Vulcan Materials Co.

National Labor Relations Board - Board Decisions

Jun 14, 1962

137 N.L.R.B. 612 (N.L.R.B. 1962)

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By picketing Babcock Company and Sales, Inc., on January 29, February 5, 19,
and 26, and March 5, 1961, and by picketing Pawliger Building Industries Inc., on
January 29 and February 5, 1961, the Respondent induced and encouraged individuals
employed by Sales, Inc., and Pawliger Building Industries , Inc., to engage in a strike
or a refusal in the course of their employment to perform services with an object
of forcing or requiring Babcock Company and Pawliger Building Industries, Inc.,
to cease doing business with H. L. Robertson and Associates, Inc., thereby engaging
in unfair labor practices within the meaning of Section 8(b) (4) (i) (B) of the Act.
5. By picketing Babcock Company, Sales, Inc., and Pawliger Building Industries,
Inc., on the dates set forth in paragraph numbered 4, above, the Respondent
threatened, coerced , and restrained Babcock Company, Sales, Inc., and Pawliger
Building Industries Inc., with an object of forcing or requiring Babcock Company,
and Pawliger Building Industries , Inc., to cease doing business with H. L. Robertson
and Associates, Inc., thereby engaging in unfair labor practices within the meaning
of Section 8(b) (4) (ii) (B) of the Act.
6. By threatening Fred J. Butz, and by handing Butz a handbill during the course
of picketing , as set forth under section III , above, the Respondent induced and en-
couraged an individual employed by Pawliger Building Industries , Inc., to engage
in a strike or a refusal in the course of his employment to perform services with an
object of forcing or requiring Pawliger Building Industries , Inc., to cease doing busi-
ness with H. L. Roberston and Associates , Inc., thereby engaging in unfair labor
practices within the meaning of Section 8(b) (4) (i) (B) of the Act.
7. By distributing handbills to .the public on dates set forth in paragraph numbered
4, above, the Respondent did not engage in unfair labor practices within the meaning
of Section 8(b) (i) and (ii) (B) of the Act.
8. Other than as above found , the Respondent has not engaged in unfair labor
practices within the meaning of Section 8(b)(4)(i) and (ii ) (B) of the Act.
9. The above unfair labor practices are unfair labor practices within the mean-
ing of Section 2( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Birmingham Slag Division of the Vulcan Materials Company
and United Steelworkers of America , AFL-CIO. Case No.
15-CA-1939. June 14, 1962
DECISION AND ORDER
On February 27, 1962, Trial Examiner A. Norman Somers issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. He further found that the Respondent had
not engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, 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
137 NLRB No. 76.
BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 613
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Birmingham Slag
Division of the Vulcan Materials Company, Birmingham, Alabama,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any employee
in order to discourage membership or activity in United Steelworkers
of America, AFL-CIO.
(b) Interrogating its employees concerning their affiliation with,
activity in support of, or interest in the above or any other labor or-
ganization, in a manner constituting interference, restraint, or
coercion.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in any other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer C. T. Broadway immediate and full reinstatement to his
former or 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 as a result of his discharge, in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, time cards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due un-
der the terms of this Order.
(c) Post at its various plants, stations, shops, and working places in
the Montgomery, Alabama, area, copies of the notice attached hereto
marked "Appendix." 1 Copies of said notice, to be furnished by the
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for the Fifteenth Region, shall, after being duly
signed by an authorized representative of the Respondent, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Fifteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent violated Section 8 (a) (1)
of the Act by the conduct of Edwin Openshaw.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discharge or otherwise discriminate against any
employee in order to discourage membership or activity in United
Steelworkers of America, AFL-CIO, or in any other labor
organization.
WE WILL NOT interrogate our employees concerning their affilia-
tion with, activity in support of, or interest in the above or any
other labor organization, in a manner constituting interference,
restraint, or coercion.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right of self-
organization, to form labor organizations, to join or assist United
Steelworkers of America, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the National Labor Relations Act,
or to refrain from any and all such activities.
WE WILL offer to C. T. Broadway reinstatement to his former
or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and we will make him
whole for any loss of pay suffered as a result of his discharge.
BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 615
All our employees are free to become or remain or to refrain from
becoming or remaining members of United Steelworkers of America,
AFL-CIO, or any other labor organization.
BIRMINGIIAM SLAG DIVISION OF TILE
VULCAN MATERIALS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New
Orleans, Louisiana, Telephone Number, 529-2411, if they have any
question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was heard before the duly designated Trial Examiner in Montgomery,
Alabama, on November 13 and 14, 1961, on complaint of the General Counsel
(issued October 11, 1961, on a charge filed by the Union on June 29, 1961) and
the answer of Respondent. The issue was whether Respondent's discharge of C. T.
Broadway was discriminatorily motivated in violation of Section 8(a)(3), and
whether Respondent had infringed upon the rights of its employees in other ways
in violation of Section 8(a) (1) of the Act. The parties waived oral argument and
have filed briefs, which have been duly considered.' Upon the entire record (as
corrected on notice to the parties), and upon careful observation of the demeanor of
the witnesses and the character of their testimony as a whole, the Trial Examiner
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED
Respondent , Vulcan Materials Company, is a New Jersey corporation , having its
principal place of business in Birmingham , Alabama. Through its Birmingham
Slag Division it is engaged primarily in producing and selling road materials , such as
sand, gravel , etc., in about 30 areas throughout the State of Alabama, including also
the Montgomery area, where the events here involved occurred. The purchase of
material shipped to it directly from outside the State and the income for goods or
services supplied by it to customers outside the State, exceed $50,000 a year in each
catogery. Respondent does not dispute either the existence or the assertion of the
Board's jurisdiction over it.
United Steelworkers of America , AFL-CIO, the Charging Party, hereinafter
called the Union , is a labor organization within the meaning of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of C. T. Broadway
1. Introductory synopsis and statement of applicable standards of appraisal
The case is in the main concerned with the discharge of C. T. Broadway, which
occurred during the Union's campaign of organization among Respondent's em-
1 The Trial Examiner gratefully acknowledges the assistance of counsel in their briefs.
Avoiding the failing, all too common among some counsel, of limiting their discussions to,
evidence favorable to their contentions, they have candidly faced up to the evidence-
against their positions as preludes to well-reasoned arguments as to why, on balance,
the conflicts should be resolved in favor of their respective sides
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the Montgomery area. Sometime before his discharge , the Union's
representatives , in discussing arrangements for a Board election , told a company
official that Broadway would be one of the Union's observers at the ballot -taking.
Several weeks later, Broadway, on his return from 2 weeks' duty as a captain in
the National Guard, was informed he was discharged because he was thought to be
at fault for the damage to the engine of a bulldozer operated by him , which had
broken down just before he left for the National Guard. The manner of the in-
vestigation and the harshness of the penalty, when compared with Respondent's
demonstrated tolerance toward breakages in its heavy line of work, along with the
fact that Respondent was opposed to the Union, is in large part the basis for
the General Counsel 's contention that the incident in question was seized upon as
a pretext to be rid of Broadway because of his special role in the Union.
