American Building Maintenance Co. of California

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 142 (N.L.R.B. 1967)

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Building Maintenance Company of labor practices within the meaning of Section 8(a)(l) and
California and Melvin Perdue. Case (3) and Section 2(6) and (7) of the Act.'
20-CA-4103 Respondent's answer denies the substantive allegations
June 28, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On April 18, 1967, Trial Examiner Irving
Rogosin issued his Decision in the above-entitled
proceeding, finding that the Respondent had not en-
gaged in any unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision and a sup-
porting brief. The Respondent filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IRVING ROGOSIN, Trial Examiner: The complaint, is-
sued August 22, 1966, as amended at the hearing, alleges
that (1) in May 1966, Respondent instructed employees
to deal directly with it and bypass the Union, their duly
designated collective-bargaining representative; and (2)
on about May 13, 1966, discharged Melvin D. Perdue
and Andrew C. Lowry because of their union or other
protected concerted activities, thereby engaging in unfair
' The charge was filed on June 3 and served on June 6 , 1966 Designa-
tions are as follows- the Charging Party, Melvin D. Perdue , the Union,
Building Service Employees Union , Local 77, AFL-CIO; the General
Counsel , unless otherwise specified , his representative at the hearing,
Respondent , the Company , or ABM, American Building Maintenance
166 NLRB No. 1
of the complaint, including those related to jurisdiction,
the supervisory status of the named employee, and the
commission of any unfair labor practices, but admits the
status of the Union as a labor organization. Hearing was
held on October 20, 21, 24, and 25, 1966, at Salinas,
California. The General Counsel and Respondent were
represented by counsel, afforded full opportunity to be
heard, to examine and cross-examine witnesses, to in-
troduce oral and documentary evidence relevant and
material to the issues, to argue orally, and file briefs and
proposed findings of fact and conclusions of law. Both
parties declined to argue orally but reserved the right to
file briefs. Respondent's Motion to Dismiss the com
plaint, on the ground of failure to prove a prima facie
case, made at the close of the General Counsel's case
was denied. Pursuant to leave duly granted, both parties
filed briefs on December 29, 1966. No proposed
findings of fact or conclusions of law have been filed
by either of the parties.
Upon the entire record in the case, his observation of
the witnesses, their attitude and demeanor while testify-
ing, and the briefs of the parties, the Trial Examiner
hereby makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, and Respondent's answer ad-
mits, that, at all times material herein, Respondent has
been a California corporation engaged in furnishing build-
ing maintenance services, maintaining facilities in various
cities, including Salinas, California.
The complaint, as amended, also alleges that, during
the preceding year, in the conduct of its business,
Respondent furnished services valued in excess of
$50,000 each to Firestone Tire & Rubber Company and
Lockheed Missiles and Space Company, other compa-
nies doing business in the State of California.
The complaint further alleges, and it is stipulated that,
if witnesses were produced and duly sworn, they would
testify, that Firestone Tire & Rubber Company and
Lockheed Missiles and Space Company sell and ship
goods and furnish services, valued in excess of $50,000
each directly to customers located outside the State of
California. Respondent concedes that there is no substan-
tial issue as to the jurisdiction of the Board in this matter.
It is, therefore, found, upon the basis of the foregoing
and upon the entire record, that Respondent is, and at all
times material herein has been, an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Building Service Employees Union, Local 77,
AFL-CIO, herein called the Union , is, and at all times
Company of California, the Act, the National Labor Relations Act, as
amended (61 Stat 136, 73 Stat. 519, 29 U S C Sec 151, et seq ) Unless
otherwise noted, all dates are in 1966 The allegation in the complaint of
unlawful interrogation was withdrawn at the outset of the hearing
AMERICAN BLDG. MAINTENANCE CO. 143
material has been, a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent violated Section 8(a)(1) of the
Act, by instructing employees to deal directly with it and
bypass the Union, their duly designated collective-bar-
gaining representative.
2. Whether Respondent violated Section 8(a)(3) and
8(a)(1) of the Act, by discharging Melvin Perdue and An-
drew Lowry because of their union or other protected
concerted activities.
B. Interference, Restraint , and Coercion
1. Introduction
For at least 16 years, Respondent has had
collective-bargaining relations with this and other labor
organizations in California, encompassing the region
between Belmont and King City, including Salinas, Santa
Cruz, and Monterey, and Santa Clara, and San Benito
Counties. The Palo Alto division, located in that city,
which includes the Salinas office, is under the general su-
pervision of Division Manager Joseph N. LaBarbera.
In about November 1963, Firestone Tire & Rubber
Company, herein called Firestone, opened a plant in
Salinas about two to three and a half city blocks long, on
a 30 to 36 acre site. Soon afterwards, Firestone and
Respondent entered into a contract under which Re-
spondent agreed to provide janitorial services at that
plant. Respondent subsequently executed a collective-
bargaining agreement with the Union, which was re-
newed on December 15, 1965, effective from January 1,
1966, to January 1, 1969, automatically renewable on
60 days' notice prior to the original expiration or sub-
sequent anniversary date.2
Although the contract between Firestone and Respond-
ent is not in evidence, according to Wilbur L. Miller,
chief of plant protection for Firestone,3 it provides for
Respondent to perform janitorial services throughout the
entire plant.
The janitorial operation is under the general supervi-
sion of O. C. Drennon, an employee of Respondent, as-
signed to the Firestone plant. A former janitor himself,
Drennon had been supervisor of janitorial services at the
plant 2 years and 4 months at the time of the hearing. In
April and May 1966, Drennon had 53 or 54 employees
under his supervision on three shifts 4 In the performance
of his duties, Drennon reports to Chief of Plant Protec-
tion Miller, who notifies him of the number of men re-
quired on each shift and the number of hours they are to
work. Drennon turns in a report to Miller showing the
number of hours worked by each employee. The jani-
torial crews are paid by Respondent, which is reimbursed
by Firestone.
The janitorial services furnished Firestone by Respon-
dent consist of dusting, mopping, waxing, cleaning
machinery, and generally "policing" the area. During
April and May, the period with which we are concerned,
there were 14 men working on the "A" shift, 15, on the
"B" shift, and 15, on the "C" shift, Monday through
Friday. If janitorial services were required on weekends,
Miller notified Drennon in writing of the number of men
he would require on those days.
Crucial among the services performed by Respondent
is the removal of impacted rubber and tailings from the
mixing machines, known as Banburys, of which there are
four, designated as No. 27 (the "primary" Banbury), and
Nos. 111, 112, and 113 (the latter two being referred to
as the "final" Banbury machines).5
2. Alleged instructions to employees to deal directly
with the Employer and bypass the Union
Meetings of the graveyard crew were held by Super-
visor Drennon from time to time during the period in
question (April and May 1966), usually at the beginning
or end of the shift. The meetings were not regularly
scheduled, however, Drennon testifying that he called
them when he began to receive complaints involving the
care of the Banburys by the janitors. At these meetings,
Drennon addressed himself to these complaints and in-
vited the men to raise any problems they might have.
There is disagreement between Perdue and Lowry, on
the one hand, and Drennon, on the other, as to the
sequence of a series of meetings held with the graveyard
crew. Because of the uncertainty and vagueness on the
part of Perdue and Lowry as to the dates these meetings
occurred, Drennon's version of when they took place is
probably the more reliable. In any event, it is unnecessary
to resolve these conflicts. It is sufficient for the purposes
of this case that they occurred sometime between April
14, the date Perdue became union shop steward, and May
13, the date Perdue and Lowry were discharged.
Perdue, corroborated by Lowry, testified that, at 8
o'clock one morning, early in May,6 Drennon held such
a meeting at his desk in the plant, which served as his "of-
fice." According to Perdue, Drennon protested that em-
2 The contract was signed by Julian Gutierrez, on behalf of the Union,
and Louis Chiappe, manager of the San Jose office, on behalf of Respond-
ent.
3 Miller described his duties as "plant security, fire, and housekeeping,"
including "janitorial service."
