Crane and Breed Casket Co.

National Labor Relations Board - Board Decisions

Jun 3, 1969

176 N.L.R.B. 349 (N.L.R.B. 1969)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crane and Breed Casket Company and International
Union of District 50, United Mine Workers of
America. Cases 9-CA-4721, 9-CA-4804, and
9-CA-4843
June 3, 1969
DECISION AND ORDER
By CHAIRMAN MCCULI OCH AND MEMBERS
BROWN AND ZAGORIA
On March 10, 1969, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that
Respondent had not engaged in certain other alleged
unfair labor practices and recommended dismissal of
those allegations of the complaint. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with these cases
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 brief, and
the entire record in these cases, and hereby adopts
the findings, conclusions,' and recommendations of
the Trial Examiner.
ORDER
Pursue nt 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 Respondent, Crane and Breed
Casket Company, Cincinnati, Ohio, its officers,
agents, succesors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
'These findings and conclusions are based , in part, upon the credibility
determinations of the Trial Examiner , to which the Respondent excepts.
On the basis of our own careful review of the record , we conclude that the
Trial Examiner ' s credibility findings are not contrary to the clear
preponderance of all the relevant evidence . Accordingly, we find no basis
for disturbing those findings . Standard Dry Wall Products . Inc, 91 NLRB
544. enfd . 188 F.2d 362 (C.A. 3).
176 NLRB No. 45
TRIAL EXAMINER'S DECISION ,
349
SAMUEL M. SINGER, Trial Examiner: This proceeding,
tried before me at Cincinnati, Ohio, on November 13-21,
1968,' concerns allegations that Respondent Company
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, by acts of interference,
restraint, and coercion and by discriminatorily discharging
and failing or refusing to reinstate two employees on
account of their union sympathies in order to discourage
union membership and activities.
All parties appeared and were afforded full opportunity
to be heard and to examine and cross-examine witnesses.
Briefs were received from Respondent and General
Counsel. Upon the entire record' and from my
observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation, manufactures caskets
in Cincinnati, Ohio. During the representative past year
Respondent shipped in interstate commerce from its
Cincinnati plant to points outside Ohio, and received at
that plant in interstate commerce from such points,
products valued in excess of $50,000. I find that at all
material times Respondent has been and is engaged in
commerce within the meaning of the Act and that
assertion of jurisdiction here is proper.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party (herein called the Union or District
50) is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background; Issues
During the period here involved, Respondent employed
approximately 160 employees - 40 to 62 in its "YC"
department. Respondent's officials included Executive
Vice President Bible, Personnel Director Hartke,
Secretary-Treasurer Heffron, and Plant Manager Allen.
Schweiger and Pullum at different times were foremen of
the YC department.
For many years prior to the events here involved,
Respondent's employees were represented by Casket
Makers Union, an unaffiliated labor organization. On
January 10, 1968,' Casket Makers President Fletcher and
a fellow employee (Cochran) visited District 50 to solicit
its assistance in organizing the plant. The Union (District
50) thereupon launched an organizational drive and on
January 23 filed a representation petition with the Board.
Hearings on the petition, with Casket Makers an
intervenor, were held in August and September.
Respondent there took the position that Casket Makers
was a party with Respondent to a contract which was a
bar to an election.
'The complaints , issued on August 6 and 29 and October 1, 1968 (based
on charges filed on May 14 , July 17, and August 19, 1968), were
consolidated by an order dated October 1, 1968.
'Transcript corrected by my order on notice dated February 11, 1969.
'Unless otherwise indicated all subsequent dates are 1968.
'This representation case is presently pending before the Board (Case
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint here alleges: (a) acts of employer
interference , restraint , and coercion during District 50's
organizational campaign ; and (b ) discriminatory discharge
during this drive of District 50 adherents Fletcher and
Montgomery.
B. Interference, Restraint , and Coercion
1. Foreman Pullum's alleged threat to discharge
Montgomery if he visited NLRB
On January 10, employee Fletcher requested Foreman
Pullum to give him and employee Montgomery time off
to visit the National Labor Relations Board. He did not
disclose the purpose of the intended visit. Pullum gave
Fletcher the requested leave. According to Fletcher,
however, Montgomery later reported to him that Pullum
had threatened to "fire" Montgomery if the latter
accompanied Fletcher. Pullum denied the threat,
explaining that he separately told Montgomery and
Fletcher that each had permission to go to the Board, but
nowhere else. Pullum admitted telling Montgomery that if
he went elsewhere he could "lose [his] job," stating that
he needed Montgomery's production.
