Standard-Coosa-Thatcher

National Labor Relations Board - Board Decisions

Jun 26, 1967

165 N.L.R.B. 1019 (N.L.R.B. 1967)

BOAZ SPINNING CO.
Boaz Spinning Co., Sub. of Standard-Coosa-
Thatcher and Textile Workers Union of
America, AFL-CIO, CLC. Case 10-CA-6612.
June 26, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On January 17, 1967, Trial Examiner Eugene F.
Frey issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed, as set forth in the attached Trial
Examiner's Decision. Thereafter the General
Counsel filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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, the briefs, and
the entire record in the case, and finds merit in the
exceptions. Accordingly, the Board adopts the
findings of the Trial Examiner only to the extent that
they are consistent with the summary and analysis of
the case set forth below.
The undisputed facts are as follows: Employee
R. C. Alexander was known to Respondent as an
active union supporter. On three or four occasions
within the month prior to his discharge on July 13,
1966, he had openly distributed union literature at
Respondent's plant gates. In addition he had signed
a union authorization card, and had solicited other
employees to sign cards.
On the morning of July 13, 1966, Plant Manager
Albert Pride brought together the entire day shift of
approximately 40 employees to listen to a speech on
the subject of the Union. Alexander asked Pride if
the meeting would be an open one. Pride responded
that it would not, that he intended to speak without
interruption, and that he would permit questions
from the floor only when he had completed the
speech. Thereupon Alexander sat down, and Pride
delivered his talk. Pride's speech consisted
primarily of answers to questions which had been
asked by the Union in several letters to Respondent.
He stated, in some detail, the disadvantages of
I A further indication of Respondent's feelings on the subject of
organization of its plant was Pride's comment, 2 weeks prior to
the speech, when he distributed salary checks to individual
employees He told employees, Alexander among them, "I want
1019
membership in the Union and the possible adverse
economic consequences of unionizing Respondent's
plant. Although the speech is not alleged to be
coercive, it does reflect Respondent's desire not to
have a union, and its efforts to persuade its
employees to this end.'
After finishing his speech, Pride asked if any
workers had questions. Alexander stood up and said
that he had a few questions, but that "first of all, I
want you to know that I am 100% for the Union, I am
one of the main men on the union committee. Now
you have told us what the Union cannot do for us, I
want to tell you what the Union can do." Pride told
Alexander to sit down, saying "I told you I would
answer your questions, but you cannot have the
floor.... [Y]ou did not invite me to your meeting,
now I am having mine and you are not invited to
make a talk here. You are still an employee of Boaz
Spinning Company, please sit down over there until
I finish." Alexander sat down for a second, then
stood up again and, pointing his finger at Pride, said
loudly "I want you to know you are no different from
Castro; Castro told the people in his country if they
did not like the way he was running it, to pack up
and leave, and you tell people at Boaz Spinning
Company if they do not like the way you are running
this plant to punch out and go home." Pride at once
told Alexander that he was fired for insubordination
and directed Foreman Maroney to clock him out.
After Alexander left, Pride said to the remaining
employees, "Now that we have got rid of the
hothead, maybe we can go on with our meeting."
After one employee had asked a question and
received an answer, the meeting was adjourned.
The Trial Examiner found that Pride did not
discharge Alexander for discriminatory reasons or
because of the latter's spontaneous remarks about
his union sympathy and activity and his attempt to
begin a prounion speech. According to the Trial
Examiner:
... but for the remark about Castro, [Pride]
would not have discharged Alexander, and ...
the reason for the discharge was Alexander's
disparagement of him by placing him publicly in
the same category as that Communist leader.
... Hence, the only issue is whether
Alexander's public classification of Pride as
tantamount to a Communist was, in its context,
so opprobrious as to place it outside the
protection of Section 7 of the Act, and was in
fact the motive for the discharge.