There is much in the treatment of Broadway to warrant inquiry. The determi-
nation of his guilt was concededly made during his absence on military leave, with
no prior indication that he was suspected of being at fault for the damage or any
opportunity given him to state his version ; the penalty was difficult to square with
Respondent 's contemporaneously demonstrated tolerance in respect to damage to
equipment , which is concededly quite frequent in Respondent 's heavy line of work;
and Broadway , a prior foreman of Respondent 's, who had supervised others in
the operation and maintenance of the very kind of equipment here involved, who
was in line to fill the next foreman 's vacancy , and who Respondent 's witnesses
conceded had not before been guilty of the kind of laxity now attributed to him
and was unlikely to repeat it, would have seemed a most unlikely prospect for being
thus determined to have been lax without obtaining his version first or to have
been punished in that extreme manner even if believed culpable in that single
instance.
However, unlike an arbitration proceeding , the considerations above recited are
not conclusive in our kind of inquiry , but are relevant only for their bearing upon
whether the cause assigned is the real cause of the discharge , as opposed to being
what the General Counsel here contends it was-a pretext to mask an antiunion
motivation . The appraisal of the reason assigned by the employee normally comes
into play when the incident relied on is advanced by the employer to offset a prima
facie showing otherwise appearing , that the discharge was inspired by antiunion
animus. As explained in Mike Persia Chevrolet Corporation of Houston, 134
NLRB 1402 (IR): "If there is independent evidence to warrant the inference that
the motive was to advance or discourage union activity , then the matter of whether
the cause assigned is `good' or `bad' is not an ultimate subject of inquiry but merely
an evidentiary item bearing on the weight of the evidence advanced by the em-
ployer to offset that inference ." This is on the assumption that employers do not
ordinarily discharge for a "bad" cause , and hence "testimony that that was the
real cause does not carry the kind of persuasion to offset an inference of a dis-
criminatory motive, flowing from other evidence , which a `good ' cause would carry."
Ibrd
The difficulty with the General Counsel 's case here is that it lacks a showing
of antiunion animus, which , standing on its own feet, warrants an inference that
the discharge had an antiunion motivation , and against which is to be appraised
the employer's claim that the reason assigned by it was the real reason for the
discharge. The General Counsel here relies , as he perforce must, upon the manner
of the discharge and the nature of the discipline as being so disparate as to betray
a hostility made comprehensible only by Respondent 's admitted purpose to have
the employees reject the Union and, by that token , Broadway 's leadership in it.
But to provide the support for an inference of antiunion motivation , which the
remainder of the record does not supply , the precipitating reason would have to
be so lacking in rational basis that on the "presumption . . . that people in the
conduct of business affairs act out of rational motives" (Sears Roebuck and Com-
pany, 123 NLRB 1236, 1264 ), the evidence in regard to the Union , though insuffi-
cient in itself to support an inference of retaliatory animus. serves alone to give
rational content to an otherwise irrational act See also Clanton E Smith and
Willard Smith, d/bla Clayton - Willard Sales , 126 NLRB 1325, 1340 Where, how-
ever, the reason assigned is merely "bad" in the sense of being insufficiently per-
suative to offset an inference of antiunion motivation otherwise warranted : then, in
recognition of the fallibility of even honest judgment, the unpersuasiveness of the
reason would not ordinarily make up, as would a totally irrational reason , for the
absence of an independent basis for inferring that the action was inspired by anti-
union animus : or assuming warrant for such an inference , then , under the burden of
proof home by the General Counsel , there would still be the question of whether it
is sufficiently strone to override the sworn disavowals of those participating in the
decision that Broadway 's role in the Union, as disclosed by the union representa-
BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 617
tives to the official in question, was communicated by the latter to, or otherwise
known by, them.
2. The evidence considered in the light of above
a. Union organization and extent of Respondent's interest and knowledge of it
There are two periods here considered-the first preceding Broadway's discharge,
which occurred June 26, and the second thereafter up to the election held in August.
As to the first, what appears is that early in May, which was about the time that
the Union began its organizing campaign, Edwin Openshaw, general superintendent
of the Montgomery area, according to the testimony of Elmer Gist, §uperintendent
of Cook station (where Broadway worked), asked Gist whether he "had heard
anything about them getting into the Union," to which Gist replied he had not.
Gist also testified that shortly afteward he saw union stickers prominently displayed
on the cars of about 10 or 12 employees, Broadway's among them The union rep-
resentatives and Broadway testified that Broadway attended all of its weekly meet-
ings, had signed up six employees; and that he had been chosen as the liaison be-
tween the employees and the union representatives and as an observer for the Union
in the forthcoming election. Finally, there is the testimony of the union representa-
tives that in a discussion on May 29, between them and Grady Self, Respondent's
vice president of administration, concerning a mutually agreeable date for a Board
election, they mentioned that Broadway was their contact man with the employees
and was to be a union observer at the election?
The evidence concerning the Union after Broadway's discharge consists of single
conversations with two separate employees held in mid-July, one initiated by Open-
shaw, and the other by Alva Ray, a supervisor, who is not otherwise involved in
the events here considered. Deferring the details and the resolution of the con-
flicting versions to a later stage of the discussion, it would seem clear, quite without
regard to whether they constituted separate unfair labor practices as alleged, that
they reflect a pronounced desire on the part of Respondent that the employees reject
collective bargaining and continue the then mode of dealing individually with the
Company Openshaw in his own version quoted himself as saying that "the company
would rather that we did not have a union" and that "I hope we don't have a union."
The same was expressed by Vice President Self in addresses which he made to the
employees at the various stations-not alleged as violations-wherein the theme,
supported by Respondent's reasons therefor, was that "the Company is opposed to
a union," and in his opening address to the employees he introduced the subject
by reciting that on receiving, on May 15, written notification from the Union of its
having been designated as representative of the employees in the Montgomery area-
It was somewhat of a surprise to the Company to receive such a notice as this,
because the Management of your Company had no idea that you were dis-
satisfied to the extent that you would petition an outside party to represent you.
b. The damage and the ensuing discharge
The damaged equipment was the engine of a bulldozer operated by Broadway since
about April 1 (approximately the time he went back to rank-and-file status from that
of working foreman, that demotion being unrelated to merit). The vehicle had been
purchased secondhand, and by about a week before June 9, when the engine broke
down, Broadway reported to Cook Station Superintendent Gist that it was using up
an excessive quantity of oil-4 gallons a shift as against a normal of I to 2. Gist
a The occasion for mentioning him was that Self proposed a date in June. to which the
union representatives demurred because they understood that a substantial number of
the employees would then be on duty at the National Guard, and they indicated they
would check with Broadway, whom they identified in the manner indicated They
testified that Self said he too would check, whereupon they stated there were a number
of persons in the Montgomery area by that surname and they accordingly gave him
Broadway's specific initials ; and that Self made a note on paper at that time They did
not see the note and they admitted also that both parties were taking notes throughout
the discussion. While Self did not testify (be being in a hospital for a leg injury during
the hearing, and Respondent's counsel at the end of its case having- declined the Trial
Examiner's proffer to have Self's testimony taken there), the persons participating in
the decision to discharge Broadway denied that Broadway's role had been communicated
to them by Self or that they otherwise knew of It, and Gist denied that he had told
anyone of his having observed a union sticker on Broadway's car
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then indicated the oil would have to be checked twice during a shift-at the start
and at midshift. Broadway's shift was from 7 in the morning to 3 in the afternoon.