I credit Pullum 's testimony in this instance, particularly
in view of the following: (1) Fletcher did not personally
hear the alleged threat, admitting at one point that he
only "understood him [Montgomery] to say Mr. Pullum
had made [the] statement"; (2) Montgomery, who testified
on other matters, was silent on this subject; and (3)
Pullum's testimony was to an extent corroborated by the
fact (as hereafter shown) that during the period in
question Pullum had indeed pressed Montgomery for
increased production.'
In view of the absence of substantial credible evidence
with regard to this threat allegation, it is found not to be
established.
2. Personnel Director Hartke's characterization of
employees as "troublemakers"
Employee Fletcher testified that "every time" he (in his
capacity as union spokesman) would take up the
complaints of three particular employees (Montgomery,
Smith, and Howell) with Personnel Director Hartke, the
latter "would refer to the three . . . as troublemakers" -
irrespective of the nature of the complaint, "whether it be
a salary dispute or anything." Hartke admitted that he
called the three men "troublemakers," but explained that
he did this because they had raised "rather small"
grievances adding that Fletcher himself "would be pretty
well needled by them."
I find that Hartke's characterization of the employees
in question as troublemakers constitutes nothing more
than expression of annoyance or pique at what Hartke
regarded as picayune complaints and nuisance to himself
and the Union 's spokesman . I cannot infer from the
record as made that these remarks were designed to
9-RC-7581.)
'Fletcher also testified that he reported Pullum's alleged threat to
Personnel Director Hartke who told him that "the foreman could fire him,
but why put him m the middle . . why put the guy in the middle." Hartke
credibly testified that he told Fletcher "why put the foreman in the
middle," meaning that "a foreman , in ignorance , could do something
improper" so that Fletcher should have requested permission to leave
directly from Hartke, the personnel director . I find nothing illegal or
improper in Hartke 's statement to Fletcher.
discourage, or had the effect of discouraging, the filing of
grievances. I conclude that in the circumstances it has not
been shown that Hartke's comments were unlawful or
improper.
3. Foreman Pullum's alleged threats to lay off or
discharge Union adherents
The complaint alleges that during February Foreman
Pullum threatened "certain employees with discharge,
layoff or both because of their activities on behalf of the
Union." This allegation is unsupported by substantial
credible evidence. While Fletcher was laid off for 2 or 3
days in February, neither Fletcher nor any other witness
for General Counsel claimed that it was discriminatorily
motivated. The record establishes other layoffs (e.g., on
January 2 and March 29); so far as appears, however,
these were the result of production problems. Fletcher's
testimony that shortly after the March 29 layoff
(Montgomery was one of the three or four men
terminated at that time, infra, sec. C) Pullum told him
that the layoff "was one way of getting rid of his
undesirables . weeding them out" does not, without
more, support the -inference that by "undesirables" Pullum
was referring to Union adherents. Nor is Fletcher's
testimony at odds with that of Pullum, who testified that
he had informed Fletcher that the March 29 layoff
resulted from "a casket buildup" by "somebody .
deliberately damaging the finish ... and creating one hell
of a bottle neck," requiring "readjust[ment of] the
department to ... relieve this problem."B
I find the allegation under consideration not sustained.
4. Vice President Bible's July 5 speech
On July 5 (prior to the representation case hearings in
August and September), Vice President Bible delivered a
speech to all employees assembled in the Company
cafeteria. There is a sharp dispute as to whether Bible
confined his remarks to a written manuscript before him
(as he and two other Company officials testified) or
whether he went beyond the prepared text in uttering
certain coercive remarks (as four employee witnesses
testified).
In his written script, Bible told his employees that this
was the first time he was talking to them as a group and
that although he did not "like the idea of having to stick
to a written outline . . . we will make the best of it." He
referred to competition from automated plants, dwelling
on the need for improved efficiency. Accusing some
departments of "slowing down deliberately" and some
employees of "deliberate damage to the finishes on
caskets," Bible said, "We have some employees of this
type at this meeting ." He also mentioned similar
"production trouble" formerly experienced by another
Cincinnati firm. Then referring to District 50's pending
election petition , Bible said:
Have any of you had any help from these strangers? Do
you know how much they want to get in your pockets
for . . . . These strangers and some of your fellow
employees would have you believe that Crane and Breed
is unfair. This, all of you know, is not true.
`For reasons hereafter shown , Montgomery 's testimony that at the time
of his discharge (on March 29) Pullum told him that Respondent was
"using every trick in the book to weed you guys out " is not credited This
alleged statement accordingly does not support a finding that Pullum
threatened reprisals for union activity.
CRANE AND BREED CASKET CO. 351
It hurts us to hear and know how you employees
have been forced, even threatened into giving
consideration to these strangers. This is especially so
after knowing how all of you have gained so much .. .
through your Casket Makers Union.