4 The first shift, known as the "A" or graveyard shift, operated from
midnight to 8 30 a.m ; the second or "B" shift, from 8 a in. to 4.30 p.m.,
and the swing or "C" shift from 4 p.m until 12 30 a.m
5 As described by Miller, the Banbury machines, which mix the rubber
and compounds, are comparable to "king-size kitchen mixer[s]," in which
the mixers extend horizontally to churn the ingredients fed into the
machines The mixture is dropped through a divided horizontal "gate,"
which opens to allow the mixture to be discharged into a skip hoist from
which it is transferred by conveyor to the mill The Banbury machine is
about 15 feet high, the mixing chamber, which contains the rings, 7 or 8
feet high and about 6 feet long, and the entire machine is mounted over a
pit. Tailings which become impacted in the rings and gate during operation
of these machines must be removed by the Janitors with the use of picks or
similar tools The four Banburys, all located in Department 112, are under
the supervision of Firestone Department Manager Jack E. Ray, who also
has charge of Departments 122 (calendering), 126 (tread tubing), 154
(camelback), and 561 (cement house), and supervises about 100 produc-
tion employees.
6 According to Drennon, this meeting took place on about April 20,
and, according to Lowry, about a week or 10 days before his discharge,
which would establish the date as between May 3 and 6 Since, as
Drennon testified, it was at this meeting that Perdue notified him that he
was the new shop steward, having been appointed April 14, it is more
probable that the meeting was held on the date indicated by Drennon In
view of Perdue's militant attitude, manifested at these meetings, as well as
at the hearing, it is not likely that Perdue would have long delayed notify-
ing Drennon of his selection as shop steward, and proceeding to present
his grievances
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees were taking their complaints to the Union instead
of bringing them to him, and expressed disapproval of this
practice. Perdue quoted Drennon as saying, "Bring your
complaints to me. Keep it in the family. Let the Union
stay out of this." Perdue did not elaborate or testify
whether Drennon specified the complaints to which he
referred.
Although Drennon denied that he made the statements
in precisely the language attributed to him by Perdue and
Lowry, he testified, "If the union was mentioned [at this
or any other meeting] it was mentioned just in conversa-
tion- I mean , like `if you have any problems, don't run to
the union . Bring them to me. Let's see what we can do
about them to straighten them out."' Elsewhere, Drennon
testified that he told the men that he saw no reason for
them to "run to the union" if they had any complaints,
and proposed, "Let's try to work it out here before you go
to the union."
As has been pointed out, there was no showing as to
the nature of the complaints Drennon had in mind. Ad-
mittedly, neither Perdue nor, for that matter, Lowry had
registered any complaints or pressed any grievances with
the Union prior to the time Perdue became shop steward.
Nor, was there any showing that any other employees
had done so . Moreover, there was no evidence , so far as
this record discloses , that the controversy concerning the
subject of work gloves or protective clothing, presently
discussed , had been raised prior to this meeting. But,
apart from this, since Drennon conceded, in effect, that
he spoke of employees going to the Union with their com-
plaints, and asked them to take them up with him before
resorting to the Union, the question to deal directly with
him and bypass their exclusive bargaining representative,
or whether his remarks could have been so reasonably
construed.
The testimony of Perdue and Lowry as to their version
of the remarks , must be weighed in light of their personal
bias and interest in the outcome of this controversy, as
well as their evident antagonism toward Drennon. Their
testimony was necessarily based upon their interpretation
of what he said, an interpretation obviously influenced by
their own predilections.
Moreover, in a pretrial affidavit given by Perdue to a
Board agent, on June 20 , some 5 weeks after the
discharge of these employees , Perdue quotes Drennon as
saying that "they were getting along very good, [b]ut
there were people going to the Union with complaints."
Nowhere in the affidavit, or in a subsequent one, on July
11, is any specific mention made that Drennon objected
to this, and , even if it be inferred that this was implicit in
his remark , there is no mention that he told the crew to
"keep the Union out," and that "[w]e don't need them."7
While these may not be glaring discrepancies, they
point up the readiness of Perdue and Lowry to embellish
what might otherwise constitute innocuous remarks with
the taint of possible illegality. Perdue admitted that the
Board agent who interviewed him asked him to relate
everything which had been said by any management
representative regarding the Union. Perdue's attempted
explanation that he either mentioned the disputed re-
marks to the investigator, who failed to include them in
the affidavits, or that he intended to do so, but overlooked
it, does not jibe with his admission that he read the af-
fidavits before signing and subscribing to them, and did
not ask to augment his statements. It may be reasonably
assumed that his memory of the events about which he
testified was more vivid on June 20, when he gave his
first affidavit, than on the date of the hearing some 5
months later. Moreover, assuming that the details of
Drennon's remarks had escaped Perdue when he gave his
first affidavit, he did not avail himself of the opportunity
on July 11 to supplement his original affidavit.
It should also be noted that Perdue was far from being
a naive, unsophisticated union adherent. On May 20, a
week after his discharge, in a letter to Union
Secretary-Treasurer Gutierrez, he criticized him for not
prosecuting the grievances more aggressively.$
Furthermore, although the record establishes that all
14 crew members on the graveyard shift attended each of
the meetings, none of the other crew members was called
to corroborate Perdue and Lowry regarding the state-
ments imputed on this occasion to Drennon.
Moreover, in view of the amicable history of collective
bargaining between Respondent and the Union, the ex-
istence of a 3-year labor contract, which included
grievance and arbitration machinery, the admitted
absence of any prior unfair labor practice proceedings,
and the lack of evidence of antiunion bias or hostility, it
is farfetched to maintain that Respondent was asking the
employees to deal with it directly and bypass the Union
in derogation of the exclusive recognition as bargaining
agent which Respondent had accorded the Union by con-
tract.
In light of these circumstances, Drennon 's candid ad-
mission that he told the men that he saw no reason for
them to "run to the union" if they had any complaints,
and that they should make an effort to work out their
problems with him before taking them to the Union, is
both more credible and plausible. As such, his remarks
are more reasonably construed as an effort to persuade
the employees to adjust any disputes with him before
resorting to the grievance procedure under the contract.
In this there was nothing unreasonable or unlawful. Ef-
forts by an employer to solve problems relating to terms
7 Although not mentioned by any of the witnesses in the first pretrial
statement , Perdue recites that , as the crew was about to leave , Drennon
asked, "Is anyone dissatisfied - do you have any questions9 " Drennon
then observed that when he first took hisjob, "everyone was telling ABM
what to do , but he soon got that straightened out " (It is not improbable
that Drennon's remarks about employees going to the Union with their
complaints may have been made in this context .) The affidavit continues,
that Drennon stated that someone had accused him of saying that anyone
participating in union activities would be fired , and, pointing to various
men in the group, asked , "You haven 't heard me say anything like that
have you?" The affidavit shows no response . In an affidavit given the
same day by Lowry, he states that neither he nor Perdue had taken any
complaints to the Union prior to that meeting , a statement which he af-
firmed at the hearing, and there was no showing that Drennon had
suspected either of them of doing so
6 The letter read, in part - " . I have 'sent you three cinch Grievances.
Mister Dudley Bynoe, Mister Andrew C. Lowry and Mr Melvin D. Per-
due, all of these cases are very easy ones They should be easy as taking
candy away from a baby I am one of the greatest Union Men that ever put
on a pair of pants I have had sixteen years experience in leading Union
Men I have never lost a case Please , if you people don't know what you
are doing , give me a chance
"It is of [sic] my honest opinion , that you people are selling my cases
out Please don't make the wrong move I have some questions to ask you
and would like an answer immediately. Have you taken the Grievances
up? What procedures did you use? Have these cases been c, reed out to
the letter? Please give me an immediate answer . I heard something the
other Day, one of ABM's Supervisors stated . `with ABM's money, they
can do anything with that Union ' If I don't hear from you soon, I'll see
you in Court "
AMERICAN BLDG. MAINTENANCE CO. 145
and conditions of employment before they develop into
grievances amenable to procedures contained in a collec-
tive-bargaining agreement, are not only desirable but are
also to be encouraged. This, in fact, is the accustomed
procedure under conventional labor contracts. Moreover,
since there is nothing which Drennon could have done to
prevent the union steward or other employees from utiliz-
ing the grievance procedure, there would be no purpose
in endeavoring to persuade the employees to disregard
their bargaining agent in this respect. There is nothing in
the record to suggest that, by endeavoring to adjust any
disputes at what might be regarded as a preliminary step
to the grievance procedure, Drennon sought to frustrate
or deprive the employees of their right to resort to the
grievance machinery of the contract or to persuade them
to bypass their bargaining representative.
It is, therefore, found, on the basis of the foregoing, and
upon the entire record, that Drennon's remarks to the em-
ployees, in about May 1966, did not constitute instruc-
tions to deal directly with Respondent and bypass the
Union, and that Respondent has not, by said remarks, in-
terfered with, restrained, or coerced employees in the ex-
ercise of rights guaranteed in Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.