According ,to Broadway, on the June 9 in question, when he began his shift, he made
the usual check for oil and water, and filled the crankcase with oil, it then needing
3 to 4 gallons to fill it, about noon the engine began to cut off intermittently. Broad-
way went to look for his working foreman, then for Gist, his station superintendent,
then a mechanic at the station shop, and not finding any of them, he finally tele-
phoned the main shop for the Montgomery area and described the trouble to Rip
Lowder, the diesel shop superintendent. At this point Working Foreman Boyd en-
tered and took over the telephone from Broadway. Lowder's instruction to Boyd,
as related to Broadway, was that they put the safety switch on "manual," i.e , "take
it off automatic." A function of the "automatic" as described by the General Coun-
sel's witnesses on that point, i.e , Broadway and C E. Riley, a Cook station me-
chanic, was that it shuts off the engine when it heats up because of insufficiency of
oil or water.3 This was about 1 or 1:30 Broadway testified that during the in-
terval that Boyd talked to Lowder, he checked the oil with the dipstick and that it
registered one gallon low, an amount concededly sufficient to assure proper oil dis-
tribution to all the parts; that for the remaining hour and a half or two of the shift,
he operated the engine without any trouble, and that the needle on the oil pressure
gauge was at all times upright, indicating proper distribution to all the parts .4
The first discovery that the dozer would not run was after the end of Broadway's
shift, when he had just shut the motor off, and Henry Campbell, his successor on
the next, or 3 p in., shift, asked Broadway to drive it over the 15 feet to the fuel
tank. Broadway sought to comply, but it would not turn over, after trying to start
it for 10 or 15 minutes, Broadway left for home. The next morning (he having
on Friday completed his regular week preceding the two in which he was to be on
National Guard duty, but having come in on Saturday at Gist's special request for
general work around the station), Broadway learned that Gist, thinking the condition
was due to dead batteries, had ordered new ones But when these were brought in,
it did not start the motor; so the condition was then attributed to a defective starter
(Campbell having indeed worn it down in his prolonged and futile efforts to turn
the engine over) Gist asked Broadway to give him a hand at the station on Sun-
dae as well, but Broadway begged off in view of his preparations for embarking upon
military duty; and so as of the time that he left for duty, the order of business was
either to repair the starter or to replace it with a new one.
When Broadway returned to work on Monday, June 26, Station Superintendent
Gist called him in to the office and, as Broadway testified, informed him that he was
discharged because he had "burned the motor," i.e., had operated it with insufficient
oil.5 This was the first intimation to Broadway that he was even suspected of blame
in the matter.
The chain of events culminating in the discharge of June 26 was as follows: A
new starter was purchased and finally installed on Wednesday, June 14, but the
motor still did not turn. It was then determined-as Station Mechanic Riley had
suggested to Gist on Saturday morning-that the engine was, as it is alternatively
put, "locked" or "frozen." The machine was then brought to the main shop of the
Montgomery area where it was dismantled Inspection showed the standard ear-
marks of an engine burned up for want of oil. (Part of the main and rod bearings
were burned-being "scored" and "bluish" from extreme heat-and the crankshaft
was completely dry.) General Superintendent Openshaw called at the shop the next
day, Thursday, June 15 There in a conversation with Lowder-either Lowder
alone, as would have appeared from his testimony at the outset of the case or which
he "believe[d]" to have been in the presence of Maintenance Supervisor Tingle, as
he later testified, but on either basis with Lowder doing "most of the talking"-
Openshaw was shown the engine and given the finding above. Openshaw went down
the next day, Friday, June 16, to Cook Station and spoke to Gist about it. Gist asked
3 Lowder did not testify but Marvin Tingle, his superior, and Respondent's mainte-
nance supervisor, testified as Respondent's expert to a different function, which is dis-
cussed, infra, at footnote S
4 The needle in an upright position splits the 320-degree arc of the pressure gauge at 60,
which indicates the engine is receiving 60 pounds of oil pressure Maintenance Super-
visor Tingle testified that to insure proper distribution to all parts at all times, there
must be a constant pressure of 50 or 60 pounds
s Gist testified he asked him whether he "knew that he had run the motor without
oil " Concededly, the decision to discharge Broadway had already been made by hivher
authority than Gist, so that even if Gist had couched his announcement in interrogative
form, it was still but a declaration of the reason for an accomplished discharge.
BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 619
"whether or not we should discharge Broadway ," to which Openshaw , as he testified,
replied he "would let [Gist ] know from Birmingham ." 6 On Tuesday or Wednesday
of the following week (June 20 or 21), Openshaw discussed the situation in Birminb
ham with his superior , J. A. Carnathan , Respondent 's vice president of operations.
,Carnathan instructed that Broadway be discharged . Openshaw indicated Broadway
was "in camp" and that the instruction would be carried out on his return. He tele-
phoned the decision to Gist from Birmingham on Wednesday or Thursday ( June 21
or 22 ), and Gist , in turn, greeted Broadway with it when he reported back to work
on Monday, June 26.
When Gist told Broadway of the reason for his discharge , Broadway , whose com-
petence and sense of responsibility are not disputed , said that if he had in fact op-
erated the motor with insufficient oil, he deserved to be discharged , but at the same
time he insisted that the needle on the pressure gauge had indicated normal piessure
all the time he had operated it.7 The next day Broadway visited the main shop and
spoke to the mechanics . After this he spoke to Gist and Openshaw together. He
repeated his statement of how the oil pressure gauge had registered normal ( supra,
footnote 7) and stated the mechanics at the shop informed him that in the dis-
cussion which Openshaw had had with Lowder concerning the cause of the freezing
of the engine , Lowder stated the blame was partially his because of his instruction
on June 9 to cut off the automatic and operate on manual-a statement which Open-
shaw ultimately admitted Lowder made to him. Gist and Openshaw said nothing
in reply.
(Tingle and Openshaw , in their own versions of the discussion at the shop, had
not mentioned Lowder's statement , but Openshaw when specifically asked about it on
cross-examination , admitted it . This mooted the objection raised by Respondent
to Broadway 's earlier testimony , which he gave before recounting his talk with Gist
and Openshaw , to the effect that the mechanics had told him of Lowder 's statement.
That testimony , then contingently received , would not have been considered as proba-
tive of the contents of what the mechanics told him but simply as Broadway's ac-
count of the basis of his protest to Gist and Openshaw.)
The manner in which it was concluded that the blame lay with Broadway and that
he should be discharged for it raises questions , some of which have been alluded
to in the introductory part of the discussion . Thus, there was a departure from
established procedure in that Respondent failed to get Broadway 's version before
deciding he was culpable , and indeed from prior precedent in the severity of the
penalty. Within the preceding year, there had been damage to equipment, and the
employees involved sustained no discipline even to the point of reprimand. It was
explained that in their cases, an exonerating circumstance came to light , which made
it difficult to "pinpoint" the blame. But that was the result of having been given
a chance to state their versions in -a manner denied to Broadway . Indeed, the only
prior instance of any discipline for damage to equipment dated back to 1955, when
an employee was discharged because his engine had burned up for lack of water.