Further, according to the Trial Examiner:
... a remark publicly placing an American
employer in the same category as an active
Communist is practically the same as charging
you to know that this is the company that is giving you this and not
the damn union." Pride also said to several employees on this
occasion, "You don't have to belong to a union to receive this
check "
165 NLRB No. 103
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him with un-American activity or being a
Communist (if not actual traitorous conduct)
and subjects him to public hatred, odium, and
contempt, to his immediate harm in his
business or profession, and will support an
action for civil or criminal slander or both. In
addition, such vilification of the Employer, if
allowed to go unchallenged or unpunished,
would certainly tend to degrade him in the eyes
of his employees and weaken his clear right and
ability to manage his business by enforcing
proper plant discipline and maintaining the
loyalty of his employees, which would tend to
disrupt harmonious labor relations between
employer and employees, or among employees
themselves.
The Trial Examiner concluded that the Castro
remark "was a form of flagrant insubordination and
disloyalty which takes it clearly outside the
protection of the Act, and warranted the immediate
discharge of Alexander...."
We believe that the Trial Examiner attributed
rather more to the Castro remark than Alexander
intended or could reasonably have been understood
by Pride and Alexander's fellow employees.
Alexander did not accuse Pride of being a
Communist; the word was not even mentioned in his
comparison of Pride with Castro. Alexander's
remark did not have a life of its own. Its meaning can
only be gathered by examining the events to which it
was a response. Alexander was listening to a lawful
speech which was nevertheless clearly antiunion in
tone. At some point, after Pride had invited
questions, Alexander seemingly decided that he
would defend the Union from his Employer's
criticism. Thus when Alexander rose to address
Pride he was rendering assistance to the Union
within the meaning of Section 7 of the Act.
Alexander's comment when Pride ordered him to sit
down had nothing to do with Pride's general political
convictions, but portrayed Pride as an industrial
dictator who, while seeming to be willing to submit
to questioning, was in fact unwilling to hear both
sides of a question. Viewed in this light, what
Alexander said is no more offensive than the variety
of charges or uncomplimentary remarks uttered by
ardent union supporters in the course of organizing
campaigns , bargaining sessions , or grievance
2 Illustrative of the Board 's approach in this area are Bettcher
Manufacturing Corporation, 76 NLRB 526, and Socony Mobile
Oil Company, Inc, 153 NLRB 1244, enforced as modified 357
F 2d 662 (C.A 2). For example, in Bettcher Manufacturing
Corporation, 76 NLRB 526, the Board found a violation of the Act
where the employer discharged an employee for remarking to its
president during a bargaining conference that the company's
books could be "juggled" or "manipulated " Interpreting this
comment as tantamount to calling the president of the company a
"crook and a liar," the employer discharged the offending
employee The Board ordered the employee's reinstatement,
noting that his remark , however unfortunate , "was not so extreme
as to furnish justification for his discharge." What the Board said
meetings , which the Board has held could not be
punished by discharge.'
In the instant case Alexander's remark to Pride,
though "frank and not ... complimentary," did not
occur in isolation and without provocation. It came
at the climax of a union organizing campaign when
feeling may be expected to run high, and the
exchange between union supporter and employer at
the latter's own meeting, after the employer had
opened it to questioning from the employees, cannot
be held to the standards of cool, analytical
impartiality characteristic of the debating society.
Recently the Board decided a case quite similar
on its facts to the present one. In Leece-Neville
Company,3 the Board found that an employee was
discharged unlawfully when the company
terminated him for insubordination because he
spoke out against the plant manager after the latter
had delivered an antiunion speech to a group of
employees. The resemblance between the situation
in Leece-Neville and that herein is apparent from a
reading of the following excerpt from the Board's
decision in that case.
When [Plant Manager] Hyslop finished his
speech, [employee] Poole ... approaching the
desk from which Hyslop spoke, [and] ...
shaking his finger in the [latter's] direction ...
stated:
First of all I would like to say that I am
100% for [the Union]. Its coming in and
don't you doubt that, if everybody else falls
out of it, its coming in if I have to bring it in
by myself.
Then dropping and hitting his hand against the
desk [from which Hyslop spoke] Poole added:
If you will stick to what you said it will be
O.K.
Don't make any threats.
The protection extended to employee Poole in
Leece-Neville should not, in the context of this case,
be denied to employee Alexander, who was
characterized by Pride himself as a "hothead,"
simply because Alexander in a moment of emotional
stress used an unfortunate figure of speech.
