Ducommon Metals & Supply Co.

National Labor Relations Board - Board Decisions

Sep 24, 1965

154 N.L.R.B. 1550 (N.L.R.B. 1965)

1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees in the bargaining unit described below, with respect to wages, hours of
employment, and other conditions of employment, and, if an understanding is
reached, embody such understanding in a signed contract. The bargaining
unit is:
All full-time and regular part-time employees employed at the Employ-
er's stores located in the Greater Akron, Ohio, area, excluding seasonal
employees, store managers, assistant store managers, executive trainees,
confidential employees, all guards, professional employees, and supervisors
as defined in the law.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of the rights guaranteed to them under the National Labor Relations Act, as
amended, including the right to join the Retail Clerks Union aforementioned
and the right to be represented by the said Union for the purposes of collective
bargaining, as well as the right of employees to refrain from joining a union
or to refrain from union activity, except as the last-mentioned nghts might be
affected by a mutually agreed-upon contract between the Company and the
Union.
PEOPLES SERVICE DRUG STORES, INC,
Employer.
Dated------------------- By-------------------------------------------
(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.
Employees may communicate directly with the Board' s Regional Office, 720 Bulk-
ley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if
they have any questions concerning this notice or compliance with its provisions
McCormick Steel Co., Division of Ducommon Metals & Supply Co.
and United Steelworkers of America , AFL-CIO. Case No. 23-
CA-1964. September 24, 1965
DECISION AND ORDER
On July 19, 1965, Trial Examiner George J. Bott issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's Decision, and a sup-
porting brief, and the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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
154 NLRB No. 122.
McCORMICK STEEL CO., ETC. 1551
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations 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, as modified
hereinafter, and orders that the Respondent, McCormick Steel Co.,
Division of Ducommon Metals & Supply Co., Houston, Texas, its offi-
cers, agents, successors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order, as so modified :
1. Add the following as paragraph 2(b) to the Trial Examiner's
Recommended Order, the present paragraph 2(b) and those subse-
quent thereto being consecutively relettered :
"(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 of 1948, as amended,
after discharge from the Armed Forces."
2. Add the following immediately below the signature line at the
bottom of the Appendix attached to the Trial Examiner's Decision :
NOTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of his right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges unfair labor practices not specifically found
herein.
1 The Respondent has excepted to the Trial Examiner 's credibility resolutions, but we
aie not per;,naded that a clear piepondeiance of all the relevant evidence is contrary
to the Trial Examiner 's credibility findings Standard Dry Wall Products , Inc., 91 NLRB
544, enfd 188 F. 2d 362 (C.A. 3) We make no finding of violation based upon state-
ments which the Trial Examiner found were made to an assembled group of Houston
warehouse employees on January 6, 1965 , as the complaint did not allege that such
remarks constituted a violation of the Act, and no exceptions were taken to the Trial
Examiner's failure so to find.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on January 12, 1965, by United Steelworkers of America,
AFL-CIO, herein called the Union or Charging Party, against McCormick Steel Co.,
Division of Ducommon Metals & Supply Co, herein called the Company or Respond-
cat, the General Counsel of the National Labor Relations Board issued a complaint
and notice of hearing on February 19, 1965, alleging that Respondent had violated
Section 8 (a)(1) of the National Labor Relations Act, herein called the Act. On
March 18, 1965, the complaint was amended to include an allegation of violation of
Section 8 (a)(3) of the Act. An answer and amended answer denying the commis-
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion of any unfair labor practices were filed by Respondent, and a hearing was held
before Trial Examiner George J. Bott at Houston, Texas, on April 21, 22, and 23,
1965, at which all parties were represented. Subsequent to the hearing, the parties
filed briefs which I have considered.
Upon the entire record in the case, and upon my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is now, and has been at all times material herein, a Texas corporation
with its principal office and place of business in Houston, Texas. The Company's
business consists of the warehousing, distribution, and sale of steel, aluminum and
nonferrous products through five geographically separated operating divisions, com-
prised of warehouse office facilities, in Houston, Dallas, Corpus Christi and Lub-
bock, Texas, and Oklahoma City, Oklahoma.
During the 12-month period prior to the issuance of the complaint, which period
is a representative period, Respondent shipped from its various Texas facilities, prod-
u;,ts valued in excess of $50,000 to purchasers of said products who were located
outside the State of Texas. I find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The setting and the issues
On September 12, 1964, Carl Anderson, employed at Respondent's Houston ware-
house as a city truckdriver, mailed a card to the Industrial Union Department, AFL-
CIO, in Houston, on which he noted his place of employment and asked that he be
telephoned at a certain number. Jack Golden, an organizer in the Industrial Union
Department, testified credibly that he telephoned Anderson on September 15, 1964,
and Anderson told him that he was interested in organizing the Company's employees.
Golden advised Anderson to recruit a committee of 10 employees who wanted a
union and were willing to work and to call him back when Anderson had arranged
a meeting with the committee. Anderson telephoned Golden a day or two later to
inform him that he had a committee of approximately 10 and wanted to meet on
September 24, to which Golden agreed.
The first organizational meeting took place as planned on September 24 at a lounge
owned by employee Anderson's wife. Golden attended the meeting and seven
employee committeemen, including Bennie Springer,' the alleged discrimmatee in
this case, were also present. All of the employees were employed at Respondent's
Houston plant, and while Golden was discussing matters related to organizing, he
discovered that Respondent had branch warehouses at Dallas, Lubbock, and Corpus
Christi, Texas, and Oklahoma City, Oklahoma. Golden also learned that Springer
and another employee named Booker were over-the-road truckdrivers who made
regular trips to branch warehouses. Golden told the employees that he was interested
in all of the warehouses as a bargaining unit, and Springer and Booker said that they
could contact employees in the other warehouses in order to discover whether they
were interested in the Union. Golden emphasized that he would depend entirely on
the over-the-road drivers to get this information, as well as data about wage scales
and the like in the outlying warehouses, because the Union could not financially
afford to place an organizer at each warehouse. It was agreed that the over-the-road
drivers would canvas the warehouses to see if the employees wanted a union, and
it was also agreed that Anderson would be the "kingpin" at the Houston warehouse,
spreading the union word among the employees and reporting back to Golden.
Golden told the men that after he got their reports a decision would be made about
the time to begin an intense organizing campaign.
A second union meeting was held at the Union's meeting hall on October 3, 1964,
and of the approximately 40 employees employed by the Company in Houston, 20 to
25 attended. Five over-the-road truckdrivers, all stationed in Houston, were among
those present. In addition to Springer, they were Preston, Booker, Harris, and
i Springer had also contacted J. L. Ross, a staff representative of the Union, in Au-
gust 1964, with a view to having the Company's employees organized, but Ross told
Springer that the Union was too busy at the time to assume the task.
McCORMICK STEEL CO., ETC. 1553
Kirby. At this meeting, Golden told the employees that the Steelworkers Union was
involved in other matters at the time and could not actively organize them. He said
they could wait until the Union could devote more time to them or chose another
union. The employees voted to wait for the Union. Golden then instructed the
drivers to gather information about conditions at other warehouses, such as, length
of vacations, number of holidays, classifications, wages and hours. The information
was needed, he explained, in reference to combining all warehouses in one bargaining
unit. Golden again stressed that the Union could not assign personnel to the other
warehouses and that the over-the-road drivers would have to assume the responsibility.
At the October 3 meeting, some of the truckdiivers, including Springer, made reports
about the attitude of employees at other warehouses in regard to the union idea.
The next meeting did not take place until November 14, but, in the meantime,
Golden stayed in contact with Anderson. The over-the-road drivers had been report-
ing back to Anderson information concerning the other warehouses, which Anderson
relayed to Golden. At the November 14 meeting, Golden announced that the Union
was "ready for" the employees and that they could begin to get union authorization
cards signed. Golden again emphasized that the Union would depend on the drivers
to organize the outlying warehouses. Some of the drivers, including Springer, again
reported upon employee attitude or sentiment at other warehouses. All employees
present signed union authorization cards, and the Company's over-the-road drivers
were given additional cards to deliver to interested employees at the other warehouses.