The record is not specific as to whether his version was obtained first, but in citing
it as a parallel to Broadway 's case, Respondent did not qualify the concession that
it was customary first to obtain the employee 's version with any indication that it
had omitted the usual procedure with that employee, as it admittedly did with
Broadway.
Additionally, the prior instances, of damage, even with the employee 's version, did
not have the counterpart of the situation here, where in the privacy of management's
own councils , the very person being consulted in fixing the responsibility attributes
part of the blame to himself.8
6In his testimony at the outset of the case, he indicated that was the extent of his reply
to Gist Later , when called by Respondent , he testified he preceded this last by stating
"it looked like we would have to [discharge Broadway] "
He expressed it by saying the needle had pointed to 90, which he then thought to be
the number at the center of the are of the pressure gauge , instead of 60 (supra, foot-
note 4). The danger point , as Maintenance Supervisor Tingle testified , is where the
needle falls back, either constantly or intermittently , to the left, below 50 , for that in-
dicates the engine is not getting the requisite constant pressure of 50 or 60 pounds
8 Presumably to overcome the force of Lowder ' s statement , Maintenance Supervisor
Tingle testified that the automatic would not have shut off the motor and that its only
function is to control the solenoid mechanism, which prevents the energizing fuel from
commingling with the lubricating oil. But Lowder ' s assumption of part of the blame
upon his instruction to shut off the automatic and operate on manual is rationally com-
prehensible only on the premise testified to by Broadway and Mechanic Riley-that the
automatic would have shut off the engine at the stage of a dangerously low supply of oil
and thus have obviated the breakdown . At least that would seem to have been implicit
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lowder's instructions to Broadway would seem to have been in line with Re-
spondent's contemporaneously demonstrated disposition to have proper care of the
equipment defer to the exigencies of getting on with the job. Underscoring this
apart from General Superintendent Openshaw's admission that damage to equipment
was frequent in Respondent's heavy type of work, were two specific instances, both
occurring in June 1961, the month in which Broadway was discharged. In each in-
stance Station Mechanic Riley reported to Superintendent Gist that the machinery
needed repairs, and Gist ordered that the machine be run until the Cook station,
which was at its terminal stage, was worked out. In the first instance, Riley reported
that on changing the oil in the dragline of a vehicle, he found an excessive amount
of water had gotten into the oil pan; and in the other, that the transmission was
out of order, the gear jumping from first to third. The result of compliance with
Gist's instructions was that the pieces of equipment were badly run down: where
water had mixed with the oil, the dragline continued to deteriorate so that the
equipment finally had to be taken out for installation of new sleeves and a piston;
and in the case of the deficient transmission, two gears were destroyed, requiring
them and all trasmission bearings to be replaced.
The same tolerance in respect to equipment damage would seem reflected also in
the circumstances under which the employees in the incidents previously referred to
were spared all discipline. The General Counsel cited a water pump incident in the
summer of 1960, damage to a crawler crane in April 1961, and, indeed, Campbell's
running down the starter of the very engine here involved during his futile efforts,
after the end of Broadway's shift on the June 9 in question, to get it to turn over.
While I would hardly attach the importance the General Counsel does to this last,
the other two instances would seem to present a substantial contrast with the handling
of Broadway's case.
The water pump incident occurred in 1960, and involved the burning out of the
engine for lack of water. Assuming no leakage in the mechanism, it was prima facie
the result of the failure of the employee responsible for its maintenance to fill it with
water at the start of the shift at 7 a.m. Against the inference, warranted by the
circumstances, that the employees had failed to fill the pump with water, Respondent
accepted the employee's story that he had in fact filled it at the start of the shift.
Respondent explains its exoneration there on the ground that if the pump had had
no water, it would have burned out immediately, and since it did not burn out until
2:30 p.m., the absence of water might have been due to a leak in the mechanism, and
for that reason Respondent could not "pinpoint" the blame. The non-"pinpoint[ing]"
elements would seem to have been present to at least equal degree in Broadway's
case, even if Lowder's partial assumption of blame had not been deemed enough.
The hypothesis that the burning out of the water pump engine might have been due
to a leak in the radiator or hose could only have been based on an acceptance of the
employee's word that he had filled the pump with water. In like vein, Mechanical
Supervisor Tingle indicated that the inference that the engine had been run without
sufficient oil would be dispelled if Broadway's word for it were to be accepted that
the pressure gauge had at all times registered normal; 9 and he also testified that if
the oil supply, at 1 or 1:30 p.m. of June 9, had indeed been but a gallon low, as
Broadway testified his dipstick check then showed it to have been, the loss of oil
during the remaining hour or hour and a half could, in the case of an engine using
up to 3 to 4 gallons of oil in a shift, be due to a "leaky oil line" or a seepage in the
oil system-which would cause the fuel to enter and burn up in the combustion
chamber-a condition of which the pressure gauge would have given no warning.
Tingle testified he checked for such a condition and found none to exist-a statement
in the statement of Lowder, who, although the expert whom Openshaw named as the one
who had shown him the engine and explained the reason for its breakdown (and indeed
the man most familiar with the machine, he having gone over it at the time it was
bought), was not produced to testify
e His testimony was that the pressure gauge would still do so even if the supply in the
crankcase-apart from the amount constantly needed in the filters-was as low as 2 gal-
lons. (The capacity of the 10-gallon crankcase, above what is required for the filters,
Tingle explained, is 61/2 to 7 gallons ) He explained that when the supply got to below
two gallons, the attendant drop in constant pressure would be reflected on the pressure
gauge by the needle's dropping to the left, below 50, "intermittently," i e , every 5 min-
utes The needle would return to 50 or 60 when the oil flowed into the parts, but would
revert to the deft when the oil left the parts and flowed back into the crankcase, and as
the supply thus got completely used up there would be no oil flowing whatever and the
needle would register zero.
BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 621
rather calling for reconciliation with his testimony that on that type of vehicle,
such excessive consumption of oil would be due to such seepage and the established
fact that the engine in question had consumed oil that excessively. (Though Gist
admitted that Broadway had reported that excessive consumption to ban a week
before the breakdown, Tingle testified he had not been aware of it. Gist was not
present during Openshaw's discussion at the shop on June 15, which resulted in the
action culminating in Broadway's discharge, nor, so far as appears, had he previously
been consulted on that aspect of it.) But apart from this last, there was no indication
that the water pump showed any leak either-indeed Superintendent Gist, when
twice testifying about the handling of the water pump incident, gave no intimation
that such a possibility had even been considered-so the fact that the water pump
continued to run until the afternoon, would thus have been indicative of the existence
of a residual supply of water from the preceding shift, rather than confirmatory of
the employee's story.
The differences in the two cases, so far as the reasoning eye can see, is in the oppor-
tunity given to the employee in the one instance to present his version and denied to
Broadway in the other-in one case yielding the inference of culpability flowing from
the circumstances to the employee's version of the precaution he had taken, and in
the other drawing an inference of culpability in the teeth of the partial assumption
of blame by the person being consulted, and hastening to inflict the extreme penalty
without waiting for the employee's version against which to check the inference
nevertheless assertedly drawn.io
In the crawler crane incident of April 1961, the employee left his crane with the
engine running, after which the boom jumped into gear, fell backward on top of the
cab, and destroyed it at a cost of about $1,000. Here, too, Openshaw testified, after
the employee was consulted, "we were not able to pinpoint the reason," because the
jumping of the boom might have been the result of "some malfunction of the boom
hoist itself," with no indication of what that malfunction was. The employee there
involved emerged not only exonerated of blame for the damage but with not as much
as a reprimand for the violation of the safety rule in leaving that kind of equipment
unattended to, with the engine running.
