they had discussed his
attitude a few weeks earlier, yet his prehearing affidavit
states that this was the case.17 His account of the May 8 con-
ference with Johnson and Wheatley on direct examination
was abreviated and reflected sensitivity in a highly material
area. Thus, he initially described Wheatley as terminating the
session by telling Caldwell to ‘‘get the fuck out of there.’’
There was no mention that he had been told by Wheatley
that he had to get his ‘‘attitude straight,’’ and that Wheatley
told him to come back tomorrow if his attitude had changed.
It was not until cross-examination that Caldwell admitted
both. Finally, I did not believe the attempt to mitigate the
manner in which Caldwell and Thompson deposited their
equipment in the security office. Caldwell admittedly
dropped the items out of anger, and, thus, the circumstances
reflect that this was a gesture of pique, unlikely to produce
the delicate bending of knee or body to assure that the drop
is softened at no more than ‘‘a foot’’ or from ‘‘knee
level.’’18
As in the case of Spalding, it is concluded that the conduct
imputed by the Respondent to Caldwell is accurately de-
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Fuson claims that Wheatley’s May 8 recommendation was not
effective until May 11. He explains that it was on that date that the
men signified their unwillingness to participate in an internal griev-
ance process in which they could appeal the grounds for termination.
This was based upon his assumption that no discharge is final until
this system is exhausted. For all intents and purposes the discharges
took place earlier. This was relayed on May 8 by Bickett, as to
Thompson and Caldwell, and the next day by Ballard, in Spalding’s
case. Moreover, the grounds for termination were based in their en-
tirety upon events occurring on May 8. Nevertheless, Fuson’s de-
scription of this technical procedure by which a discharge becomes
irrevocable impressed as a mental exercise consistent with his confu-
sion as to the relative import of distinction between that which is
final and that which is conditional.
20 I understood Spalding’s testimony as agreeing that Johnson
merely stated that the grounds on which Caldwell was terminated
were ‘‘lies.’’ Thompson broadened the scope of Johnson’s remarks
to include himself and Spalding. Thus, according to his testimony,
Johnson said that: ‘‘the reason we were fired was because we were
standing up for . . . what was right. . . . [a]nd everything they
were saying about us, wasn’t true.’’
scribed in Wheatley’s written recommendation that he be dis-
charged.19
3. The May 11 issuance of final paychecks
The veracity of Spalding, Caldwell, and Thompson is also
brought into question by remarks they attribute to Deputy
Director Johnson at the front gate on Friday, May 11. As
promised all three went to the facility that day. They re-
quested delivery of their checks at the front gate where their
uniforms would be provided in exchange. This request was
denied, and they were required to drive to the office area
under escort from Sergeant Brady. There was indication that
Donahue wanted to see the men in his office individually,
but Spalding protested:
We’re irritated because we were fired for no reason.
We just want to have it done. Give us our checks.
According to Spalding, after some further discussion and
a threat to seek legal counsel, Charlie Bickett complied giv-
ing each his check in an envelope containing their ‘‘write-
up.’’
However, they assert that the true reason for their termi-
nations was bared to them before they left by Deputy Direc-
tor Randy Johnson. Spalding described the scene as follows:
[Randy] Johnson stuck his head in the window and
said, ‘‘Well’’ . . . ‘‘It’s been nice working with you
guys.’’
And Charley [Caldwell] said, ‘‘Randy’’ . . . What
about these write-ups? He said, You know it’s a bunch
of lies.’’
And Randy said, ‘‘Well, I know it’s just a bunch of
bullshit . . . . You were fired because you stood up for
something you believed in.’’
According to Caldwell, Randy Johnson approached the car
and stuck his head in the window, wishing the three dis-
chargees good luck. Caldwell, in reference to his disciplinary
notice, stated ‘‘You know these are a bunch of lies.’’ John-
son, whose complaint to Wheatley lay at the cornerstone of
Caldwell’s discharge, allegedly replied ‘‘I know they are, but
the only reason you all is fired, is because you all stood up
for what you believed in.’’
Johnson was not called as a witness, and the record bears
no indication of whether or not he was available to testify.
