Rockwool Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1975

218 N.L.R.B. 577 (N.L.R.B. 1975)

TEXAS ROCKWOOL 577
Texas Rockwool, Division of Rockwool Industries,
Inc. and Retail, Wholesale and Department Store
Union, AFL-CIO. Cases 16-CA-5359 and 16-
RC-64131
June 17, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On August 30, 1974, Administrative Law Judge
Fannie M. Boyls issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, fmdings,2 and
conclusions of the Administrative Law Judge, as
amplified herein, and to adopt her recommended
Order.
On the afternoon of November 21, 1973, Respon-
dent made a decision to discharge long-term employ-
ee Warren Isaac whose union sympathies and
activities were well known to Respondent. Isaac was
notified of this decision on the morning of November
23 when he appeared at the plant to serve as union
observer at the representation election scheduled to
commence at 6:30 a.m. The Administrative Law
Judge found that the reasons asserted by the
Respondent for` discharging Isaac were pretextual
and that the real reason was Isaac's continued
adherence to and support of the Union. Accordingly,
the discharge of Isaac was found to violate Section
8(a)(3) and (1) of the Act. We agree with this finding.
As more fully described by the Administrative Law
Judge, the credited testimony, submitted in large part
by Respondent's general plant superintendent, Cor-
sentino, reveals that Isaac was not discharged for
disrupting the Respondent's preelection meeting, or
for ridiculing or insulting Assistant Superintendent
Vining at the meeting, or for blaming employee
Knight's death on the actions of the Respondent, or
for any conduct which occurred within the plant.
Accordingly, we believe our dissenting colleague's
reliance on these incidents and events is misplaced.
1 On March 7, 1975, the Board issued an Order in the above-entitled
proceeding severing Case 16-RC-6413 from Case 16-CA-5359 and
granting the Petitioner's request to withdraw without prejudice its petition
filed in Case 16-RC-6413. On May 15, 1975, the Board denied the
Employer's motion to set aside the aforesaid Order. Accordingly, the
validity of the election conducted in Case 16-RC-6413 is no longer before
he Board.
On the other hand, as set forth more fully by the
Administrative Law Judge, Corsentino testified that
Isaac was discharged "because of his insubordination
and his conduct" outside the plant on November 21,
and because he (Isaac) "requested" to be fired. In
this regard, the record shows that, after Isaac was
given his turkey box, Respondent' s assistant superin-
tendent, Vining, wished him a happy Thanksgiving
and told him to get in his car and go home. Isaac
protested indicating that he did not have to go home
and that the city or county owned 60 feet on each
side of the road where his car was parked. Isaac
observed the widow of former employee Willie
Knight who had been recently killed in an automo-
bile accident a few days earlier. Mrs. Knight was
sitting in a car parked on the road near that of
Isaac's. Isaac went to where Mrs. Knight was parked
to talk with her. Vining followed him and told Mrs.
Knight that Corsentino had a check for her and
requested that she drive her car to the plant entrance.
Isaac thereafter talked to some of the other employ-
ees in the vicinity and then told Vining, "I would like
to beat the shit out of you guys." Vining returned to
the plant and told Corsentino that Mrs. Knight was
waiting to see him. Vining did not tell Corsent'uio
about Isaac's remarks to him at that time.
Corsentino gave Mrs. Knight her deceased hus-
band's paycheck and savings. At that point he
noticed Isaac across the street moving his hands and
talking in a loud voice, but could not hear what he
was saying. Corsentino went across the street, and
told Isaac: "why don't you leave and we'll talk this
thing over later when you have calmed down and
when you have sobered up." Isaac told Corsentino
that he was on county property and that therefore
Corsentino could not make him move. Corsentino
insisted that Isaac move, whereupon Isaac retorted
that he would whip him up and down the highway.
Corsentino thereafter warned Isaac, "Well, fine, I'll
just call the law and just have you removed and have
you picked up." By the time the police arrived, Isaac
had departed.