Bible then reminded the employees of the Company's
"Open House Policy" under which all employees "have
been able to take your complaints, requests or wants
directly to management" and pointed out to them that
"for many, many years working conditions, wages,
insurance , etc., has [sic ] been worked out and great gains
made through your Casket Makers Union."
Employees Fletcher, Dameron, McGinnis, and Cochran
testified that in the course of his talk Bible also stated
that Respondent would find a way to get rid of the two
instigators of District 50's organizational campaign.
Dameron quoted Bible as saying, "The Union was no
good . . . . Two individuals were pushing it ... they were
going to have to find ways to do away with them."
Cochran recalled Bible characterizing the two employees
as "morons," stating that "[t]here are going to have to be
means or ways to get rid of these individuals." McGinnis
testified in like manner, recalling that Bible referred to the
two men as "morons and imbeciles" and stated that "it
would be belt to get rid of these two individuals that .. .
were nothing but troublemakers!" According to McGinnis
and Fletcher, Bible also said that "all that worked in the
Company were bums." Fletcher and Cochran further
quoted Bible as saying that the Company "would close the
doors before he would let another union come in and take
us over."
All circumstances considered, I cannot credit Bible's
testimony that he confined his remarks to his prepared
text. I credit the testimony of the employee witnesses that
Bible, departing from the literal text of his speech, made
the remarks: (1) that Respondent could find a way of
getting rid of the District 50 instigators ; and (2) that the
Company would close down before it would let District 50
organize the plant. Observing all four employee witnesses
to testify in a sincere and straightforward manner, I
cannot believe that three of the four who. are still
employed by Respondent (Fletcher's discharge is discussed
infra, section D), would conjure up and maintain under
cross-examination a trumped-up figment involving so
vividly memorable an experience and, indeed, jeopardize
their employment by fabrication under oath concerning
their employer. Furthermore, two of the four (Dameron
and McGinnis) have not been identified as District 50
adherents and, so far appears , are disinterested witnesses.
On the other hand, Respondent did not call even I of the
170 assembled employees to corroborate its officials'
self-serving version. The two officials (Allen and Heffron),
who sought to corroborate Bible , testified that they read
the speech before delivery and could not recall any
deviation by Bible from the written script. (It is not
claimed that they had copies of the script to follow as it
was being delivered.) It would indeed be difficult, at such
late date as the hearing -- after an interval of 4 months
following the speech -- to recall the precise words spoken
by Bible and that these were strictly limited to those in
the prepared text, even assuming that they were cognizant
of that text with exactitude. Nor, contrary to
Respondent's contention, does the fact that the written
text (essentially uncoercive ) was prepared by its counsel in
any way establish that Bible did not stray therefrom to
interpolate the coercive statements attributed to him by
the employee witnesses.
I find and conclude that Bible's July 5 speech to the
employees exceeded permissible bounds of employer
communication to employees, in that it contained threats
of reprisal for engaging in protected concerted and union
activity, in violation of Section 8(a)(1) of the Act.
C. Discharge of Montgomery
Frederick Montgomery, hired in October 1965, worked
as an arch solderer in the YC department until discharged
on March 29, 1968. His union activity consisted of turning
in 25 to 30 signed authorization cards to Fletcher, chief
employee organizer for District 50. Although Fletcher
described Montgomery as an active unionist , he testified
that other employees signed up more employees.
It is undisputed that Montgomery's performance -
both as to quality and quantity - was far below par for a
considerable period prior to about January 1968. Former
Plant Manager Hamilton, who left the Company in
March 1968, testified that Montgomery's work was of
"very, very poor quality" with "pinholes, low spots,
irregularities in the arch, some holes that you could crawl
through ...." Schweiger, Montgomery's YC department
foreman until April 1967, testified that it "got to be a
standing joke" that "when a job was bad, they knew that
[the] number on the job was 139," Montgomery's number.
According to Pullum, Schweiger's successor and
Montgomery's foreman until his discharge, Montgomery
was a constant problem regarding quality and quantity
and was "the poorest ...[he] ever worked with in all [his]
years at Crane and Breed." Montgomery himself testified,
"I knew my work was bad" until several months before
his discharge, stating that he received two written
reprimands and many more verbal complaints from
management.7
There is sharp dispute, however, concerning the nature
of Montgomery's performance in the 3 months preceding
his dismissal (January - March 1968), General Counsel
contending that Montgomery became a good employee
and performed satisfactorily during that time. According
to General Counsel (br. p. 4), the "timing of
Montgomery's discharge is commensurate with the pick
up in the antiunion campaign conducted by Respondent
and indicative of discriminatory motive." Respondent, on
the other hand, adduced evidence to show that
Montgomery's performance in the 3 months preceding his
discharge was no better than before then, and contends
that union activity played no role in that discharge.
