Texas Aluminum Co., Inc.

National Labor Relations Board - Board Decisions

Feb 10, 1970

181 N.L.R.B. 73 (N.L.R.B. 1970)

TEXAS ALUMINUM COMPANY, INC
Texas Aluminum Company, Inc and United
Steelworkers of America , AFL-CIO Case
16-CA-3469
February 10, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On April 21, 1969, Trial Examiner A Norman
Somers issued his Decision in the above 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 attached Trial Examiner's Decision He also
found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs The Respondent also filed an answering brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has considered the Trial Examiner's
Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner only to the extent consistent herewith
With respect to the allegation that employee Glen
Holcomb was discriminatorily discharged for his
union activities, the Trial Examiner concluded that
there was not a preponderance of evidence to
support the allegation and concluded that the
discharge of Holcomb was not violative of Section
8(a)(3) and (1) of the Act We disagree
For the reasons detailed hereinafter, we find that
the General Counsel established a prima facie case
of a violation which Respondent failed to rebut
Holcomb, an employee for approximately 3 1/2
years, was discharged on September 23, 1968,
allegedly because of his activities on behalf of the
Union Respondent contends Holcomb was
discharged because his work was unsatisfactory and
because of his absences from work
As detailed more fully in the Trial Examiner's
Decision, the record shows that the Union renewed
its organizational campaign at Respondent's plant in
August 1968 and that on Sunday, August 11, the
Union held a meeting which was attended by
upwards of 20 employees A few of the employees in
attendance at this meeting, including Holcomb and
William S Stuckey, volunteered to serve on the
in-plant organizing committee Holcomb obtained a
number of union authorization cards and thereafter
openly solicited signatures from employees while
going into the plant, on breaks, and at his dinner
73
hour During the first week after the union meeting,
Holcomb obtained 15 signed authorization cards
and 15 more the following week Thereafter,
between August 23 and the date of his discharge,
September 23, Holcomb continued soliciting
signatures on his breaks but obtained only two to
four more signed cards
. On August 14, Cecil Morgan, a production
supervisor and Holcomb's "collateral" supervisor,
told Holcomb "if [he] didn't stop passing out cards
- Union organization cards - and get out of the
Union, that the Company would find some way to
discharge [him] " On August 16, while on a break,
Holcomb went into the foreman's room where he
began talking to a leadman, Dudley Combs As he
was asking Combs what he thought of the Union,
Morgan appeared and said to him, "Uh-huh, you're
getting in hot water again with the Union dust after
we helped you out of that other mess "' Morgan
stated further that this time he would not and could
not help Holcomb The Trial Examiner found, and
we agree, that Morgan's remarks on these two
occasions were coercive and violative of Section
8(a)(1) of the Act
According to the credited testimony of employee
Charles Keller, Keller was in the foreman's office on
the Sunday night following the Union meeting of
August 11 when he overheard Morgan ask another
supervisor, Marion Odell, if he knew how many
employees were at the Union meeting Odell
answered no, but stated he knew there was going to
be a union meeting Morgan then stated that "he
knew that Holcomb was passing out cards for the
Union, was working for the Union, was pushing the
Union " and that "Holcomb was going to get
himself fired for pushing the Union " Keller testified
that he heard Morgan make such statements two or
three different times, or more, and that the last time
he heard Morgan make such remarks was in the last
week of Morgan's 28-day shift As Keller testified
without contradiction that Morgan started this shift
on August 11, it appears from Keller's testimony
that he last overheard Morgan making these
remarks during the week ending September 7
On Monday, September 23, after leaving work
early on the previous Friday because of illness and
calling in sick on Saturday, Holcomb was suddenly
discharged The record establishes, however, that
Groff permitted Holcomb to leave at the end of his
regular 8-hour shift on Friday because he was ill
with the virus, and, in accord with established
company policy, Holcomb called the storeroom the
following morning and reported that he was still
sick with the virus and could not work that day
Although Warren Travis, supervisor of quality
control and Groff 's immediate superior, discharged
As found by the Trial Examiner the record shows that around the end
of July or early part of August Holcomb was reprimanded for calling
fellow employee Jimmy Benson a liar In fact Hal Groff Holcomb s
supervisor had recommended that Holcomb be discharged but was
overruled by Plant Manager Parks
181 NLRB No 15
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holcomb, it was Plant Manager Parks who ordered
the discharge without any prior recommendation
from Groff or Travis. According to Travis'
testimony, this in itself was an unusual procedure.
Moreover, as found by the Trial Examiner, Parks
could not even recall who had informed him of
Holcomb's absence on Saturday. He clearly
remembered, however, that it was neither Groff nor
Travis. The record shows further that Holcomb had
attended a union meeting on Sunday, September 22,
the day before he was discharged.'
We agree with the Trial Examiner's appraisal of
Holcomb's work record. Thus, despite Respondent's
claim of complaints about Holcomb's tardiness in
answering the whistles for forklift operators, the
record fails to establish, as found by the Trial
Examiner, that there were any complaints with
regard to Holcomb's work after the Benson incident.
The only significant event which occurred after the
Benson incident was the Union's organizational
campaign.
It is well-established that direct evidence is not
necessary to support a finding of knowledge of
union activity, but that such knowledge may be
inferred from the record as a whole.3
Holcomb was one of only a handful of employees
who served on the Union's in-plant organizing
committee. If not the most active solicitor of
signatures, Holcomb was one of the Union's top
solicitors. The record further shows, contrary to the
Trial Examiner's assertion, that Morgan's concern
with Holcomb's union activities went beyond his two
warnings in mid-August. As noted, Morgan was
overheard during the week ending September 7
remarking to another supervisor that Holcomb was
going to get himself fired for pushing the Union. In
addition, the record shows that Morgan had been in
Respondent's employ for 16 years, 14 as a foreman,
and that both Travis and Parks were aware of the
Union's organizational campaign. We are of the
opinion, therefore, that the record amply supports
the inference that Respondent, including Plant
Manager Parks, knew of Holcomb's union activities.
When viewed in the light of the foregoing, the
reasons advanced by the Respondent for the
discharge became patently pretextual. Thus, not
only was Holcomb suddenly discharged for absences
which Respondent admitted were not grounds for
discharge, but the absences which precipitated the
discharge were excused by Holcomb's supervisors.