The fourth union meeting was held on November 21, and, by this time, the Union
had secured signed authorization cards from approximately 75 percent of the Com-
pany's employees employed in all divisions. At this meeting Golden advised the
employees that he would write to the Company and inform it that the Union repre-
sented a majority of its employees and desired to be recognized as the collective-
bargaining representative. Golden wrote the letter on November 24, and the Company
received it on the 25th. The Company rejected the Union's request for recognition,
and the Union filed a petition for an election with the Board on November 30,
1964. A hearing on the petition was scheduled for December 22, 1964, but was put
over until January 5, 1965. Subsequent to the hearing, an election was held in a
multiplant unit of Respondent's employees which resulted in a union victory by a
vote of 58 to 11.
Bennie Springer was one of the over-the-road drivers who delivered union cards to
company warehouses on his runs from Houston. Springer was discharged on Decem-
ber 21, 1964, for insubordination, says the Company, because of his union activities,
known or suspected by the Company, argues the General Counsel. This is a prime
issue in the case, but a subsidiary one is whether Respondent interrogated and
threatened employees in violation of the Act.
B. Alleged discriminatory discharge of Bennie Springer
1. The evidence
Bennie Springer had been employed by the Company as an over-the-road truck-
driver since 1948 when he was discharged on December 21, 1964. Springer had
been given union cards by Golden at the November 14, 1964, meeting for distribution
to employees in the outlying warehouses. He testified credibly that he made his first
delivery of union cards to the Dallas plant on the following day, November 15.
Springer made a second delivery to Dallas, he said, and one to Corpus Christi, return-
ing to Houston with four or five signed authorization cards, which he delivered to
another member of the committee. He said he also signed up both of the Corpus
Christi employees and two Houston employees. Springer had tested union sentiment
at Dallas before cards were distributed and reported this information to Anderson
along with the data requested by Golden concerning employee wage rates, classifica-
tions and similar material. It also appears, however, that two other Houston based
drivers delivered cards to the Dallas warehouse and that others took them to Lubbock
and Oklahoma City.
Springer arrived at the Dallas warehouse with a load of steel from Houston at 1:30
a.m., Friday, December 18, 1964, parked the truck on company premises and spent
the remainder of the night at a motel. At approximately 6-45 a.m., Springer returned
to the plant to have his truck unloaded. After the gate was opened, Springer went
to the restroom, and, when he returned one of the employees had driven his truck
into the warehouse for unloading Springer donned coveralls and gloves and pro-
ceeded to assist employees in unloading. While the truck was being unloaded,
Springer was met by Superintendent Scott Manous, and what occurred between the
two is in dispute.
206-446-66-vol. 154-99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Springer testified that Manous told him that he had a back-haul to Houston.2
Springer discovered that the Houston backhaul was a load of steel plate, and, after
his truck was unloaded, he directed the loading of the plate. While the Houston plate
was being loaded, Manous again approached Springer and told him that he also had
a back-haul for a customer in Waxahachie, Texas. Springer had already noticed the
Waxahachie order, and when Manous came by again, Springer said he asked him,
"Why don't you all call down there or write to Waxahachie and get us people some help
to unload this steel?" Springer testified that Manous went to the main office and was
gone for about 5 minutes during which time he prepared his truck for the Waxahachie
order by laying timbers across the already loaded steel plate. According to Springer,
when Manous returned, Springer told him he was ready for the Waxahachie back-
haul, but Manous replied, "I don't like the way you talk to me. I got authority to fire
you." Springer said he didn't know that Manous had such authority and added that
he was sorry if he had said anything to offend him. According to Springer, he again
told Manous that he was ready for the Waxahachie load, but Manous replied that
Springer should return to Houston, and he did not care if he ". . . ever came back to
Dallas." At some point during the Springer-Manous discussion, Manous asked
employee Pearson, a Dallas local driver, to tell Springer about the many places
where he delivered steel and had to unload it without aid.
Springer tied down his Houston backhaul, signed some necessary documents and
left for Houston which he reached around 4 p.m. After unloading his truck, he left
the plant for the weekend.
On the following Monday, December 21, when Springer went to work, Superin-
tendent Storck, who is in charge of the drivers and other employees at Houston, met
him, told him to get his timecard and come to his office. In Storck's office, Storck
told Springer that he had a letter from the Dallas division stating that Springer had
refused to make a backhaul. Springer said he explained about what had happened
in Dallas and protested that he made backhauls as a matter of course, but Storck,
told him that the letter stated otherwise. Storck then told Springer that he was "fired."
Springer denied that he had told Scott Manous that he would not take the Waxa-
hachie backhaul. He said he had always been on friendly terms with Manous, who
had frequently complimented him about his work and never criticized the way he
conducted himself in the past. Springer maintained that he had gotten along well
with employees and all supervision and had no complaints from supervision about
his work. Specifically, he denied that he had ever had any complaints from Manager
Meek of the Oklahoma warehouse, or James Willis, the Corpus Christi manager. He
also said that Manous and Rutledge of Dallas had not complained, nor had his
immediate supervisor, Storck. Springer had been given safe driving awards by the
Company each year since the Company began the practice, and he was the third
oldest employee at Houston as well as the senior driver.
Springer also testified that Houston Foreman James Dorrell told him that Superin-
tendent Storck had mentioned Springer's name in connection with the Union and
warned Springer to be careful whom he talked to when he visited the Dallas ware-
house. This occurred some time after the Respondent received the Union's letter
demanding recognition.
Sammie Pearson, employed at the Dallas warehouse as a city truckdriver, heard
part of the conversation between Springer and Manous relating to Springer's alleged
refusal to make the Waxahachie backhaul. He said he was helping unload Springer's
truck when Springer mentioned how cold it was that day in Dallas. Superintendent
Manous overheard the remark and said to Springer, "That's all you do is bitch,
bitch." Pearson said he thought Manous was "kidding." According to Pearson,
Manous and Springer engaged in further conversation, but it is apparent that he was
not present at all of it, because he said that in a few minutes Manous called to him
to come back. When he did, Manous said to him, "I don't want you to get in this
argument ... but I want you to tell Bennie Springer how many places you deliver
steel to and have to rack it." Pearson said he named a number of places where that
was necessary, and when Manous said that was all he wanted to know, he left. Prior
to that, however, he heard Springer say something about being ". . . afraid to take
the other load," but he also stated that Springer told Manous that he had not refused
to take the backhaul to Waxahachie. Pearson went to another location in the plant,
and Manous went to the office. After a short while, Manous returned, and Pearson
heard him tell Springer that, "You don't have to worry about coming back to Dallas
no more "
Pearson also gave some testimony which would indicate, if credited, that Respond-
ent knew or suspected that union cards were being sent back to Houston from Dallas
on the Houston trucks. He said that Scott Manous told him before Springer was fired
2 Backhauls are loads either to the Houston plant or to customers en route.
McCORMICK STEEL CO., ETC. 1555
that he knew that union cards were being sent back to Houston on the Houston
truck. Pearson also told Manous that he had signed a union card, he said, and that
he got it from truckdriver Brooks.
Respondent's picture of Springer as an employee and the events that led to his
discharge was radically different from Springer's. Scott Manous, warehouse foreman
at Dallas since October 1959, had an opportunity to observe Springer, because
Springer had been delivering steel to Dallas for many years. He said that Springer
was not a "satisfied company man", was not "satisfied with his employment", was a
"continual griper and a habitual bitcher." Asked what the gripes were about, he said
Springer complained about the Company using contract carriers who carried "easy
loads," while Springer got the "crap," and he also thought he was underpaid, and
said so.