Although Montgomery first testified, that his work
"improved" to such an extent "within the last six-month
period" that "there were no complaints" about it, his
subsequent testimony on this subject is too vague, and
indeed too inconsistent , to warrant crediting it. Thus, on
cross-examination , Montgomery admitted that "they had
talked to me about my work" in the last few months of
his employment, but he contended that he was not
"reprimanded." He went on to say that "I could have
been told that there was something wrong with a job .. .
in a casual way, by Mr. Pullum ." On direct examination,
he testified that about 3 months before his discharge,
Pullum in fact complimented his work, stating that it
'According to Montgomery, the last written reprimand came about 6
months before discharge and this was followed by "verbal" reprimands
from Pullum . Describing his deficiencies , Montgomery said , " I would drop
the arches too much or not enough. This would cause an opening in the
rim of the casket . Also . . . there would be a ir bubbles in some of the
solder that would show up in the grinding of the head of the casket."
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"was much better ... that I was showing improvement,
great improvement," but he could not state even the
month he was so complimented. He also admitted that he
was "possibly" singled out in the last six months" for
doing poor work, but he construed this only as
"constructive criticism."
On the other hand, Foreman Pullum testified that he
continued to complain about the quality and quantity of
Montgomery's performance in the last 3 months of his
employment, citing three specific instances when he talked
to him about leaving his bench, "playing around, horsing
around," and producing defective work. According to
Pullum, operators on the line would often call him to
inspect defects in Montgomery's work such as holes and
poor alignments, and he, in turn, would personally escort
Montgomery to the section to show him the defects.
Pullum testified that he decided to dismiss Montgomery
late in the afternoon on March 28, when an operator
(George Allender, Jr.) again called him to check on
pinholes in Montgomery's work. Throwing "his hands up"
and exclaiming that he was "fed up with the matter of
doing [Montgomery's] work over and over" the operator
told Pullum, "I don't mind catching a few when it
happens, but one right after another . . . . Something has
to be done." The next morning, Pullum selected at
random several sets of casket tops handled by
Montgomery and, finding them "full of holes, low spots,
pinholes that would not pass the finish inspection," went
to Personnel Manager Hartke and told him that he was
determined to fire Montgomery. Hartke agreed to go
along , and at the end of the day Pullum told Montgomery
that he "has got to the point where I have to dismiss"
him for not heeding Pullum's repeated warnings to
improve his work.
I resolve the conflicting testimony concerning the
nature of Montgomery's performance in the period prior
to his discharge in favor of Pullum rather than of
Montgomery. To begin with, Montgomery impressed me
as carefully striving to conform his testimony to what he
considered to be his best interest in order to fashion a case
against the Company. I cannot believe that Montgomery,
one of Respondent's worst employees (if not the worst) for
months before January 1968, suddenly became as good as
he portrayed himself. Nor can I accept the broad and
generalized testimony of three General Counsel's
employee witnesses (Smith, Fletcher, and Wagers) that,
based on their observations, they detected an
"improvement" in Montgomery's work after January
1968. It seems that neither Smith (like Montgomery, an
arch solderer) nor Fletcher (an assembler of casket lids
previously worked on by arch solderers) was in a good
position to really know and evaluate Montgomery's work.
Although Wagers indicated, also in general terms, that as
arch repairman subsequent to February 1 (when he
claimed to have taken over Bob Rose's job) he noticed a
"lot less" of Montgomery's work in need of repair, the
substantial credible evidence (including Wagers' work
record) establishes, and I accordingly find, that Wagers
,did not succeed to Rose's repairman position (and
therefore was not in position to check on Montgomery's
work) until March 23 or 27, immediately prior to
Montgomery's discharge. On the other hand, Pullum's
testimony is not only corroborated by that of former
Plant Manager Hamilton, but by objective evidence
consisting of samples of Montgomery's defective work a
day or two prior to his discharge.
Based on the entire record, I find and conclude that
Respondent discharged Montgomery on March 29 because
it regarded him as a poor lworker and not because of his
membership and activities on behalf of District 50. This
conclusion is fortified by the circumstances: (I) that
although Respondent undoubtedly preferred dealing with
the independent union (the Casket Makers) rather than
with District 50, it did not manifest real hostility to
District 50 until Company Vice President Bible addressed
the employees on July 5 (more than 3 months after
Montgomery's discharge); (2) that Respondent retained
other District 50 adherents, including an active union
leader like Cochran who (together with Fletcher)
instigated the District 50 drive;' (3) that Respondent laid
off other employees for efficiency reasons on the day of
Montgomery's discharge (March 29, supra, sec. B, 3); and
(4) that there is no substantial credible evidence
establishing Company knowledge of Montgomery's
District 50 activities.'