After the police had been called by Corsentino,
Vining told Corsentino, for the first time , of Isaac's
remarks to him while he was across the street near
Mrs. Knight's automobile. Thereafter, at the sugges-
tion of Corsentino or General Plant Manager West,
the three plant officials decided to file a complaint
with the justice of the peace on the basis of "what
happened in the road" between Isaac and Corsenti-
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
8 NLRB No. 97
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no. The complaint was filed, and on the same
afternoon Corsentino made out Isaac's discharge
papers and had his check prepared. When Isaac
appeared at the plant on Friday morning before the
scheduled election at which he was to serve as union
observer, he was told by West that he had been fired
and to leave the premises.
Specifically, with respect to Isaac's
"insubordination," Corsentino described his conduct
in the following manner:
He refused to get off the parking lot . . . well, he
wouldn't do what we asked him; what I asked him
to do, to leave there without no big-without any
big problem there in the parking lot, without
causing a commotion, just to quit and go on
home, to quit causing a commotion and go on
home, and he says that he just wasn't going to do
it. L couldn't make him do anything.
And at another point, Corsentino added that Isaac's
car was parked blocking the parking lot, and in
describing the "commotion" stated:
He was causing a commotion out there. He was
stopping the people from getting out of the
parking lot. He was throwing his hands up
hollering.
In reviewing Isaac's so-called insubordinate con-
duct as a reason for the discharge, we must conclude,
as did the Administrative Law Judge, that such
reason was pretextual. At the outset, apart from
Corsentino's testimony, there is no support for the
statement that Isaac's car was blocking the employ-
ees from leaving the parking lot or that Isaac was
causing a commotion by standing on the parking lot
hollering at people and preventing them from
leaving . Indeed, Isaac's car was one of several parked
alongside the road and Respondent's parking lot had
some 300-foot frontage with no specific points for
entrance and exit. Obviously, Isaac's car could in no
way block exit from the parking lot. As for the
"commotion," the credited testimony reveals that
Isaac was on the side of the road3 holding a
conversation , and although gesticulating with his
hands such gestures were not made in a threatening
manner; at another point Respondent' s witness,
Bradley, described Isaac as being across the highway
from the plant and as "just waving his hands
normally" as he talked. Clearly, as found by the
Administrative Law Judge from the credited testimo-
ny, Isaac was not causing any commotion or
preventing employees from going to their cars or
leaving the parking lot.
With respect to Corsentino's testimony that he also
discharged Isaac because he (Isaac) requested to be
discharged, the Administrative Law Judge specifical-
ly credited Isaac's denial that he ever requested
Corsentino to fire him. Contrary to our dissenting
colleague, we perceive no sound basis for disturbing
this credibility resolution. Moreover, Isaac's testimo-
ny is supported in part by the testimony of employee
Bradley, who overheard the conversation between
Corsentino and Isaac and testified that he never
heard Isaac ask Corsentino to fire him. But, of even
more significance in considering this alleged
"reason" for the discharge, we note that no mention
was made of such alleged reason by Respondent's
counsel in his opening statement at the hearing or in
his brief filed subsequent to the hearing. In view of
these circumstances, we can hardly conclude that
such "reason" existed and that Isaac had in fact
"requested" to be discharged.