Respondent, of course, had a right to address its
employees concerning unionism and to advise them
of its opposition to their rights to organize. Having
done so, however, and then having opened the
there with respect to the atmosphere of give and take which must
attend free collective bargaining is applicable with equal force to
the organizing situation.
A frank, and not always complimentary , exchange of views
must be expected and permitted the negotiators if collective
bargaining is to be natural rather than stilted The negotiators
must be free not only to put forth demands and
counterdemands , but also to debate and challenge the
statements of one another without censorship , even if, in the
course of debate, the veracity of one of the participants
occasionally is brought into question
3 159 NLRB 293
BOAZ SPINNING CO.
meeting to employee questions, Respondent
unreasonably interfered with Alexander's Section 7
rights by ordering him to refrain from expressing his
prounion views, and then discharging him because
he expressed his resentment at Respondent's order.
In view of the foregoing, we find, contrary to the
Trial Examiner, that Respondent violated Section
8(a)(1) of the Act by discharging R. C. Alexander for
his allegedly insubordinate remark to Plant Manager
Pride on July 13, 1966.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in
commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. Textile Workers Union of America , AFL-CIO,
CLC, is a labor organization within the meaning of
Section 2 (5) of the Act.
3. By terminating the employment of R. C.
Alexander on July 13, 1966 , for engaging in
protected union activity , Respondent interfered
with , restrained, and coerced employees in the
exercise of the rights guaranteed them in Section 7
of the Act, in violation of Section 8(a)(1).
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the
meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and take certain
affirmative action in order to effectuate the policies
of the Act.
Having found that the discharge of R. C.
Alexander was unlawful, we shall order Respondent
to offer Alexander full and immediate reinstatement
to his former or substantially equivalent position
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of
earnings suffered by him because of the unlawful
discharge, by payment to him of a sum of money
equal to the amount he would have earned from the
date of his discharge to the date of Respondent's
offer of reinstatement, less his net earnings during
said period. Backpay shall be computed on a
quarterly basis in the manner prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289,
with interest at the rate of 6 percent per annum
computed quarterly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Boaz Spinning Co., a subsidiary of Standard-Coosa-
Thatcher, Boaz, Alabama, its officers, agents,
1021
successors, and assigns, shall take the action set
forth below:
1. Cease and desist from interfering with,
restraining, and coercing employees in the exercise
of the rights guaranteed them in Section 7 of the Act
by discharging them for engaging in protected
activities.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer to R. C. Alexander immediate, full, and
unconditional reinstatement to his former or
substantially equivalent position, without prejudice
to his seniority or other rights, privileges, or working
conditions, and make him whole for any loss of
earnings he may have suffered, in the manner set
forth in the section of this Decision and Order
entitled "The Remedy."
(b) Notify R. C. Alexander 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.
(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 place of business at Boaz, Alabama,
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the
Regional Director for Region 10, 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
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 10, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT interfere with , restrain, or
coerce employees in the exercise of the rights
guaranteed them in Section 7 of the Act, by
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharging them for engaging in protected
activities.
WE WILL offer R. C. Alexander immediate,
full, and unconditional reinstatement to his
former or substantially equivalent position,
without prejudice to his seniority or other rights
and privileges, and make him whole for any loss
of earnings he may have suffered as a result of
his unlawful discharge.
BOAZ SPINNING CO., A
SUBSIDIARY OF
STANDARD-COOSA-
THATCHER
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify any of the above-named
employees if presently serving in the Armed Forces
of the United States of their 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.
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.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 528 Peachtree-Seventh Building, 50 Seventh
Street, N.E., Atlanta, Georgia 30323, Telephone
526-5741.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner : The issue in this case
is whether Respondent , Boaz Spinning Co., a subsidiary of
Standard-Coosa-Thatcher, discharged employee R. C.