Giving greater cause for wonderment is that Respondent should have reached this
ex parte conclusion of culpability and on the basis thereof have visited the extreme
penalty of discharge upon an employee of Broadway's admitted stature. Here was a
man who, on a background of years of responsibility as a U.S. Army officer for the
maintenance of over 75 heavy-duty vehicles, was given rapid promotions by Respond-
ent. After starting as operator of a Euclid (a lighter vehicle), be was given the
higher paying job of operating a bulldozer; then he was made a working foreman, at
which for over a year he was entrusted with the supervision of others in operating
and maintaining the very kind of vehicles involved in the discharge, and his recent
reversion to rank-and-file status was but temporary (resulting from his displacement
by an erstwhile superintendent whose station had been discontinued) and was await-
ing the opening of the next foreman's vacancy. Also, assuming that Respondent
concluded that Broadway was lax in that single instance, the decision to sever this
admittedly top-ranking man altogether is hard to understand in the light of Open-
shaw's avowal that "the purpose" of imposing such discipline is to insure against
retaining an employee likely to damage equipment, and that Broadway's excellent
record gave every assurance of his being completely capable of being entrusted with
that equipment. Vice President Carnathan, whom Openshaw had consulted on
Broadway's case, and who gave the instruction to discharge, acknowledged that he
knew the established procedure for consulting the employee before determining fault
or discipline had not been followed in Broadway's case, and he explained the visitation
of the maximum penalty upon him on the basis of the example it would set for the
10 Nor can one quite see in mitigation of that difference the claimed higher cost of the
damage in Broadway's case over that in the water pump incident Whether the cost of
replacing the water pump was, as Gist first testified when called by the General Counsel,
"something close to" that of repairing the dozer engine ($2,540), or "between $400 and
$600," as he testified when called by Respondent the following day, it could hardly have
altered the issue of culpability involved in each inquiry. Especially so when, as appears,
Openshaw, at the time of his conversation in the shop which led him to take the steps
culminating in Broadway's discharge did not know what the cost would be. Tingle
testified that Broadway, after being told the condition of the engine, asked "how much
is it going to cost," but that he could not then tell because the engine would have had
to be stripped "to get a listing of the parts," which would then have had to be ordered
and received, followed by submission of the bill.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees of the need for taking proper care of equipment.ii Openshaw, who
had testified immediately before Carnathan, gave no indication that this had entered
into the deliberations, and its application on that extreme basis would seem strangely
abrupt in the face of a background of tolerance reflected not only in the specific
instances cited but in the omission, in the safety rules booklet as distributed within
the last 2 or 3 years, of damage to equipment as a dischargeable offense; and
while this would hardly indicate that Respondent would take kindly to damage care-
lessly caused, neither would one normally expect that an employer, against the back-
ground of tolerance here presented, and the admitted frequency of damage as a regu-
lar part of its heavy line of work, the risk thereof being sometimes knowingly
assumed at the supervisory level in deference to the pressures of time, would select
as the person on whom to visit such unwonted severity, an erstwhile foreman, slated
to fill the next foreman's vacancy, whose story had not yet been obtained, and who
had gone on military leave without the slightest intimation that he was suspected of
being at fault.
3. Concluding finding
The factor to which Carnathan attributed the severity of the action taken toward a
man of Broadway's admitted calibre, namely, its effect upon the rest of the force as a
whole, opens up an inquiry relevant to the ultimate issue.
The first is just why Openshaw should have felt he had to go to Carnathan at all
on a matter concerning which he had the full power of decision, as did even Gist, his
subordinate. Openshaw testified he would "always" take up "a case of this nature"
with Carnathan. He conceded that he had not theretofore consulted Carnathan
about any discharge either in 1961 or even 1960. Although he testified he did so
twice with Carnathan in 1959, the nature of these two matters was not specified nor
was anything indicated about Broadway's case which differentiated it from those
in which the decision was made by either Gist or Openshaw. If it be the amount of
the damage, there is no indication that in the 1955 case, which involved a comparable
amount of damage, the decision was made at other than the area level; and, as previ-
ously indicated (supra, footnote 10), Openshaw did not then know what the cost of
repair would be.
Carnathan testified that Openshaw hesitated to discharge Broadway without check-
ing with higher authority, but the record rather persuasively indicates that Gist and
Openshaw hesitated to absolve Broadway without approval from Birmingham.
Openshaw's earlier avowals, in explanation of why Broadway had not been given
a chance to state his version as the employees in the incidents previously cited had
been-that in contrast with theirs, Broadway's case was "cut and dried," indeed that
he found in it "no extenuating circumstances," would seem to have taken on a
different character after his admission, on cross-examination, that Lowder had
assumed part of the blame because of his instructions when Broadway reported to
him that the motor had been intermittently cutting out. Openshaw admitted that
Broadway's prior flawless record alone would have warranted making inquiry of
him before concluding that he had been lax in the manner attributed to him, and that
though "the purpose" of discharge in such a case was to safeguard against entrusting
equipment to employees likely to damage it, he "d[id]n't believe that [Broadway]
would" damage equipment "even though [Respondent] retained him in [its] employ";
so that from his testimony as a whole and from the manner in which he gave
it, one derived the distinct impression that he had in fact felt all along that Broad-
way's case presented at least as many exculpatory elements to prevent "pinpoint[ing]"
the blame as in the cases of the employees whom he and Gist, on that score, had
spared all discipline. Gist, with whom Openshaw spoke after his consultation in
the shop, admitted that he could not make up his mind about whether Broadway
should be discharged. Openshaw's statement, in response to Gist's request for his
opinion, that he would do so after higher consultation, would indicate the same
doubt: and from the manner in which both conceded Broadway's high competence,
and the esteem in which they apparently held him, one rather got the impression
that had they been left free to act on their own, they would, in the light, among
other things. of the diffusion of responsibility inhering in Lowder's assumption of
part of the blame, and Broadway's excellent record, have exonerated him altoeether
even before getting his story, or at least have waited until he returned from military
duty to get his version. In these circumstances, the refusal of Gist and Openshaw
to take responsibility for the kind of matter concededly within their competence,
n He testified that- "If we had a temperate justice, so to speak, in this case all the
rest of our operators would have gotten the opinion . . I won't say that they would,
It Is possible that they would say, well this Company does not mean what they say about
proper care and maintenance of equipment."
BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 623
with Oppenshaw's hastening to submit it to Carnathan before getting the version
of the employee involved, and Carnathan's summary order of dismissal without
directing that the employee be interviewed first, or at least deferring the finality of
his decision for the few days remaining until the employee returned from military
duty so that he could give his story, are hardly "natural" (E. Anthony & Sons, Inc.
v. NL.R.B., 163 F. 2d 22, 26 (D.C.D.C.), cert. denied 332 U.S. 773). And
Carnathan's explanation for dispensing with obtaining Broadway's version-"Well,
I don't hardly think that it would have done good"-is rather strange, coming from
an executive who acknowledges that in his instructions to the supervisory force
concerning the fixing of responsibility for disciplinary matters, to obtain the em-
ployee's story is an integral part of the inquiry.
