Pre-Stressed Concrete Co. of Montana

National Labor Relations Board - Board Decisions

Apr 7, 1961

131 N.L.R.B. 27 (N.L.R.B. 1961)

PRE-STRESSED CONCRETE COMPANY OF MONTANA 27
Pre-Stressed Concrete Company of Montana and Hod Carriers
and Laborers Local No . 187, AFL-CIO. Case No. 19-CA-1998.
April 7, 1961
DECISION AND ORDER
On November 28, 1960, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was tried before the duly designated
Trial Examiner in Missoula, Montana, on August 18, 1960, on complaint of the
General Counsel and answer of Pre-Stressed Concrete Company of Montana, herein
called the Company. The issues litigated were whether or not the Company had
violated Section 8(a)(1) and (3) of the Act by certain conduct more particularly
described hereinafter.
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE COMPANY
The Company is a Montana corporation which engages in the business of proc-
essing and/or manufacturing concrete products. During the 12 months prior to the
hearing, the Company purchased, transferred, and delivered to its plant located in
Missoula, Montana, goods and materials valued in excess of $50,000 directly from
States of the United States other than the State of Montana. It is undisputed and I
find that the Company is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that the assertion of jurisdiction is warranted.
II. THE LABOR ORGANIZATION INVOLVED
Hod Carriers and Laborers Local No. 187, AFL-CIO, herein called the Union, is,
and at all times material hereto has been, a labor organization within the meaning
of Section 2(5) of the Act.
131 NLRB No. 7.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issue
The complaint alleges that on May 20, 1960, the Company discharged Wallace
Boucher and has refused to reinstate him because of his membership in and activities
on behalf of the Union, thereby violating Section 8(a) (1) and (3) of the Act. The
General Counsel contends that the termination of Boucher was the result of an
altercation between Boucher and Superintendent McCue in regard to the paycheck
of Leon Taylor, a relatively new employee in the welding shop.
In its duly filed answer the Company denied the commission of unfair labor
practices and at the hearing contended that Boucher was discharged because of a
long record of insubordinate and contemptuous conduct directed at Superintendent
McCue, Boucher's immediate superior.
B. The testimony
This case is quite remarkable in the experience of the Trial Examiner, in that all
the witnesses who testified herein displayed a commendable frankness, fairness, and
exactitude 1 As a result, the facts of the altercation between Boucher and Super-
intendent McCue as to the paycheck of Leon Taylor are undisputed even as to
details. In like manner, the facts of Boucher's conduct toward McCue are equally
undisputed.
The final question for decision, which arises from facts, is-what was the motiva-
tion of the Company in the discharge of Boucher?
C. The paycheck incident
It is undisputed that Harold Morgenstern, president of the Company, hired both
Boucher, as a welder, and McCue, as superintendent, at the time the Company's
plant began operations in the spring of 1958. It is also undisputed that Boucher
was discharged by Superintendent McCue on May 20, 1960. At the time of his
discharge Boucher was the leadman in the welding shop at a rate of $2 60 per hour.
All other welders were paid at the rate, provided in the union contract, of $2.50
per hour.
It is likewise undisputed that Morgenstern, the president and owner of the Com-
pany, was the highest authority in the Company. Under him, came Superintendent
McCue in charge of the Company's plant, and under McCue, both Boucher, as
leadman in the welding shop, and Foreman Eldon Floch, whose relationship to
Boucher is somewhat vague.
Undisputed also is the fact that Boucher was a member of the Union and at one
time had served on the contract negotiating committee. However. Boucher was
not the union shop steward at the plant. An employee named Jack Evans had been
elected to that position.