I conclude that General Counsel has failed to meet the
burden of establishing by a preponderance of the credible
evidence that the March 29 discharge of Montgomery was
discriminatorily motivated, in violation of Section 8(a)(3)
and (1) of the Act.
D. Discharge of Fletcher
1. Fletcher's union activity
Edward Fletcher, hired in March 1960, worked as an
assembler in the YC department when discharged on
August 13, 1968. He was president of the Casket Makers
Union for 3 years until January 1968 and, as such,
vigorously pressed employee grievances. Thus, Personnel
Manager Hartke testified that he had "a visit from Mr.
Fletcher practically daily ... about some new complaint."
According to Hartke and Vice President Bible, when
dissatisfied with Company grievance dispositions, Fletcher
would comment that he was "going down to the Labor
Board." Bible testified that after informing Fletcher in
December 1967 that the Company would omit its usual
year-end employee bonus, Fletcher warned that he "would
get another union in."
As previously noted (supra, sec. A), in January 1968,
Fletcher and another employee (Cochran) got in touch
with District 50 and began to organize the plant for that
union. Fletcher became "head of [the] organizing
campaign" and the employees' contact with District 50. It
was Fletcher who distributed the Union authorization
cards among the employee card solicitors, collected them,
and turned them over to District 50. There is no question
that Respondent became aware of Fletcher's Union role
early in the campaign. Thus, Hartke testified that he knew
'The fact that an employer retains some union employees does not, of
course, in itself, preclude an inference that the discharge of others is
unlawfully motivated. See N . L.R.B. v . W.C Nabors Company. 196 F.2d
272, 276 (C.A. 5). It is nevertheless a relevant circumstance.
'Company officials Hartke and Bible expressly denied knowledge of
Montgomery 's union membership and activities . The only direct evidence
on such Company knowledge is Montgomery 's testimony that on the day
of his discharge Pullum called him aside and told him , "As a friend I like
you, but they are using every trick in the book to weed ' you guys out.
Some are getting fired , some are being laid off." In the light of the entire
record , including the nature of Montgomery 's performance, I do not credit
Montgomery 's self-serving testimony , nor the implication therefrom that
Respondent was at that time attempting "to weed" out the District 50
adherents . Pullum credibly testified that he "absolutely [did] not" make
the statement attributed to him. It is to be noted that Montgomery
admitted that Pullum also told him that he was being fired for "bad
work."
CRANE AND BREED CASKET CO. 353
of Fletcher's Union association shortly before or after
receiving District 50's January 23 representation petition.
And Fletcher' s coorganizer (Cochran) testified, without
contradiction, that soon after he and Fletcher contacted
the Union, their foreman, Schweiger said, "I hear that
you people are affiliating yourself [sic] with District 50 . .
. . I would have found a different union because that
union is going broke. They could not pay their benefits
now."
Furthermore, Fletcher credibly testified regarding an
incident in which then Plant Manager Hamilton warned
him about his union activity. Early in March, Fletcher
asked Hamilton to get Foreman French to stop "riding"
and "to lay off" employee Miles who was working under
French, indicating that the Company apparently "had the
idea that the man was one of the organizers for District
50." Hamilton remarked, "Heck, we know that you are
behind it, so we are not riding you, are we?" When
Fletcher replied, "I don't think you have good enough
guts to . . . ride me," Hamilton retorted, "Let me give
you some advice. Watch it. They are after you."10
2. The discharge
The episode leading to Fletcher's discharge - a "fight"
with another employee (Herschel Gregory) - is largely
undisputed. While Respondent contends that the discharge
was motivated by this incident, General Counsel contends
that the reason advanced by Respondent is pretextuous,
the real reason being Fletcher's outstanding advocacy of
District 50.
On August 13, at approximately l p.m., assemblers
Dameron and Fletcher and employee Norton (a
serviceman) began "teasing" Herschel Gregory, another
assembler in the YC department, about one of Gregory's
jobs. Dameron asked Gregory why he left a piece of wood
out of a casket. Gregory denied that it was his work,
stated that he had been "soldering longer than they have
being living" and, turning to Fletcher, said that he "could
put an iron, a soldering iron in his a - ." Fletcher
thereupon crossed to Gregory's nearby bench and
"grabbed hold" of Gregory's shirt, whereupon Gregory
"swung" at Fletcher. Fletcher then said, "I don't know
why you got mad. We are only teasing you. . . . Settle
down. I don't want to hit you." In the meantime,
Dameron and Norton "walked over to break it [the
altercation] up, but they split apart before [they] got down
there.""