Nor can one quite envision Gist and Openshaw, after the discharge, listening in
stony silence to the protestations of innocence of a man just returned from military
duty and confronted with a conviction for a dereliction of a kind he had never
theretofore committed, and of which he had not previously been told he was even
suspected, unless they realized that this matter, though normally one within their
full competence to handle, was, in Broadway's instance, out of their hands and
beyond reach on the merits. Nor can one quite see the compassionate Openshaw,
after being assured by a man whom he respected, and whose word he had every
reason to accept, that the oil pressure gauge had registered a constant normal, and
reminded of Lowder's own assumption of part of the responsibility, not being moved
to reopen the matter for further inquiry or resubmit it to Carnathan, or at the very
least, to say something to Broadway by way of explanation, except out of a sense
of futility in knowing that this was not a matter to be handled in normal course, or
one open for decision on the merits.
The entire course of action in relation to Broadway is rather difficult to square
with a genuine operational motivation. The arbitrariness of both the procedure for
determining guilt and the extreme penalty visited on this respected and competent
employee denotes a hostility which is rationally incomprehensible on the basis of
normal operational considerations. This can hardly be laid down to mere caprice,
first because of the normal presumption that people in the conduct of business
affairs act out of rational motives, and secondly, because of Respondent's disclaimer
of having been other than rationally motivated.
In that context one cannot avoid giving consideration to the element in the record
which alone gives rational content to otherwise rationally unmotivated action-
Respondent's acknowledged opposition to the Union and Broadway's special role in
it is disclosed by the union representatives to Vice President Self during the dis-
cussion of arrangements for the forthcoming election. Since this last, when taken
alone, does not establish the kind of antiunion animus which would indicate a dis-
position to resort to retaliatory measures, then, if the action here under review, with
all its infirmities, were rationally comprehensible in terms of an operational motiva-
tion, I would hold that the General Counsel had not sustained his burden of proof.
This would be on the principle, enunciated in the introduction, that the unper-
suasiveness of a reason for the purpose of overcoming an inference of antiunion
motivation otherwise warranted does not provide a basis for such inference where
the record does not otherwise support it. But a different principle is logically called
into play where the action is inherently incomprehensible in operational terms-
where the conduct is characterized by a "treat[ment of] like cases differently" 12
and there is but one item in the record which rationally explains such disparateness.
It is in that perspective that one must view the line of cases relied on by Respondent
which stress the truism that "management can discharge for good cause, for bad
cause or no cause at all," 13 for where the record fails to establish that the real cause
was "for, or in discouragement of such activities as the act makes permissible," 14 it
matters not what other cause it was. But this can hardly be said to foreclose inquiry
into the character of the assigned cause as bearine upon what the real cause was-
as indicated by the long line of authority in which such questions as how the con-
clusion of culpability was arrived at with the employee in question compared with
other emplovees, and how the penalty imposed upon the employee compared with
that imposed upon others in like situations have been held to bear upon motive.
Nor would one understand that it would be "second guess[ing]" the employer in
thus inouiring into whether the "guess" the employer asserts he made was the one
he had in fact made or had truly relied on.
12 Frosty Morn Meats, Inc. v N.L R B , 296 F . 2d 617, 621 (CA 5).
13 E g , N.L R.B v T A. McGahey , Sr, et at ., d/b/a Columbus Marble Works, 233
F 2d 406, 412 (CA. 5).
14 Magnolia Petroleum Company v. N.L R.B., 200 F. 2d 148 , 149 (C.A. 5).
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When an employer, during an employee's absence on military leave, and before
the employee even knows he is suspected of responsibility, bypasses the usual pro-
cedure of getting the employee's story first, finds him guilty in the face of the
assumption of part of the responsibility by the expert being consulted in fixing the
blame, and then visits the extreme penalty of discharge upon him in disregard of
a blameless record in the past and the admitted unlikelihood that he will repeat the
laxity attributed to him, and where this occurs in a context in which employees in
like situations, have sustained no discipline or at the very least have been given a
chance to state their versions , and in a further context in which damage to equipment
is admittedly frequent in the employer's heavy operations, and where the risk thereof
has at times been knowingly assumed at the supervisory level in deference to the
pressures of time, of which this itself is an instance , as appears from Gist's instruc-
tions to keep the machine in operation despite its excessive consumption of oil and
in Lowder's instructions to Broadway, for which he assumed part of the blame, it
is difficult to see how the disparate treatment of the employee in question can tenably
be dissociated from the one element which differentiates him from the rest-the
employee's leadership in the organization to which the employer as avowedly
opposed.
And this brings us to Carnathan's testimony that despite the admission that Broad-
way's record gave every assurance against a recurrence of the kind of laxity attributed
to him, he ordered him discharged as an example for the rest of the force. On the
question of the kind of example the discharge of Broadway was likely to furnish the
employees, Carnathan's assertion that it was one intended to imbue them with the
need for proper care of equipment, bears appraising against the fact that Openshaw
made no allusion to that factor in his account of his talk with Carnathan or in his
statement of the purpose in discharging Broadway, and against the further fact that
from the employees' point of view, in a context in which other employees of hardly
greater, if indeed equal, stature were spared any discipline in comparable situations,
and were at least heard before decision was made or action taken, the lesson con-
veyed to them would be on the basis of the one aspect which from their point of
view at least, differentiated him from the others-his special role in the pending
organizational campaign and in the forthcoming election. Whether Carnathan in-
tended it that way hinges on the probabilities: his explanation for rushing the decision
before Broadway returned from military duty when he could be asked his version
and for the disparate penalty imposed is rationally incomprehensible in terms of an
operational purpose and achieves complete comprehensibility when considered in
connection with Respondent's acknowledged opposition to the Union. It is against
this element of probability that one must weigh the denials of Carnathan, Openshaw,
and Gist, that the information which the union representatives gave to Vice President
Self concerning Broadway's role as contact man and as an observer in the election
then pending had not been communicated to them. These denials have received my
most serious consideration, and I would have been inclined to give them controlling
weight but for the fact that I could not conscientiously do so in the face of the
imposing array of probabilities depriving them of credence. Quite apart from the
principle that knowledge is inferred in situations where the probabilities rule out the
likelihood of coincidence (as illustrated, for example, in another field of law, where
in a suit for plagiarism the total similarity of the challenged product to the original so
far dispels the likelihood of coincidence, that it warrants the inference, without need
for independent proof, that the alleged plagiarist had access to the original), there
is the fact that the information which Self received, considering his common interest
with his associates in the matter involved, was of a kind which it would have been
natural for him to communicate to them. His function as the management repre-
sentative in charge of the arrangements for the election involved his being in touch
with them. His making the rounds with Openshaw during his preelection speeches,
although occurring after Broadway's discharge, were an aspect of his function to work
in conjunction with the people in the operations branch on such a matter from the
start, as would appear, for example, from his indicating to the union representatives
(supra, footnote 2) that he too would check on the matter in connection with which
Broadway's name happened to come up. On a matter in which Self was thus en-
gaged with his associates on a common project and in pursuit of a common objective,