Manous said Springer seldom helped load or unload his truck, and that was one
of the "main gripes" that the Company had about him. He said Springer would
disappear and not return until a job was finished. According to Manous, he frequently
had trouble with Springer about backhauls, because Springer did not want to make
them and had numerous excuses why he should not. Springer was requited to take
a backhaul on every trip to Houston, of which there were three a week All drivers
were requited to make backhauls, but Springer was the only one who complained
about it, Manous said.
Springer seemed to get worse some time in the summer of 1964, according to
Manous, and Manous orally reported the situation to Edward Prowell, assistant to the
president of the Company and general manager who was visiting Dallas at the time
on a routine business trip. Prowell told Manous and Rutledge, Dallas division
manager who was also present, to write a letter about the matter to the president of
the Company, Royal Thayer and ". . . we will see what we can do about it " Rutledge
prepared the letter, and Manous reviewed it before it was sent The letter is in
Rutledge's own handwriting and outlines the Dallas division's complaints about
Springer.
Manous described what occurred on Springer's last day in Dallas. He said that
while the load was being removed from Springer's truck, Springer asked him what
he had for the return trip, and Manous told him that he had material for Houston
and a backhaul for Waxahachie. Springer asked him what the Waxaiiachie load
consisted of, and he described it as, "A small order which has got to go today because
we promised it for Dallas delivery." According to Manous, Springer said he would
not take the Waxahachie order, because it was too cold to make deliveries. When
Manous told Springer that all the local drivers were scheduled to go out with orders
that day, Springer argued that the glass fiber material in the air at the customers'
plant at Waxahachie irritated his skin, but Manous retorted that Springer would not
be at the plant long enough for that to happen. According to Manous, Springer then
complained about the lack of help in unloading at Waxahachie, but Manous reas-
sured him that he would not need any help, because the load consisted of small
warehouse items. At this point, Manous summoned Pearson to explain to Springer
that he too delivered to customers where he had to unload or help unload He said
that after Pearson had done so and left, Springer still insisted that he would not carry
the Waxahachie material Finally, Manous said lie told Springer that he could be
discharged because of his refusal, and Springer said he was not aware of that. Manous
then left for his office to get some documents.
In a few minutes Manous returned to Springer's truck, which by now had been
loaded with the material destined for Houston, and warned Springer that he was
going to report the incident to Superintendent Storck in Houston by telephone as
soon as possible. Springer asked him what he meant, and he explained that Springer
had refused to ". . . haul a backhaul to one of our customers." Manous said he was
shocked because it was unheard of for an employee to flatly refuse a backhaul. He
said that Springer then told him that he did not mean to offend Manous, and would
take the material. Manous said that, although Springer finally said he would take the
Waxahachie load, he added a "stipulation" that, if the customer did not supply help
to unload the material, he would take it on to Houston. In addition, Manous noticed
that, when he returned, Springer had already tied down his Houston load, indicating
that he was ready to leave without the Waxahachie order.
Shortly after 8 a.m., Manous telephoned Superintendent Storck in Houston, but,
because Storck was out, he spoke with Thayer, Respondent's president. He said he
told Thayer what had happened and asked that Springer be permitted to service the
Dallas warehouse no longer. Thayer told Manous to confer with Rutledge, send him
a memorandum covering the incident and he would have a conference with Storck
when he returned Monday. According to Manous, Rutledge, who had been ill, came
in around 9 o'clock, and the two conferred. Rutledge wrote a letter to Thayer
covering the Springer incident and mailed it to Houston that evening.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to union activity generally, Manous said he knew nothing about it
until he was informed by Rutledge that Thayer had received the Union's demand for
recognition. He denied that he told employee Pearson that he knew how the union
cards were getting to Dallas and he said he mentioned union cards to no employee.
B. J. Rutledge has been the Respondent's Dallas division manager since June of
1962, and, prior to that, he managed the Lubbock division for approximately 5 years.
Although he was aware of Springer during his managerial career, Rutledge's first
difficulties with the employee occurred in Dallas, he said. He testified that he had
occasion to observe truckdrivers who came to Dallas and had occasionally observed
Springer. In his opinion, Springer was a "sorehead and a complainer and a griper"
who griped about "trucks, backhauls and compensation." His opinion, he said, was
based upon personal observation and on "perhaps asking Bennie a question or two."
Rutledge also said he had seen Springer pull his truck in at Dallas, go to the restroom
and remain for long periods of time.
Rutledge corroborated Manous about talking with General Manager Prowell
regarding Springer's failings and Proweli's suggestion that he send a memorandum to
Respondent's president, which he did in November 1964. He also testified essentially
like Manous about arriving late at the plant on December 18 and learning from
Manous that Springer had refused a backhaul to Waxahachie, which Manous had
reported to President Thayer. He said he wrote the memorandum about Springer
which Thayer had requested, and mailed it that day.
Royal Thayer, Respondent's president, testified that he had received two written
complaints about Springer from the Dallas division. The first memorandum was
received on November 10, 1964, Thayer said, and dated by him when he received it,
because it had not been dated by the sender. He also said he added the written nota-
tion on the bottom of the memorandum, "Constant Complaints. Refused to load
and unload," after discussing the memorandum with Rutledge.
After Thayer received the November memorandum concerning Springer, he sum-
moned Robert Storck, Springer's supervisor, and discussed it with him. He said he
told Storck he should discuss the matter with Springer and warn him that the Com-
pany would not "allow any more circumstances like this."
Thayer also identified the December 18 memorandum from Rutledge about
Springer, which he said he received on December 21, at approximately 7 or 7:15 a.m.
He knew the letter was coming, because he had talked with Scott Manous the previous
Friday morning. When Thayer got the second written complaint he called Storck
to his office and told him that on the basis of the earlier ". . . memorandum and the
statement that Manous had given him on Friday morning, plus this memorandum
from Mr. Rutledge, that as far as I was concerned, we could not tolerate any addi-
tional actions like this, and he would fire Mr. Springer ...." He added that the deci-
sion to discharge Springer was his. According to Thayer, he first became aware of
union activities within the Company when he got the Union's demand for recognition
on November 25. In addition, he said he never discussed Springer's alleged union
activities with anyone and had no knowledge of any such activities.
Robert Storck, warehouse superintendent at Houston, has been with the Company
for 19 years and has observed Springer for most of those years. He testified that, in
his opinion, Springer ". . . is a chronic griper, grumbler and a malcontent. He has
been the source of aggravation to the supervisors or personnel for quite a while.
This condition seemed to be aggravated about the middle of last summer, and gradu-
ally continuously became worse." Storck said Springer complained about routine
work in the warehouse, which he was expected to do when not driving.
Storck related a series of criticisms or complaints about Springer, which he said he
got from other divisions of the Company. According to him, Bob Meek, Oklahoma
City division manager, telephoned him, in April 1964, to report that ". . . they had an
unpleasant scene with Springer ... that the bay foreman ... had told him that he
just couldn't get along with him, that he wouldn't perform his duties and ... they
didn't want to see Springer back up there." Storck said he told Meek he would not
send Springer back if they did not want him, and that that was Springer's last trip to
Oklahoma City. Storck spoke with Springer about the incident, he said, told him
about the complaint, asked him to straighten out, because he was capable of doing a
good job and should "get back on the ball "
James Willis, manager in Corpus Christi, also had problems with Springer and
complained about them to Storck. Storck testified that, late in August 1964, Willis
had asked Springer to make a backhaul to a customer in Port Lavaca on his way
back to Houston, but Springer did not want to make it, and, only after considerable
argument and threats by Willis to telephone the Houston office, would Springer agree.