Finally, through the testimony of Corsentino,
Respondent contends that Isaac was discharged
because "he was threatening." In this regard, as
noted heretofore, Isaac told Vining, "I would like to
beat the shit out of you guys" and later told
Corsentino he would whip him up and down the
highway. While we do not condone these remarks of
Isaac, like the Administrative Law Judge, we do not
believe from the evidence that Respondent regarded
these remarks as threats of immediate violence. With
respect to Vining, the statement was not a threat of
immediate harm to anyone but was merely a
statement of his desires at the moment with regard
Respondent's entire supervisory staff. Indeed, it is
clear Vining did not take it seriously and did not
immediately mention it to Corsentino, but only
referred to the remark when Corsentino related to
him his experiences with Isaac. Moreover, Isaac
made no move to carry out such threat against
Vining. As to Isaac's remark to Corsentino, we are
convinced that this remark was provoked by Corsen-
tino when he continued to insist that Isaac immedi-
ately remove his car and himself from the public
road where he had a right to be. Moreover, the
evidence does not indicate that Corsentino consid-
ered this a threat of immediate violence or attack by
Isaac, a much smaller and older man. Indeed, both
Corsentino and Vining knew Isaac was normally a
very quiet man and that he performed his work and
"didn't cause anybody any problems no way, shape,
or form" and that it was only when he was a "little
bit" under the influence of alcohol that "he would
get a little bit obnoxious." Plainly, such characteriza-
tion of Isaac by Vining and Corsentino detracts
credence from a conclusion that they regarded
3 Although our dissenting colleague describes these events as occurring actions described herein occurred on the public road in front of
on Respondent 's parking lot, the credited evidence reveals that the initial Respondent's plant.
TEXAS ROCKWOOL 579
Isaac's remarks as serious threats or that "he was
threatening" them. Accordingly, after considering all
of the credited evidence, we believe that Corsentino
did not discharge Isaac for the remarks made to
Vining and Corsentino. Instead, as did the Adminis-
trative Law Judge, we believe Respondent seized
upon the foregoing events as a pretext to discharge a
longstanding supporter and advocate of the Union.
Unlike our dissenting colleague, we are persuaded
that there is solid evidentiary support for finding that
Isaac's discharge was motivated by his longstanding
and continued adherence to and strong support and
advocacy of the Union. As more fully set forth by the
Administrative Law Judge, the Union started organ-
izing Respondent's employees in July 1973. Isaac
assisted in this organizational campaign by signing
up other employees as members of the Union and by
testifying for the Union during the representation
hearing. Respondent was well aware of these activi-
ties. During the Union's organizational campaign
Respondent was charged with unlawful conduct in
its antiorganizational campaign during July and
August 1973. Isaac testified against the Respondent
in this regard and Respondent was subsequently
found to have committed various unlawful acts by
this Board. Thereafter, some 3_ months later, General
Plant Manager West assembled the employees for a
speech in which he advanced various reasons why
they should reject the Union in the election to be
held in 2 days. Isaac interrupted West's orderly
presentation of Respondent's arguments by raising
certain pertinent questions in regards to West's
remarks and by challenging the truthfulness of the
antiunion presentation. Finally, when Isaac pointed
out to the employees that "This is all just lily ,white
business here" and that "This is not right" and "This
is not fair," West had Isaac removed- from the
assembly. After his ejection from the meeting, Isaac
continued to talk to some of the employees on the
road near his parked car.
Plainly, Isaac, a normally "quiet" man, was not
silent in his union advocacy, nor was he quiet about
Respondent's unlawful conduct or about those
positions advocated by West which Isaac deemed as
"not right" or "not fair." Here, Isaac had just been
ejected from a meeting for expressing his views and
talking to the employees about Respondent's anti-
union speech. In these circumstances, the only
reasonable conclusion to draw is that Isaac contin-
ued to express -his concerns to his fellow employees
on the highway after his ejection from the meeting.4
4 That the Union was foremost in Isaac 's thoughts at that time is
illustrated by his conversation with Mrs. Knight wherein he referred to the
flowers the Union had sent to her recently , and Vining retorted that
Respondent h ad also sent a remembrance.