Leon Taylor, whose paycheck precipitated the altercation between Boucher and
McCue, was hired on May 9, 1960 In the first 10 days of his employment Taylor
discussed with several employees including Boucher his rate of pay which was
fixed at $2.40 per hour. On May 18, 1960, at quitting time, 4:30 p m., Boucher
observed Taylor examining his paycheck. Boucher went to Taylor and asked Taylor
to show him his check. When Boucher examined it, he saw that Boucher was
being paid at the rate of $2 40 an hour. He told Taylor that the proper rate under
the union contract was $2.50 per hour and that Taylor should take immediate steps
to see that his rate and his pay were corrected. Taylor agreed. Boucher then said
that he would call Harold Morgenstern, president of the Company, and get it
straightened out. At this point Foreman Floch interposed, and suggested that the
matter first be taken up-with Superintendent McCue. Boucher stated that he pre-
ferred to take the matter up with Morgenstern, but when Floch pressed the issue,
Boucher agreed to see Superintendent McCue,
With Taylor's permission , Boucher took his check and went to the office of
Superintendent McCue. When he arrived at the office, McCue was talking to
lI credit the testimony of employee Boucher, Superintendent McCue, and President
Morgenstern, principals In the case, and the testimony of supporting witnesses Evans,
Taylor, and Rogers. Such discrepancies as appear in the testimony are not significant,
and readily attributable to the different abilities of individual witnesses to observe, re-
member, and relate what they saw and heard.
PRE-STRESSED CONCRETE COMPANY OF MONTANA 29
Union Shop Steward Jack Evans about plans for work the next day. When a break
came in their conversation , Boucher told McCue that there had been a mistake made
in Taylor's check and requested McCue to straighten it out. McCue asked where
Taylor was, and then observed that he didn't think the amount of Taylor's check
was any of Boucher 's business . Boucher replied that since the Union had a contract
with the Company and he was a member of the Union, that he Celt tnat it was his
business. McCue then said that if Taylor wanted to work for $2.40 an hour, he
didn ' t figure it was anybody 's business but his and Taylor 's and he added the state-
ment that if McCue wanted to nire a mun for is cents an hour and a man would
work for 8 cents an hour , that it was nobody else 's business but his and the man's.
Boucher replied that as long as the Union had a contract which was signed by
Morgenstern , president of the Company, he felt that all of the men who were a
party to that contract had an interest in its observance. At this point Boucher came
to the conclusion that McCue wasn 't going to do anything about correcting the error,
so he said that he would go and call Morgenstern or Ueorge Rogers, the business
agent of the Union.
Boucher called the two men named but was unable to reach either of them that
evening. When he came to work on the following morning Taylor informed him
that after Boucher had left the plant, Foreman Floch had talked to Superintendent
McCue and that the error in his paycheck had been corrected.
On the next day, Friday, the end of the workweek, Boucher was about to enter
his car when Floch, the foreman, called to him and motion for him to come back
to the shop. McCue met Boucher at the door and told Boucher that, "We have
put in our last shift together." Boucher asked if McCue would give him a reason
for his discharge. McCue replied that it was because of Boucher's attitude over the
last 6 to 9 months which amounted to insubordination. Boucher asked if his ter-
minal check was ready and McCue said that it would be ready by the time he
reached the office.
On the Thursday following Boucher 's discharge , a meeting between representatives
of the Union and the Company was scheduled for the purpose of negotiating a new
contract. Boucher attended this meeting, for several of the men had suggested that
the matter of his discharge might be straightened out at this conference. At this
meeting, Morgenstern, Superintendent McCue, and Thane, the company lawyer,
represented the Company. Present for the Union were Shop Steward Jack Evans,
employees Beavers and Grence of the negotiating committee, Bowers, the business
agent of the local, and an unnamed representative of the International Union. After
the men had finished discussing the proposed contract, the representative of the
International said that something ought to be done to reinstate Boucher with full pay
for the time that he had lost. Morgenstern said that Boucher was not discharged
because of his union activities but because he had been insubordinate over a period
of months. Boucher then told the representatives that he felt that during the last 6
to 9 months he had been getting along pretty well with McCue and that it came as
a surprise to him that he was not. In the discussion that ensued somebody asked
McCue if Boucher was discharged for the incident concerning Taylor's paycheck.
McCue replied in the negative and explained that Boucher's discharge had been
developing for a long time but that incident was "the straw that broke the camel's
back."
D. The insubordination and contemptuous attitude of Boucher
In the course of his cross-examination, Boucher admitted that in April 1959,
Superintendent McCue had requested a private talk with him, at which time McCue
told Boucher that he didn't like Boucher's attitude and explained that somebody
had to run the Company and someone had to make the final decisions and that
Boucher should not interfere with decisions McCue had made or with orders McCue
had given to the men. Boucher also admitted that on a number of occasions McCue
had spoken to him about things that he wasn't doing right, but Boucher said that
he had tried to correct them. Boucher also admitted that on another occasion in the
middle of the summer of 1959, McCue asked Boucher to come to his office. On
this occasion McCue told Boucher that his attitude toward the men in the yard was
troublesome and he should not interfere with the men. The men in the yard were
in no way connected with Boucher 's duties.