Alexander for cause , or because of his membership in and
activities for the above-named Union in violation of
Section 8(a)(3) and (1) of the National Labor Relations Act,
as amended , 29 U.S.C. Sec. 151, et seq . (herein called the
Act). The issue arises on a complaint issued August 18,
1966, by the General Counsel of the Board through the
Board's Regional Director for Region 10,1 and answer of
Respondent which admitted jurisdiction but denied the
commission of any unfair labor practices . A hearing on the
issue was held before me, with all parties participating
through counsel or other representative , on October 18,
1966, at Albertville , Alabama. Respondent ' s motion to
dismiss the complaint on the merits at a close of the
testimony , on which the Trial Examiner reserved decision,
is disposed of by the findings of fact and conclusions of law
set forth below. All parties waived oral argument, but
General Counsel and Respondent have filed written briefs
which the Trial Examiner has considered carefully.
On the entire record in the case , and from my
observation of the witnesses and their demeanor on the
stand , I make the following:
FINDINGS OF FACT
1. RESPONDENT ' S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
Respondent is an Alabama corporation with an office
and place of business or plant located at Boaz, Alabama,
where it makes and sells textile products . In the year
preceding issuance of the complaint, Respondent had a
direct outflow of products valued in excess of $50,000 to
customers located outside the State of Alabama. I find that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
The above-named Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Union began an organizing campaign at
Respondent' s plant early in April 1966. On June 7, 1966,
the Union filed a petition with the Board for an election in
Case 10-RC-6734, in which a consent election was held
July 28, 1966, which the Union lost. Employee R. C.
Alexander was active in the drive from the outset , signing
a union authorization card , soliciting other workers to sign
cards, and distributing union literature openly at the plant
gates three or four times within a month before his
discharge in July. On June 30 , when Plant Manager Albert
Pride brought vacation checks to employees together with
their regular paychecks, he told individual employees,
including Alexander, that the vacation pay was 4 percent
higher than in the past , and as he handed each his check
said "I want you to know that this is the company that is
giving you this and not the damn union" and also told
several that "you don ' t have to belong to a union to receive
this check." He also told some of other increased financial
benefits they had received in the short time Respondent
had owned the plant.2
On the morning of July 13, 1966, Pride assembled the
whole day shift of about 40 workers in the plant warehouse
for a speech . Before he began to speak , Alexander asked
him from the floor if it would be an open meeting. Pride
replied that it would not , that employees could not make
speeches, but that after Pride had made his speech, he
would try to answer any employees ' questions. Alexander
thanked him, and sat down , without any comment or
objection . Pride then referred to some letters Respondent
had received from the Union , and gave his answer in a
prepared speech , in which he detailed some disadvantages
of union membership and some possible unpleasant
economic consequences of unionization of the plant.
General Counsel does not claim that any of his remarks in
the formal speech violated the Act, but it is clear from
their nature and the prior remarks of Pride on June 30 that
Respondent did not desire a union in the plant and was on
both occasions trying to persuade the employees by
legitimate means to vote against the Union in the coming
election.
' The complaint issued after investigation by the Board of a
charge filed by the above Union on July 14, 1966.
1 Standard - Coosa -Thatcher bought the plant in November
1965
BOAZ SPINNING CO.
After finishing his speech , Pride asked if any workers
had questions . Alexander , who was then sitting near the
front of the room , stood up, walked up in front of Pride and
said he had a few questions , but that "first of all, I want
you to know that I am 100 % for the Union , I am one of the
main men on the union committee . Now you have told us
what the Union cannot do for us, I want to tell you what the
Union can do." Pride told Alexander to sit down , saying "I
told you I would answer your questions, but you cannot
have the floor ," that "you did not invite me to your
meeting , now I am having mine and you are not invited to
make a talk here . You are still an employee of Boaz
Spinning Company, please sit down over there until I
finish ," Alexander sat down for a second , then stood up
again and, pointing his finger at Pride, said loudly "I want
you to know you are no different from Castro ; Castro told
the people in his country if they did not like the way he was
running it, to pack up and leave, and you tell people at
Boaz Spinning Company if they do not like the way you are
running this plant to punch out and go home." Pride at
once replied "R. C., that is insubordination , you are
fired ," and told Foreman Herbert Maroney to take him out
of the room and clock him out of the plant and have his
final time made out . As he walked out with Maroney,
Alexander said "Yes, I will go, but I want to tell you I am
not the only one here who feels that way about it, there are
many others who feel the same way." Maroney then
punched Alexander out and gave him his final pay. After
Maroney had taken him out , Pride commented to the
workers "Now that we have got rid of the hothead, maybe
we can go on with our meeting ." He then asked the
workers "Now would any of you folks like to ask me any
questions pertaining to what I have just said?" A
machinist asked what would happen if the workers signed
cards and voted "NO" in the election , to which Pride
replied , "Nothing-That card has no bearing on the
election whatsoever . If an election is held it will be a secret
ballot , no one will know how you voted." No other
questions being asked , the meeting then ended.3
General Counsel bases his claim of discriminatory
discharge on (1) Respondent ' s union animus, (2) its
knowledge of Alexander 's open union activity some time
before discharge and leadership in that activity as
disclosed by Alexander immediately before discharge,
(3) his bold espousal of the union cause in opposing the
antiunion views expressed by Pride in his speech, and
(4) the contention that Alexander 's comparison of Pride to
the Communist Castro was used by Pride merely as a
pretext for the discharge.