Shortly thereafter, Gregory reported this incident to
Foreman Pullum." Pullum in turn reported the matter to
"1 do not credit Hamilton's teetimmry that he "positively" never talked
to any employee, including Fletcher, about the Union. Hamilton insisted
that he confined his remarks "about the possibility of Local 50 coming in"
to management officials. Although acknowledging that Fletcher had
spoken to him about a complaint Miles had made concerning Foreman
French, he fixed the time of this conversation as December 19. 1967. He
admitted once warning Fletcher - between October 1967 and March 1968
(he could not "pin it down to a definite date") - that he "had better
watch your step," but claimed that he did this in connection in an entirely
different situation, namely; when Fletcher "on the verge of
insubordination" called Hamilton and other company officials "liars" in
pressing a matter in his capacity "as union president." I was not impressed
with Hamilton cbllection of the Miles incident. Thus, for example, he
was confused as to when the incident took place in relation to District 50
activity, finally, confessing that he "could not . . . t•uthfully" place the
time in relation to District 50's advent at the plant.
"Based on the composite and mutually corroborative testimony of
Fletcher and Dameron; Gregory and Norton did not testify. Pullum and
other management officials did not witness the incident.
Personnel Manager Hartke and got hold of the
employment records of the two employees. Pullum then
told both that they were "fired for fighting." When
Fletcher asked if he was being fired over just an
"argument," Pullum remarked that if what he heard was
true, he was "fired" and told both men to accompany him
to Hartke's office to hear both sides of the story."
In Hartke's office, both men first claimed that they
"just had an argument." Gregory admitted, however,
taking "a swing" at Fletcher and the latter admitted
grabbing Gregory by the shirt front. Hartke asked Pullum
what he was going to do about it and Pullum said that he
had made his decision to fire both. When Hartke inquired
whether he had informed Vice President Bible of his
decision, Pullum went to check with Bible; upon returning,
he told the two employees, "I have made the decision
upstairs and I am holding pat."' °
3. Conclusions
As found, Fletcher was involved in a "fight" on the day
of his discharge. There is no question that Respondent
could lawfully dismiss him for this, irrespective of the
degree of Fletcher's fault or his role in the fight , since an
employee may be discharged for any reason - "for a
good reason, a poor reason, or no reason at all, so long as
the terms of the statute are not violated." N.L.R.B. v.
Condenser Corporation of America, 128 F.2d 67, 75 (C.A.
3). The key issue here is one of motivation - whether
Respondent in fact terminated Fletcher because of this
"fight." "[T]he rule is well established that although
ample valid grounds may exist for the discharge of an
employee, that discharge will violate Section 8(a)(3) if it
was in fact motivated, even partially, by the employee's
union activity [citing cases]. Thus, where there are
legitimate reasons for the discharge of an employee, the
question is whether those were in fact the only grounds for
the dismissal, or whether they were `put forth as a mere
pretext to justify an impermissible discharge.' " N.L.R.B.
v. Pena beck Oil Corp., 404 F.2d 105, (C.A. 2)." Viewing
the record as a whole and bearing in mind that "human
qualities, such as motive, can only be shown
circumstantially where the possessor has not previously
revealed them directly" (N.L.R.B. v. Tepper, d/b/a
Shoenberg Farms, 297 F.2d 282, 284 (C.A. 10)), I find
that the preponderance of evidence and the reasonable
inference to be drawn therefrom establish that the
discharge of Fletcher was in fact motivated by
Respondent's opposition to his union activities.
Admittedly, Respondent did not look favorably upon
District 50's establishment at the plant, preferring to deal
with the independent union (Casket Makers). In his July 5
speech to the assembled employees, Vice President Bible
characterized the District 50 men as "strangers" who
"According to Pullum . Gregory's description of the "fight" was
essentially as heretofore described , except that ( according to Pullum)
Gregory also reported that there "was name calling ," with Fletcher using
obscene language . Pullum also quoted Gregory as saying that Fletcher
"grabbed his shirt front and he shook the hell out of hum" and that
Gregory, in turn , "took a couple of swings at [Fletcher] to release the
hold."
"Based on the credited testimony of Pullum.
"Based on credited portions of the testimony of Pullum, Hartke, and
Fletcher
"See also Wonder State Manufacturing Company v. N.L.R B., 331 F 2d
737 (C.A. 6); N.L.R.B. v. Murray Ohio Manufacturng Co. 326 F.2d 509,
517 (C.A. 6); N.L.R .B. v. Whitin Machine Works, 204 F.2d 883, 885
(C.A. 1).