Also, in the course of his cross -examination Boucher admitted that he occasionally
sought out Morgenstern and discussed with Morgenstern his differences with McCue.
On one of these occasions he asked Morgenstern if he intended to keep McCue,
30 DECISIONS OF' NATIONAL* LABOR RELATIONS BOARD
indefinitely; and told Morgenstern that he felt he could handle the fob of superin-
tendent better than McCue.2
Superintendent Robert McCue, in his testimony, detailed his complaints about
Boucher . He said that Boucher was a very capable man as the leadman in the
welding shop, but that Boucher was not very consistent in the amount of work he
produced as sometimes he worked very fast and at others very slow. McCue said
that Boucher did not exert his best efforts or ability in McCue's behalf. McCue
and that he reprimanded Boucher frequently and in the spring of 1959 they had a
rather heated dispute. According to McCue, there was constant friction between
himself and Boucher on the job as Boucher complained that he didn't have the
right equipment and tools to do his job properly, and in the course of his complaints
Boucher insinuated that McCue did not know how to run the plant. On one occasion
when this occurred, McCue informed Boucher that he could leave the plant any time
he felt so inclined as he was the superintendent and he intended to remain in control
of the plant. McCue said that these arguments between himself and Boucher were
usually marked by a contemptuous attitude which Boucher displayed toward McCue
in the presence of other employees which caused a great deal of embarrassment to
McCue, and had a bad effect on the morale of other employees.
McCue testified that he discussed the termination of Boucher with Morgenstern
during July or August 1959. At that time the Company was building more forms
and equipment to work with, and it was decided not to discharge Boucher, inasmuch
as the Company did not have a competent replacement for him. As a result McCue
decided to have a talk with Boucher and called him to his office in the hope that by
discussing the situation some remedy could be effected in Boucher's attitude. McCue
testified that after this talk Boucher's attitude improved for a while, but after several
months his conduct reverted to the old contemptuous attitude and disparagement of
McCue's ability to run the plant. This became demoralizing to the rest of the em-
ployees. When the winter of 1959 approached, Morgenstern and McCue again dis-
cussed the termination of Boucher but Morgenstern decided against firing Boucher
because of the imminence of winter and later Morgenstern provided Boucher with a
job which took him away from the plant and away from McCue's supervision.
After Boucher completed this last-mentioned job, on which he was assigned for
some 3 months, he returned to the plant and McCue could see that the old situation
of Boucher's contemptuous attitude was being continued. McCue said that he was
tired of trying to correct the situation by "father-and-son talks" with Boucher, so
he decided to look for a capable man to replace him. McCue said that for a long
time he was not able to find a suitable replacement, but when Taylor appeared he
felt that Taylor might be a qualified replacement for Boucher, so he hired Taylor
on a trial basis as a welder in the welding shop. McCue said that he had a talk with
Taylor in hiring him and did not intend to pay him under the Union scale of $2.50
per hour. McCue said that the rates for welders had been $2.40 an hour for some
time and he had merely mistaken the rate. When his mistake was called to his at-
tention, McCue corrected it and saw that Taylor had his correct check on the next
morning. McCue said that the termination of Boucher was not caused by the alter-
cation over the check of Leon Taylor, but was caused by the insubordinate and con-
temptuous attitude which Boucher had displayed during all the months of his
employment.
Harold Morgenstern testified that the Company's plant was started approximately
2 years before the hearing and at that time he installed McCue as superintendent.
Morgenstern also hired Boucher at approximately the same time.
Morgenstern said that on two or three occasions Boucher came to him with com-
plaints about the way McCue handled the men and the way McCue directed opera-
tions at the plant. On another occasion Boucher asked Morgenstern for a job with
another company which Morgenstern owned, but Morgenstern told him there was
no job available at that company . Meanwhile , Morgenstern also received reports
from McCue that McCue was having considerable difficulty with Boucher. On
several occasions McCue asked Morgenstern's permission to discharge Boucher.