Indeed, Holcomb left work early on Friday because
of his complaint of having the virus and called in
with the same complaint the following day. Groff, in
excusing Holcomb on Friday at the end of his
regular 8-hour shift, was apparently satisfied that
Holcomb's complaint was legitimate. Moreover,
Holcomb's failure to show up the next day was
'On September 27, 1969, in Case 16-RC-5023, the Union filed a petition
with the Board 's Regional Office seeking to represent a unit of
approximately 330 employees
'See, e g, The Circle K Corporation. 173 NLRB No 107
certainly a possibility. Notwithstanding, Plant
Manager Parks, without any investigation into the
causes for Holcomb's absence, ordered his
discharge. Not only did Parks depart from
Respondent's normal procedure in himself ordering
Holcomb's discharge, but he could not recall who
informed him that Holcomb had been absent,
although he did learn from this unknown source that
Holcomb was absent because of illness. In effect,
therefore, Respondent discharged Holcomb allegedly
for being absent because of illness, even though
excused from work and with no indication in the
record that his illness was not legitimate.
Further, as the Trial Examiner found, the record
failed to support Respondent's additional claim that
Holcomb was tardy in responding to signals for his
services. In support of its claim that Holcomb had a
pattern of absences on weekends, Respondent
produced only the generalized testimony of Morgan
that Holcomb was absent more than any other
employee on Fridays and Saturdays. Further
detracting from this claim is the fact that other than
the weekend preceding his discharge, the record
shows that Holcomb was absent on a weekend on
only one other occasion - the day after Labor Day,
and although Respondent normally issued warning
slips for unexcused absences, Holcomb received no
warning slip on that occasion.
Under the circumstances previously recited, we
find that the reasons advanced by the Respondent
for the discharge of Holcomb are pretextual and
that Respondent has clearly failed to rebut the
General Counsel's prima facie case. Accordingly, we
conclude that Respondent discharged Holcomb for
discriminatory reasons, in violation of Section
8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent discriminatorily
discharged Glen Holcomb in violation of Section
8(a)(1) and (3) of the Act, we shall further order the
Respondent to cease and desist from such unfair
labor practices and require that it take certain
affirmative action which we find necessary to
remedy and remove the effects of this unfair labor
practice and to effectuate the policies of the Act.
We shall, therefore, order that Glen Holcomb be
offered immediate and full reinstatement to his
former or substantially equivalent position without
prejudice to his seniority or other rights and
privileges and made whole for any loss of pay
suffered by reason of the discrimination against him,
from the date of the discrimination to the date of
the offer of reinstatement. Loss of pay shall be
computed as prescribed in F W. Woolworth
Company, 90 NLRB 289, and Isis Heating &
Plumbing Co, 138 NLRB 716. We shall also order
the Respondent to make available to the Board
upon request payroll and other records in order to
TEXAS ALUMINUM COMPANY, INC 75
facilitate the checking of the amount of backpay
due
CONCLUSIONS OF LAW
I By threatening or warning an employee that his
activity on behalf of the Union will result in a
reason being found to discharge him, Respondent
interfered with, restrained, and coerced employees in
the exercise of their rights guaranteed by Section 7
of the Act, thereby violating Section 8(a)(1) of the
Act
2 By discharging Glen Holcomb because of his
interest and activity in behalf of the Union,
Respondent committed unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act
3 The aforesaid unfair labor practices found to
have been committed by the Respondent are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Texas Aluminum Company, Inc, Rockwall , Texas,
its officers , agents , successors , and assigns, shall
I Cease and desist from
(a) Threatening or warning any employee that he
will be discharged or that Respondent will find a
reason for discharging or otherwise discriminating
against him because of affiliation with or activity on
behalf of United Steelworkers of America or any
other labor organization
(b) Discouraging membership in United
Steelworkers of America , AFL-CIO , or in any other
labor organization of its employees, by
discriminating against any employee because of his
union sentiments and activities by discharging him
(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 protection , or to refrain from any and all such
activities
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Offer Glen Holcomb immediate and full
reinstatement to his former or substantially
equivalent position, without prejudice to his
seniority and other rights and privileges , and make
him whole for any loss of pay which he may have
suffered as a result of the discrimination against
him, in the manner set forth in the section herein
entitled "The Remedy "
(b) Notify Glen Holcomb if serving in the Armed
Forces of the United States of his right to full
reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(d) Post at its plant in Rockwall, Texas, copies of
the attached notice marked "Appendix "° Copies of
said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered
by any other material
(e) Notify the Regional Director for Region 16, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith
in the event this Order is enforced by a judgment of the United States
Court of Appeals , the words in the notice reading Posted by Order of the
National Labor Relations Board shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT threaten or warn any employee that
we will discharge or find reason to discharge or
otherwise discriminate against him for belonging to or
being active on behalf of United Steelworkers of
America , AFL-CIO, or any other labor organization
WE WILL NOT discourage membership in the United
Steelworkers of America, AFL-CIO, or in any other
labor organization by discriminatorily discharging our
employees because of their union sentiments and
activities
WE WILL offer Glen Holcomb immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss
of pay which he may have suffered as a result of the
discrimination against him
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization , to form , join, or assist
United Steelworkers of America, AFL-CIO, or any
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other union , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
All our employees are free to become, or refrain from
becoming , members of the above -named or any other
labor organization.
TEXAS ALUMINUM
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board 's Office,
Room 8A24, Federal Office Building, 819 Taylor Street,
Fort Worth, Texas 76102, Telephone 817-334-3921.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. NORMAN SOMERS , Trial Examiner: This case was
heard before me in Dallas, Texas, on February 3 and 4,
1969, on complaint of the General Counsel issued
December 20 on a charge filed November 6, 1968. The
General Counsel asserts in substance , that in mid-August
1968, Respondent , through Cecil Morgan , a supervisor, in
violation of Section 8(a)(1) of the Act, threatened or
warned employee Glenn Holcomb that his activity on
behalf of the Union would result in the Respondent
finding a way to discharge him, and that on September
23, 1968, Respondent , through Martin Parks, general
manager of the plant , in violation of Section 8(a)(3) and
(1) of the Act, discharged Holcomb because of his union
activity. Respondent denies the supervisor gave any such
threat or warning to Holcomb and denies that the
discharge of Holcomb was because of his union activity,
the defense being that Respondent discharged Holcomb
because his work was unsatisfactory and he could not be
depended on.