5 We see ' no support for concluding that Respondent was not opposed to
Isaac's continued employment because it offered him reinstatement after
In the light of this evidence, we agree with the
Administrative Law Judge's conclusion that Corsen-
tino believed that Isaac was probably continuing to
criticize Respondent's policies outside the plant in an
effort to counter Respondent's last-minute appeal to
influence the election and that this is the reason
which precipitated his discharge., Unlike our dissent-
mg colleague, we do not regard such conclusion as a
"guess" without foundation.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed. Order of the Administrative Law Judge and
hereby orders that Respondent, Texas Rockwool,
Division of Rockwool Industries, Inc., Belton, Texas,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges unfair
labor practices not found herein.6
MEMBER KENNEDY, dissenting:
I do not believe that there is substantial evidence
justifying the finding of the Administrative Law
Judge that Respondent discriminatorily discharged
employee Warren Isaac . Accordingly, I dissent.
About noon on Wednesday, November 21, 1973,
the day before Thanksgiving, General Plant Manager
Lanny West spoke to assembled employees on the
subject of the representation election which was to be
held on Friday, November 23. Although November
21 was employee Warren Isaac's day off, he was
invited to attend the meeting when he appeared at
the plant to receive his paycheck and the Thanksgiv-
ing gift customarily given to employees. Before
arriving at the meeting, Isaac , according to his
account, drank a couple of cans of beer. Apparently
the liquor he consumed stimulated him to belligeren-
cy, although normally he is a very quiet person.
Thus, as the Administrative Law Judge found, Isaac
engaged in disruptive conduct at the November 21
meeting of West so that the latter instructed Plant
Superintendent Harold Berndt and Assistant Super-
intendent Edward Vining to escort Isaac from the
plant. As Vining approached on the left side of Isaac,
the latter swung his right hand from the area of his
pocket toward Vining's belt and asked, "Have you
ever had a knife in your belly?" Isaac laughed, as did
the election . Indeed, such offer was conditioned on Isaac's withdrawal of his
unfair labor practice charge, and when Isaac preferred to let the Union
determine the action to be taken Respondent refused to reemploy him.
6 In the absence of exceptions thereto, the Board adopts,pro forma the
Administrative Law Judge's dismissal of alleged independent violations of
Sec. 8(a)(1) of the Act.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other -employees watching, when Vining jumped
backward. Isaac did not in fact have a knife. Further,
as Vining and Berndt were escorting Isaac toward
the exit door, Isaac said to Berndt, "Harold, you are
a pretty nice guy but Ed [Vining] is a chicken shit"
and laughed afterwards. Vining suggested that Isaac
go home; he might feel better later on. Isaac
protested and then told Vining, "Willie Knight killed
himself out here. You guys killed Willie Knight
working him so many hours and everything." Knight
had been killed in an automobile accident several
days earlier. Seeing Mrs. Knight in her car, Isaac
went over to talk to her accompanied by Vining. As
Mrs. Knight left, Isaac told Vining, "I would like to
beat the shit out of you guys, all of you s.o.b.'s."
Vining escorted Mrs. Knight to General Plant
Superintendent Corsentino, who gave her the pay-
check and savings of her deceased husband.' Corsen-
tino then noticed Isaac across the road gesticulating
with his hands and talking in a loud voice, but could
not understand what Isaac was saying. Corsentino
crossed the road and said to Isaac: "Why don't you
leave and we'll talk this thing over later when you
have calmed down and when you have sobered up."
Isaac refused to leave saying that he was on county
property and that Corsentino could not make him
move. When Corsentino insisted that Isaac move,
Isaac still refused and said that he "would whip him
[Corsentino] up and down the highway." Corsentino
replied that he would "call the law" and have Isaac
removed. Corsentino then had the police called, but
by the time the police arrived Isaac had departed.
After the police call had been placed, Vining
walked into Corsentino's office and, upon learning
that Corsentino had been insulted by Isaac, said to
Corsentino that Isaac "wanted to kick my ass out
there, too." Then, on the suggestion of either
Corsentino or, West, the three of them decided to file
a complaint with a justice of the peace on the basis of
"what happened in the road" between Isaac and
Corsentino. Before filing the complaint, however,
Corsentino talked to Respondent's counsel who gave
his consent to the filing` of the complaint and also to
the discharge of Isaac. On the same afternoon,
November 21, Corsentino made out the discharge
papers for Isaac and had his check ready for delivery
Friday morning, the day, after Thanksgiving.When
Isaac appeared at the, plant on Friday morning
before the scheduled election, he was informed by
West that he had been fired.