Pride's remarks on June 30 and July 13 show that
Respondent was antiunion , but this is not cogent evidence
of discriminatory intent toward Alexander , for it is not a
violation of the Act for an employer to oppose unionization
of his plant and to express antiunion views to his
employees , provided he does so by noncoercive and
legitimate means as protected by Section 8(c) of the Act;
there is no contention or proof here that Pride 's remarks
on either occasion violated the Act in any respect, nor is
there proof of any unfair labor practices which might
support an inference that the union animus was so strong
3 The above findings are based on credited testimony of
Alexander and other witnesses of General Counsel , Albert Pride,
Hazel Samples , and documentary evidence, all of which is
mutually corroborative in the main Testimony of any of these
witnesses in conflict therewith is not credited
* The Board held in Leece -Neville Company, 159 NLRB 293,
1023
that Respondent was likely to translate it into
discriminatory conduct such as discharges or attempts to
evade any bargaining obligations if the Union won an
election . At most , Respondent's antiunion sentiment
requires close examination of the circumstances of the
discharge mainly to determine whether it was motivated
by the insubordination claimed by Respondent, or in
substantial part by discriminatory motives. I also find from
Alexander ' s open union activity at the gates and his
announcement of his position as a union leader shortly
before discharge , that Respondent knew of his activity at
the time of the discharge . However, this knowledge is not
alone enough to establish discriminatory motivation. The
Great Atlantic & Pacific Tea Company , 129 NLRB 757,
759.
However , I cannot agree that Alexander was discharged
for his bold espousal of the union cause. The sequence of
events after he entered the meeting room makes it clear
that he was advised at the outset that employees would not
be allowed to make speeches , but could only ask questions
after Pride finished his talk , and Alexander at first
accepted this agenda . No other employees objected to this
procedure , and there is no contention by General Counsel
that the Employer was violating the Act by imposing these
ground rules for the meeting. Yet Alexander violated these
ground rules when , during the question -and-answer
period , after first indicating he wanted to ask a question,
he began a prounion speech in which he first proclaimed
his prominent union adherence and then started to
expound the advantages of the Union. It is significant that
Pride did not then discharge him, but only reminded him
of the ground rules and requested him to sit down "until I
finish." As Pride had finished his talk and was calling for
questions from the workers, and Alexander did not put any
questions to him , Pride in effect was not denying him the
right to speak but only advising Alexander to wait with any
remarks until the question period was over. When
Alexander refused to do this, but instead castigated Pride
in front of about one-third of his employees by equating
him with a prominent Communist and attributing to Pride
totalitarian conduct like that prevailing in Communist-
controlled Cuba, he was clearly and flagrantly
insubordinate , not only in disobeying the meeting agenda
set up by his Employer, but also in openly vilifying and
degrading the top plant official present . However , there is
some authority for the view that Alexander 's spontaneous
remarks about his own union sympathy and activity and
his attempt to begin a prounion speech were a form of
protected concerted activity , 4 and in addition Pride's
testimony makes it clear that, but for the remark about
Castro, he would not have discharged Alexander , and that
the reason for the discharge was Alexander's
disparagement of him by placing him publicly in the same
category as that Communist leader, and not his attempt to
make a prounion speech or turn the meeting into a debate
about the Union . Hence, the only issue is whether
Alexander's public classification of Pride as tantamount to
a Communist was, in its context, so opprobrious as to
place it outside the protection of Section 7 of the Act, and
was in fact the motive for the discharge.