it would be the natural thing for him to share with his fellow representatives of
management such information as would be likely to be of mutual interest. And in a
situation in which the Company is opposed to the Union, and where its reaction, on
receiving on May 15, a notification from the Union that the employees had desig-
nated it as their representative was, as Self stated it to have been in his first talk to
the employees, one of "surprise . because the Management of your Company
had no idea that you were dissatisfied to the extent that you would petition an outside
BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 625
party to represent you," the extent of the Union's support among the employees and
its source would be a matter in which Respondent had a deep interest, and in which
management representatives would be disposed to share their information with each
other. The desire for such information would seem implicit in Openshaw's inquiry of
Gist when the Union made its first appearance at the plant earlier that same month;
for though Openshaw asked, as Gist quoted him, whether he "had heard anything
about them getting into the Union," it would seem reasonable to assume that Gist
did not regard Openshaw's inquiry to be limited to its literal language any more than
one would so construe an inquiry concerning whether one had the time: implicit
in it would be a request for such information as Gist then had, and in view of Re-
spondent's interest in the general subject, as he might later acquire. In these cir-
cumstances, it would have been the natural thing for Gist to indicate to Openshaw the
sources of the Union's support as he observed them from the union stickers on the
several cars, including Broadway's, and for Self to inform his associates-Openshaw,
who headed the area where the election was to be held, and the person with whom he
would normally consult in regard to matters concerned with it, and Carnathan, who
was in charge of all operations, including those in Montgomery, and whose office,
like Self's, was in the Birmingham headquarters-concerning such a matter as the
identity of the employee who the Union indicated to Self was its contact man with the
other employees and an observer for it at the forthcoming election. Nor can it fairly
be said that the testimony of these persons, when taken as a whole, possesses that
unimpeached quality which endows their denials with a special credence superseding
the probabilities. 15 These, taken in connection with Self's failure to testify, although
opportunity for taking his testimony was proffered Respondent (supra, footnote 2)
and the failure otherwise to explain a hostility to Broadway which the singularly
disparate treatment of him connotes, warrant the inference that the management rep-
resentatives shared with each other the knowledge of the one factor which, in the
light of Respondent's opposition to the Union, alone makes such hostility, and the
attendant disparateness, rationally comprehensible.
The case has been close, and has presented difficulties of evaluation. But on the
entire record, and having considered the strengths and the weaknesses on each side,
I am of the conclusion that the balance tips in favor of the General Counsel's con-
tention and that he has sustained his burden: that the unfortunate damage to the
engine was employed as a colorable basis for imputing to Broadway, under a dis-
parate procedure, a guilt which would not otherwise have been imputed to him but
for his leadership in the Union; that but for such leadership, Respondent would not
have denied him the usual opportunity to give his version before coming to a de-
cision or taking action; that indeed but for such leadership, Respondent, even with-
out Broadway's story but on the strength of Lowder's assumption of part of the
blame and Broadway's hitherto flawless record, would, as it had done with the
employees involved in the damage to the water pump and the crawler crane, have
given him the benefit of the doubt; alternatively, and even if it had truly deemed
Broadway lax in this lone instance, then, on the basis of a distinguished record free
of that kind of laxity in the past and admittedly giving every assurance of its non-
recurrence in the future, Respondent, but for Broadway's leadership in the Union,
would still have retained him in its employ. Broadway's leadership in the Union
being a producing cause of the termination, which would not have occurred but for
it, Respondent, by thus discharging Broadway, discriminated in respect to his hire
and tenure in violation of Section 8(a)(3), and interfered with, restrained, and
15 E g., Gist's shifts in position on various matters during his later testimony, when
called by Respondent, from those given earlier, when called by the General Counsel (in-
cluding the cost of the water pump, what employee had the responsibility for attending
to it, and the matter of whether it had been at his behest that Broadway worked on the
Saturday after the breakdown of the engine , when, in fact, Broadway could only have
done so on authorization of the station superintendent-Gist) ; Openshaw 's failure, in
his first two accounts of the interview at the shop to mention that Lowder had assumed
part of the blame for the occurrence, the belated admission of which undermined, as did
also his other concessions in relation to Broadway, the veracity of his assertion that he
had felt Broadway's case to be so "cut and dried" and without extenuating circum-
stances," as to dispense with even asking Broadway's version of the occurrence ; and
Carnathan's equally incredible explanation for denying Broadway the customary oppor-
tunity to state his version-taken in connection with the fact that Respondent, with no
explanation therefor , never produced the person whom Openshaw named as the one who,
on his visit to the main shop on June 15, had given him both the reoprt and explanation
on which he assertedly relied, and had made the crucial admission in question.
649856-63-vol. 137-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerced its employees in the exercise of their rights under Section 7 , in violation of
Section 8 ( a) (1) of the Act.16
B. The two conversations occurring after the discharge of Broadway
The General Counsel alleges as violations of Section 8(a) (1) two conversations
in mid-July , one by General Superintendent Openshaw and the other by Alva Ray,
surveyor and drill superintendent of the Montgomery area-each with a separate
employee since laid off.
Openshaw 's conversation was with Matthew Maxie , a &eneral helper at Cook sta-
tion . It took place while Openshaw was conveying Maxie for preparatory work at
the area which was to be used after Cook station was worked out. In the course of
the conversation , which touched upon the weather and also the size of the land and
anticipated duration of the new station , Openshaw, as he admitted , initiated the sub-
ject of the Union . Maxie testified that Openshaw said that "he thinks he treats the
fellows nice. He give them a little increase every year , but, the past two years he
didn't get a chance to give them an increase . He said if there was any way he could
keep the Union out he was going to do it." Openshaw testified that after informing
Maxie that management had met with the union representatives the other day to
discuss the plants which were to be included in the forthcoming election , he said:
Maxie, I have heard that some of the fellows would like to know how the com-
pany feels about the union. . . . I don't know how you feel about it but I
can tell you that the company would rather that we did not have a union. .
That they feel that they can better manage their business for the benefit of all
concerned by themselves . The company has given from year to year what they
felt in the way of wage increases , other benefits, unproved working condi-
tions, what they felt was justified and necessary and that some years we had
done better than the other . The last year we did not give a wage increase,
we did give five paid holidays and two and three weeks vacation . . . . You
have been here since 1955, I believe, and if you think back you can remember
that every year that we have improved working conditions , built a bath house,
bathroom , have given raises and the company has done what they thought was
necessary and justifiable in that way down here . I think everybody knows
that it does not matter whether a man belongs to a union or does not belong
to a union . He can join or not join. If we have a union , it wouldn't in any
way affect his job. . . . Maxie, that is the way I feel about it and I hope that
we don 't have a union.
Openshaw denied that he said that "if there was any way he could keep the Union
out he was going to do it."
Ray's conversation was with Richard R. Dozier, a general helper in the main shop.
Ray had had only infrequent prior contact with Dozier, who was outside Ray's
supervision . Ray admittedly initiated the conversation by calling that employee into
his office as he was leaving the washhouse . Dozier gave the following version of
what was said:
he stopped me and called me back and asked me did I attend the meeting.