The General Counsel and Respondent presented oral
argument and have filed briefs, which have been duly
considered . On the entire record and my observation of
the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT; THE LABOR
ORGANIZATION INVOLVED
Respondent is a Texas corporation with its plant and
offices in Rockwall , Texas, where it makes and sells
aluminum extrusions . It sells and distributes to points
outside the state at least $50,000 a year of its products
annually , and it receives at least $50 ,000 of goods and
materials a year from outside the state. It is not disputed
and I find Respondent is engaged in commerce within the
meaning of the Act.
The Charging Party, United Steelworkers of America,
AFL-CIO, is a labor organization within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
1. Holcomb's jobs and wage rate progress
The issues, as indicated, are whether Respondent's
discharge of Holcomb on September 23, by Plant
Manager Parks was because of Holcomb's union activity,
and further, whether over a month before this, Cecil
Morgan, a supervisor, had forewarned Holcomb of such
an outcome if he actively supported the Union.
Holcomb was hired in February 1965 as a laborer in
Respondent 's aluminum extrusion plant at $1 . 45 an hour,
which was the lowest grade in that line of work. A year
later, in early 1966, Holcomb was promoted to dolly
(forklift) operator, where he started at grade C, the lowest
in that line . He received several merit increases and all of
the general increases . At the time of his discharge, he was
at grade A, the top rank as a forklift operator receiving
the highest wage rate in that line of work , $2.34, $2.42, or
$2.50 an hour, depending on which of the three shifts he
was on (day, swing, or night), based on rotation every 28
days.
The work of a dolly or forklift driver is a servicing
operation for the employees of various other operations
across the board, such as extrusion press operators or
employees engaged in sawing billets out of aluminum logs
These employees, needing materials to be carted or hauled
away, whistle or otherwise signal for a dolly operator, and
if he takes too long to respond, the production employee
who has called for service complains to his supervisor, and
he in turn will report a complaint which reaches the
immediate foreman of the dolly drivers, Hal Groff.
(Groff, in turn, is under Warren Travis, supervisor of
quality control, and Travis is under Parks, the plant
manager). Among the foremen of the production
employees that supervise employees serviced by dolly
operators (and by that token are "collateral" foremen of
the dolly drivers) was Cecil Morgan.
2. Holcomb 's attendance at a union meeting on
August 11 and his experience with two different
foremen, one shortly before and the other shortly
after that date
(a) Holcomb's experience shortly before August 11
with Groff, his immediate supervisor: the "Benson
incident"
The fulcrum concerning two events preceding
Holcomb's later discharge on September 23, was
Holcomb's attending a union meeting on August 11. The
event that preceded August 11, and which did not concern
the Union was an experience of Holcomb with Groff, his
immediate supervisor. The event after August 11 which
did concern the Union was Holcomb's encounter, as he
testified, with Morgan, one of Holcomb's "collateral"
supervisors.
Holcomb's experience with Groff, that occurred before
August 11, involved Holcomb's having called Jimmy
Benson , a fellow dolly driver, a liar. This happened the
end of July or beginning of August. As all parties agree,
Respondent was then short of dolly drivers, and this
placed an additional load on the dolly drivers (a condition
which Respondent later rectified by doubling its
TEXAS ALUMINUM COMPANY, INC 77
composition of dolly drivers) Benson told Holcomb he
could handle that added load (i e , service two buildings
instead of the normal one), and Holcomb retorted that if
Benson thought so he was a liar Benson then reported
this to Groff, and vowed that if Holcomb ever called him
that again, he would give an appropriate response Groff
the next day let Holcomb have it He told Holcomb such
an appellation was a summons to combat, and he added
that he had reports Holcomb was not doing his job
(Holcomb did not mention Groff's second imputation until
cross examination) Groff told Holcomb he wanted to
discharge Holcomb, but would first talk to Plant Manager
Parks Groff did so Parks told Groff to give Holcomb
"another chance," and he conveyed this to Holcomb He
told Holcomb to apologize to Benson, which Holcomb
did Groff also told Holcomb he would not be given a
warning slip, and none was These warning slips are
known as "pink slips " Under Respondent's procedure,
where an employee has received three pink slips within 6
months, it is a ground for discharge This is not
necessarily an exclusive ground, since an employee may be
discharged before three pink slips, or he may be retained
after that number, depending on circumstances The
dominant consideration, as Plant Manager Parks put it, is
the "human approach," or as Quality Control Supervisor
Travis, Groff s superior put it, "we try to salvage
employees, if we can ' i
(b) The conversations of Morgan Holcomb c
collateral supervisor on August 14 and 16
From the time of the Benson incident to September 23,
the day Holcomb was discharged, Holcomb received no
complaints about his work from Groff, his immediate
supervisor, or Travis, Groff's superior, or any of the
"collateral" supervisors Holcomb was summarily
discharged on September 23, when he reported to work,
and this was on direct orders of Plant Manager Parks
Parks admitted that in himself initiating Holcomb's
discharge, he followed an unusual procedure, since the
initiative comes from either the immediate supervisor, in
'Holcomb throughout his employment had received 5 pink slips His
last one was on February 5 which was about 6 months before the Benson
incident and between 7 and 8 munths before Holcomb s discharge on
September 23 Holcomb s first pink slip was in 1965 when he was a
laborer His other four were as a dolly operator under Groff All five by
date offense and discipline were as follows
Date Offense Penalty
6 8 65 Failure to report for week
without notification (unexcused)
Rule 20
Warning
8 31 66 Horseplay Rule 37 3 days off
11 25 66 Failure to report for work with
notification (unexcused ) Rule 21
Warning
6 10-67 Failure to report to work with
notification Unexcused
Warning
2 5 68 Rule 24 Failure to punch in and
out within the prescribed time
limits (Twice in the past week)
Warning
Holcomb's case Groff, or if Groff is on vacation, Groff' s
superior, Travis Manager Parks testified concerning why
he followed this procedure in Holcomb's case, and this is
deferred pending Holcomb's post-August 11 experience,
which he testified he had with Morgan, one of his
"collateral" supervisors
As earlier stated, Holcomb on Sunday, August 11,
attended a meeting called by the Union for formation of
an inplant organizing committee This was a renewal by