that spontaneous remarks by a union adherent to a management
speaker at the close of his speech , in which the employee
disclosed his union sympathy and his determination to bring a
union into the plant, and gave his opinion of certain remarks by
the official , were a form of protected activity for which he could
not be legally discharged under the guise of "insubordination."
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel tries to justify the Castro remark as
"mild" compared to various types,of profane, obscene,
and rude remarks which, while not condoned by the
Board, have been classified by its decisions as
"protected" instances of "animal exuberance" brought on
by the atmosphere or circumstances of hard collective
bargaining or other types of concerted activity, or
provoked by similar remarks or conduct by an employer.
But there is nothing in this record to show that Pride's
antiunion remarks or views, in content or manner of
delivery, were such as to arouse in the listening
employees, in fact or by reasonable expectation, any
strong emotions, passions , or desire for violent
disagreement which could have impelled Alexander to
make the Castro remark. On the contrary, Pride's remarks
appear to be no more than temperate and general
expressions of opinion about disadvantages and some
unpleasant consequences of a union in a plant, of the type
which the Board and the courts have long held to be
protected by the free speech provisions of the Act; there is
not an iota of proof that Pride uttered them in a
challenging or irritating way, or descended to personal or
ad hominem remarks about union leaders or Alexander or
other employees, nor that any other workers who heard
them were in fact irritated or goaded to make an
impassioned reply. There is no proof of any prior conduct
of Respondent which would in any way support
Alexander's view that Respondent, and Pride in
particular, had been acting in an arbitrary or totalitarian
manner toward his employees. Hence, with nothing from
the past to support his remark about Pride, I must
conclude that the Castro remark was not provoked by the
Employer, but came "out of the blue" so to speak, after
Pride had in reasonable and temperate fashion asked
Alexander to hold any remarks until Pride had finished
answering questions. I am convinced that Alexander made
the Castro remark in a deliberate and defiant manner, and
that his blunt disparagement of his employer came from
some inner impulse of vindictiveness or malice not
warranted by anything shown in the records That he
spoke from strong dislike, if not outright hatred, of his
employer is also indicated by his parting remark, as he was
led from the room, "Yes, I will go," while defiantly
indicating that he was not alone in his animosity toward
the Employer. In these circumstances, I cannot equate the
Castro remark with the spontaneous profanity or obscene,
rude, or vulgar remarks which often come from employees
under emotional stress in course of hard collective
bargaining or during strike activity or other aspects of the
5In reaching this conclusion , I have also considered
Alexander ' s manner of testifying and demeanor on the stand,
which indicated that he was not a person of normal good humor of
the outgoing type who would be likely to become emotional or
make offhand remarks in a moment of anger, stress , or emotion,
but a rather cold, deliberate, and unemotional individual
9 Thus, Alexander's remarks in their context do not fall within
cases such as Indiana Gear Works, 156 NLRB 431; Bettcher
Manufacturing Corporation, 76 NLRB 526, and other Board
decisions cited by General Counsel, where the Board has held
that more or less intemperate remarks, while not to be condoned
because inappropriate in polite formal society, are still a more or
less normal consequence of active employer-employee relations
and to be considered part of the concerted activity protected by
Section 7 of the Act.