Morgenstern explained that the first time McCue wanted to discharge Boucher
was the summer of 1959. Morgenstern very seldom interfered with whom McCue
hired or fired, but the Company was extremely busy and he talked McCue out of
firing Boucher. He told McCue that he should keep Boucher until they found a
suitable replacement.
In the late autumn, when the Company cut down its crew, McCue again wanted
to discharge Boucher. Morgenstern again talked McCue out of discharging Boucher
2 Transcript, page 26.
PRE-STRESSED CONCRETE COMPANY OF MONTANA 31
because at that time the Company was about to build a new turbine-mixer and batch-
plant under Morgenstern's personal supervision, and Morgenstern felt that he could
use Boucher on that construction job because Boucher was well qualified at reading
plans and as a layout man and welder. On that occasion McCue said that Boucher
was causing dissension among the men and that he wanted Boucher out of the plant.
Morgenstern told McCue that Boucher would be working under Morgenstern's per-
sonal supervision and pretty much "by himself," and that he could use him at the
batch-plant. On several prior occasions McCue had mentioned that he had laid
out work according to certain plans, explaining to the men how the work was to be
done, and later found out that Boucher had changed the plans and ordered the men
to do the job Boucher's way.
Morgenstern testified that about Christmastime 1959, he came to the decision that
Boucher would have to be discharged but he was reluctant to fire Boucher in the
middle of the winter, and at a time when he had work for Boucher to do in the con-
struction of the batch-plant. That job offered a temporary solution to the problem.
At that time Morgenstern told McCue he would put Boucher on the batch-plant job
until the spring and in the interval, McCue was to find a capable replacement who
would take Boucher's place in the spring. He agreed that McCue could discharge
Boucher at that time.
On April 10, the batch-plant was finished and Boucher was transferred back to
the plant under the supervision of McCue. At this time also, Morgenstern requested
a friend of his to recommend a good welder. This friend sent Taylor to Morgen-
stern, so he sent Taylor out to the plant to McCue, and he learned that Taylor was
hired by McCue.
Morgenstern said that there was no attempt on the part of the Company to pay
Taylor under the prevailing wage rate of the contract and that in the course of 15
years' relationship with the Union the Company had never had one complaint regard-
ing any instance in which the Company paid a man under the scale. Morgenstern
said that on the day after Boucher's talk with McCue he talked to Boucher on that
subject. Morgenstern told Boucher at that time that the Company had no intention
of paying under scale and would certainly correct any mistake.
The testimony of Leon Taylor added only one significant fact to those set forth
above. Taylor said that in the second week of his employment he complained to
McCue that he felt that he was not needed by the Company, as the Company had
only four welding machines, and five welders, including himself. Under the circum-
stances, Taylor felt the force of welders was too large, and for that reason he was
uneasy about his tenure.
The above constitutes the testimony of the principals in this proceeding and sets
forth the highlights of the case. The testimony of all witnesses has been considered
by the Trial Examiner, although the testimony of some supporting witnesses has
not been related in the above summary in the interest of brevity.
Concluding Findings
It is the contention of the General Counsel that Boucher was discharged by Sup-
erintendent McCue because Boucher had engaged in "union activities"-the correc-
tion of Taylor's paycheck and rate of pay. In support of his contention, he points
to three facts: (1) the paycheck altercation; (2) the discharge of Boucher on the
following day; and (3) the subsequent statement of McCue that the paycheck inci-
dent was, "the straw that broke the camel's back." As to the third factor, I cannot
accept McCue statement in the course of the union-company conference as as con-
fession of guilt. To attribute to this colloquial, oft-used expression such conclusive
significance would be to wrench the statement out of its context of circumstances and
dignify it beyond all reason. Furthermore, there are other facts and other considera-
tions here present which I deem of preponderant weight.
From all the testimony, including the testimony of Boucher on cross-examination,
it is clear that Boucher was insubordinate and contemptuous toward Superintendent
McCue. It is established by undisputed evidence that he interfered with McCue's
orders to the employees, and in other ways sought to undermine the superintendent.