During the same meeting, according to him, Perdue,
seconded by Lowry,9 demanded that the Company pro-
vide employees working on the Banburys with work
gloves.10 Perdue insisted to Drennon that under the
union contract the Company was required to furnish em-
ployees with work gloves and coveralls.ri According to
Perdue, Drennon said, "Perdue, we have been working
under the present condition two years before you came
here, and we'll probably be working two years after
you're gone." 12
At this meeting, Perdue also asked Drennon to provide
the Union with a bulletin board in the plant, as likewise
required by the union contract. According to Perdue's
testimony, Drennon pointed to a metal cabinet, and said,
"You can put your notices on that," then, correcting him-
self, added, "No, bring your notices to me and I'll put
them up if I want to." Perdue asked Drennon whether he
might post union notices on Respondent's bulletin board
at the plant. Drennon replied, according to Perdue, "You
may not and don't put anything on that bulletin board."
Drennon acknowledged that the subject of work gloves
and the bulletin board was discussed at this meeting.
However, he placed the discussion at a different meeting
and in another context. According to him, this discussion
took place at a meeting held May 9, called because of
complaints he had received the previous week about the
unsatisfactory care of the Banburys. Announcing that he
had received complaints, he stated that it was evident that
"someone was not doing their work in the Banbury,"
hinting at Perdue and Lowry. Expressing his displeasure,
he admonished the men not to be "standing around talk-
ing to Firestone personnel," an oblique reference to Low-
ry, and told them to "do more work and less talk." He
asked whether they had any problems but received no
response.
Drennon also told the crew that Miller, Ray, and the
chemists at Firestone were "shook up" about the condi-
tion of the Banburys, and repeated that he wanted the
men to spend more time cleaning these machines and less
time talking.
Conceding that the subject of work gloves was
discussed, Drennon testified that he told Perdue that he
disagreed with his interpretation of the contract as to the
Company's obligation to furnish work gloves. Drennon
also testified that the Union had never required the Com-
pany to supply its employees with gloves or special
clothing at the Firestone plant, and as far as he was
aware, had never contended that the Company was
required to do so. Moreover, Drennon testified, he told
Perdue that before Firestone would reimburse the Com-
pany for such an expenditure, "they [would] kick us
out," and that the Company would not supply gloves at
its own expense.
Drennon denied remarks, attributed to him by Lowry,
that he said at this or any other meeting that he had at one
time considered supplying the men with gloves, but since
"someone went to the [god damn] . . . union, . . . let
the [god damn] union furnish gloves."13 According to
Drennon's version, when Perdue or Lowry broached the
subject of work gloves, he asked them why they did not
get the Union to supply them.14 Drennon told them, how-
ever, that he had not yet obtained the gloves and that as
soon as he did, he would see that they received them.15
Lowry asked Drennon when they could expect gloves.
9 Lowry, however, while testifying that he could not give the exact date
of this meeting, placed it a week or 10 days before his termination, which
occurred on May 13
10 Perdue testified that , in descending into the pit to scrape and clean
the tracks on which the skip hoist was operated, it was necessary to hold
onto the steel cable to which the skip hoist was attached.
11 The applicable section of the contract reads.
SECTION 7 HOURS AND WORKING CONDITIONS
(i) If special uniforms , overalls, or coveralls are required, it is
agreed that such must be furnished by the Employer without cost to
the employees and the cost of upkeep and maintenance of them must
be paid for by the Employer. The employees agree to take good care
of such uniforms, overalls, or coveralls, and not to wear same except
in the course of their working hours, meal-times excepted.
Manifestly, the word "required" leaves open the question as to whose
decision should govern as to whether special clothing is required . It is un-
necessary, however, for the purpose of this proceeding to decide this is-
sue, since the question of whether Perdue and Lowry were engaging in
protected concerted activities in connection with their demand does not
turn on the merits of their claim
12 Lowry quoted Drennon as saying that the Banbury janitors were
-'[w]earing clothing like that before you got here and they will be wearing
it probably after you are gone " Drennon testified that he did not recall
making this remark , but it is not unlikely that he made some such com-
ment. In light of Perdue's officious remarks to Drennon shortly after he
was hired, presently related, Drennon's rejoinder is not supnsmg. Under
these circumstances , Drennon 's remarks are insufficient to justify a find-
ing of hostility toward Perdue for raising the subject of special clothing.
Nor, does it furnish a basis for concluding, as the General Counsel seems
to imply , that this was a portent of Perdue's eventual discharge
is Significantly, there is no mention of this remark in either of Perdue's
pretrial affidavits
14 In Lowry's version, Drennon told them, "we have not, we are not,
and we will not furnish you with gloves. If your union wants you to have
gloves, let them buy them for you There is plenty of soap and water over
there in the locker room you can wash your hands with." It is unlikely,
judged by his attitude and demeanor at the hearing, and the generally am-
icable relations between the Company and the Union, that Drennon
resorted to profanity in this exchange The imputation appears to be a
further attempt to ascribe to Drennon an attitude of hostility toward the
Union. Moreover, the remark appears to have been made more in jest
than in anger Considering the equivocal language on the subject in the
contract , the remark , in any event, is not sufficient to support an inference
of union animus.
15 As will later appear, Drennon had apparently taken the matter up
with Division Manager LaBarbera , and eventually supplied Perdue and
Lowry with gloves
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drennon told him that the gloves had not yet arrived from
the Palo Alto office. When Perdue and Lowry turned to
the subject of protective clothing, Drennon called their
attention to the applicable section of the contract, and in-
sisted that it was not required under its terms. According
to Drennon, either Perdue or Lowry remarked that they
expected to get everything they were entitled to under the
contract. Drennon assured them that they were receiving
everything that was due them, including an hourly rate of
$2.34. Lowry asked why they could not use gloves sup-
plied by Firestone to its employees. Drennon told him
that he had taken the matter up with Plant Protection
Chief Miller, who had taken the position that, since
Firestone was under contract with ABM for the janitorial
work, Firestone would not permit the Company to use
Firestone equipment or' supplies in performing these ser-
vices.
According to Drennon, when Perdue brought up the
subject of the bulletin board, Drennon told him that the
Company was in the midst of moving its Salinas office,
but as soon as that was done, he would furnish the bul-
letin board. Meanwhile, he suggested that Perdue use the
cardboard which he, Drennon, had prepared with the
Union's name, and had taped to the side of the locker, of-
fering him the use of his stapler with which to attach
notices. He instructed Perdue, however, not to use either
the Firestone or ABM bulletin board at the plant.16
At a subsequent meeting in April, according to
Drennon, after discussing complaints on the Banburys,
Drennon invited questions. Lowry asked, "What about
the gloves?" Drennon said that he had done the best he
could but that he had only been able to get the men rubber
gloves. Lowry said that any type of gloves would do.
Drennon then brought out the gloves, handed a pair to
Lowry, and asked him to sign for them. Drennon asked
whether any of the others wanted gloves. They indicated
that they did not.17
Lowry testified that at about 9 o'clock on the Monday
morning before his discharge, Drennon called him at his
home, and asked whether he had wanted to speak to him.
Lowry replied that he had not. According to Lowry,
Drennon told him that Foreman Williams had said that
Lowry had wanted to talk to him about the gloves. Lowry
repeated that he felt the men should have work gloves.
With that, Drennon exclaimed, "What are you trying to
do ... cause trouble out here?" Then, Lowry testified,
Drennon said, "I'll buy you some damn gloves and you
will sign for them, and if you lose them, you will pay for
them," and hung up. A day or two later, Lowry con-
tinued, when he reported with Perdue on their regular
shift, Drennon handed Lowry a pair of rubber gloves, re-
marking, "Here's your gloves. These are the best I can do
for you," and, "If you burn your hands on hot rubber,
that's too bad."