Most of the Houston bay foremen had also complained about Springer in the past,
Storck said. Their problem with Springer was that, Spiinger was not driving and
the foremen needed extra help to stack steel in the bay, they had to "stand over him
McCORMICK STEEL CO., ETC . 1557
practically with a stick to make him do the work." Storck said, however, that Springer
was a good truckdriver and the "gripes" did not involve his actual driving, but rather
his attitude when not driving.
Storck also described the two complaints about Springer from Dallas which have
previously been referred to in connection with Rutledge's and Thayer's testimony. He
said Dallas supervision had complained to General Manager Powell that Springer
.. wouldn't help unload his truck, that he was grumbling about salary, about wor..-
ing conditions, about having to perform duties other than that of a truck driver."
After Thayer received the November written complaint from Rutledge, he and Storck
conferred and agreed to give Springer a warning. According to Stoick, a few days
later, he told Springer about the complaint, said he was "fed up" with his attitude, and
warned that he would be let go if he did not reform, and that the warning was final.
With respect to the December 18 letter from Dallas to Thayer about Springer,
Storck said Thayer showed it to him, said he thought Springer should be discharged,
and he agreed. He sought out Springer, brought him to his office, read the letter to
him, reminded him of the earlier ultimatum and discharged him. He stated that
Springer did not deny the Rutledge accusation which caused the discharge.
James Willis had been manager of the Corpus Christi division of Respondent since
October 1963 at the time of the hearing. He said he was in the Corpus Christi ware-
house every time a truck arrived and so had observed Springer in the warehouse and
talked with him occasionally. His opinion of Springer was that the employee's atti-
tude was "poor" and that he was a "complainer." He said Springer complained about
making backhauls to customers if he had to unload the items by hand, and, although
Springer had never actually refused to take a backhaul, he had made "sour comments"
about them and had threatened to transport the material on to Houston if the customer
enroute did not supply help in unloading. Willis said Springer seemed to be serious
in this threat, and he reported it to Storck as well as making "some mention of it" to
Powell. Willis had no complaints about Springer regarding loading or unloading
his truck, and he stated that Springer had never actually carried a customer order on
to Houston as he had threatened to do on occasion.
Bob Meek, manager of the Oklahoma division of Respondent since October 1963,
said that the last run Springer made to Oklahoma City was in April 1964, because
he requested Storck not to send him there again. He made such a request, he said,
because Springer ". . . gave us problems everytime he was there. He would gripe
about various things ... he would gripe about having to load or unload his truck.
He was not ... cooperative in many things. He didn't help the morale of the rest
of our people He would get off his truck when the truck arrived and go to the rest-
room and might not get back for twenty-five or thirty minutes. And he objected
strongly to making backhauls, primarily to Dallas, on his return to Houston." Meek
said he walked through the warehouse daily and "had occasion to hear these
gripes ..." that Springer made. He added that Kepler, the warehouse foreman, did
not want Springer delivering to Oklahoma City, because it was not "worth the effort"
to argue with Springer
Two bay foremen from the Houston waiehouse also testified. James Dorrell, who
bad been a supervisor for about 11/2 years, said that Springer was a good driver, but
he was always "griping about things" which were "none of his business " Springer
would tell Dorrell that he was a truckdriver, not a steel stacker, when sent to help
Dorrell, and Dorrell would have to threaten to report him to Storck before Springer
would cooperate. He also said that Springer complained about independent con-
tractors doing some of the work he thought the Respondent's drivers should do.
Dorrell never had any problems with Springer about loading or unloading his truck,
however. With respect to knowledge of union activity, Dorrell said he learned about
it after Thanksgiving when management called a meeting of supervision to announce
the Union's demand for recognition. He denied that Springer's name was mentioned
at the meeting, and he also denied that he told him to be careful about who he talked
with when he drove to Dallas.
Supervisor Hoyt Kimbro had little to say about Springer, but he stated that, as
far as he knew, Springer's name was never mentioned at a foremen's meeting.
2. Analysis, additional finding, and conclusions in the Springer case
Respondent contends that Bennie Springer was discharged because he refused to
take the Waxahachie backhaul on the morning of December 18, 1964, and that his
insubordination was but one of a long series of employee derilictions which occurred
after repeated warnings to the employee to mend his ways. A threshold question
which must be resolved before assessing Respondent's asserted reason, however, is
whether or not Respondent knew or believed that Springer was engaged in union
activities, because if that key issue is decided in Respondent's favor, there is no
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason to examine Respondent's reasons for discharge no matter bow strong a prima
facie case General Counsel made out. In my opinion, and I find, Respondent knew
or believed that Springer was engaged in union activities.
Respondent was not neutral in the Union's campaign to organize its employees,
rather it opposed the Union and forcefully emphasized to its employees that it did
not intend to have a union in its warehouses. Thus, admittedly, on January 6, 1965,
the day after the Board hearing on the Union's petition for certification as bargaining
representative in all the warehouses, General Manager Prowell and Houston superin-
tendent Storck addressed assembled Houston warehouse employees. Employee
Vernon Smith testified without contradiction, and I credit his testimony, that Prowell
told the employees that Respondent had beaten ". . . the union in California and
they were going to fight it with everything they had-words, money-and whatever
other means they could find." Smith also said that Storck said there was not "going
to be no ... union in the shop." Storck admitted using "cuss words" at the meeting.
He said he told the employees that those not interested in the union would have the
Company's backing and that the Company did not want the Union. He stated that
he ". . . wound up by saying somewhat forcibly that there would not be a union in
our company." He added that the Respondent felt at the time that it was "going to
defeat this thing at the election." I also credit employee Smith's testimony that
Storck stated at the employee meeting that he knew some of the employees were not
"for this union" but had been "talked" into it, and that he would "look out for" those
employees who were not for the Union, but that the employees who started the
Union would be ". . . on your own from now on."
Although what was said at the employee meeting on January 6 is virtually undemed,
there is a conflict about what President Thayer told a meeting of Respondent's super-
visors when he addressed them upon receipt of the Union's letter demanding recogni-
tion. Thayer said he called the meeting for November 27, after he got the Union's
letter and that he ". . . read this letter woad for word and told them that we had this
from the union ...... He said that he then told the supervisors that he would have
to discuss the situation with the parent company in Los Angeles. That was all the
discussion there was, he said, and he adjourned the meeting. He stated that the
meeting lasted just long enough to read the Union's letter, and that Bennie Springer's
name was not mentioned at the meeting Supervisors Kimbro and Dorrell attended
the meeting and their testimony is essentially in accord with Thayer's. According to
them, the meeting lasted only long enough for Thayer to read the Union's demand,
and Springer's name was not mentioned.
I do not believe Thayer's, Kimbro's and Dorrell's versions of what was said at the
November 27 supervisors' meeting In the first place, Superintendent Storck testified
that after President Thayer read the Union's demand for bargaining, he stated that
he did not think that Respondent's employees needed a union, because the Company
was small enough to deal with them on an individual basis He agreed that Thayer
made it known at the meeting that the attitude of the Company was against having
a union. In addition, employee Simon testified without contradiction that Supervisor
Schroeder talked with him about the Union sometime after he signed a union card
and a few days after the Union's demand for recognition. He said Schroeder told
him, just after leaving a meeting in Storck's office, that the employees should not have
anything to do with the Union because it was "... no good for.. ." them. Schroeder
added that such was what he had been told that morning to advise employees, but he
also stated that the employees were the "judge[s]" of what they wanted.
The meeting of supervisors on November 27, therefore, was longer and much more
was said than most of Respondent's witnesses conceded. This is not only indicated
by Storck's admissions and Simon's undenied testimony about what Schroeder told
him after the meeting but also by the unlikelihood of the other version. The meeting
lasted about one-half hour, which would be a long time to consume in just reading
the Union's demand, and also a waste of a valuable opportunity to advise or instruct
first line supervision about the Company's policy in the circumstances. I find that
Respondent did make its opposition to the Union clear at the meeting, and I also find,
in accord with Springer's testimony, that Dorrell told him that he bad heard his name
mentioned at the supervisors' meeting by Superintendent Storck in connection with
the Union and warned him to be careful about who he talked to when he went to the
Dallas warehouse. Although Dorrell denied the conversation with Springer, I dis-
credit him for the reasons given and because I was more impressed with Springer's
version both in content and delivery, than I was with Dorrell's. The men had had
satisfactory business dealings outside the plant, and I am convinced that Dorrell was
giving Springer a friendly warning, which he felt he had to deny later.