I said what meeting and he said the meetings and I asked him again , what meet-
ings was he talking about and he said , "The meetings that the boys go to," and
I said , "Yes, I attend them ," I told him , "quite often ," I said , "Every time that
they have a meeting" and he asked me then , he says did I join the Union and
I told him "Yes, I signed a card ." He asked me, he says, "What do you think
about the Union ?" and I told him , "It was not a better thing in the world and as
far as I know that that is my first time going into it." Then he asked me, he
le Due consideration has been given to the fact that in the election held among the
approximately 90 employees in the Montgomery area , the Union polled a substantial
majority of the votes . But it is well established that the legal consequences of an em-
ployer's actions , as in the case of a union's , are not determined by the actual effect upon
the employees , as distinguished from the tendency of such action Due consideration has
also been given to the fact that in the Birmingham area, the employees have been
organized and that Respondent has for some time past had a contract with the Union
covering those employees . The record is clear, however , that this did not lessen Respond-
ent's aversion to the prospect of its hitherto unorganized group in the Montgomery area
becoming organized Indeed, in the same address in which Self described Respondent's
reaction to the Union ' s letter on May 15 , he cited his prior "dealings with the United
Steelworkers of America" as a basis for viewing such prospect with disfavor in
Montgomery.
BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 627
says, "I reckon you are going to be on strike Monday morning " and I said, "As
far as I know I don 't know anything about a strike at all." He says , "This con-
versation that you and I are talking about ," he asked me not to say anything about
it. I told him that I would not . He says, "You sure that you would not say
nothing about it?" and he said , "Whatever you do do not say anything about it"
and I said, "No." But I did say anything about it. I brought it up at the Union
meeting at the time.
Ray denied that he asked whether Dozier had attended the meetings. After being
asked whether he had pledged Dozier to secrecy , he gave the following version of
their talk:
Not in that sense . . . The conversation, to the best of my knowledge, had
gotten to the raise of six cents an hour out in the shop. I mentioned to Richard,
"Well, you got an increase in pay," or something of that sort . . . . Then he
proceeded to tell me, this in general , and I pay no attention to it because I guess
this is what they were talking about . Well, I don 't remember whether I asked
him how but I don 't recall whether I did . But I did assume that he may or may
not have been talking about the union . I did make this statement . I said,
"Richard , I don't think it would be good to talk to me about what I think you
are talking about." He said , "Yes, that is right." There was nothing more
said about the conversation as far as union . I have never mentioned the word
"union" to him at all . It was him to me.
On the basis of my close observation of the witnesses and the appraisal of the
quality of the testimony in terms of content and the probabilities , I credit Open-
shaw's version of his conversation with Maxie and Dozier's version of Ray's con-
versation with him . I have previously indicated that Openshaw struck me as a
compassionate person , not given to uttering threats. Except for Maxie's attribution
of the statement that he would keep the Union out in "anyway" he could, the two
versions are concurrent , except that Openshaw elaborated upon the benefits given by
the Company to the employees . At best to the General Counsel , the disputed state-
ment was but Maxie 's interpretation of Openshaw 's comments ; and even if it be
sound , the fair meaning is derived from the kind of appeal which preceded it.
It followed pretty much the line of views, arguments , and opinions embodied in the
shortly ensuing addresses of Vice President Self, in the preparation of which Open-
shaw had collaborated . In that context , I would conclude that the fair import of
Openshaw's statement was that the Company would do what it could to carry home
to the employees the viewpoint he had just expressed and in which indeed he was
soon to assist Self. On fair appraisal , I would conclude that Openshaw 's comments
are within the limits permitted by Section 8(c), and I find they did not violate
Section 8(a)(1).
Ray's version reflects a good deal of the elements , which were even more apparent
at the hearing , of a man troubled by what he remembers and is trying to forget it.
In the context of a pending election , his going out of his way to call this laborer in
was manifestly in relation to the very issue involved in the election . Of course, he
did not use the word "union" at the outset , but it could hardly have been clearer
that this was the subject of his inquiry , and that he did ask Dozier about his at-
tendance at its meetings and his opinion of it. Respondent suggests the absence of a
context which would give the inquiry a coercive connotation within the doctrine of
Blue Flash Express, Inc., 109 NLRB 591. I do not agree. To be specially called in by
a representative of management, who has had little prior contact with him , and to be
specifically asked about his affiliation with a union , to which the employer is avowedly
opposed , is hardly an incident calculated to imbue the employee with a sense of
security-especially in Dozier 's case . A score of years ago , during his eighth or ninth
year with Respondent , he sustained an injury to an arm , which apparently limited his
utility, which would tend to make an employee of that character feel less secure in
his position than the ordinary employee . Nor can we divorce this from the back-
ground of the discriminatory discharge of Broadway . Ray's action, when taken as
a whole, considering the manner in which it was initiated, the kind of employee
with whom it was done, the nature of the inquiry made, the pledge of secrecy with
which it was concluded , and against the background of the prior unfair labor prac-
tice, had a restraining and coercive tendency and thus offended the proscription of
Section 8(a) (1).
M. THE REMEDY
The usual cease and desist requirement will issue , here of a broad character, since
a discharge for union activity goes to the heart of the Act, (N.L.R.B. V. Entwistle
Mfg Co., 120 F . 2d 532, 536 (C.A. 4); as well as the standard remedial requirement
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for reinstatement of Broadway to his former or substantially equivalent position
(The Chase National Bank of the City of New York, San Juan , Puerto Rico, Branch,
65 NLRB 827, 829), without prejudice to seniority and other Tights and privileges,
and for making him whole for any pay losses by reason of the discrimination, within
the principles enunciated in F. W. Woolworth Company, 90 NLRB 289, and N .L.R.B.
v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344.
Upon the findings above and the entire record , the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. By discharging Broadway because of his membership and activity in the Union,
Respondent discouraged membership therein by discriminating in respect to the hire
and tenure of employees , thereby engaging in an unfair labor practice within the
meaning of Section 8(a) (3) of the Act.
2. By the above, and by the conduct of Alva Ray, a supervisor , in interrogating
an employee concerning his affiliation and sympathy with the Union, in the manner,
circumstances , and context in which the same occurred , Respondent interfered with,
restrained , and coerced employees in the exercise of their rights as guaranteed by
Section 7 thereby engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
3. The foregoing unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
4. By the conversation of the general superintendent with Matthew Maxie as
heretofore found, Respondent did not engage in an unfair labor practice within the
meaning of Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
Local 373, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States
and Canada and Carleton Brothers Company. Case No. 2-CD-
219. June 15, 1962
DECISION AND ORDER QUASHING NOTICE
OF HEARING
STATEIIIENT OF THE CASE
This is a proceeding under Section 10(k) of the Act following a
charge filed by Carleton Brothers Company, herein called Carleton,
against Local 373, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States and
Canada, herein called Plumbers or the Respondent, alleging that
the Plumbers unlawfully coerced Carleton and certain other em-
ployers with the object of forcing Carleton to change work assign-
ments from the employees of Orange and Rockland Utilities, Inc.,
herein called Orange and Rockland, to employees of Thomas J. Kemp-
ton, Jr., herein called Kempton. A duly scheduled hearing was held
before James J. Graham, hearing officer, on January 23, 24, and 31,
1962, at New City, New York. All parties appeared at the hearing
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing on the issues. The
rulings of the hearing officer made at the hearing are free from prej-
137 NLRB No. 80.