the Union of an organizing drive, in which in 1967, the
Union had been unsuccessful The Union lost the 1967
election, and there is no claim that the election was other
than a fair one, there being no claim Respondent
committed unfair labor practices Also, during that
election, Respondent had distributed a pamphlet among
the supervisors (published by the National Association of
Manufacturers) of "DOs and DON'Ts for
SUPERVISORS," which among other things states that
the supervisor cannot "threaten or actually discharge
an employee because of his activities in behalf of the
union " No supervisor is claimed to have transgressed any
of the "dont's " Insofar as Morgan is claimed to have
transgressed here, i e , after the election of 1967 and at the
Union's renewal of its drive in August 1968, it involves his
experience with Holcomb and no other employee
Holcomb testified Morgan spoke to him on separate
days after August 11 He testified that on August 14,
while he was in front of the billet house, Morgan asked
him to load some aluminum logs and haul them to a
building where the press operators work, and told
Holcomb "that if [he] didn't stop passing out cards -
union organization cards - and get out of the Union,
that the Company would find some way to discharge
[him] "
Holcomb testified further that on August 16, he had
caught up with his work and was relaxing with a coke He
saw sitting in the foremen's room Dudley Combs, a
leadman (who is a cut above the regular employees but
below a supervisor, and is eligible to vote) Holcomb
testified he asked Combs what he thought of the Union,
and he had hardly gotten his words out, when Morgan
appeared and said to him, "Uh-huh, you're getting in hot
water again with the Union just after we helped you out
of that other mess" (referring to the Benson incident), and
that this time he would not and could not help him
Morgan denied both occurrences Corroborating
Holcomb insofar as it indicates that Morgan told a fellow
supervisor what he said was in store for Holcomb because
of his union activity was the testimony of employee
Charles Keller Keller is a saw operator and an employee
over whom Morgan is one of three rotating foremen
(depending on which foreman is on Keller's shift, the night
shift) The night shift is from 11 p m to 7 am Keller's
regular practice is to go to the foremen's office within a
half hour before punch-in time "to get the reports," i e ,
pick up his instructions concerning the size and amounts
of the billets he is to saw during the shift Keller testified
that on Sunday, August 11, which was the first of the 28
days on which Morgan, under the rotation system, was
then on the night shift,, he heard Morgan ask supervisor
'Keller gave the date of the Sunday in question as August 12, instead of
11th While the difference does not matter it is presumably explained by
something to which Plant Manager Parks referred at a later stage and in a
different context Though the night shift begins an hour before midnight,
the shift is identified by the ensuing day, to accord with the new day
ushered in by the coming of midnight
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Odell whether he knew how many had been to the union
meeting that day, Odell said he did not, whereupon
Morgan said he knew Holcomb "was passing out cards
for the Union." Keller testified that Morgan said this to
Odell on 2 or 3 days during that 28-day period and had
further said to Odell that "Holcomb was going to get
himself fired for pushing the Union."
Morgan, on direct examination, denied he ever said to
Odell in Keller's presence about getting Holcomb fired
On cross, he admitted that Keller does indeed visit the
foreman's office at punch-in time to get his billeting
instructions, that during that period, he, Morgan,
discussed the Union's organizational campaign with fellow
supervisors but that while he did not recall Keller being
present on these occasions, "It is possible (he could have
been) but I don't recall." Keller, apart from a natural
sense of restraint against testifying against his employer
and his immediate supervisor (on the day Keller testified
in this case, Morgan, under the 28-day rotation system,
was Keller's supervisor) showed a marked freedom of
artifice. This, along with Morgan's partial corroboration
of Keller, and the unexplained failure to call as a witness
Supervisor Odell, whom Keller specifically identified as
the one to whom Morgan had spoken about Holcomb,
casts the weight in favor of Keller, and he is credited
Morgan's statement to Odell was not a transgression
either of the Act or the "don't" stricture of the published
pamphlet, since Morgan made it to a fellow supervisor
(apparently without his having taken notice of employee
Keller when the latter overheard Morgan). However,
what Morgan is established to have told Odell bears on
what Holcomb testified Morgan said to him. The
contents, in each instance, were substantially similar.
Though Holcomb, in other respects, had his share of
credibility gaffs, his testimony concerning what Morgan
said to him those two nights was as persuasive as
Morgan's "no" was not. Morgan showed a palpable
embarrassment when he made the denial, since the sense
of his statements to Holcomb was that in his own way he
was seeking to have Holcomb avoid doing himself in by
pushing the Union. The sense of this is particularly
underscored in the second conversation, the one allegedly
in the presence of leadman Combs, where Morgan, as
Holcomb testified, said "we helped you out of that other
mess." The statement rather suggested that he had
thought well enough of Holcomb to have wanted him
retained. Consistent with the import of this last is the
testimony of Morgan on matters relating to Holcomb's
performance on the job (on which Respondent was relying
in his justification of having discharged him) These
involved the claim that Holcomb had a pattern of
absences on weekends, and also the claim that when
production employees gave the whistle for dolly service,
Holcomb tarried idly before responding. Morgan testified
that while he had observed Holcomb absent more often
than other employees on Fridays and Saturdays, he
rejected the claim that Holcomb lingered when called for
service. He testified that a few employees may have
complained, but he never at any time complained to dolly
supervisor Groff about Holcomb. And in summing up
Holcomb's performance as a whole, on the basis of a
combination of Holcomb's rendering service when called
and his pattern of weekend absences, Morgan testified
Holcomb's "work was fair." This squares with the
statement imputed to Morgan on August 16th in the
presence of leadman Combs (who did not testify) that
"we" (Morgan and presumably the other foremen whose
employees were serviced by Holcomb) had helped him out
of his recent "mess." The fair implication was that
Morgan had thought enough of Holcomb's services to
have wanted him kept on the job but that Holcomb was
sounding his own death knell by another "mess" in the
inquiry he put to leadman Combs regarding the Union.