Additional evidence of Respondent's knowledge of the Union's organizational
techniques is found in employee Pearson's testimony. Pearson said that Scott
Manous, the supervisor at Dallas who was instrumental in Springer's discharge, told
McCORMICK STEEL CO., ETC. 1559
him that he knew that signed union cards were being returned to Houston from Dallas
on the Houston trucks. This is in accord with Pearson's undenied testimony that
J. W. Thomas, who ranked with Manous in authority at Dallas, told him before
Springer was discharged that he knew how the union cards "... was passed out ..."
and how the employees ". . got wind of the union." Springer was one of the
Houston drivers who regularly visited Dallas, and I have found, in accord with union
representative Golden's testimony, that Springer did gather relevant information from
Dallas and Corpus Christi concerning employment practices and the attitude of
employees about starting a union. I also find that Springer, as he testified, took union
cards to employees in Dallas, as well as Corpus Christi, and returned the signed cards
to Houston. For the reasons given, I find and conclude that Respondent knew or
suspected that Springer was active in organizing its employees, particularly at Dallas.
If Respondent knew or believed that Springer was assisting the Union, as I have
found it did, then General Counsel made out a strong prima facie case that Springer
was discharged because of his activities. Respondent's union animus was demon-
stiated by itself. Thayer made it clear to Respondent's supervisors that the Company
opposed the Union, General Manager Prowell told the employees that Respondent
would fight the Union and Storck told them in no uncertain terms that there would be
no union in Respondent's facilities. Springer was discharged at the height of the
Union's campaign and shortly before the hearing on the Union's representation case
petition. He had worked for Respondent for 16 years, concededly as a safe and
otherwise satisfactory over-the-road truckdriver, and, according to him, his record as
an employee was unblemished in other respects If anything else was needed to shift
the burden of going forward to Respondent, Dorrell's warning to Springer to be care-
ful whom he talked to in Dallas, because he had heard Storck mention Sprmger's
name in a union context in a supervisors' meeting, supplied it.
Respondent, however, as set forth above, introduced a substantial amount of evi-
dence through the testimony of supervisors and other management officials purporting
to show that the alleged discrimmatee, far from being a model employee during his
service with Respondent, was instead one whom a long-suffering employer was forced
to discharge for his final act of insubordination, which, according to Superintendent
Storck, was merely the "straw that broke the camel's back." In my opinion, however,
these versions of Springer's history of employment and the events which allegedly
precipitated his discharge appear to be exaggerated, sometimes inconsistent with prior
testimony of the witness, as well as that of other of Respondent's witnesses, and is
in other respects unimpressive.
The testimony of Bob Meek, Respondent's Oklahoma City manager, is an example
of an account which inflated Springer's shortcomings as an employee and, when
scrutinized carefully, appears to be unsupported by the personal observations and the
experience the witness first indicated he had. As already described, Meek testified
under direct examination that he walked through the Oklahoma City warehouse
"daily" and had "occasion to hear (the) gripes" which Springer made concerning
making back-hauls, loading and unloading and the like. Meek said there were
"repeated instances" of these incidents It appeared from Meek's later testimony
under cross-examination, however, that his personal experience with Springer was
based upon but one trip Springer made to Oklahoma City before Meek said he com-
plained about him to Storck and asked that he not be permitted to return to Oklahoma
City. In addition, there is nothing in Meek's direct examination about Springer actu-
ally successfully refusing to take a backhaul from Oklahoma, but under cross-exami-
nation he answered that Springer had "actually refused to take some backhauls." But
even this overreaching then appeared to be based upon what a foreman had told
Meek. The foreman did not testify. I do not credit Meek's testimony.
Although Willis, the Corpus Christi manager, was more restrained than Meek about
Springer's failings, nevertheless, close examination of his testimony reveals less about
Springer's misconduct than Meek would have had one believe existed. Willis, like
other managers, was asked for his opinion about Springer's attitude, fitness and
ability, and he said they were poor because he griped about the work He added
that Springer would "threaten to refuse to take a back-haul to a customer " The
backhauls that Springer complained about appear to have been loads that the driver
would have to unload by hand, which was admittedly inconvenient for the driver.
Willis conceded that Springer never actually refused a backhaul, but he said he would
make "sour" comments about the loads and state that he would carry them back to
Houston if the customer did not supply help to unload it. There is no evidence that
Springer ever did so, and, in addition, I consider his "sour" comments, if made,
trivial and unimportant to management In my opinion, Willis thought so too, until
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the bearing in this case, because he put up with Springer for a substantial period of
time without ever mentioning Springer's failing to Springer and without recommend-
ing his discharge or removal to Storck.3
Manager Rutledge also overstated Springer's failings and the basis for his opinion.
Rutledge said he had been division manager at Dallas since June 1962 and had
observed Springer in the Dallas warehouse As set forth earlier, he was very criti-
cal of Springer, asserting that Springer dodged work and ". . . devoutedly disliked
back-hauls of any sort." His opinion was based upon personal observation, he said,
and on discussions with Springer. At first glance it would appear, therefore, that
Rutledge was saying that he had been dissatisfied with Springer for more than 2 years
before his discharge, but additional examination revealed that he really became
unhappy about Springer in the summer of 1964, and the basis for this is also left
vague in the record Prior to 1962, Rutledge had been division manager in Lubbock
for 5 years and Springer delivered to Lubbock during that period. Springer, there-
fore, was no stranger to him when he showed up in Dallas, but Rutledge could remem-
ber no troubles with Springer before Rutledge took over in Dallas 4 Rutledge did
not make any reports to higher officials about Springer until he talked with General
Manager Prowell in "October, something like that," according to him, so his asserted
discontent could have been of only a few months standing.
Rutledge said he could not "pinpoint any particular dates" when he first became
aware of Springer's bad work habits for his information came only from Scott
Manous, the warehouse superintendent, and it was Manous' complaints which he
transmitted to Prowell. His own experiences with Springer relating to dodging work
of loading or unloading trucks were confined to two occasions when he saw Springer
park his truck and go to the men's room. He conceded that he assumed that Springer
had a legitimate reason for using the restroom. Rutledge also stated that his Novem-
ber 10 memorandum to President Thayer, which Prowell told him to write, was
written "immediately" after receiving a complaint about Springer, which could have
fixed the time of Springer's worsening as November rather than sometime in the
summer, as he first stated, and he conceded that the memorandum related to "no
specific instances" as far as he knew personally, but was based only on complaints
from Manous He indicated, but with no degree of certainty, that Manous was con-
cerned, because Springer's bad habits were affecting Manous personally in his opera-
tion of the warehouse. Rutledge said he had not spoken with Sprenger about the
problem because that was Manous' job, because "he takes care of the warehouse
personnel . . . [and] my time is spent at the office." In sum, therefore, Rutledge did
not know as much about Springer as he suggested he did, and this detracts from the
reliability of his testimony about Springer's attitude and work as well as from his
testimony generally.
But if Manous was dissatisfied with Springer and had the authority Rutledge said
he had, he apparently never exercised it, even to the extent of suggesting that Springer
stop his "bitching." Manous had been Dallas superintendent for about 51/2 years
when he testified, but there is no evidence that during that period he ever mentioned
Springer's derelictions to him or to anyone else until, according to him, sometime
in the summer of 1964, which casts considerable doubt on his testimony that, for
5 years or more, Springer was an unsatisfactory employee, and leads me to believe
that his description of Springer as an employee was as exaggerated and overstated
as that of the others. In any case, contrary to Rutledge's assertion that Springer
created problems for Manous as a supervisor, Manous testified in a Texas Employ-
ment Commission hearing in Dallas concerning Bennie Springer, claimant for unem-
ployment compensation, that Springer's complaining created no problems for him,
but was something he ignored and "passed over."