' According to Lowry, Drennon said that if the shop steward wanted
to post notices on the bulletin board, he could bring them to Drennon, and
he would put them on the company bulletin board if he saw fit to do so, but
that the Union was not to use the company bulletin board Drennon
testified that the cardboard, bearing the name of the Union, was put up
sometime in April before this meeting There is no allegation in the com-
plaint that Respondent committed an unfair labor practice by Drennon's
conduct concerning the bulletin board The evidence was presumably of-
fered in support of Perdue's and Lowry's concerted activities.
i' Drennon also testified that as the meeting ended, he made a remark
to employee Hernandez about being sure not to report to work with al-
cohol on his breath, an allusion to an apparent previous drinking problem,
which had apparently been remedied. The incident is mentioned only
Drennon denied any telephone conversation with Low-
ry, testifying that the only time the subject was discussed
was at the shift meeting, and categorically denying the re-
marks imputed to him by Lowry. According to Drennon,
when he gave Lowry the rubber gloves, he told him that
they were the best he could get, and said, "If you burn
your hands, you're going to have to run up to the hospital
and get something done about them." 18
It is not alleged or contended, nor does the evidence
warrant a finding, that by Drennon's conduct or state-
ments in regard to the issues of work gloves, special
clothing, and the bulletin board, discussed in detail above,
Respondent has interfered with, restrained, or coerced
employees in the exercise of rights guaranteed in Section
7, in violation of Section 8(a)(1), or has engaged in any
other unfair labor practices. The evidence on these mat-
ters was presumably introduced, and has been considered
only, for the purpose of determining whether, by their
participation in these events, Perdue and Lowry were en-
gaging in protected concerted activities, and, whether, in
discharging these employees, Respondent was motivated
by such participation, rather than by valid and legitimate
considerations, issues to which we now turn.
C. Discrimination in regard to hire and tenure
of employment
1. Melvin D. Perdue
Melvin Perdue was initially employed by Respondent
in November 1965, as a member of a waxing crew servic-
ing various concerns under contract with Respondent.
Early in December 1965, he was assigned to the Firestone
plant, where he worked continuously until his discharge
on May 13. His principal duties consisted of janitorial
work, cleaning the Banbury machines and pits, on the
graveyard shift under Waymom O. Williams, shift super-
visor or foreman.19 On April 14, 1966, Perdue became
shop steward. Admittedly, he had never previously
discussed grievances with management or filed
grievances on behalf of any fellow employees.
A week or 10 days after he started at the plant, Perdue,
a Negro, protested to Drennon (also, incidentally, a
Negro), that his foreman (Williams, a Caucasian), was
"prejudiced." Drennon did not ask Perdue what he
meant, but denied that the foreman was prejudiced, add-
ing, "If there was anyone prejudiced, it was I, because
I wanted my work done." Perdue retorted, "Well, you
don't know what's going on. I know." Drennon rejoined,
"Well, I know what's going on. My foremen have their in-
structions to be carried out. I know exactly what is going
on. This is all I want." Perdue then ventured, "Well, I
used to be a supervisor of 1500 men. I can help you."
because of the General Counsel's claim of disparate treatment in dealing
with Perdue and Lowry, as contrasted with Hernandez, discussed later
is It may be doubtful that Drennon said this out of solicitude for Lowry
On the other hand, even if he made the remark out of pique at Respond-
ent's concession, on an issue which he felt Respondent was not required
to make, the remark was doubtless provoked by Lowry's evident disgrun-
tlement at the type of gloves Respondent was furnishing . Lowry had ex-
pected gloves with "leather palms" similar to those used by Firestone per-
sonnel, and left no doubt that he considered the rubber gloves worthless
Be that as it may, in view of all the circumstances, the remark is insuffi-
cient to Justify an inference of hostility or illegal motivation
i9 Until the last 2 days of his employment, when he worked for
Foreman Wallace G Wagenbreth (who left Respondent's employ about
July 14, 1966)
AMERICAN BLDG. MAINTENANCE CO. 147
Drennon replied that he did not need any help, and that
he was satisfied "the way things were operating."
Under cross-examination, Perdue admitted this con-
versation with Drennon, omitting, however, any mention
of his offer to help or of the remark concerning his previ-
ous supervisory experience. He also conceded that he
later discovered that he had been mistaken in believing
that Williams was prejudiced, a conclusion borne out, as
will be seen, by Williams' testimony in his behalf.
Perdue's subsequent activities have already been
detailed. Perdue wore a union button at the plant, and
after becoming shop steward, distributed union buttons,
which were freely available on Drennon's desk.
2. Andrew C. Lowry
Andrew Lowry was employed as a janitor at the plant
on or about April 28, 1965, and, with Perdue, was ter-
minated on May 13, 1966. For a month, he was assigned
to cutting weeds near the railroad tracks and fence sur-
rounding the plant. He was then assigned to work inside
the plant, and, in about October 1965, began working on
the Banbury machine on the swing shift. After some 4-1/2
or 5 months, he was transferred to the graveyard shift, on
which he remained until his discharge.
When the Banbury machines were in operation, Lowry
worked on top of the machines, dusting and cleaning,
while Perdue worked below, sweeping the area and
disposing of accumulated trash. When the machines were
not in operation, Lowry assisted Perdue in cleaning the
Banbury pits, skip hoist, and bucket. Like Perdue, he was
a member of the Union, and wore a union button openly
at the plant. His testimony generally corroborated Per-
due's, and his participation with Perdue in the events
which took place has already been recounted.
3. Events culminating in the discharges
On May 13, Foreman Wagenbreth notified Perdue that
Drennon wanted to see him and Lowry at the end of the
shift. When the men reported to Drennon's desk, he was
not there. After waiting 10 or 15 minutes, the two men
left to wash and change, deciding to wait for Drennon to
pass that way, as was his habit. At about 9 o'clock,
Drennon appeared with two envelopes and announced
that he had their termination checks. Perdue asked
Drennon why he was being terminated. Drennon said
that it was for "unsatisfactory work." Lowry retorted that
"he knew [god damn] well that he wasn't discharging him
for unsatisfactory work." According to Perdue, when he
asked Drennon what he meant by "unsatisfactory work,"
Drennon made no reply. The men refused to accept their
checks until they had consulted the Union. On June 6,
Lowry went to the company office and picked up his last
paycheck. Perdue called for his during the same period.
Drennon testified that when he told Lowry he was
being terminated for unsatisfactory work, Lowry
shouted, "No, that ain't why you're firing me. You're fir-
ing me because I'm bringing pressure on you from the
union " Perdue, who had been at another row of lockers
some 10 yards away, came over, and Drennon also told
him that he was letting him go for unsatisfactory work.
According to Drennon, Lowry broke into "loud profani-
ty." Drennon asked him for his key and badge, and
Lowry said that he was going to get his things from the
locker. Then, according to Drennon, Lowry threw his
key and badge on the floor, and Perdue followed suit, re-
marking, "You haven't heard the last of this, if we have
to go to Washington." Lowry again raised his voice, and
engaged in profanity. Drennon called on a Firestone
security guard, whom he identified by name, to escort the
men from the building.
During Lowry's tirade, he snapped at Drennon, "I
know you like a book." Asked what he meant, Lowry
merely repeated the remark.20
Contentions of the Parties; Conclusions
As is evident from what has already been stated, the
General Counsel maintains that Perdue and Lowry were
discharged because of their union or concerted activities.
This is based primarily, in the case of Perdue, upon his
activities in his role as union steward in urging recon-
sideration of Bynoe's discharge,21 and demanding a union
bulletin board, and, with regard to both Perdue and Low-
ry, on their activities in requiring work gloves and
coveralls for employees working on the Banburys.
As is equally apparent, Respondent contends that both
Perdue and Lowry were discharged because of their un-
satisfactory work performance, without regard to any
considerations of union or concerted activities.
In April and early May, Perdue and Lowry were work-
ing on the 112 and 113 or final Banburys, Lowry
generally working on the 113 Banbury. Their duties con-
sisted of removing the residue or tailings from the rings on
the machines, emptying waste oil buckets, and, whenever
operation of the machines was suspended, cleaning the
"throat," bucket and skip hoist, as well as keeping the
floor in the area clean. Failure to prevent the tailings from
clogging the rings could result in a break in the lubricating
of oil lines, creating a fire hazzard.