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"want[ed] to get in your pockets." He pointed to past
employee benefits obtained through the independent union
and stated that it "hurt us to hear" that the employees
were "giving consideration to these strangers." He went
on to warn the men that Respondent could find ways of
ridding itself of District 50 instigators and threatened to
close the plant rather than allow it to be worked under
District 50. Fletcher became District 50's chief proponent
after giving up his leadership in the Company-favored
independent union . Respondent knew him as an aggressive
promoter of employee causes, both as head of the
independent and later of District 50. It was Fletcher who
warned Vice President Bible that he would bring in an
outside union when Respondent discontinued its usual
employee year-end bonus in December 1967. Fletcher
(along with another employee) then contacted District 50
representatives and personally spearheaded the ensuing
District 50 drive. Early in March 1968 - while pressing
a complaint on behalf of an employee (Miles) - the then
plant manager (Hamilton) cautioned Fletcher, "Let me
give you some advice. Watch it. They are after you."
All of these factors - Respondent's opposition to
District 50, Fletcher's key position in that Union,
Respondent's knowledge of Fletcher's union role, and the
plant manager's warning that "[t]hey are after you" -
are more than sufficient to establish a prima facie case of
unlawful discrimination. After observing the witnesses, in
my view, Respondent's explanation for the discharge is
unconvincing and falls short of rebutting this showing.
Personnel Manager Hartke testified that Fletcher was
fired pursuant to Company policy to discharge employees
on a second "physical contact fight." Hartke's testimony,
as well as that of employee witnesses, indicates that
fighting in and of itself was not a cause for discharge.
According to Hartke, it was Company policy "to allow
one physical contact fight."" He cited two prior
encounters in which Fletcher was involved. The first, in
1960 or early 1961, occured when Fletcher approached
Gregory (the same employee involved in the August 13,
1968, altercation) and the latter threatened to strike
Fletcher with a hatchet. Admittedly, however, "[t]here
was not any physical contact at the time." The second -
in August 1962 - did involve some "contact." Foreman
Schweiger testified that this incident took place when
Fletcher, annoyed by a stockboy who "mixed up" stock,
called the boy a "s - of a b - ." When Schweiger
warned Fletcher against "using that kind of language"
and told him to bring any complaints he had directly to
Schweiger, Fletcher "grabbed" Schweiger who "thought
that he was going to hit [him].""
Based on my assessment of the probabilities in the light
of all the evidence and demeanor as observed , I am not
persuaded that Respondent discharged Fletcher in
accordance with an alleged two-physical contact rule. To
begin with, there is no substantial credible evidence
corroborating Hartke's self-serving testimony that such
rule existed. Indeed, neither Pullum nor any other
Company official even testified that a rule of this nature
"Apparently the degree of seriousness of a just fight was not considered
to be critical . Thus, the record shows that neither combatant involved in at
least one "bloody" brawl was discharged , Hartke explaining that neither
had been involved in a previous fight . Furthermore , the record indicates
that "horseplay" in the plant was not uncommon ; even Foreman Pullum
had exploded firecrackers under an employee's bench.
"According to Schweiger , although he "fired" Fletcher on the spot, after
consulting Hartke he reinstated Fletcher with an admonition that if he
"use[d ] any more abusive language " or gave hun "any more trouble" he
would be fired.
was in effect. And Hartke admitted that the rule was
never published or communicated to employees. Nor has
it been established that he or Pullum (who made the
decision to fire Fletcher) informed Fletcher that he was
being fired for violating a two-physical contact rule -
something, if not the natural thing , that an employer
acting on the basis of such rule would have done.
Furthermore, Hartke admitted that Respondent never
actually dismissed any employee involved in a second
"fight," although citing two plant episodes involving two
physical contacts. One was the November 1963 "pushing
match" between employees Tucker and Virgil Noe, with
Respondent admittedly retaining the two employees on a
"promise" that "they would never have another fight." It
again passed up the opportunity to apply its claimed
two-physical fight rule in the Schweiger-Fletcher episode
(supra, fn. 17). The claimed rule, applied for the first time
to the key District 50 leader in the organizational drive,
without even telling the employee of the rule or the
claimed violations, smacks of afterthought, disguised to
conceal Respondent's true discriminatory motivation.
Respondent's reliance on two prior (1961-62) incidents, 6
or 7 years before the events here involved, to establish
violation of an alleged rule has the flavor of attempt "to
revive ... ancient (and apparently forgotten) complaint[s],
and make [them] serve as the proffered excuse or reason
for [Fletcher's] discharge." Peoples Motor Express, Inc. v.
N.L.R.B., 165 F.2d 903, 906 (C.A. 4). 1 so find.
In reaching the conclusion that Fletcher's discharge was
discriminatory, I have not overlooked the circumstance
that Respondent also dismissed Gregory, not shown to
have been a District 50 suppor ey. While a relevant factor,
this is not determinative. As the Court observed in Sieves
Sash & Door Company v. N.L.R.B., 401 F.2d 676 (C.A.
5), an employer may discharge an employee "in order to
lend credence to the pretextual discharge of a fellow
employee unionist ." See also Wonder State Mfg. Co. v.