With due regard to Respondent's blamelessness in the past
and the supervisors' adherence to the "don't" strictures,
the conclusion is that the weight of the evidence favors
Holcomb's account of what Morgan told him on August
14 and 16, and Holcomb is credited
3. Holcomb's performance from the time of the
Benson incident
As stated, it is not disputed that there had been no
complaints about Holcomb's work from the time of the
Benson incident. Holcomb testified, and it was not denied,
that during the week preceding his discharge, Holcomb
asked his three "collateral" supervisors (Morgan, Odell
and Marvin Moser) whether they had complained about
his work, and they assured him they had not. Morgan (the
only one of the above three who testified) had, as earlier
mentioned, affirmed that he had never complained about
Holcomb throughout Holcomb's employment. Holcomb,
during that last week on the job, had not asked Groff
about complaints but Holcomb's testimony is not disputed
that from the time of the Benson incident Groff had no
such complaint.
However, during that same week, Holcomb spoke to
Groff on another subject. On Friday, September 20,
Holcomb, after working his 8-hour shift on regular time,
told Groff he had a virus and was too sick to work
overtime. (The forklift operators were then on a 12-hour
shift, which consisted of 4 hours overtime after the regular
8 hours. They were also required to work Saturday, which
is an overtime day.) Groff then permitted Holcomb to
leave for home. Holcomb, during the General Counsel's
case-in-chief testified he had put in full time (i e , 12 hours
a day) that whole week until Friday, when Groff
permitted him to go home after completing his 8 hours on
regular time. Respondent, during its presentation,
introduced the card for Holcomb's last week on the job,
which showed that Holcomb had not worked overtime on
Thursday, September 19, either, and indeed had on that
day punched out about an hour and a half before the end
of his 8-hour shift on regular time. Respondent also
produced Holcomb's card for the Labor Day week, and
that card showed that Holcomb had been absent on one
shift that week, - the one that followed the Labor Day
holiday. On rebuttal, Holcomb testified he did not dispute
the accuracy of the attendance cards but that he did not
remember those absences, nor could he recall the
circumstances. The undisputed testimony that from the
time of the Benson incident neither Groff nor Travis
complained to or about Holcomb, would indicate that
Groff, who did not testify in the case, neither called
Holcomb to account for either of these absences when
they happened, nor did he do so when he excused
Holcomb from overtime on Friday, September 20.' Early
the next morning, Saturday, September 21, Holcomb
called in saying he still had the virus and could not work
that day. Under Respondent's procedure, the storeroom
takes the call and turns it over to the immediate
'The importance Respondent attaches to an unexcused absence is
reflected in the fact that of five pink slips Holcomb received throughout his
employment (supra, fn 1), three had been for unexcused absence (the last
one as stated , having been in June 1967)
TEXAS ALUMINUM COMPANY, INC
supervisor Groff having meanwhile left on vacation, the
message was handed to Travis Travis, the previous night,
had been informed by Groff that Holcomb left early on
Thursday and Friday, with no complaint by Groff
regarding either day Travis, when he was informed of the
sick call on Saturday did not contact Holcomb that day
or on Monday Neither did he report it to Plant Manager
Parks or initiate any question concerning it
4 The discharge on September 23
On Monday, September 23, Holcomb was due to begin
on the swing shift, which starts at 3 p in Holcomb
reported to work about 10 minutes before this, and found
his attendance card missing Finding Groff gone, Holcomb
inquired of Travis Travis told Holcomb he was
terminating him "because his work was unsatisfactory and
[he] could depend on his being there " Holcomb asked
"who made the complaint," and Travis did not say
Holcomb then told Travis he had the preceding week
asked the "collateral" foremen, and they assured him that
they had made no complaint Travis retorted, "They don't
make complaints to you, they make them to me " The
fact, as stated, is that from the time of the Benson
incident, there had been no complaints regarding Holcomb
by any supervisor '
Also, though it was Travis who told Holcomb he was
discharging Holcomb, it was Plant Manager Parks, as
earlier stated, who discharged him Parks testified that on
Monday, September 23, he was informed by a source he
did not remember, but it was not Groff or Travis that
Holcomb had been absent Saturday Parks, finding Groff
gone, went to Travis Travis testified Parks told him he
wanted Holcomb discharged and mentioned Holcomb's
absences on Thursday, Friday, and Saturday (Travis
quoted Parks as mentioning these 3 days, with no
reference to the one during Labor Day week ) Travis and
Parks testified that Parks said to Travis that Holcomb
could not be depended on Travis testified that he then
expressed concurrence with Parks' decision because of the
troubles Respondent had had in the past with Holcomb,
and so Travis testified, ` that was about it "
Travis testified that although he knew Groff had
permitted Holcomb to leave after his 8-hour shift on
Friday and had gotten the message on Saturday
concerning Holcomb's sick call, he did not know whether
Parks was aware of it Parks, on the other hand testified
he was aware of these matters, but had decided to
discharge Holcomb nevertheless
B The Reasons Assigned for the Discharge
Parks, in answer to how Holcomb, after the Benson
incident, had failed of the "chance" that he himself had
given Holcomb, testified it was "additional absences from
work, basically " Parks admitted these absences were not
a ground for discharge but added that they were `conduct
to be concerned about" and that the one who `should
become concerned about such problems" would be ' a
man's immediate supervisor,' - in Holcomb's case,
Groff or in his absence, Travis Each had the authority to
'Holcomb received further confirmation regarding this after his
discharge In addition to his speaking again to Morgan who repeated his
earlier assurance he inquired also of Seely Summers the chief press or
extrusion supervisor (who is over Morgan Odell and Moser) Holcomb
testified that Summers assured him that neither he nor any one under him
complained about his service Summers did not testify
79
discharge Holcomb if Holcomb did not meet the chance
Parks had given him, and as Parks testified, the initiative
normally comes from the supervisors at the lower echelon
and not from the top authority Parks testified his action
in having given Holcomb another "chance" at the time of
the Benson incident reversed the order in regard to who
was to take the initiative concerning Holcomb Parks
explained
Well, I felt that it was my responsibility, since I had
previously more or less taken this responsibility away
from Mr Groff, in our meeting in August I had gone
against his recommendations to terminate Holcomb and
had continued his employment I felt that the further
responsibility for him rested on my shoulders
Parks gave no indication that in giving that chance to
Holcomb in early August, he had thereby conveyed to
Groff or Travis - that their responsibility to act if
Holcomb failed of that chance had now passed from their
shoulders to him But if he had that subjective feeling,
however much he failed to communicate it to his
subordinates, it could hardly have embraced the feeling
that Groff - or Travis - was no longer responsible for