7 Administrative Law Judge Schneider issued his Decision in the earlier
case on January 28, 1974, which was subsequent to the events in this case.
Respondent did not except to Administrative Law Judge Schneider's
Decision and it was therefore adoptedpro forma
8 Corsentino testified that Isaac's insubordination consisted of the
following:
The Administrative Law Judge found that Corsen-
tino's decision to discharge Isaac was motivated not
by Isaac's conduct vis-a-vis himself and Vining but
by his belief that Isaac whom he saw talking to other
employees outside the plant was "probably continu-
ing to criticize Respondent's policies, as he had done
inside the plant in an effort to counter Respondent's
last minute appeal to the employees to vote against
the Union." There is absolutely no direct evidence to
justify this speculation by the Administrative Law
Judge. Nothing that any of Respondent's supervisors
said or did from the time that Isaac was escorted out
of West's meeting to the time that the decision was
made to discharge him supports this "guess" by the
Administrative Law Judge. Nor does the circumstan-
tial evidence justify the Administrative Law Judge's
conclusion. The Administrative Law Judge dismissed
allegations that Respondent had independently
violated Section 8(a)(1) of the Act. It is true that in
an earlier case another Administrative Law Judge
found that Respondent had violated Section 8(a)(1)
of the Act and that Isaac was a principal witness for
the General Counsel in that case.? However, the
earlier unlawful conduct occurred in July and August
1973; the discharge of Isaac took place at the end of
November. There were no intervening unfair labor
practices and no evidence of hostility to Isaac during
the August-November interval, despite the Union's
organizational efforts in which Isaac played an
important part. Moreover, Respondent's offer to
reinstate Isaac, made on the day of the election and
repeated subsequently, if Isaac would withdraw his
unfair labor practice charge indicates that Respon-
dent was not strongly opposed to his continued
employment and to his organizational activities
which might also be expected to continue.
The Administrative Law Judge was influenced in
reaching her conclusion that the discharge of Isaac
was discriminatory by her discrediting the testimony
of Corsentino that during the altercation in the
parking lot Isaac had told him "to go ahead and fire
him, he was just tired of this and wanted to be fired."
Corsentino had testified that this was one of the
reasons why he had discharged Isaac, the other
reasons being the threats to him and one of his
supervisors and Isaac's insubordination.8 The Ad-
ministrative Law Judge credited Isaac's denial that
he had made a request to be fired because employee
Bradley, a disinterested witness, credibly testified
that he had overheard the statements made by Isaac
He refused to get off the parking lot ... well, he wouldn't do what we
asked him, what I asked him to do, to leave there without no big-
without any big problem there in the parking lot, without causing a
commotion, just to quit and go on home, to quit causing a commotion
and go on home, and he says that he just wasn't going to do it. I
couldn't make him do anything.
TEXAS ROCKWOOL 581
to Corsentino and never heard Isaac ask to be fired.
However, the Administrative Law Judge gave a
broader construction to Bradley's testimony than the
evidence warrants. Bradley did not testify that he
heard the entire conversation between Corsentino
and Isaac . He testified on cross-examination by the
General Counsel:
Q. Did you overhear any other conversation,
other than the one you just told us about?
A. Well, that's the onliest conversation that I
heard.
Q. Did you stop and wait to listen to this
conversation?
A. Well, I stopped and when they was talking,
and I just stopped there a moment or two and I
heard a conversation and I went on across back
to the job.