N.L.R.B., 331 F.2d 737, 738 (C.A. 6). Where, as here, the
real target of the employer is the union sparkplug, the
employer may be willing to permit "some white sheep [to]
suffer along with the black." Majestic Molded Products,
Inc. v. N.L.R.B., 330 F.2d 603, 606 (C.A. 2).
For all of the foregoing reasons , I find and conclude
that the reason advanced by Respondent for Fletcher's
August 13, 1968, discharge is pretextuous. I conclude that
the discharge was, at least in substantial part, motivated
by union animus, in violation of Section 8(a)(3) and (1) of
the Act.
CONCLUSION OF LAW
1. By threatening employees with reprisals (including
plant closure and discharge) to discourage union
membership and activity, Respondent has interfered with,
restrained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation of
Section 8(a)(l) of the Act.
2. By discharging Edward Fletcher on August 13, 1968,
and thereafter failing or refusing to reinstate him, in order
to discourage union activities, Respondent has
discriminated in regard to hire and tenure of his
employment, in violation of Section 8(a)(3) and (1) of the
Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. It has not been established that Respondent has
violated Section 8(a)(1) by other acts and conduct alleged
CRANE AND BREED CASKET CO. 355
in the complaint, nor Section 8(a)(3) by discriminatorily
discharging Frederick Montgomery because of union or
protected concerted activities.
THE REMEDY
The recommended order will contain the conventional
provisions entered in cases involving findings of
interference, restraint, and coercion, and discriminatory
discharges, in violation of Section 8(a)(l) and (3) of the
Act. These will require Respondent to cease and desist
from the unfair labor practices found, to offer
reinstatement with backpay to the employee discriminated
against , and to post a Notice to that effect. In accordance
with usual requirements, reinstatement shall be to the
discriminatee's former or substantially equivalent position,
without prejudice to his seniority and other rights or
privileges. The discriminatee shall be made whole for any
loss of earnings he may have suffered by reason of the
discrimination against him by payment to him of a sum of
money equal to that which he normally would have earned
from his date of discharge (August 13, 1968), to the date
of offer of reinstatement, less net earnings during such
period, to be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
It is also recommended, in view of the nature of the
unfair labor practices Respondent has engaged in, that it
cease and desist from infringing in any manner upon the
rights guaranteed employees by Section 7 of the Act.
RECOMMENDED ORDER
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 Recommended Order.
(d) Post at its plant in Cincinnati, Ohio, copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
representative, shall be posted by it 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 the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith."
IT IS FURTHER ORDERED that the complaint be
dismissed in all other respects.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
Upon the entire record in the case and the foregoing
findings of fact and conclusions of law, and pursuant to
Section 10(c) of the Act, it is recommended that
Respondent, Crane and Breed casket Company, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with plant closure,
discharge, or other reprisals for union membership or
activity; or in any other manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
(b) Discouraging membership and activities in
International Union of District 50, United Mine Workers
of America, by discriminating in regard to the hire and
tenure of employment of Respondent's employees, or by
discriminating in any other manner in regard to any term
or condition of their employment, in order to discourage
membership or activities therein.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Edward Fletcher immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he
may have suffered as a result of his discharge, in the
manner set forth in "The Remedy" section herein.
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
After a trial at which all sides had the chance to give
evidence, it has been decided that we, Crane and Breed
Casket Company, violated the National Labor Relations
Act, as amended and we have been ordered to post this
notice.
The National Labor Relations Act gives you, as an
employee, these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
your own choosing
To act together with other employees to bargain
collectively or for other mutual aid or protection; and,
If you wish, not to do any of these things
Accordingly, we give you these assurances:
WE WILL NOT do anything that interferes with any of
your rights listed above.
WE WILL NOT threaten to close our plant or to
punish you or treat you differently because you want a
union.
WE WILL NOT fire or take any reprisal against any of
you because you have joined or supported, support, or
will support the organizational campaign of
International Union of District 50, United Mine
Workers of America, or any other union.
WE WILL offer to give back his job, with full
seniority and all other rights and privileges, to
employee Edward Fletcher, who was found to have
been discharged because he supported the
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizational campaign of the above-named Union.
WE WILL also make up all pay Edward Fletcher lost,
with 6 percent interest.
WE WILL notify Edward Fletcher if he is 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, as amended,
after discharge from the Armed Forces.
All of you are free to join or not to join, support,
assist , or be active on behalf of International Union of
District 50, United Mine Workers of America, or any
other union, as you see fit, without any interference,
restraint, or coercion from us in any way, shape, or form.
Dated By
CRANE AND BREED
CASKET COMPANY
(Employer)
(Representative) (Title)
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, Room 2407,
Federal Office Building , 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.