As has already been mentioned, Miller, chief of plant
protection, was the Firestone representative responsible
for the safety of plant operations. Production on the Ban-
bury machines was under the general supervision of
Firestone Department Manager Ray. According to Ray,
20 This cryptic remark was not explained by Lowry at the time, nor, for
that matter, at the hearing. Although Lowry denied engaging in this vitu-
perative exchange, it is evident that there was bad feeling between him
and Drennon Both men had servedin the Armed Forces together at Fort
Ord, California, Lowry as a sergeant, assigned to the post engineers,
Drennon , as a training sergeant , first class, assigned to company
headquarters According to Drennon, his relations with Lowry had been
"unfriendly" since the occasion when he was obliged to discipline him in
front of the entire company for "talking in formation " Whatever the
details of this episode, it is obvious that Lowry was antagonistic toward,
if not resentful of, Drennon. Lowry had been hired by Earl Cline,
Respondent 's district manager at the Salinas office , presumably without
poor consultation with Drennon
11 It should be noted that Perdue did not include Bynoe in his charge,
and there is no allegation in the complaint that his discharge was dis-
criminatory, despite the fact that Perdue named him in his letter of May
20 to Union Representative Gutierrez. Nor, is there any showing that
Perdue pursued the grievance procedure of the union contract with regard
to any of these discharges The tone of his letter may account for one of
the reasons the Union failed to take action on his behalf and those for
whom he purported to be acting That both Gutierrez and Drennon may
have resented his aspirations for their respective positions , is suggested by
an excerpt from Drennon's letter, dated May 23, addressed "To Whom It
May Concern," purporting to give the reasons for the discharge of both
men It reads: "Soon after this Melvin Perdue and Andrew Lowry started
to work together in the Banbury Pit area and I heard Melvin Perude [sic]
was running for my job He said after he got me out , he was going to run
for Union Secretary."
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during April or May, he had "quite a few complaints" re-
garding faulty cleaning of the final Banburys, and failure
to remove rubber impacted in the rings and gate, and to
keep the skip hoists clean. Ray characterized the condi-
tion of these units as "miserable." Ray further com-
plained that when he arrived at work mornings , between
6:30 and 7:30 a.m., he found no sign of janitors working
at the Banburys. He complained of this to Miller, who
referred the complaints to Drennon. In addition, Miller
himself testified that on the basis of his own inspection,
he observed that the Banbury machines, including the
parts and rings, as well as the floor area, were not being
properly cleaned.
At the meeting of the graveyard shift on April 20, Su-
pervisor Drennon notified the employees of the com-
plaints he had been receiving from Firestone.22 Later the
same month, Drennon called another meeting of the
graveyard shift, in which he again aired complaints about
the maintenance of the Banburys.
On May 3, Ray issued a memorandum to Drennon
complaining of the condition of the Banbury machines.23
Next morning, Drennon showed the memorandum to
Perdue and Lowry in the locker room as they were
preparing to leave after their shift. Drennon told them
that he had been receiving complaints during the past
week, and asked them what had been happening at the
Banbury, specifically mentioning the rings, gate, bucket,
and the chute. Perdue replied that the Banburys had been
in operation, implying that this had prevented them from
cleaning the machines. Drennon said that he was aware
of that, but that he expected them to do as much as they
could while the Banburys were shut down, and instructed
them to notify their foreman of how much they had ac-
complished so that he could make a record of it. Perdue
agreed to do so, and Drennon left.
Early next morning, at his desk, Drennon told Foreman
Williams that Perdue and Lowry were getting Respond-
ent into trouble because they were not doing their work
on the Banburys. Williams suggested that Drennon talk
22 This was the meeting, according to Drennon, at which Perdue had
notified him of his election as shop steward, and raised the subject of
gloves and a union bulletin board
23 The memorandum read
SUBJECT BANBURY CLEANERS
The present Final and Master Batch Banburys have again been al-
lowed to deteriorate from a cleaning standpoint. It appears that no ef-
fort has been made to insist that these cleaners do the work as
required.
The most serious problem, however, is that they are not keeping the
tailings picked up from the gate and rings; this eventually builds up
and clogs the rings, breaking the oil lines, which thereby causes fires.
A fire now would be almost an impossibility to put out in the present
deplorable condition of these units.
A concentrated program must be made and followed to put these
units back in the immaculate condition required and then maintained.
Quite obviously, the responsibility for insuring that you are kept in-
formed of the condition of these units is with the Production Division.
We have fallen down here with the expansion program moving as it
has This will not happen again
to the two men. He told him that he had already done so
the day before, and shown them Ray's interoffice
memorandum. Williams said that he and the men were
doing the best they could. Drennon rejoined that "[t]heir
best [wasl not good enough."24
Next day, when Drennon, who had been at the
Respondent's office in Salinas , returned, he discovered
that Chief Miller had instructed Foreman Wagenbreth to
detail some men to clean the Banburys, and had left word
that he wanted to see Drennon. Drennon called on Miller
later that morning. Miller asked him why the first shift
had not been doing their job on the Banburys. Drennon
ventured that he did not know which of the three shifts
was at fault. Miller insisted that it was the first shift, and
that Production Manager Ray had been checking the
Banbury area on that shift and could not find any janitors
there. When Drennon protested that that was impossible,
Miller continued, "Now we are paying out extra money
to get that Banbury cleaned. I want it clean." Drennon
testified that he probably took the matter up with Wagen-
breth who assured him that the situation had been
remedied.
The same day, due to risk of contamination, the
chemists closed down the Banburys for an hour and a half
while the skip hoist, bucket, and chute were scraped, and
the tailings removed from the gate. Subsequently,
Drennon checked the Banbury area routinely at 7 or 7:30
every morning, but found no evidence of any sustained ef-
fort to keep the Banburys clean.
On May 9, Drennon received another interoffice
memorandum, this time from Miller, still complaining of
the condition of the Banburys.25
At midnight, the same day, Drennon held another
meeting of the graveyard shift. Again, Drennon com-
plained that "someone was not doing their work in the
Banbury," implicating Perdue and Lowry, and said that
he had been receiving complaints. Expressing his displea
sure, he admonished the men not to be "standing around
We also feel that you should take some interest and make your own
.inspection at least once per week.
/s/JER
J E. RAY
cc: Mr. L. G Sheckler
ag
14 Under these circumstances, as well as those mentioned later, it is im-
possible to credit the general denials of these men that they ever received
complaints about their work.
21 The memo read
INTEROFFICE MEMORANDUM
To O. C DRENNON DEPT ABM DATE 5/9/66
In Reference To Banbury Clean-up
During the week of 5/2/66 to 5/6/66 the cleaning of the Banbury
machines has slipped badly-we were just getting by before-this last
week got us into trouble I expect you to straighten out your people
and get this job done and done right -I want to go over this matter
with you on Wed 5/1 1/66 to see what you have done
WL Miller Plant/Prot.
Signature Dist. or Dept.
AMERICAN BLDG. MAINTENANCE CO. 149
talking to Firestone personnel," an obvious reference to
Lowry, and told the men to work more and talk less.26
On May 11, the day scheduled by Miller in his memo
of May 9 for his meeting with Drennon, Miller handed
him another memo. Reiterating that cleaning of the Ban-
burys had "gone steadily down in the last 10 to 14 days,"
the memo stated that it was imperative that "immediate
corrective action be taken." Otherwise, Miller concluded,
Firestone would be required to spend "extra time and
money," in overtime and additional help to do the work
which should have been performed on the regular shift.
Miller also told Drennon that he, Miller, and Ray would
be checking very closely on the condition of the, Ban-
burys__
Drennon showed each of the written memos to
Foreman Williams, and complained that Lowry and Per-
due were not doing their work properly, that the Com-
pany was "in trouble," and would have to make a special
effort to correct the condition at the Banburys. Drennon
said that he had already spoken to the men, and had in-
structed them to notify Williams whenever the Banburys
were shut down so that they could clean them promptly.
Drennon also directed Williams to keep a record of the
time the machines were shut down and the time they were
turned on.
Williams testified, however, that Drennon did not show
him any of the written complaints he had received until
after the two men were discharged. When he did, accord-
ing to Williams, he was unable to read them because he
was not wearing his glasses, and Drennon snatched the
memos away before he had a chance to do so. Drennon,
however, testified that he showed each of the complaints
to Williams when they were received, and, although Wil-
liams was not wearing his glasses at the time, he removed
them from his pocket and read the complaints.
Subpenaed as a witness by the General Counsel, Wil-
liams, a working foreman and union member, manifested
a strongly partisan attitude in favor of these employees.