Holcomb's day-to-day progress and at least for reporting
to him anything that was a subject of "concern " Any
absences which were a cause of concern would thus, if not
acted on by Groff (or Travis) have been reported by either
of them to Parks That Parks should have gotten such
report from sources other than Groff or Travis was thus
as unusual as the action Parks initiated on the basis of a
report from the other source or sources Parks would thus
naturally have remembered the source he would at least
have remembered the class of person that reported the
absence if not the specific informant as vividly as he
remembered the action he initiated on the basis of it
Further departing from the normal procedure was the
action itself Since Respondent admitted its policy was to
"salvage" the employees if it could, the fact that there had
been no complaint against Holcomb from the time of the
Benson incident would indicate that he had been
"salvaged " Also, since the policy in Parks' words, was to
apply the "human approach," it is difficult to square the
drastic action thus taken against Holcomb on the heels of
having been excused by his supervisor on Friday from
overtime because of sickness and his calling in the next
day because he was still sick, with the "human approach"
that Parks himself espoused
Parks testified that the reason for his initiating the
discharge of Holcomb was his total record, which included
the matters that preceded the Benson incident But these
matters were presumably forgiven if his salvage had been
achieved Regarding Holcomb's conduct preceding the
Benson incident, Respondent cited the following
Prior absenteeism and untimeliness in responding' to
calls for forklift service No records were produced
concerning Holcomb's prior absences The only testimony
concerning them was Morgan's observations, previously
mentioned, that Holcomb throughout his employment was
absent more than other employees on Fridays and
Saturdays Morgan, however, testified, as earlier stated,
that he had never complained about Holcomb either on
the score of these absences or on the score of Holcomb's
being laggard in responding to calls for forklift service,
and further that his "general" observation, on all scores,
was that Holcomb's "work was fair " No other
supervisors testified to any complaints about Holcomb on
either score We may assume, however, that there were
complaints about Holcomb as Travis testified there were
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaints about other forklift operators, though he
testified that in this respect Holcomb's name "cropped
up" more often than that of other dolly operators.'
Other individual experiences Parks testified his first
occasion to take notice of Holcomb was in early 1967,
when a forklift was broken and the investigation indicated
that it could not be pinpointed to any one of the three
dolly operators on the job (that included Holcomb), and
so all three were laid off for 3 days. Travis testified his
first occasion to notice Holcomb was in the Christmas of
1967. At that time, the production workers had so far
caught up that there was no need for dolly drivers, and
they were laid off until after the end of the year. Holcomb
thereupon volunteered for other work and Travis put him
at the inspection table. Holcomb was admittedly
unfamiliar with this work and did not do well at it,
whereupon Travis told him to continue on layoff status
until his regular work as dolly driver was resumed.
Respondent sees this as "displaying a general overall
attitude of Holcomb."
Travis' other experience with Holcomb was in about
January of 1968. He testified he had then asked Holcomb
to explain a report that Holcomb the previous Saturday
had come in with liquor on his breath, and that
Holcomb's explanation was that he had called Groff on
the telephone and told him he was too sick to come in,
but that Groff insisted he report anyway; Travis further
testified that he then told Holcomb he should have told
Groff the true reason he could not come to work.
Holcomb, on rebuttal, testified that in this call to Groff he
told him he "had been drinking a little" and was sick and
so he said he thought he should not come in, but that
Groff insisted he better be there at 7 p m. Holcomb
further testified that when he made that call, it was at a
place not far from the plant but too far from his home to
leave for there and get back to the plant in time, so he
drove around about a half hour and then went to the plant
a little before 5 o'clock; Holcomb testified he doused
himself with coke (there being no coffee on the premises)
and that the dolly driver then on the shift, whom
Holcomb was to relieve, came over and asked Holcomb if
he could take over now because he had an important
reason to leave early, Holcomb replied that he could if it
was important, and thereupon he worked the 2 hours of
the remainder of the other driver's shift and also his own
'In that connection, Respondent introduced two employees, one Vaughn,
a saw operator, and the other Cullms, a press operator They testified to
individual experiences of theirs in which Holcomb had taken too long in
responding to calls for service The General Counsel, on the other hand,
introduced two employees (Keller , supra, in 2, a saw operator like
Vaughn, and William Stuckey , an assistant press operator , who recently
left of his own accord They testified Holcomb regularly responded in
timely fashion to service calls So on these differing sets of individual
experiences one is about as illuminating as the other
Respondent sought to link the tardy responses ascribed to Holcomb to
some time in August 1968 , which would be after the Benson incident This
effort was discredited by testimony of Cullins that he could not remember
when in 1968 it happened , or if it was in fact in 1968 at all Vaughn, who
started with the testimony that it happened three times in August 1968,
wound up testifying it happened only once in August Yet Robert Smith,
an instrument repairman , whom Respondent produced in corroboration of
the testimony of Vaughn and Collins about their individual instances of
Holcomb 's imputed laggardness, testified he had not the remotest notion of
when in 1968 it happened Further discrediting the vague testimony of
Vaughn that it happened in August 1968 is the undenied testimony that
none of the foremen over the employees who are serviced by forklift
operators complained about Holcomb and the testimony of Travis that
such complaints that "cropped up" in the past about Holcomb's responses
to service calls involved incidents going back "quite a bit" before his
discharge
shift that started at 7. Several days later, as Holcomb
testified, Groff told him he had been turned in for
drinking on the job, whereupon, as Holcomb further
testified, he denied he had been drinking on the job and
reminded Groff that in that call, he had told him he had
been drinking and was sick, but that Groff insisted he
come to work. Travis testified that after this incident he
recommended to Groff that he fire Holcomb, but that
Groff did not do so because they were then too short of
dolly drivers. (They then had two or three drivers against
an adequate composition of six.) Whether or not
Holcomb's account of what he told Groff "carries its own
death wound"6 or called for testimony from Groff
concerning his version of the talk (where he might have
indicated whether the shortage of manpower that would
impel a supervisor to require a man who reports sick to
come to work could also impel him to make a like
demand on a man who reports he had been drinking a
little and was sick) need not be labored here. Holcomb
was not discharged or disciplined or given a pink slip.