Bradley thus testified to what he heard during the
"moment or two" that he stopped to hear the
conversation between Corsentino and Isaac and not
that Isaac did not make the statement requesting to
be fired attributed to him by Corsentino. As bearing
on the question of credibility between Isaac and
Corsentino, I note that the Administrative Law
Judge credited Corsentino's testimony against the
denial of Isaac that Isaac had threatened to beat
him; that she refused to credit Isaac's testimony
against the denials of Corsentino that Corsentino had
made coercive remarks to him on or about Novem-
ber 16; and that she discredited part of Isaac's
testimony relating to what he said to Vining on being
escorted out of the November 21 meeting . Moreover,
the request to be fired attributed to Isaac by
Corsentino appears to be consistent with the other
conduct of Isaac on November 21 found by the
Administrative Law Judge and to reflect Isaac's
feeling of exhilaration induced.by the liquor he had
drunk. Finally, it is difficult to understand why
Corsentino should have fabricated what Isaac told
him prior to his discharge since Isaac's undisputed
conduct beginning with his disruption of West's
meeting,9 his ridiculing and insulting of Vining,10 his
unjustified blaming of Respondent for the death of
Willie Knight, his threat to beat up Corsentino, and
his refusal to obey Corsentino's• instructions to leave
the 'parking lot indisputably furnished sufficient
grounds for his discharge;11 there was no need to
embellish perfectly good reasons by fabricating a he
about a request. I would therefore not accept the
Administrative Law Judge's finding that Corsentino
lied when he testified that Isaac had asked that he be
fired during the embroglio on the parking lot.
But in any event, even accepting the Administra-
tive Law Judge's finding as to what Isaac said to
Corsentino, I do not believe that, under the circum-
stances of this case, the discrediting of this part of
Corsentino's testimony is sufficient to prove that
Respondent's true motive, in whole or in part, for
discharging Isaac was his union activities. At best it
raises a suspicion of wrong motive, but suspicion is
not equivalent of substantial evidence.12 I would
therefore not adopt the Administrative Law Judge's
finding that Respondent discharged Warren Isaac in
violation of Section 8(a)(3) of the Act.
9 See NLRB. v. Prescott Industrial Products Co., 500 F.2d 6 (CA. 8,
1974).
Great Dane Trailers, Inc., 204 NLRB 536 (1973) (Member Fanning
dissenting); Rockland Chrysler Plymouth, Inc, 209 NLRB 1045 (1974).
11 See NLRB. v. Barberton Plastics Products, Inc., 354 F.2d 66 (C.A. 6,
1965).
12 "Substantial evidence is more than a scintilla, and must do more than
create a suspicion of the existence of the fact to be established. 'It means
such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion' .... " N.LR.B. v. Columbian Enameling and
Stamping Company, Inc., 306 U.S. 292, 300 (1939).
It is not unlawful to discharge an employee for insolent, rough, and
intimidating conduct carried out in connection with union activities. The
Board stated in Mate Holt Company, 161 NLRB 1606, 1612 (1966):
Moreover, even if we were prepared to find that Respondent was
seeking an opportunity to terminate Davis because of its annoyance
with the way in which he engaged in protected activity, we would not,
in this case , find that Respondent discriminatorily discharged him. The
mere fact that an employer may desire to terminate an employee
because he engages in unwelcome concerted activities does not, of
itself, establish the unlawfulness of a subsequent discharge. If an
employee provides an employer with a sufficient cause for his dismissal
by engaging in conduct for which he would, have been terminated in
any event, and the employer discharges hum for that reason, the
circumstance that the employer welcomed the opportunity to discharge
does not make it discriminatory and therefore unlawful. This, at most,
is the situation in the present case . Accordingly, we find, contrary to
the Trial Examiner, that the General Counsel has not proved by a
preponderance of the evidence that Respondent discnminatonly
discharged Davis.