His attitude and demeanor was vacillating and equivocal,
and his testimony frequently self-contradictory. He
acknowledged that he showed Lowry the warning notice
Drennon had left for him on May 5, and that he read it to
him. It seems altogether unlikely, therefore, especially in
light of Firestone's complaints, which Williams admitted
Drennon had discussed with him, that Drennon would
have postponed showing Williams the interoffice memos
from Firestone until after the discharge of these em-
ployees, and, even then, preventing him from reading
them. Furthermore, at the behest of these employees,
Williams volunteered to give a pretrial affidavit (the con-
tents of which were not revealed at the hearing), to the
Board agent investigating the case.27
More significantly, in evaluating Williams' testimony,
it should be noted that he had aspired to the job of
Drennon's assistant, and was admittedly chagrined when
the job went to someone else. While the General Counsel
seeks to make a virtue of Williams' candid admission of
this fact, the virtue appears to be made of necessity. Due
consideration has been given to the argument that Wil-
liams, a minor supervisory employee, still in Respond-
ent's employ (as of the time of the hearing), would not be
likely to jeopardize his employment by testifying contrary
to the interest of the employer if he were not telling the
truth. Although the argument has some persuasive ap-
peal, it is no guarantee of trustworthiness of the witness'
testimony, particularly in the face of credible, counter-
vailing evidence. In short. Williams' testimony failed to
inspire credence.
The General Counsel's contention that Perdue and
Lowry were discharged because of their union or con-
certed activities must, therefore, be judged in light of all
the foregoing circumstances. Granting that the activities
in which these men engaged constituted protected con-
certed activity, irrespective of the soundness of their
position, this, in itself, would not ensure them against
discharge for just cause or legitimate reasons. It is, of
course, equally true that valid grounds for discharge will
not absolve the employer from the consequences of dis-
crimination if the discharge was actually motivated by a
purpose to discourage protected concerted activities, or
to interfere with the self-organizational rights of the em-
ployees, and the grounds are merely resorted to as a pre-
text for eliminating a militant union protagonist. And, if
an employee is discharged. in part, because of his union
or concerted activities, and, in part. because of his short-
comings or derelictions. the discharge is, nevertheless.
violative of the Act. Finally, if an employee is actually
discharged or otherwise disciplined for valid and legiti-
mate reasons, untainted by motives proscribed by the
Act, there is no violation merely because he was engaged
in protected concerted activities and "the employer sheds
no tears at his loss."28 Once again, then, we are con-
fronted with the ever perplexing question of what actually
motivated the employer in discharging the employees.
for, as Respondent properly argues. there is nothing in the
Act which interferes with the normal exercise of the right
of an employer to discharge an employee for cause, or, in-
deed, for no reason whatever, provided only that he is not
motivated by considerations proscribed by the Act.
In addition to Respondent's primary contention that
26 Carsbia Anderson, an ABM employee who worked in the tuber area
(a foreman on the graveyard shift at the time of the hearing), in the general
vicinity of Perdue and Lowry, also testified that he observed both men en-
gaging in idle conversation with Firestone employees On May 5, several
days before this graveyard shift meeting, after Miller had complained to
Drennon that Lowry had been talking to Firestone employees when he
should have been working, Drennon left a note for Lowry, through
Foreman Williams , in one of the drawers of Drennon's desk , in which in-
structions were left for foremen Referring to a posted notice, dated June
18, 1965, the note warned Lowry that he had been observed making con-
versation with a Firestone employee about "coming to work for them"
and other topics, and cautioned him that unless he desisted from such con-
duct, he would risk discharge the next time it happened. The note stated
that it merely constituted a warning, and that Lowry could see Drennon
about it if he desired. There is no evidence that Lowry took advantage of
this offer
27 Respondent moved to strike the witness' testimony on the ground
that the affidavit was taken in disregard of notice by Respondent's counsel
to the Regional Office that none of Respondent 's management representa-
tives were to be interviewed, except by prearrangement with its counsel
Since it is evident that Williams, at the request of these employees , volun-
teered to give an affidavit , and accompanied these men to Salinas to meet
with the Board agent for that purpose , it does not appear that there has
been any breach of ethics respecting any informal understanding that may
have been reached by the parties . In any event , whatever disagreement
may exist between Respondent's counsel and the Regional Office as to the
nature of their understanding , there is no basis for striking the testimony
on the stated ground Any complaint for alleged breach of ethics in this re-
gard is more properly one for administrative consideration . The motion
was, therefore, denied.
28 See, e .g., Electra Controls, inc., 161 NLRB 307, citing N L.R.B v
Park Edge Sheridan Meats, Inc., 341 F.2d 725, 728 (C.A. 2), and cases
cited.
308-926 0-70-11
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Perdue and Lowry were discharged for unsatisfactory
work of such an aggravated nature as to jeopardize its
contract with Firestone. Respondent advanced as
grounds for its dissatisfaction with these employees. par-
ticularly Lowry, their proclivity for engaging Firestone
employees in idle conversation during working time.
Also, in the case of Lowry, Respondent contends that his
presence created trouble almost from the date of his
original hire in April 1965. On his initial job, cutting
weeds, he was observed by Foreman Salvador Roseli
sitting down and smoking with three fellow employees
when he should have been working. Lowry was not
disciplined on this occasion but merely instructed with
the other men to resume their work. About a month later
Drennon was obliged to instruct Roseli to admonish
Lowry for "leaning on his broom" instead of working. On
another occasion, at some unspecified date, Assistant Su-
pervisor Ordaz observed Lowry leaning on a mop and
reprimanded him for it. Again, in April 1966, while em-
ployee Ellison Sory was performing janitorial work in the
cafeteria. Lowry interfered with his work by badgering
him about failing to attend a union meeting. Sory reported
the incident to Drennon, who reproached Lowry.
It will be recalled that the May 5 warning which
Drennon issued Lowry for engaging Firestone employees
in conversation, directed his attention to the company
rules of June 18, 1965, posted in the plant.29
Additionally, Respondent had promulgated rules earli-
er, which had been posted, at least, since March 1965.
The rules, accompanied by an explanatory letter setting
forth "Company Working Policies." consisted of 16
rules, introduced by the statement, "Violation of any of
the following Rules may result in discharge."30 Regarding
the complaint that Lowry engaged in unnecessary con-
versation with Firestone employees. Respondent ap-
parently relies on rule 10: Gambling, Soliciting or Selling
on Company Property or Time. The specific offense.
Respondent contends, was "Soliciting." There is, how-
ever. no evidence, apart from the incident involving em-
ployee Sory, that Lowry had engaged in soliciting in the
conventional sense while he talked to Firestone em-
ployees. Rather, the evidence indicates that Lowry was
given to recounting his experiences in the Armed Forces
and apparent efforts to obtain employment with
Firestone. The General Counsel contends, however, that
the May 5 notice to Lowry expressly stated that it was
only a warning, and there is no showing that Lowry per-
sisted in this conduct. Since, the argument continues,
Drennon decided to terminate Perdue and Lowry the fol-
lowing day, May 6. Lowry's idle talk to Firestone em-
'" The rule in question reads
18 June 1965
It has been observed that too much conversation is being carried on
between A B M. employees and Firestone employees This practice
will STOP Anyone caught violating this warning will be terminated
on the spot. [Emphasis supplied ]
40 The letter, which together with the rules was posted on company bul-
letin boards, read, in part
4. Violation of anyone of these rules will call for some form of
disciplinary action against the offending employee In some cases the
resulting action may be either verbal or written warning In more seri-
ous cases, violation may result in termination.
ployees could scarcely have been a factor in his
discharge. The point may be well taken. However, since
it is obvious that Respondent has relied primarily as
grounds for discharge upon the unsatisfactory work per-
formance of these employees, this argument avails him
nothing. Nor, does the contention that other employees
who engaged in conversation, unrelated to their work.
with Firestone employees and were reported by their
foreman to Drennon were not disciplined.
As to their derelictions in regard to the Banburys, the
General Counsel denies that Perdue and Lowry were
responsible for the accumulation of tailings during the day
when the machines were in operation for entire shift. Ac-
cording to Department Manager Ray, however, tailings
and other residue can be removed from the rings and gate
even while the machines are in operation. Although the
final Banburys are generally operated from 2-1/2 to 3
hours on the graveyard shift, according to Drennon. Per-
due and Lowry had at least 4 hours in which to clean the
bearings, skip hoist, bucket, and pit. Obviously, operation
of the Banburys did not interfere with cleaning the sur-
rounding floor area. Moreover, according to Hollis No-
land, a witness for the General Counsel, two men could
clean two Banburys in an 8-hour shift if the Banburys are
not in operation. It would. therefore, appear that Perdue
and Lowry could have cleaned the Banburys during their
8-hour shift when the machines were not operating. Ac-
cording to Ray, the skip hoist could be cleaned in about
a half hour; the pit in 15 or 20 minutes. depending on the
length of time the Banburys had been in operation. To
make the pit "spotless" would require at least 8 hours,
but Firestone did not require or expect the pit to be kept
in immaculate condition while the Banburys were
running.