The testimony offered by the General Counsel’s witnesses
therefore is uncontradicted. Nevertheless, my disbelief that
any thing like this occurred is so compelling as to defeat
mechanistic acceptance of such testimony. Spalding,
Caldwell, and Thompson were taken by me as untrustworthy
witnesses. As heretofore found, the assigned reasons for their
terminations actually occurred. Moreover, it makes no sense
to me that Johnson, a ranking official at the prison, would
compromise his status and align himself officiously with dis-
chargees through admission that anyone was discharged on
false grounds.
Moreover, if Spalding, Caldwell, and Thompson are to be
believed, Johnson, thereby, had acknowledged his own role
as principal offender in a pretextual scheme. Thus, as
Caldwell testified it was Wheatley’s writeup of Caldwell that
Johnson was describing as false.20 Yet, Johnson himself
would have been the major contributor to any falsehoods.
Wheatley’s report acknowledged that it was Johnson’s alle-
gations that led to the suspension of Caldwell on May 8:
Johnson reported to me that he had talked to you prior
to the above time. Mr. Johnson stated that he asked you
how you were doing and you stated that you were look-
ing for a job and you also stated that you meant it.
Caldwell described his encounter with Johnson as ‘‘jocular.’’
Thus, if Caldwell’s overall testimony is believed, Johnson
had absolutely no reason to report their exchange to
Wheatley—that is, unless Johnson himself was out to set up
Caldwell, and in that process concocted a major untruth. Ac-
cordingly, the premise of the General Counsel’s testimony in
this respect is that Johnson had triggered a pernicious
scheme, but that once the objective had been achieved, he
chose, for no apparent reason, to undermine himself by ad-
mitting that the Respondent’s action, initiated by himself,
was ‘‘a bunch of lies.’’ In sum, this is one of those rare in-
stances where mutually corroborative, uncontradicted testi-
mony is so inherently untrue as to impel rejection.
C. The Prima Facie Case
1. Knowledge
a. Direct evidence
The brief interval between the discharges and union activ-
ity, at a minimum, provides a suspicion of illegality. This,
however must be reenforced by evidence that at the time of
the terminations the Respondent was mindful that the alleged
discriminatees had engaged in union activity, or proof that
the Respondent harbored animus against the union sup-
porters.
During the timeframe prior to the discharges, the evidence
of knowledge is limited to the lowest echelon of supervisory
authority. Spalding testified to an incident that occurred on
May 3, at shift change. Shortly before midnight, he allegedly
left his post and was walking across the parking lot at the
facility after receiving signed cards from two coworkers. Jun-
ior Adams, a sergeant and an admitted supervisor yelled,
437U.S. CORRECTIONS CORP.
21 Spalding’s sworn, prehearing affidavit states that to his knowl-
edge no supervisor saw him get cards signed.
22 The only other evidence offered by Spalding on the issue of
knowledge pertained to his having solicited an authorization card
from the brother of a sergeant, testimony which seeks to build infer-
ence upon inference in establishing the possibility, but not the prob-
ability that Spalding’s conduct in this regard reached the ears of
management.
23 Thompson did not aver that Smothers identified any individuals
involved. On cross-examination, Thompson states that the partici-
pants in the conversation were not within view, but that he recog-
nized Smothers’ voice.
24 The testimony on direct examination that this occurred on May
4 was not established by Thompson independently, but was fun-
nelled to him through a prejudicially leading question. His pre-
hearing affidavit places the incident on May 7.
‘‘Hey Goob . . . You’d better sort of watch that. You can
get in trouble.’’ Spalding asked what he meant, whereupon
Adams replied, ‘‘You don’t have to worry about me. If I was
still a Guard . . . I’d help you be getting those cards
signed.’’ On cross-examination, however, question was raised
as to whether Adams was aware of just what Spalding was
doing on the parking lot. At that point, Spalding testified that
Adams never acknowledged that this was the case, but
Spalding states that he ‘‘assumed’’ that Adams ‘‘was talking
about the union.’’21 Spalding admits that at the time of the
incident, his shift had not ended, but that he just stepped out
‘‘to get a breath of fresh air.’’ The incident involved an in-
cursion on working time and no union animus can be read
into any warning to Spalding by Sergeant Adams. Moreover,
there is no evidence that this low level supervisor ‘‘shared’’
any knowledge of Spalding’s union activity that he held with
others within management. Alexian Bros. Medical Center,
307 NLRB 389 (1992). Indeed, any inference that he did suf-
fers from the fact that Spalding had left his post, without re-
lief, during working time to solicit cards. In these cir-
cumstances, it is reasonable to assume that management
would have been made more of the incident had it been
called to their attention.22
Nicky Thompson testified to an incident suggesting that
management was aware, generally, of union activity as early
as May 4. Thus, he related that while passing the security
office, he overheard a guard, Harold Smothers, informing
sergeants Barry Brady and Mitchell Lee ‘‘about the Guards
was trying to get a union.’’23 Barry Brady denied that
Smothers on either May 4 or 7 mentioned the Union to
him.24 Thompson was not regarded as a reliable witness, and
as between his uncorroborated testimony and Brady, the lat-
ter is preferred.