Furthermore, Boucher's purpose in this conduct became patent in the course of his
cross-examination when he admitted that he had asked Morgenstern if Morgenstern
intended to keep McCue indefinitely, and told Morgenstern that he could perform
the duties of superintendent better than McCue. Thus it is established that Boucher
sought to cause trouble on the job for McCue, to the point that Morgenstern would
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be forced to discharge McCue and replace him with Boucher as superintendent. In
the light of this purpose, the insubordination and contemptuous attitude of Boucher
is disclosed to be a deliberate tactic designed to eliminate McCue from the plant,
and to fulfill Boucher 's ambition to be superintendent as replacement for McCue.
Whether McCue realized the purpose of Boucher 's conduct is not disclosed by the
testimony , but certainly Boucher 's insubordinate and contemptuous conduct forced
McCue to take action against Boucher , if McCue was to maintain his authority over
the men , and constituted good cause for the discharge of Boucher.
From all the evidence , it is clear that Boucher hoped to persuade Morgenstern to
his scheme , for the record discloses that on several occasions Boucher took his com-
plaints about McCue to the president of the Company, and Morgenstern listened to
him. And apparently Morgenstern liked Boucher and respected his ability, for on
several occasions he "talked McCue out of firing Boucher." However, according
to Morgenstern, at Christmastime 1959, he agreed with McCue that Boucher would
be fired in the spring, at the conclusion of the batch-plant construction job. I credit
this testimony of Morgenstern . Under those circumstances , the discharge of Boucher
on May 20, 1960, was merely the implementation of Morgenstern 's earlier decision
to discharge Boucher. From Morgenstern 's testimony it is also clear that Morgen-
stern initiated his plan to discharge Boucher by acquiring the services of another
welder, Taylor. And Taylor's uneasiness in being the fifth welder in a shop with
four welding machines is some indication that Taylor was in fact the replacement
for Boucher. From those facts, all of which precede the paycheck incident, I must
conclude tnat Boucher was discharged because of his insubordination and not be-
cause of the paycheck incident, the alleged "union activity."
A second consideration , principally legal, leads me to the same conclusion.
At this point I believe Boucher's "union activity" merits closer scrutiny. From
the undisputed testimony it is clear that Boucher coveted McCue's job and, by a
tactic of causing trouble on the job, sought to usurp McCue's authority and to re-
place McCue. His running fight or feud with McCue had that purpose. I find that
the same purpose prompted his conduct in the paycheck incident. I must reject the
contention that in the paycheck incident Boucher was engaging in "union activities"
or "concerted activities" protected by the Act. Under the evidence here it is obvious
that Boucher seized upon McCue's mistake in Taylor's rate of pay as another
opportunity to cause trouble for McCue. His handling of the matter showed that
purpose. He first proposed to take the matter to Morgenstern directly without
consulting McCue. But, one may ask , why did not Boucher refer the matter to
Evans, the duly elected union steward on the job? The answer is contained in what
Boucher did thereafter. Boucher took the matter to McCue and then to Morgen-
stern. Thus a simple mistake became another instance of McCue's incompetence,
in the case against McCue, which Boucher was building for consideration by Mor-
genstern . I do not believe that Boucher 's conduct in using this incident to under-
mine McCue is conduct which is protected by the Act.
In Joanna Cotton Mills Co. v. N L.R.B., 176 F. 2d 749 (C.A. 4), the court dealt
with a somewhat similar factual situation. There the discharged employee had cir-
culated a petition, the alleged concerted activity, asking that a certain supervisor be
discharged as an unsatisfactory "second hand." In dealing with this situation, Chief
Judge Parker, writing for the court, stated the basic proposition in this language:
We think that this is substantial evidence to sustain the finding of the Board
that Blakely was discharged because of his getting up and presenting the peti-
tion; but we agree with the position taken by Chairman Herzog and member
Murdock in their dissenting opinion wherein they say: "His ( Blakely's) con-
duct in initiating a petition demanding the removal of his foreman was not,
under the circumstances of this case, the sort of activity which we believe Con-
gress intended this Board to protect . It grew out of personal resentment at
discipline imposed by that foreman because Blakely was neglecting his duties
in order to conduct certain wholly personal affairs. Although Blakely suc-
ceeded in inducing fellow employees to join in signing the petition , thereby con-
verting a manifestation of one individual's pique into activity which was, in
the verbally literal sense, `concerted,' the entire history of the transaction satis-
fies us that the Respondent was not intruding upon its employees ' statutory
rights by doing what it did." It may well have been that the initiating of the
petition was the cause of the discharge in that the company might have over-
looked the trouble between Blakely and Lewis, if Blakely had not followed it
up by circulating the petition; but it is perfectly clear, when consideration is
given to the entire record, that the getting up and circulating of the petition
PRE-STRESSED CONCRETE COMPANY OF MONTANA 33
was a mere continuation and aggravation of the original defiant conduct of
Blakely, for which he could properly be discharged, and was in no sense en-
gaging in a "concerted activity" of employees for mutual aid and protection
within the meaning of the National Labor Relations Act, 29 U.S.C.A. g 15l et
seq. So far as Blakely is concerned, it was a mere continuance of the row
with Lewis.