The General Counsel, however, contends that under
normal operation tailings accumulated on the gate in 20
minutes. Furthermore, he alludes to Foreman Wagen-
breth's testimony that Ray and Drennon complained
about accumulation of tailings on the gate with regard to
all shifts. According to Clark. a janitor on the day shift
and a witness for Respondent, although the Banburys
were generally in "pretty fair condition" when he came
on his shift following Perdue and Lowry. on at least 3 or
4 mornings in April and May the Banburys were not
clean. The General Counsel argues, however, that Per-
due and Lowry were not alone at fault in failing to keep
the Banburys clean and free from clogging.
The General Counsel also attempts to capitalize on the
fact that, despite Drennon's concern over Ray's
5. Since there is no mechanical formula for establishing disciplinary
action, the following four important factors will be considered -
a) Seriousness of the offense;
b) Employee's past record,
c) Circumstances surrounding this particular case,
d) Company past practive [sic] in similar cases
6 .. Discharge will be resorted to only in two situations
a) Where the violation is a major offense of such a serious na-
ture as to make any other form of discipline inadvisable For ex-
ample
b) Repeated minor violations of rules despite proper warnings.
AMERICAN BLDG. MAINTENANCE CO.
memorandum of May 3, which presumably prompted
Drennon's decision to discharge the two men, in his
"warning" note to Lowry on May 5. reproving him for
talking to Firestone employees. Drennon makes no men-
tion of Firestone's dissatisfaction with the cleaning of the
Banburys serious enough to have mentioned it in his note
to Lowry, but testified that he failed to do so because
things were happening so fast and, moreover, because he
did not want to confuse Lowry by putting "too much in-
formation" in the note. While this explanation is not too
convincing, this evidence is not sufficient to diminish the
weight of Drennon's overall testimony. It may be noted
that Drennon testified that in his daily instruction sheet
to Foreman Williams on May 4, he directed that "more
emphasis [be] put on the rings, tailings." and that he
wanted more work done on the Banburys. although he did
not include this in his written instructions.
The General Counsel also contends that since
Drennon decided to terminate Perdue and Lowry on May
6, evidence of unsatisfactory work during the following
week is entitled to no weight. The point is not well taken.
The men were unaware of Drennon's decision at that
time and the evidence of their continuing unsatisfactory
work reinforced Drennon's earlier decision.
It will, moreover, be recalled that Miller's two interof-
fice memorandums to Drennon, dated May 9 and 1 I ,
were prompted by his own inspection of the Banburys, as
well as reports he had received from Ray. In the May 11
memorandum. Miller laid the fault for the improper main-
tenance of the machines to the graveyard shift. The fact,
as the General Counsel contends, that Drennon failed to
mention to Miller, when he conferred with him on those
dates about the condition of the Banburys, that he had al-
ready decided to discharge Perdue and Lowry (despite
the fact that Miller had purportedly threatened to cancel
the janitorial contract with Respondent), is not of suffi-
cient significance to establish that Drennon did not regard
Perdue and Lowry responsible for the unsatisfactory
maintenance of the Banburys.
The testimony of James F. Woods, a millwright and
witness for the General Counsel, formerly employed by
a construction company which serviced the Banburys.
has not been overlooked. His job entailed repairing and
lubricating the machines, and he testified that. on occa-
sions when he worked with Perdue and Lowry, they were
always cleaning the machines. According to him, the only
time he observed these men leaving the machines was
during recess and lunch periods. Assuming. as the
General Counsel contends, that Woods was a wholly im-
partial witness, the record fails to establish the frequency
with which Woods was present while Perdue and Lowry
were cleaning the machines or the length of time he had
an opportunity to observe them. This evidence is. there-
fore, wholly insufficient to overcome the more positive
evidence regarding the dereliction of these employees.
The contention that the failure to issue these em-
ployees a written warning was contrary to Respondent's
normal personnel practice is not persuasive. Despite
evidence of two instances of written warnings to em-
ployees, one on April 4 and another on April 7. it is
evident that the company rules, which have already been
31 See footnote 26.
32 The interoffice memorandum, dated June 15, addressed to Drennon,
on the subject matter of Banbury machines 27, 112, and 113 reads as fol-
lows.
151
mentioned, contained no such requirement. Moreover, as
has already been pointed out, the notice accompanying
the rules clearly states that disciplinary action for viola-
tion of the rules could be by oral or written warning, and
ultimately result in termination. The record further
establishes that Respondent has terminated other em-
ployees, notably Dudley Bynoe, on whose behalf Perdue
had tried to intercede, on April 27, and at least two other
employees. one late in January and the other early in
April, without prior written warning.
Moreover, as Drennon testified, complaints from Fire-
stone were being received so frequently that he scarcely
had time to issue Perdue and Lowry written warn-
ings, although it is clear he had given them several
oral warnings about the condition of the Banburys. The
warning with regard to his talking to Firestone employees
has already been mentioned.31
The General Counsel also contends that the problem
of maintaining the Banburys free from accumulations of
residue and tailings was attributable, at least in part, to in-
creased production in April, when the Banburys were in
almost constant operation. Department Manager Ray ad-
mitted, on cross-examination, that " . . . problems began
when we started operating more consistently on the first
shift." Since, however, cleaning of the Banburys was
possible even while machines were in operation, this
would not be sufficient to relieve Perdue and Lowry of
the responsibility for keeping the machines free of accu-
mulations of rubber residue and tailings. Moreover, since
the machines were shut down for about 4 hours during the
graveyard shift, Perdue and Lowry should have had suffi-
cient opportunity to clean the machines and the appur-
tenances. as well as the pit. in this interval. It should also
be noted that on about May 3. after Ray had complained
about the condition of the Banburys. Plant Protection
Chief Miller found it necessary to instruct Foreman
Wagenbreth to detail some men to correct the condition.
It is also significant that since the discharge of Perdue
and Lowry. the janitorial work on the machines improved
considerably, -had "never been better," prompting a
memorandum of commendation from Miller to
Drennon.32 The General Counsel attempts to dismiss
this by referring to the pretrial affidavit given by Miller to
a Board agent 3 weeks later. In this affidavit, given on
July 5 (not offered in evidence), Miller is quoted as saying
that there had been "periodic complaints" about the
cleaning of the Banburys, though he could not fix the date
or time of the complaints, or pinpoint the shift about
which the complaints were made. Since it does not appear
whether, at the time he gave this affidavit, Miller had ac-
cess to his records, this apparent discrepancy is not suffi-
cient to overcome the weight of his otherwise credible
testimony, including the memorandums introduced in
evidence.
Finally, in an effort to establish the pretextuous nature
of the discharges, the General Counsel relies on the al-
leged disparate treatment of these employees in contrast
to the treatment allegedly accorded employee Herrera.
This relates to an apparent drinking problem Drennon
had experienced with Herrera, which had been resolved
satisfactorily. Herrera remained in Respondent's employ
It has been noticed by the department supervision and the chemist
that the Banbury cleaning has shown a marked improvement , mostly
on the 1st shift . We are having less product contamination on all
shifts Please pass on a pat on the back to your people and keep up the
improvement on thejob
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until sometime in June, when he was discharged because
of garnishment of his wages. Neither this incident, nor the
fact that Perdue and Lowry were not issued warning
notices, as had been done in a few isolated cases, despite
the fact that Respondent maintained a printed form for
this purpose, is sufficient to establish any disparity of
treatment.
It may be oberved that the record suggests an un-
dercurrent of personal antagonism and resentment by
Perdue and Lowry toward Drennon. and that Drennon
reciprocated these feelings. Undoubtedly. Drennon did
not take kindly to Perdue's officious attitude almost from
the inception of his employment, and his militant, if not.
defiant and belligerent attitude afterward, especially since
his designation as union steward. Thus, Perdue's "offer"
to Drennon of the benefit of his alleged previous super-
visory experience, when, according to Perdue, he had
charge of some 1,500 men. Drennon's reaction to this is
manifested in his letter of May 23, purporting to give his
reasons for Perdue's termination.33 This could also ex-
plain the Union's apparent unwillingness to process Per-
due's grievance.