b. Inference
Two concepts are advanced to overcome the absence of di-
rect evidence that the Respondent, at the time of discharge,
was aware of the union proclivities of Spalding and
Caldwell. Both are consistent with the principle that knowl-
edge is inferrable from the surrounding circumstances.
First, the General Counsel would invoke the small plant
doctrine, which is founded upon the notion that management
will learn quickly of union activity where waged openly
within a small complement of employees. Weise Plow Weld-
ing Co., 123 NLRB 616 (1959). Here, however, Spalding
concedes that he was ‘‘advised’’ not to discuss the union
with supervisors, and there is no evidence that he or
Caldwell did so, or that either engaged in any union activity
under conditions in which they exposed themselves to the
risk of observation by management. Cf. L.A. Baker Electric,
265 NLRB 1579 fn. 3 (1983). The Board has declined to
infer knowledge solely on the basis of the size of the unit
in such circumstances. Bryant & Cooper Steakhouse, 304
NLRB 750 (1991). Other factors enhancing the probability
that the employer would have learned of such involvement
are absent. Here, the unit consisted of more than 50 employ-
ees, in a work force exceeding 100, and there is no credible
proof that, as of May 9, the Respondent was aware generally
that union organization was under way. Cf. Dentech Corp.,
294 NLRB 924, 955–956 (1989); Kunja Knitting Mills
U.S.A., 302 NLRB 545 (1990). Nor did the Employer engage
in interrogation, surveillance, or otherwise ply a ‘‘grapevine’’
for information on union adherents. Cf. Active Transpor-
tation, 296 NLRB 431, 432 (1989). Absent such factors, par-
ticularly in a unit of this size, the foundation does not exist
for a rational inference in this regard. See Pizza Crust Co.,
286 NLRB 490, 495 (1987).
Knowledge might also be inferred where the cause as-
signed for discipline was so baseless, unreasonable, or con-
trived as to itself raise a presumption of wrongful motive.
See, e.g., Whitesville Mill Service Co., 307 NLRB 937
(1992); DeJana Industries, 305 NLRB 845 (1991); Shattuck
Denn Mining Corp v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966). The issue appears relevant in the case of Spalding. At
the hearing, the General Counsel attempted to adduce evi-
dence suggesting that the Respondent acted without justifica-
tion in instructing Spalding to get a haircut and in sus-
pending him for failing to comply. This possibility is revital-
ized in the Charging Party’s posthearing brief. However, the
record fails to cast doubt upon Ballard’s intervention.
The Respondent’s employee handbook, in material part,
states:
All employees are expected to be clean, neat, and well
groomed at all times. [R. Exh. 1(a).]
Under a formal employee dress and personal appearance
policy, dated February 20, 1987, it is stated:
Hair of moderate length will be acceptable but must not
prevent the uniform cap from being worn in an accept-
able manner. [R. Exh. 1(c).]
Effective July 1, 1988, a personal appearance change was
promulgated, in material part stating as follows:
Hair styles of any contemporary style are acceptable,
but shall not prevent the uniform cap from being worn
in an acceptable manner. Personnel may wear neatly
trimmed beards, mustaches and side burns. [G.C. Exh.
13.]
Pursuant to prodding by counsel for the General Counsel,
Spalding was a willing declarant of his compliance with that
policy:
Q. Was there any rule, at all, governing appearance
vis-a-vis, hair?
A. Your hair had to be worn where you could wear
your uniform cap.
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 The timing of this directive tends to shade against the possibility
that Spalding was treated any differently because of union activity.