Storck's description of Springer's attitude and conduct was so overdrawn, in my
opinion, that it sounded and reads like a caricature. He said he had complaints from
Dallas about Springer for "as long as he had been going to" Dallas, which was since
the plant was built 10 years ago. The reports from Dallas were "usually" oral from
either Rutledge or Manous given to General Manager Prowell whenever ". . . he would
make a business trip up there . . . every four to six weeks." Storck retreated from
'Willis had no complaints about Springer not helping to unload or load his truck,
although Meek, Storck, Rutledge, and Manous emphasized that asserted failing. Springer
delivered to Corpus Christi regularly, and it is indeed odd that his work habits, in-
grained over a period of 16 years, according to Storck , should differ at different
warehouses
'This itself does not j ibe with Storek 's testimony that he had received complaints
about Springer for many years from many sources, including the Lubbock division.
McCORMICK STEEL CO., ETC. 1561
this extreme position by stating that Prowell did not bring back an unfavorable report
about Springer every time he went to Dallas, but he repeated that he had received
complaints from Dallas about Springer ever since he had "been running to Dallas,"
which is contrary to the essence of Rutledge's and Manous' testimony that they men-
tioned Springer to Prowell once and not earlier than the summer of 1964. Storck's
testimony that he had continual complaints from other warehouses about Springer's
refusals to load or unload his truck did not withstand examination. He admitted that
he did not know "exactly" how many times Oklahoma City complained, and he said
Springer had not been to Lubbock in some time, so he could not remember about
Lubbock. Regarding Corpus Christi, he said the ". . . complaint was not so much
about his failure to unload ...," when in fact the record shows that Willis in Corpus
Christi had made no complaints in that regard. Storck's testimony about refusals
to load and unload is another example of building a case with afterthoughts and is
of a piece with his statement that Springer had been carrying backhauls for 18 years,
but doing it "under protest in most cases." Storck was Springer's immediate super-
visor, and he could only explain the absence of specific complaints or criticisms on
his part against Springer for all but 6 months of that period on the ground that
Springer's attitude worsened in the summer of 1964. The assertion that an employ-
ee's attitude and conduct was as bad as Storck said it was for so long without some
evidence of discipline or warning is suspect enough, but Storck's story, conflicting
as it does with Rutledge's statement that he had no problems with Springer in
Lubbock and Willis' solitary complaint about Springer in Corpus Christi, which was
one of Springer's principal runs, makes it increasingly difficult to accept Storck's
version of the reasons and events which led to Springer's discharge.
During the hearing in this case, I admitted into evidence a decision of Appeals
Tribunal of Texas Employment Commission holding that Bennie Springer was not
disqualified from receiving unemployment benefits, because he was not discharged
because of misconduct connected with his work, and also admitted into evidence a
certified copy of the sworn testimony before the Texas Employment Commission.°
Company representatives Scott Manous, Rutledge and Storck testified at the hearing
on appeal, as did Springer, the claimant. Comparison of the testimony of the Com-
pany's witnesses in that hearing with their testimony in the instant case reveals cer-
tain inconsistencies or other defects which detract further from the reliability of
the evidence.
In the hearing in this case Manous testified that even though Springer finally agreed
to take the Waxahachie load, he still added a "stipulation that maybe he would or
maybe he wouldn't" and that, if the Waxahachie customer did not help him unload
the order, he would take it to Houston. When Manous testified before the Appeals
Tribunal, however, he did not say that Springer had added a "stipulation" or condi-
tion to assenting to take the order to Waxahachie, despite the fact that he was ques-
tioned about it. Moreover, when the Referee called his attention to the December 18,
1964, letter from Rutledge to Thayer about Springer's insubordination, which con-
tains the statement that Springer threatened to take the load to Houston if he got
no help from the customer, and asked Manous for comment, Manous cited exam-
ples of other occasions when Springer had telephoned him from Waxahachie about
unloading problems, but still did not mention Springer actually attaching a condition
to delivery on the day in question. It also appears that there was nothing in Robert
Storck's testimony on February 16, 1964, at the hearing in Houston before the
Appeals Tribunal, about Springer changing his mind about carrying the Waxahachie
order. This subject was first mentioned by the referee when the hearing resumed in
Dallas, who commented that there had been nothing said in the earlier hearing about
Springer changing his mind. Manous replied that the matter was first brought out
when he was interviewed by a Board agent in reference to this case.
I do not believe that Springer added the "stipulation" when he capitulated that
Manous said he did, because not only is it improbable that he would do so after just
having been threatened with discharge, according to Manous, but also because of
Manous' vacillating testimony as noted. But whether he did or not, Manous also
testified inconsistently about his reasons for not permitting Springer to take the load
after Springer indicated his willingness to do so. In the hearing before me he stated
that, in addition to refusing to take the load, Springer tied the Houston load down,
5 The employer appealed the decision of the Appeals Tribunal to the Texas Employment
Commission, and, on April 29, 1965, subsequent to the hearing in this case, the Commis-
sion reversed the Tribunal, stating that it disagreed with the finding of the Appeals
Tribunal that misconduct was not proven. On May 21, 1965, I granted Respondent's
motion to reopen the record to receive in evidence the decision of the Texas Commission.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby indicating to Manous that he was not going to take the Waxahachie load
under any circumstances, but, at the Texas Employment Commission hearing, Manous
said nothing about Sprmger's truck being tied down as an added reason for not giving
him the load when he agreed to take it. On the other hand, when asked by the
Referee if there was any particular reason why he did not let Springer haul the load
after he decided he would take the material, he responded that the "time element"'
involved in the loading schedule required that the Houston bound truck be gotten
out of the way so that local deliveries could be dispatched.6
In the instant hearing, Manous testified that he telephoned Houston after Springer
refused the assignment, and spoke with President Thayer, because Superintendent
Storck was not in. In the TEC hearing in Dallas on March 1, 1965, he said he tele-
phoned Houston and spoke with Storck. President Thayer did not testify at the
TEC hearing, and Storck, who did, indicated that he got all his information about
what he called Springer's "final act of insubordination" from Thayer, but did not
mention that Thayer got his information from Manous and not Rutledge who signed
the letter complaining about Springer's actions on his last days of active employment.
It is, of course, a possibility that Manous' answer, in response to an inquiry from
the Referee that he telephoned Houston in Rutledge's absence and spoke with Storck
about Springer, instead of with the president of the Company, was a mere lapse of
memory or some kind of unexplainable inadvertence. But when one seeks to excuse
it on that ground one is confronted by Rutledge's testimony before the TEC that he
was not in Dallas on the day the Springer incident occurred but was "attending a
division manager's meeting in Houston " He could not have written the letter to
Thayer which caused Springer's discharge on the date it bore, that is December 18,
but did so on the following Monday, December 21, he said. But Rutledge testified
in this case that he was in Dallas on December 18, although he was late getting to,
the warehouse, because he had been ill, and that he wrote and mailed the letter to
Thayer on that date. He explained the conflict in his testimony on the ground that
he was "confused on the dates" in the TEC hearing and he might have been "groping
for an answer." These unfortunate parallelisms in the testimony of these witnesses
concerning who spoke or wrote to whom, and when they did, about the central event
in the case leave one with a distinct impression that "groping" had not ceased at the
time of the hearing in this case.7
Some conflicts among Respondent's witnesses in the instant hearing have already
been noted, such as, Storck's statement that he had been receiving complaints about
Springer for 10 years from various warehouses, including Lubbock, as compared to
Rutledge's testimony that he could not recall any complaints about Springer while
he was division manager in Lubbock In addition, President Thayer, who as previ-
ously noted was not in accord with Storck about how much was said at the super-
visors' meeting he held as soon as he got the Union's demand for recognition, did
not agree with Rutledge regarding the Company's practice of making written com-
plaints about employee failings. Rutledge, in explaining why one of his memoranda
about Springer to Thayer was hand written and the other was typed, said that the
Company had ". . . never made a practice of writing memos in reference to inefficient
personnel . " and he, in effect, admitted that the written memoranda in Springer's
case were unusual. But President Thayer testified that Rutledge on "various times"
had telephoned him from Dallas to report that an employee had been insubordinate
or otherwise unsatisfactory, and he had instructed Rutledge "probably four or five
or six times" during the last year to put the complaint in writing. Thayer did not
recall the names of Dallas employees who had been the subject of these written
reprimands, but said Rutledge's written memoranda about Springer were not unusual,
because it had occurred with respect to other employees. He added that it was
standard practice, "particularly in our outlying divisions," that complaints about
employees were put in writing, because employees were discharged after two written
complaints. One or two employees had been discharged in 1964, he said, under
such circumstances.