As to Lowry, his encounter with Drennon while in the
armed services provided ample basis for mutual an-
tagonism. Drennon's denial that any of these factors
played a part in his decision to discharge these men, does
not do him credit. It is not improbable that subcon-
sciously, or otherwise, these considerations influenced
his decision. His reluctance to admit this may be un-
derstandably human, and considering the frailties of
human behavior, this is not sufficient to affect his overall
credibility. Granted, however, that Drennon was, in fact,
motivated, in whole or in part, by the mutual antagonism
which may have existed between him and these men, this
motivation would negate the conclusion that he
discharged these men because of their protected con-
certed activities.
As final proof of Respondent's discriminatory motiva-
tion. the General Counsel relies on the testimony of Wil-
liams, the working foreman, that on three different occa-
sions, within a period of some 10 days. Drennon charac-
terized Perdue and Lowry as "troublemakers." The first
of these occasions, according to Williams. occurred soon
after the shift meeting during which Perdue and Lowry
broached the matter of work gloves and protective
clothing, as well as the union bulletin board. The second,
several days later, when the remark was allegedly re-
peated; and, the last in a conversation shortly after their
discharge, when Drennon allegedly told Williams that he
had rid himself of "those two troublemakers." These re-
marks, the General Counsel contends. occurring, as they
did. soon after the men had engaged in protected con-
certed activities, lead irresistibly to the conclusion that
Drennon was motivated by a purpose to discourage em-
ployees from engaging in protected concerted activities.
if not from maintaining their membership in a labor or-
ganization. Alternatively, the General Counsel contends
that, even if the record does not establish that the
discharges were motivated by union or concerted activi-
ties of the two employees. Respondent's action in
discharging these men was violative of Section 8(a)(1) of
the Act because the discharges were provoked by the em-
ployees' concerted activities. and, thus, interfered with.
restrained, or coerced employees in the exercise of rights
guaranteed in Section 7. Such a conclusion, however.
presupposes a finding that the discharges were imposed
in retaliation for the concerted activities in which the em-
ployees were engaging. Moreover, it requires a finding
that Drennon actually made the statements to which Wil-
liams testified.
The General Counsel has apparently disregarded, or
overlooked, Drennon's testimony that on May 5, the day
after he showed Perdue and Lowry Ray's written com-
plaint about the condition of the Banburys, Drennon told
Williams that the two men were getting Respondent into
trouble with Firestone because they were not doing their
work. This was the occasion on which Williams asked
Drennon to talk to the two men, and Drennon replied that
he had already done so, and had shown them Ray's writ-
ten complaint. Also, in Miller's memorandum of May 1
to Drennon, as well as in their conversation regarding this
complaint. Miller stated that "this last week got us into
trouble." Drennon admitted, therefore, telling Williams
that Perdue and Lowry had been causing trouble.
Moreover, there is undisputed testimony that on April
27, and before the first meeting of the graveyard shift,
Respondent's Division Manager LaBarbera telephoned
Secretary-Treasurer Gutierrez of the Union. During this
conversation. LaBarbera told Gutierrez that the Com-
pany was having trouble with Perdue and Lowry whose
work performance was unsatisfactory, and that he might
be obliged to take corrective action. Gutierrez asked
LaBarbera to "do the right thing." -give them a proper
warning, and to try to straighten them out. LaBarbera
replied that this had already been done but that the men
were not doing a good job.
Against this background, it is altogether plausible to as-
sume that Drennon had expressed his concern to Wil-
liams that the two men were causing trouble for the Com-
pany. It did not require any great stretch of the imagina-
tion for Williams to transmute Drennon's remarks into
the term "troublemaker." Significantly, Williams testified
that Drennon did not elaborate on this remark, and Wil-
liams himself did not pursue the matter.
It is also noted, that at a meeting on May 10, 3 days be-
fore the discharges, LaBarbera told the union representa-
tive of the Respondent's trouble at Firestone. to which he
had referred in his earlier phone call, and particularly sin-
gled out for mention Bynoe, who had already been ter-
minated, and Perdue and Lowry. LaBarbera testified.
without contradiction, that he told Gutierrez that "the
customer was getting real unhappy and putting the pres-
sure on Mr. Drennon." and that something would have to
be done. When Gutierrez asked why the men could not be
transferred to other jobs, LaBarbera told him that he had
no other place for them, adding that there was no point in
transferring a man who is not performing his job properly.
When all this has been said, it must still be borne in
mind that the burden is upon the General Counsel to
establish by a preponderance of the credible evidence
that, in discharging these employees. Respondent was
prompted by considerations proscribed by the Act rather
than by valid and legitimate reasons. Correlatively, there
is no duty on the part of Respondent to prove that the em-
ployees were discharged for unsatisfactory work, or other
just cause , although it must be said that Respondent has
gone a long way in substantiating the legitimacy of its
position.
It is noteworthy that at the meeting between Respond-
ent and the union representatives on May 10, although
33 See footnote 21
AMERICAN BLDG . MAINTENANCE CO. 153
Gutierrez admitted in response to a statement by LaBar-
bera that , under its contract with the Union , Respondent
was not required to furnish gloves, boots. coveralls, or
other protective clothing to its employees at the Firestone
plant. LaBarbera said that on Drennon 's recommenda-
tion Respondent had agreed to supply gloves and boots
to the men working on the Banburys , adding that
Drennon had already furnished them with gloves on May
8.
In addition , at the same meeting, when the Union
requested premium pay for the men working in the Ban-
bury pit, while again pointing out that this was not pro-
vided for in the contract , LaBarbera told Gutierrez that
Drennon had raised the question during the past summer,
and that , despite the fact that it was under no obligation
to do so , Respondent had decided to grant - these men a
10-cent-an-hour premium , effective July 1. albeit
Respondent could not expect reimbursement for these
additional wages from Firestone . On July 1, Respondent
fulfilled its promise. To suggest that Respondent made
these concessions as a means of alienating its employees
from their bargaining agent or as a means of discouraging
or dissuading employees from engaging in concerted ac-
tivities would be the height of cynicism.
Viewed against the amicable collective -bargaining rela-
tions between Respondent and the Union ; the existence
of a bona fide collective-bargaining agreement ; Respond-
ent's willingness to provide the Banbury employees with
working gloves, despite the questionable provisions in the
contract; Respondent's concession in issuing some type
of work gloves on May 8, and its agreement at a meeting
between LaBarbera and Gutierrez on May 10 to furnish
gloves and boots to the men working on the Banburys; its
voluntary grant at the same meeting of a 10-cent -an-hour
premium. effective July 1, to the Banbury workers, for
which it could not claim reimbursement from Firestone,
and despite the fact that it could have insisted upon its
rights under the union contract ; and finally , in light of the
absence of any union animus or hostility toward the
Union, a conclusion that Respondent discharged Perdue
and Lowry because of their protected concerted activities
rather than because of their unsatisfactory work per-
formance is unwarranted by this record.34
On the basis of the foregoing , and upon the entire
record, it is hereby found that the General Counsel has
not sustained his burden of proof in establishing that Per-
due or Lowry were discharged because of their protected
concerted activities , or that, by discharging these men, or
by any of the other conduct in which it engaged, Re-
spondent has interfered with , restrained , or coerced
employees in the exercise of rights guaranteed in Section
7 of the Act.
Accordingly , it will be recommended that the com-
plaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent , American Building Maintenance
Company of California is, and at all times mentioned
herein has been, an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(2) and 2(6) of the Act.
2. Building Service Employees Union, Local 77,
AFL-CIO,, is, and at all times mentioned herein has
been , a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) or (3) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
it is hereby recommended that the complaint in this
matter be dismissed in its entirety.
34 Although, as has been noted , the collective-bargaining agreement
provided a grievance procedure , no finding is based upon the failure of the
discharged employees to exhaust their remedies in the grievance
procedure . It is not wholly clear whether formal grievances were ever
filed by these employees with the Union , although Perdue 's letter to
Gutierrez of May 29 seems to suggest that Perdue , at least, initiated this
procedure It might be inferred from the fact that the charge in this
proceeding was filed by Perdue, as an individual, on behalf of himself and
Lowry, that the Union apparently declined to do so . Again, as in the case
of Drennon , there is an undercurrent of hostility between Perdue, and
possibly Lowry , toward Gutierrez, who may have felt his own position
with the Union imperiled by Perdue's aggressive conduct. This may ac-
count for the Union 's failure to prosecute the grievances or file a charge in
this proceeding The abrasive tone of Perdue 's letter to Gutierrez , quoted
earlier , was scarcely calculated to enlist the Union 's support In any
event, none of these factors has been relied on in arriving at the conclu-
sions in this matter