As heretofore found, it was between the first and second shift on
May 1, that Ballard instructed Spalding to get a haircut. There was
no testimony indicating that Spalding, apart from attending the April
30 meeting, engaged in any overt union activity in the interim.
Under no concept on this record is there room for assumption that
the Respondent acquired knowledge of union activity, or who was
involved in it, as of 4 p.m. on May 1.
26 In his testimony, Spalding also explained that his wife, who usu-
ally cuts his hair, was away on a 2-week trip.
27 G.C. Exh. 2(a). In exacting testimony from Spalding that he had
not previously been told that his hair was too long, counsel for the
General Counsel did not address this exhibit. When confronted with
the document on cross-examination, Spalding stated that this entry
was made after he acknowledged the document with his signature.
Since he signed the document prior to Fuson and Wheatley, he is
entitled to benefit of the doubt.
28 The General Counsel’s own evidence confirms that on May 8,
Ballard’s sending Spalding home until he got a haircut was not out
of the ordinary. Thus, Norman Brady, a former sergeant testified that
he made a similar recommendation in connection with another guard
that he felt needed a haircut, a recommendation that was short
circuited when the officer complied.
29 Later Thomas conceded that it was possible that Spalding and
Caldwell might have been discharged before the meeting.
30 Brady, who resigned from the Respondent’s employ in August
1990 because passed over for promotion, was too willing to embrace
questions propounded by the General Counsel with ill-thought out,
unbelievable responses. This is exemplified by his testimony that he
would not initiate discipline against a corrections officer who re-
sponded to his corrective efforts by addressing a profanity towards
him, and by his testimony that he noticed the length of Spalding’s
Q. And did your cap fit on your head?
A. Yes, sir, I wore it every day.
The General Counsel sought to back this testimony with
evidence tending to suggest that the neatness policy was dis-
parately applied against Spalding. Thus, on inquiry from the
General Counsel, Spalding testified that never before had he
been told by any management representative that his hair
was too long, and also that there were numerous other guards
that had hair at least as long as his. In addition the General
Counsel produced ID cards which bore photos revealing that
those depicted, including Spalding, had long hair at the time
the photos were taken. Spalding claims that he wore his hair
the same length as reflected on his ‘‘ID’’ throughout his em-
ployment without ever being questioned by management.
The claim that Spalding was innocent of any offense to the
neatness policy does not square with his actual conduct. He
did not challenge either Ballard’s initial directive or the
latter’s action in suspending him a week later on grounds
that his hair was the same length as it always had been, or
that others had longer hair. Instead, Spalding admits that
when Ballard told him initially of the need to get his hair
cut, he simply explained that he had not had time.25 On May
8, when called down by Ballard, he again did not assert that
his hair was of acceptable length, but offered that he was too
busy with his farm work to visit a local barber shop on Mon-
day.26 He took this precise position in his confrontation with
Fuson later that evening. It is not without significance that
Ballard, admits that after informed of his discharge he volun-
tarily, prior to May 11, got his haircut, a fact that makes it
fair to assume that he did so out of need.
Moreover, there is evidence that Spalding’s grooming had
been addressed by management previously. Thus, in his most
recent evaluation, in April 1990, the following appears:
Valuable employee, steady and reliable at work. Needs
to work on attendance and keeping beard and hair
trimmed. An asset top M.A.C.27
This inscription seems objective and lacks the character of
disingenuous fabrication. I believe it authentic, and reflective
of management’s awareness that a grooming problem existed
well in advance of any union activity.
In this light, I credit Ballard’s testimony that at the time,
Spalding’s hair was so long that it flipped ‘‘up and out’’
from under his uniform hat of ball-cap design, and, further,
that when he initially instructed Spalding to get a haircut, the
latter replied that, ‘‘he had been expecting that order.’’ I re-
ject any notion that Spalding was sent home on May 8 for
reasons other than his failure to comply with the Respond-
ent’s neatness policy.28
2. Union animus
While there is no direct evidence that the Respondent was
mindful that Spalding and Caldwell were union activists, the
General Counsel has adduced additional evidence showing
that the Respondent harbored strong resentment toward union
supporters.
Indeed, some of this testimony tended strongly to establish
that responsible representatives of the Respondent manifested
a proclivity toward union-related discrimination. Each of the
several incidents depicted would constitute an independent
8(a)(1) violation; yet, not one is mentioned in the complaint.