Tnayer's testimony about Respondent's practice of issuing written reprimands also
seems to be in conflict with Oklahoma City Manager Meek's and Corpus Christi
Manager Willis' asserted oral complaints about Springer to Storck, and contrasts with
8Employee Pearson testified that Manous would not let him put the Waxahachie mate-
rial on Springer ' s truck
71 have previously found that Rutledge's testimony in this case under direct examina-
tion exaggerated Springer ' s faults and Rutledge 's experience basis , and I find the same
qualities in the TEC testimony where he said, for example, that he personally knew that
Springer was a griper for 14 years , which contradicts his final position as a witness in
this case.
McCORMICK STEEL CO., ETC. 1563
Storck's testimony that complaints about and reprimands of employees were usually
oral. It is also intrinsically in conflict with the wealth of testimony about Springer's
many years of unsatisfactory service, because Respondent was able to produce only
two written complaints about Sprmger, both received after Springer engaged in union
activity and both solicited by high management officials fiom their subordinates.
The effect of this also is to throw some doubt on the authenticity of the actual writ-
ten complaints against Springer and Respondent's good faith in securing them. . n
additional oddity appears on the face of one of the documents. The first written
complaint about Springer contains in its lower left-hand corner the figure "4" super-
imposed over the figure "5" in the date "11/10/65." Thayer said he dated the docu-
ment when he received it from Rutledge in November 1964, because it bore no date.
Thayer's explanation of the correction in the date to the effect that he still, in 1965,
"catch myself writing checks with '64 dates on it" was lame and unimpressive in its
failure to explain how he acquired the habit of postdating complaints.
I have set out a certain number of ingredients found in the testimony of Respond-
ent's witnesses concerning Springer which cause me to believe and conclude that the
evidence is unreliable and that the reasons put forward for Springer's discharge are
not the real reasons, but lie somewhere else. On the other hand, I am disposed to
credit Springer's version of his employment with Respondent and his discharge.
Springer admittedly had a long, safe, and otherwise satisfactory record as a truck-
driver at least while performing an over-the-road truckdriver's functions, and it should
bear noting that truck driving, not common labor, was his principal function, and
Respondent seemed to think so too, for, if its account is correct, it put up with
Springer for 16 years despite his nondriver failings, indicating very clearly that safe
and steady delivery of the Company's product was more important to Respondent
than Springer's dislike of manual labor and unsunny-like disposition. Implicit also
in my discrediting Storck's, Meek's, Willis', Manous' and Rutledge's testimony as
thoroughly exaggerated, is my acceptance of Springer's testimony that his work
appeared to be satisfactory to Respondent and no supervisor told him different. If
Springer was a griper or a complainer, those defects in his disposition did not affect
his work, create particular problems for supervisor Manous or concern management
generally
Jr. my view, the evidence also indicates that Respondent acted hurriedly to rid
itself of Springer when it learned of his union activity, and seized upon the incident
on December 18, 1964, involving the Waxahachie backhaul, as a pretext to accom-
plish a foreoidained end. in addition to the other factors, which I have already
described, which indicate that the witnesses were building a case against Springer,
the events immediately preceding and contemporaneous with Springer's severance are
also extremely suspicious.
Both Springer and employee Pearson were taken aback at Manous' manner and
speech on the morning of December 18. Springer said he did not know what was
the matter with Manous, and Pearson thought Manous was "kidding" when he
accused Springer of bitching constantly. He also said that when Manous told
Spimger he would not be coming to Dallas again, he "laughed" at the idea that
Springer had been discharged. Springer testified that he had been polite to Manous,
had not refused to take the Waxahachie load, but had merely asked Manous to tele-
phone the customer and insist on local help in unloading Springer's truck. Manous
admittedly knew what Springer was talking about, because he said that he was aware
of the problem at Waxahachie and that one of the Respondent's salesmen had visited
the customer to investigate or resolve it. Manous' outburst and threat, in the cir-
cumstances, was understandably confusing to Springer and Pearson, and, taken with
the various shifts in position Manous made in his testimony as described, is an indi-
cation that Manous was seeking a reason to discharge Springer. I also find that the
December 18, 1964, written complaint to Thayer by Rutledge, which Manous appar-
ently coauthored, is suspect, because it does not say, as I find occurred, that Springer
agreed to take the customer's order to Waxahachie, and because it states that the
employee "had again refused to perform work regularly assigned." Manous explained
that although Springer had never before refused to deliver a load, he was referring
to Springer refusing to help unload, but he then conceded that Springer had never
actually refused to unload "in words," but would just "walk off " Manous conceded
that he had nothing against Springer on the unloading count that morning, but it
should be noted that at the TEC hearing he also relied upon that factor.
Rutledge admitted that Manous told him that Springer had finally agreed to carry
the Waxahachie load, but he said Springer had consented only "after a bunch of lip "
Asked why he did not put that in the December 18, 1964, report to Thayer, which
Thayer relied upon in discharging Springer, he replied that Springer was trying to
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"make amends" and that he "wouldn't do him the honor" to accept them. Rutledge's
demonstrated bias against Springer suggests that his memorandum was deliberately
inaccurate.
President Thayer's deep participation in Springer 's discharge appears unusual, and
when he testified , contrary to Storck and Rutledge , that it was normal for him to
require written reports about employee derelictions , he appeared , in my opinion, to
be trying to rationalize his participation as being a routine thing . But Springer, in
my view, was being afforded special attention , because he was a special case-a truck-
driver who had helped organize Respondent 's Dallas warehouse-and Thayer was
aware of it Thayer said he personally made the decision to fire Springer and told
Storck to execute the decision. Storck had been Springer 's immediate supervisor for
many years , and Thayer said he normally did not interview truckdrivers because such
was the responsibility of division managers . But despite Springer's protest to Storck
-that the written report of December 18 was inaccurate , which, as a matter of fact,
it was , neither Thayer nor Storck investigated Springer's side of the story, but pre-
.cipitately discharged him. Someone , for sure, was bent on eliminating Springer fast,
and although a telephone call to Dallas might have revealed that the facts against
Springer were not as unfavorable as Rutledge 's report portrayed them, Thayer did
not make it and Storck did not suggest it. This all suggests that Respondent had an
excuse to discharge Springer and did not want to blur it with additional investigation.8
I find and conclude on the basis of the entire record and because of the reasons
given, that Springer 's discharge was substantially motivated by union considerations.
By such conduct Respondent violated Section 8(a) (1) and ( 3) of the Act , as alleged.