Nor, with all due deference, am I impressed with the
"yes" that Parks gave to the suggestive question put to
him that this incident of January 1968 (to which Travis
who preceded Parks on the stand had testified) had been
considered by Parks on September 23, when he discharged
Holcomb, for its bearing on whether Parks, though aware
of Holcomb's having reported sick on Saturday, doubted
the veracity of the call (Parks, when he first admitted his
awareness of that call, had not sought to qualify it with
any intimation that he was dubious about its genuineness.)
By way of final observation, we note that the same
reason assigned for Groff's failure to discharge Holcomb
in January as testified to by Travis, is now assigned as
Parks' reason in August for overruling Groff's
recommendation after the Benson incident to fire
Holcomb. Parks testified-
My response at that time was that I thought we could
give Holcomb a second chance. We were having
difficulty at the time obtaining dolly drivers. We needed
a man to cover the shift. The labor situation being what
it had been, being very tight, we are all aware, we felt
that we should do everything possible to retain the man
and try to salvage the situation
At the time of the Benson incident, Respondent had
only three dolly drivers, and they needed twice as many
The double load thus put on the dolly drivers was indeed
what had brought on Holcomb' s "liar" accusation to
Benson . Benson 's vaunting that he could handle the
double load taxed Holcomb's sense of what was possible,
and he expressed it by calling Benson a liar, but that kind
of a hassle was now abated by the fact that Respondent
had meanwhile achieved its requisite manpower for dolly
service. Respondent stresses that by September 23, it now
had its needed composition of six dolly drivers, and so,
Parks testified, he could dispense with Holcomb. In that
connection, it is observed that after the Benson incident,
Respondent placed Building 2, that apparently had the
most frequent calls for dolly service, under quality control
by doubling the number of dollies there on each shift.
This, as stated, abated the kind of situation that triggered
the words Holcomb and Benson had with each other in
early August. As appears, from the time of the Benson
incident, there were no complaints against Holcomb by
any of the "collateral" foremen (those supervising
employees who are serviced by the forklift operators).
'N L R B v Robbins Tire & Rubber Co, 161 F 2d 798, 800 (C A 5)
TEXAS ALUMINUM COMPANY, INC 81
C Conclusion
The two elements in conflict here, and accounting in
part for the length of the treatment of the evidence, are
these On the one hand, there is grave difficulty in
reconciling the precipitate action on September 23, with a
genuine operational motive On the other hand, the
conclusion the General Counsel urges that this action was
antiunion motivated , hinges on supervisor Morgan's
warning in mid-August, with no additional facts to
establish the inferential link between this supervisor's
warning and the action taken by Plant Manager Parks
The truism in Judge Brown's classic opinion in
McGahey' that "management can discharge for good
cause, or bad cause, or no cause at all," was, of course,
not intended to suggest that the quality of the reason has
no evidentiary bearing on the actual motivation It was a
caveat against a cavalier assumption by the fact-finder
that if the employer's action was not one the fact-finder
would have taken in these circumstances, it follows that
the employer's reason was not the true reason, and that
the true reason must lie in whatever antiunion animus
happens to be revealed by the evidence
The pronouncement above would not mean, for
example, that where the discharge is not rationally
explainable on the basis of a genuine operational motive,
the reason for the action may not be found in the one
phase of the evidence that would rationally explain the
motivation For the truism that management can
discharge for a bad cause or no cause at all is matched by
the "normal presumption that people in the conduct
of business affairs act out of rational motives " (Sears
Roebuck and Co 123 NLRB 1236, 1264 )i
While the opposing considerations are not difficult to
articulate in general terms, the difficulty is in their specific
application As has been stated in Betts Baking Co v
NLRB 380F2dl99(CA 10)
Ascertaining an employer's motives frequently
presents perplexing problems for the fact finder The
problem is no less perplexing for the reviewing court
The cases are legion, and to be properly juxtaposed
each must be analyzed in terms of its own peculiar
facts
'NLRB v T A McGahey 233F2d406 412(CA 5)
' The fact that the cause assigned is 'bad ' or even that there is no cause
does not establish that the cause was one which the statute forbids 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 goof or bad is not an ultimate subject of inquiry but merely
an evidentiary item bearing on the weight of the evidence advanced by the
employer to offset such inference This is so because normally where the
reason assigned is not one for which discharges were ordinarily made
(N L R B v Robbins Tire & Rubber Company Inc 161 F 2d 798 801
(C A 5)) the testimony that that was the real cause does not carry the
kind of persuasion to offset an inference of a discriminatory motive
flowing from other evidence which a good cause would carry Ibid See
also N L R B v Jackson Tile Manufacturing Co 282 F 2d 90 92 (C A
5) So the nature of the case [sic] assigned is but an evidentiary factor
bearing on the probability of whether it is the real cause And the fact of
the cause being good ' or bad or even that there was no cause is not
absolute in its legal consequences despite the normal improbability of a
bad cause being the real one nevertheless if the evidence that it is the real
cause however bad carries sufficient persuasion in the particular instance
to offset the inference of discriminatory motivation flowing from other
evidence the employer must be exonerated Conversely a good cause
while starting with the advantage of its probability as the real cause may
retain or lose its weight on that score , depending upon whether the
assertion that it was the real cause is or is not contradicted or impeached
by other evidence Mike Persia Chevrolet Corporation of Houston 134
NLRB 1402 1411
In essence it is an appraisal of two lines of evidence in
collision with each other Strong evidence of antiunion
motivation balanced against evidence of an operational
motive too weak to be persuasive of its genuineness casts
the weight in favor of the antiunion motivation Even
slight evidence of antiunion motivation, when balanced
against a reason so totally irrational or so incredible in
the circumstances, can endow such evidence with sufficient
weight to warrant the conclusion that the reason lay in the
employer's antiunion motivation On the other hand, the
two can be so equally balanced as to require, under the
General Counsel's burden, the exoneration of the
employer
Coming to the specific facts before us, we begin with
the fact that Morgan, a supervisor in the lower echelon
with no direct authority over Holcomb, warned Holcomb
and informed a fellow supervisor that Holcomb was