Norman Brady, the former sergeant, and Larry Thomas, a
former corrections officer, testified to an incident, following
the discharges of Spalding and Caldwell, in which Mike
Montgomery, the Respondent’s vice president of operations
revealed a proclivity to effect reprisals against union protago-
nists. The remark occurred immediately after an antiunion
meeting, which according to Thomas, was held on May 7,
9, or 10,29 but which, according to Brady, took place in May
or June after the discharges of Spalding and Caldwell. As for
his conversation with Montgomery, Thomas testified:
[I] had heard, earlier, that anybody who had dealings
with the Union, signing cards or anything or starting it,
would be fired.
So, after the meeting I asked him if he said that. He
said, ‘‘No one would be fired.’’ I said, ‘‘Well I just
wanted to know, did you say that?’’
And he said he would personally take great satisfac-
tion in firing anybody who was starting it or handing
out on the cards or something like that.
Norman Brady, at least partially corroborated Thomas. He
claims to have overheard the latter’s conversation with Mont-
gomery, and that as he remembered, Montgomery stated that
‘‘he would take personal satisfaction in firing anybody that
had anything to do with the union or was involved with the
Union.’’ While I have reservations concerning the credibility
of Brady30 and Thomas, who did not impress me as having
439U.S. CORRECTIONS CORP.
hair and that the ‘‘style’’ did not change throughout the latter’s em-
ployment.
31 The statement clearly violates Sec. 8(a)(1) of the Act. Like sev-
eral other incidents litigated by the General Counsel, no such allega-
tion was included in the complaint. In light of the Respondent’s fail-
ure to call Montgomery, there is no basis for concluding that the
issue was fully litigated.
32 Once more a clearcut violation of Sec. 8(a)(1) has gone
unmentioned in the complaint, and in light of the Respondent’s fail-
ure to produce countervailing proof, it is concluded that the issue
was not fully litigated.
33 Although the Respondent failed to produce an eyewitness as to
what transpired in the security office, the accuracy of facts codified
in Wheately’s disciplinary report is substantiated by probability and
Caldwell’s admissions against interest, including his description of
his state of mind at the time.
34 I have no reason to question Fuson’s testimony that self-control
is a critical qualification for performing the duties of a correction of-
ficer.
35 Counsel for the Charging Party introduced a series of documents
from the personnel file of James Gray, a trainee, all of which reflect
discipline meted out during the term of Gray’s employment. C.P.
Exh. 1(a)–(f). They reflect a series of suspensions and reprimands
between 1986 and 1989, based on misconduct on five occasions. In
my opinion, this miscellany of offenses, even if considered collec-
tively, is not so clearly equatable to the conduct of either Spalding
or Caldwell to support a reasonably founded conclusion that the lat-
ter should have been treated with lenience, or to cast doubt upon the
proof that the discharges would have been effected even in the ab-
sence of union activity.
the capacity to grasp events, retain them in memory, and
then to relate them as they occurred. Nevertheless, Mont-
gomery was not called, and while not free from doubt, to the
extent mutually corroborative, I accept, reluctantly, the testi-
mony of Thomas and Brady.31
However, I reach a different result with respect to a state-
ment that Thomas imputes to Fuson. Thomas claims that, he
was off work the next several days after the Montgomery
antiunion meeting, and he claims that he did not learn of the
discharges until his return to work. He avers that, on the day
of his return, Fuson called him to his office, and engaged
him in the following conversation:
[H]e said that Mr. Montgomery thought I was upset
when I left that day, after the meeting. He wanted to
assure me, that my job was safe, that I . . . wasn’t
going to be fired or nothing.
[Mr.] Fuson told me . . . We got rid of the three
trouble makers.’’ And he just went on and . . . tried
to reassure me, that my job was safe . . . .
Fuson concedes that he met with Thomas, but insists that
it was on request of the latter, who simply informed that he
intended to resign and wished to leave on good terms, and
that if his new line of work did not pan out, he hoped to
return. According to Fuson, the Union was not mentioned,
but Thomas did indicate that he did not wish to be associated
with what had recently transpired in the facility. Thomas,
being regarded by Fuson as a good employee, was assured
that there would be no problem. He denied telling Thomas
that ‘‘We got rid of the three trouble makers,’’ but admits
to using words to the effect that ‘‘There has been some trou-
ble lately and that the problems are behind us.’’