C. Alleged violations of Section 8(a)(1) of the Act
The complaint alleged various acts of interference , restraint , and coercion in viola-
tion of Section 8(a) (1) of the Act, but I find the following only to have been estab-
lished by a preponderance of the evidence . I find, in accord with the testimony of
employees Chavis and Smith , that Foreman Hoyt Kimbro interrogated them about
the Union . Chavis testified credibly that , about 1 week after the Board hearing on
the Union's petition for certification , Kimbro asked him how he would vote in the
election. Shortly after the same hearing , Kimbro asked Smith if he was "for the
union." I also find that , in addition to his interrogation , Kimbro told Smith that if
the Union were successful in organizing Respondent , Smith and others would lose
their jobs because they could not pass "union tests ." Although the subject of "union
tests" is vague and undoubtedly unsupported by any such union practice, Smith
appeared to be sincerely recalling the statement, and moreover, he had testified accu-
rately on another matter, namely , Prowell's and Storck's remarks made to the
assembled employees after the Board hearing. In addition , propaganda does not
have to be based on fact in any degree to be effective.
I also find that Foreman Scott Manous, some time in November 1964, told employee
Pearson that he had heard that the employees were trying to organize a union and
asked him if he had ever worked in a union shop. Manous then described the unfor-
tunate things which could happen to an employee who went on strike. Manous also
asked Pearson how the Dallas employees obtained their union cards and how they
were returned to Houston . Pearson denied that he knew , and Manous then told him
that he knew the cards were sent back to Houston on the Company 's Houston trucks.
8 There are other curious Items In Thayer ' s testimony In the first place , it would
not have been unprecedented for him to telephone for additional data, because he testi-
fied that he added the notation , "Constant Complaints . Refuses to load and unload"
to the handwritten November 10 complaint about Springer after he telephoned Rutledge
for additional information . Although Thayer positively stated that he made the decision
to fire Springer , he also said he did it on Manous' recommendation Manous, however,
did not testify that he recommended Springer 's discharge , and Rutledge ' s memorandum
does not request it either , but Thayer explained that Manous orally recommended more
than he or Rutledge put in the December 18 letter He also said Manous told him In
the telephone call preceding the letter that Springer had not only refused to take the
Waxahachie load but also had refused to help with the normal loading and unloading.
But Manous testified in this hearing that he had no trouble with Springer that morning
regarding helping unload or load, and Thayer said he did not learn that Manous had
admitted that until he testified in the Texas unemployment compensation hearing.
Thayer's decision to fire Springer , therefore , was, in part , based on an error of fact,
which investigation would have uncovered.
MCCORMICK STEEL CO., ETC . 1565
I find and conclude that by Kimbro's threat to employee Smith and his and
Manous' interrogation of the employees named, in the circumstances of this case,
Respondent violated Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. It will be recommended that the Respondent
offer employee Bennie Springer immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to seniority and other rights and
privileges, and make him 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 would have earned as wages from the date of the discrimination
against him to the date of offer of reinstatement less interim earnings, and in a man-
ner consistent with Boai d policy set out in F. W. Woolworth Company, 90 NLRB
289. Interest on ba kpay shall be computed in the manner set forth in Isis Plumbing
& Heating Co, 138 NLRB 716.
It will also be recommended that the Respondent preserve and make available to
the Board, upon request, payroll and other records to facilitate the computation of
backpay.
It will be further recommended, in view of the nature of the unfair labor practices
the 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.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I hereby make the following:
CONCLUSIONS OF LAW
1. The Respondent, McCormick Steel Co., Division of Ducommon Metals & Sup-
ply Co., Houston, Texas, is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. By discriminating in regard to the hire or tenure or employment of Bennie
Springer, thereby discouraging membership in the above Union, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Sectoin
8 (a) (1) and Section 8 (a) (3) of the Act.
4. By engaging in the conduct set forth in the section III, C, entitled, "8(a)(1)
violations," the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) 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, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that Respondent, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from-
(a) Discouraging membership in United Steelworkers of America, AFL-CIO, or
in any other labor organization, by discharging or refusing to reinstate employees,
or in any other manner discriminating against them in regard to their hire or tenure
of employment or any term or condition of employment.
(b) Interrogating employees concerning activities on behalf of the above-named
or any other labor organization, in a manner constituting interference, restraint, or
coercion violative of Section 8 (a) (1) of the Act.
(c) Threatening employees with reprisals if they engage in union activity.
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In any other manner, interfering with, restraining , or coercing its employees
in the exercise of their right to self-organization , to form labor organizations , to join
or assist the above-named Union or any other organization , to bargain collectively
through representatives of their own choosing , to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection , or to refrain
from any and all such activities.
2 Take the following affirmative action which will effectuate the policies of the
Act:
(a) Offer to Bennie Springer 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 earnings he may have suffered by
reason of Respondent 's discrimination against him as set forth in that section of the
Trial Examiner 's Decision entitled "The Remedy."
(b) Preserve and, upon request , make available to the Board or its agents, all
payroll records and other records necessary to analyze the amounts of backpay as
set forth in the section of this Decision entitled "The Remedy."
(c) Post, in its warehouses in Houston , Dallas, Corpus Christi, and Lubbock, Texas
and Oklahoma City, Oklahoma, copies of the attached notice marked "Appendix." 9
Copies of the said notice , to be furnished by the Regional Director for Region 23,
shall, after being signed by Respondent 's representative , be posted by the Respondent
immediately upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter , in conspicuous places , including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that said notices are
not altered , defaced, or covered by any other material.
(d) Notify the Regional Director for Region 23, in writing , within 20 days from
the date of the receipt of this Decision and Recommended Order, what steps have
been taken to comply with the recommendations herein made.'°
9In the event that this Recommended Order be 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 be 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 be 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 the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that.
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO, or any other labor organization , by discharging or refusing to rein-
state any of our employees , or in any manner discriminating in regard to their
hire or tenure of employment , or any term or condition of employment.
WE WILL NOT interrogate employees concerning activities on behalf of the
above-named or any other labor organization , in a manner constituting inter-
ference, restraint , or coercion violative of Section 8(a)(1) of the Act.
WE WILL NOT threaten our employees with reprisals because of the Union.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the right to self-organization , to form organizations,
to join or assist the above -named or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities.
WE WILL offer to Bennie Springer immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to seniority and
other rights and privileges and make him whole for any loss of pay suffered as
a result of the discrimination against him.
HUTTIG SASH & DOOR COMPANY, INC. 1567
All our employees are free to become, remain , or refrain from becoming or remain-
ing members of United Steelworkers of America, AFL-CIO, or any other labor
organization.
MCCORMICK STEEL Co., DIVISION DUCOMMON METALS & SUPPLY CO.,
Employer.
Dated------------------- By-------------------------------------------
(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 pro-
visions, they may communicate directly with the Board' s Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol 8-0611,
Extension 4271.
Huttig Sash & Door Company, Inc. and Local 236, United Furni-
ture Workers of America, AFL-CIO. Case No. 9-CA-3344.
September 24,1965
DECISION AND ORDER
On June 18, 1965, Trial Examiner Herman Tocker issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged 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. The Trial Exam-
iner further found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint. Thereafter, the
General Counsel and the Respondent filed limited exceptions to the
Trial Examiner's Decision, and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Zagoria].
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 this case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner .2
1 As we find that the record and the briefs adequately present the Issues and the posi-
tions of the parties, we deny the Respondent 's request for oral argument.
2 The Trial Examiner found that the evidence did not sustain those portions of the
complaint which alleged ( a) that the Respondent violated Section 8 ( a) (5) by making
unilateral changes with respect to rates of pay and work assignments and (b ) that the
Respondent violated Section 8(a)(1) by making certain threats. As- no exceptions were
filed to these findings, we adopt them pro forma . In adopting the Trial Examiner's
finding that the Respondent did not violate Section 8(a)(1) by interrogating employees,
we rely only on the ground that the interrogation did not exceed the proper bounds of
preparation for trial.
154 NLRB No. 125.