economic struggle between employers and their
employees while acting in concerts On the contrary, it
would seem that a remark publicly placing an American
employer in the same category as an active Communist is
practically the same as charging him with un-American
activity or being a Communist (if not actual traitorous
conduct) and subjects him to public hatred, odium, and
contempt, to his immediate harm in his business or
profession, and will support an action for civil or criminal
slander or both.? In addition, such vilification of the
Employer, if allowed to go unchallenged or unpunished,
would certainly tend to degrade him in the eyes of his
employees and weaken his clear right and ability to
manage his business by enforcing proper plant discipline
and maintaining the loyalty of his employees, which would
tend to disrupt harmonious labor relations between
employer and employees, or among employees
themselves.8
I recognize that under some authorities cited by General
Counsel the coincidence of the discharge and Alexander's
announcement of his prominent union activity and attempt
to engage in the protected action of speaking for the Union
is evidence to support an inference that the discharge was
caused, in whole or in part, by that activity. However an
equal but opposite inference can also be drawn from the
circumstances that the unwarranted, blunt, and
defamatory Castro remark came from an experienced
employee (whose service at the plant dated back to 1950,
except for a 3-year absence after a prior discharge in 1953),
right after Pride's reasonable request that he withhold any
remarks until after Pride had answered any questions, and
was undoubtedly a shock to that gentleman which could
not help but arouse an instant feeling of indignation and
outrage and trigger the instant indigant response of
discharge.9 Where two equal but opposite inferences are
tenable, the one indicating legitimate action and motive
must be taken.10 For all the above reasons, I conclude that
the Castro remark, made in the context shown by the
record, was a form of flagrant insubordination and
disloyalty which takes it clearly outside the protection of
the Act, and warranted the immediate discharge of
Alexander, and that it was the sole motive for, and the
efficient and proximate cause of, his discharge, and not a
pretext." I further conclude and find on all the pertinent
proof in the record that General Counsel has not sustained
the ultimate burden of proving that Alexander's known
union activity and sentiments played any effective part in
the discharge, or that the discharge in anyway violated
r See Spanel v. Pegler, 160 F 2d 619 (C A. 7), and companion
case, 166 F.2d 298 (C.A 2); also other Federal and State cases
cited in annotation in 33 A L R 2d 1196-1214.
9 N L R B. v Blue Bell, Inc., 219 F 2d 796, 798 (C A 5),
reversing 107 NLRB 514.
9 The inference of this reaction is particularly compelling
where Pride, the butt of the scathing remark, had recently seen
his son drafted into military service for combat against
communism on a far-off battlefield
10 See, for example , Wright v Rockefeller, Governor of NY,
211 F Supp. 460, 469, affd. 376 U S 52, 57, N.L R.B . v. Union
Manufacturing Company, 124 F.2d 332, 333 (C A. 5).
" See King Jack's Foodarama, 150 NLRB 1384 , 1385, Farm
BOAZ SPINNING CO.
Section 8(a)(3) or (1) of the Act.12 I therefore grant
Respondent's motion to dismiss the complaint in its
entirety, and will recommend that an order of dismissal
issue accordingly.13
Upon the basis of the foregoing findings of fact and the
entire record herein, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and the above-
Stores, Inc, 131 NLRB 1068 , 1075, 1076 , and compare Canton
Cotton Mills, 148 NLRB 464, 470, 471, Sophia Electric Supply
Shop,150 NLRB 1735, and Formold Plastics, 154 NLRB 60.
12 It has been held that "if a man has given his employer lust
cause for his discharge , the Board cannot save him from the
consequences by showing that he was pro union and his employer
anti-union ... if an employee is both inefficient [ insubordinate]
and engaged in union activities , that is a coincidence that does not
destroy the lust cause for his discharge ." N.L R B v. Soft Water
Laundry, Inc., 346 F 2d 930, 934 (C A. 5), and cases cited therein
It is also well settled that an employee 's known and prominent
1025
named Union is a labor organization within the meaning of
Section 2(5) of the Act.
2. The record does not establish that Respondent has
committed the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and the entire record in the case, I
recommend that the complaint be dismissed in its entirety.
union adherence and activity does not grant him any right to
special treatment in case of clear misconduct , such as
insubordination , disobedience , or disloyalty , and immunity from
discipline or discharge for such misconduct. Baltz Brothers
Packing Company, 153 NLRB 1114, 1122, Metals Engineering
Corporation, 148 NLRB 88,90.
131 have carefully considered other arguments of General
Counsel and find them without ment , and consider other cases
cited in support as inapposite on the facts or not controlling in
law