Not all activities in which employees act together are "concerted activities"
within the meaning of the statute, the exact language of which is, 29 U.S.C.A.
§ 157: "Employees shall have the right to self-organization, to form, join, or
assist labor organizations, 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."
The words "concerted activities" are limited in meaning by the words with
which they are associated (noscitur a socus), which have relation to labor or-
ganization and collective bargaining, and by the purpose of such "concerted
activities", which is expressly limited by the immediately succeeding language
to concerted activities "for the purpose of collective bargaining or other mutual
aid or protection." As we said, in N.L.R.B. v. Draper Corporation, 4 Cir., 145
F. 2d 199, 203, 156 A.L.R. 989, where we held that a "wild cat" strike was not
a concerted activity protected by the act: "The purpose of the act was not to
guarantee to employees the right to do as they please but to guarantee to them
the right of collective bargaining for the purpose of preserving industrial peace.
The policy of the act is thus set forth, 29 U.S.C.A. § 151: 'The denial by em-
ployers of the right of employees to organize and the refusal by employers to
accept the procedure of collective bargaining lead to strikes and other forms of
industrial strife or unrest, which have the intent or the necessary effect of bur-
dening or obstructing commerce. * * * It is hereby declared to be the policy
of the United States to eliminate the causes of certain substantial obstructions
to the free flow of commerce and to mitigate and eliminate these obstructions
when they have occurred by encouraging the practice and procedure of collec-
tive bargaining and by protecting the exercise by workers of full freedom of
association, self-organization, and designation of representatives of their own
choosing, for the purpose of negotiating the terms and conditions of their em-
ployment or other mutual aid or protection.' "
We agree that the "concerted activities" protected by the act are not limited
to cases where the employees are acting through unions or are otherwise for-
mally organized. It is sufficient that they are acting together for mutual aid
or protection. See N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Co., Inc,
2 Cir., 130 F. 2d 503. Thus, an employee may not be discharged for concerted
activities to get pay for overtime work, N L.R.B. v. Schwartz, 5 Cir., 146 F. 2d
773, 774; nor for concerted activities in protesting the employment of a cashier
whose employment the employees think will affect their earnings, N L R B. v
Phoenix Mutual Life Ins. Co., 7 Cir., 167 F. 2d 983, nor for demonstrating in
protest over the firing of a union president, Carter Carburetor Corp. v. N L.R B..
8 Cir., 140 F. 2d 714. As said by Judge Duffy in N.L.R.B. v. Phoenix Mutual
Life Ins., Co., supra [167 F. 2d 9881, "A proper construction is that the em-
ployees shall have the right to engage in concerted activities for their mutual
aid or protection even though no union activity be involved, or collective bar-
gaining be contemplated." It is clear, however, that to be protected the pur-
pose of the concerted activities must be the mutual aid or protection of the
employees; and it is equally clear that the circulation and presentation of the
petition here involved was for no such purpose, but was nothing more nor less
than an effort on the part of Blakely to vent his spleen upon a supervicnry
employee whose rebuke in the performance of duty had angered him. [Em-
phasis supplied.]
Upon the facts in this case, I conclude and find that the conduct of Boucher in
the paycheck incident was not for the purpose "of mutual aid or protection of em-
ployees," but was for the purpose of undermining the authority of McCue, in an
effort to obtain McCue's job; thus Boucher's conduct in these special circumstances
was not protected by the Act.
Upon the basis of both findings stated above, I find that the General Counsel has
failed to prove by a preponderance of the evidence that the Company committed
the unfair labor practices alleged in the complaint. Therefore, it is recommended
that the complaint be dismissed in its entirety.
599198-62-vol. 131-4