Thomas’ account seemed incoherent. It is unlikely that
Fuson would have called him in to offer assurance caused by
Montgomery’s professed intention to eliminate union adher-
ents, by reopening the wound through implication that three
employees had already been discharged for union activity.
Not only did Fuson’s account appear more logical, but I was
not impressed with Thomas’ capacity to comprehend and as-
similate information accurately. I consider Fuson’s recollec-
tion of what was said on that occasion to have the greater
reliability, and, accordingly, he is credited.
Cliff Wheatley was the only incumbent employee who tes-
tified on behalf of the General Counsel. Wheatley testified
that at a meeting addressed by Montgomery, which was at-
tended by about 50 employees, the latter said that if the
Union came in, the Company would ‘‘be gone.’’ Although
uncorroborated, doubt in no other respect is cast upon this
undenied testimony by an active employee. It is credited.32
D. Conclusions
The General Counsel has established that the discharges
took place shortly after Spalding and Caldwell became in-
volved in organizational activity. While there is no evidence
that the Respondent, at the time, was aware of that fact,
credible evidence does establish that a responsible, high
ranking official of the Respondent subsequently professed an
inclination to terminate those who would engage in union ac-
tivity. Assuming that the foregoing suffices to establish that
union activity was at least ‘‘a’’ motivating factor, the Re-
spondent has amply established that the discharges would
have occurred even if the union were not in the picture. See
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Thus, the General Counsel’s circumstantial case collapses
when considered against the conduct of Spalding and
Caldwell that gave rise to their discharges. Spalding parlayed
into a suspension his failure, over a 7-day span, to comply
with a simple instruction; and then, when given another op-
portunity, engaged in an abusive confrontation with the high-
est ranking official at the facility. Caldwell, in the face of
a history of discipline, and repeated expressions as to his un-
happiness with his job, having previously been counselled,
was given a chance to get his act together. Instead of re-
sponding, his expressed disdain for his job became contemp-
tuous when he scornfully dropped his equipment on the floor
of the security office.33
A challenge to the lawfulness of a discharge is not to be
regarded lightly where timing is coupled with an expressed
predilection on the part of management to rid itself of union
adherents. Here, however, the alleged discriminatees had
gone beyond the edge of tolerable behavior.34 Moreover, the
attempt to trivialize their misconduct on the basis of alleged
disparate treatment,35 bypass of the progressive system of
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 The Respondent’s policy in this area is not so ironclad to reflect
that it was offended by these discharges. For obvious reasons, it is
inconceivable that an employer, pursuant to such an arrangement,
would relinquish authority to discharge in the case of serious of-
fenses. The following sector of the Respondent’s policy indicates
that sufficient flexibility has been retained to deal with such situa-
tions:
Supervisors are encouraged top recommend penalties in a pro-
gressive manner beginning with a counseling letter. However,
the seriousness of the offense may dictate a higher level of pen-
alty. [R. Exh 1(a), p. 6.]
37 Fuson’s alleged lack of precision in describing the basis for the
discharges or when they occurred was more in the nature of seman-
tics and perception, which in light of what transpired was not suffi-
ciently inconsistent to be anything more than technical aberrations.
Against the record as a whole, any difficulties held by Fuson in re-
canting his precise mental processes some 2 years earlier did not
alter the seriousness of the misconduct, or warrant a conclusion that
the Respondent acted on any other grounds. This is particularly so,
in light of findings heretofore made that, in the case of both alleged
discriminatees, the cause defined in written reports leading to the ter-
minations is substantiated by what actually took place.
38 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
discipline,36 and shifting reasons for the terminations,37 did
not—even coupled with the uncontradicted evidence of ani-
mus—refute the pervasive and entirely credible proof that
Spalding and Caldwell would have been terminated even in
the absence of union activity. Accordingly, I find that the
General Counsel has not established by a preponderance of
the evidence that either was discharged for reasons pro-
scribed by Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent did not violate Section 8(a)(3) and (1)
of the Act by discharging Gabriel Spalding and Charles
Caldwell.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended38
ORDER
It is ordered that the complaint herein be dismissed.