"pushing" the Union and was inviting his discharge
because of it As against this is the fact that there is no
other evidence in the case that this employer has ever
resorted to antiunion conduct, statements or even inquiry
about the subject Not only is no supervisor thus
implicated, but even Morgan is not otherwise implicated
except in his warning to Holcomb, and to conclude that
Parks got wind of this too requires making a succession of
assumptions stemming from the less than persuasive
reason given for Holcomb's discharge Holcomb's active
role in the Union was matched by an equally prominent
role in the Union by William Stuckey, the erstwhile
employee (supra fn 5) who testified as a witness for the
General Counsel Stuckey had been on the same
organizing committee as Holcomb and had signed up at
least as many cards as Holcomb He also was an observer
in the Union election in November 1968 (2 months after
Holcomb's discharge) Stuckey testified he made no secret
of his activity for the Union, yet he had not been warned,
questioned or approached by management about such
activity, and he kept his job until his own recent voluntary
departure for other employment It may well be that
Stuckey retained his job despite his prominence on behalf
of the Union because his performance presented less
"problems" on the job than Holcomb, and this rendered
him invulnerable to a plausible reason for discharging
him However, the evidence in this case furnishes no basis
for comparing Stuckey's performance with that of
Holcomb Further, there is testimony indicating that
Holcomb was also active for the Union in 1967 ' Yet
there is no claim that he had ever been approached by
management about this activity in 1967 Further, though
the Union also lost the election held in November 1968,
there too there is no claim that reflects on the
Respondent's conduct in regard to its obligations under
the Act
As stated, the motivation inheres solely in what
supervisor Morgan told Holcomb, the complainant, and
fellow Supervisor Odell in August 1968 Had General
Manager Parks thereupon initiated the discharge on the
basis of an assigned reason so patently irreconcilable with
a genuine operational motive, it could well have called for
the inference that the plant manager's action was
motivated not by the conduct as assigned but by the
employee's union activity and Respondent's baleful view
of it as embodied in the statements made by Supervisor
'In the cross-examination of Robert Smith the instrument repairman
(supra fn 5) the General Counsel asked whether Holcomb in 1968 had
solicited him to sign a union card Smith responded He told me he had
one and I told hum I still had one he gave me the year before
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morgan
Plant Manager Parks' action in discharging Holcomb,
it must be said , has some of the elements which raise a
question of whether Parks was motivated by genuine
operational considerations in discharging Holcomb. As
stated , since no supervisor had any complaint about
Holcomb 's performance on any basis (from the time of
the Benson incident at least ), it is indeed a question of just
why Parks should have himself initiated the discharge of
Holcomb on the basis of a few absences concerning which
no supervisor had complained and which admittedly was
not in itself a ground for discharge. Parks and Travis
testified , however , and it is not disputed , that where
Respondent has placed dolly operators on overtime, the
absences of one such operator may make it necessary for
Respondent to call on one doing a different kind of work,
and this impedes the other operation Whether this
happened here one does not know, but it could validly be
a sufficient irritant to one with Parks' overall
responsibility to have felt that Holcomb had sufficiently
reverted to his past weekend absentee pattern to render
him undependable , and that since Respondent now had a
composition of forklift operators on which it could
depend , it need no longer put up with Holcomb and his
variegated explanations for problems as they arose. To be
sure , the circumstances as a whole , and particularly Parks'
singular inability to account for the report given him by
someone other than Travis about Holcomb's absence on
Saturday that galvanized him into the unusual step of
himself initiating a discharge , raises a grave suspicion
concerning the genuineness of the reason asserted as the
ground for Parks' action . What keeps the suspicion from
rising to the dimension of an actual basis for the inference
that it was not the true reason is that there is a sufficient
element of plausibility for the action taken, which, when
considered in connection with Respondent 's otherwise
blameless record regarding its conduct under the Act,
renders two opposing inferences in equal balance. The
common law maxim of the first bite being not yet
sufficient may have applicability to this situation. At any
rate , on the basis of the record as a whole , I conclude that
the evidence of antiunion motivation as the reason for
discharge , while equal in weight, does not outweigh the
evidence of other than antiunion motivation, and I,
accordingly, find that the discharge of Holcomb was not
in violation of Section 8(a)(3) and (1) of the Act.
On the other hand, contrary to Respondent's suggestion
that Morgan's statements were "isolated" matters that do
not warrant being taken cognizance, I conclude that
Morgan's twice-given warning to Holcomb, the second
instance in the presence of leadman Combs, that his
activity for the Union portended the end of his tenure on
the job was a threat calculated to cause employees to
think twice before embarking on Holcomb's kind of
venture with the Union. I find these statements to have
been acts of interference, restraint and coercion in
violation of Section 8(a)(1) of the Act.
III. THE REMEDY
Having found that Respondent, through Supervisor
Morgan, violated Section 8(a)(1) by threatening or
warning an employee with discharge for being active in
the Union, I shall recommend that Respondent refrain
from such conduct. As stated, the threat carries the kind
of thrust which could well deter employees in the exercise
of the rights protected by the Act. In the circumstances,
the threat of discharge goes to the heart of the Act
t N L R B. v. Entwistle Mfg Co., 120 F.2d 532, 536 (C A.
4)), in a manner comparable to an actual discharge, so as
to warrant a broad injunctive order
On the basis of the findings and the entire record, I
hereby state the following:
CONCLUSIONS OF LAW
1. By threatening or warning an employee that his
activity on behalf of the Union will result in a reason
being found to discharge him, Respondent interfered with,
restrained, and coerced employees in the exercise of their
rights guaranteed by Section 7 of the Act, thereby
violating Section 8(a)(1) of the Act, affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The allegation that the discharge was for union
activity, being based on evidence that though equal to,
does not outweigh the evidence that the discharge was for
other reasons, the burden of proof has not been met, and
it is accordingly concluded that the discharge of Holcomb
was not in violation of Section 8(a)(3) and (1) of the Act.
[Recommended Order omitted from publication