DECISION AND REPORT ON OBJECTIONS
TO ELECTION
STATEMENT OF THE CASE
FANNIE M. BoYIS, Administrative Law Judge: Case 16-
CA-5359 was initiated by a charge filed on November 23,
1973, and a complaint issued on January 29, 1974. Case
16-RC-6413 was initiated on November 29, 1973, by' the
filing of objections to the conduct of an election on
November 23. Respondent's alleged statements and con-
duct forming the basis of the complaint and the objections
to the conduct of the election being substantially the same,
the two cases , simultaneously with the issuance of the
complaint, were consolidated for purposes of hearing,
ruling, and decision. A hearing on the consolidated cases,
charging Respondent with violations of Section 8(a)(3) and
(1) of the Act which affected the results of the election, was
held before me at Belton, Texas, on February 20 and 21,
1974. The hearing was adjourned sine die pending
enforcement of a subpena issued for the production of
copies of a speech delivered by Respondent 's general plant
manager to the assembled employees on the afternoon of
the last working day before the election. After a resumed
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing at Fort Worth, Texas, on June 6, 1974, the hearing
was closed . Subsequent to the hearing counsel for the
parties filed briefs.
Upon the entire record in these consolidated proceed-
ings , upon my observation of the demeanor of the
witnesses , and after careful consideration of the briefs, I
make the following:
FINDINGS OF FACT
1. COMMERCE JURISDICTION
Respondent is a Delaware corporation, maintaining its
principal office and place of _ business in Belton, Texas,
where it is engaged in the manufacture and sale of
insulating materials. During the year preceding the
issuance of the complaint Respondent, in the course and
conduct of its business at its Belton plant, processed,
packed, produced, sold, and distributed products valued in
excess of $50,000 directly to purchasers located outside the
State of Texas. On the basis of these undisputed facts, I
find that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail, Wholesale and -Department Store Union, AFL-
CIO, herein called the Union, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. Issues and Background
The issues presented in these consolidated cases are
whether Respondent shortly before a representation
election conducted on November 23, 1973, told an ardent
union supporter, Warren Isaac, that he had better start
talking the Union down if he wanted to keep his job;
thereafter, on the last working day before the election,
ejected Isaac from an antiunion meeting called by
Respondent because Isaac was engaging in concerted
activities for the mutual protection of himself and other
employees; threatened to and did cause the arrest of Isaac
for engaging in a protected concerted or union activity;
and on election day when Isaac appeared at the plant to
act as an observer for the Union in the election, discharged
him because of his protected concerted and union activities
and threatened to have him arrested if he did not leave
Respondent's premises immediately-all in violation of
Section 8(a)(1) and (3) of the Act. These alleged acts, or
most of them, are also alleged to constitute grounds for
setting aside the results of the election conducted on
November 23, which the Union lost. In addition, it is
alleged that subsequent to the election Respondent
engaged in further unfair labor practices by coercively
interrogating an employee about the Union and about
employee Isaac's continuing union activities. Respondent
denies that it engaged in any of the unfair labor practices
alleged. Serious credibility issues are presented.
The Union started organizing Respondent's employees
in July 1973. During the course of the organizational
campaign Respondent engaged in certain conduct found
by Administrative Law Judge Schneider in another unfair
labor practice case (JD-34-74) to be in violation, of Section
8(a)(l) of the Act. That Decision was issued on January 28,
1974, subsequent to the events alleged in this case.
Respondent took no exceptions to the Decision and it was
adopted by the Board on March 4, 1974. Isaac testified
against Respondent in that case and the unfair labor
practices found were based in substantial part upon his
credited testimony.
Isaac had also assisted the Union in its organizational
activities by signing up other employees as members of the
Union and he had testified for the Union at a hearing in
the representation case. His union sympathies and activi-
ties were well known to Respondent.
B. Conversations Between Corsentino and Isaac in
November 1973
Robert Corsentino is Respondent's general plant super-
intendent in charge of all of Respondent's plants but has
his office at the Belton, Texas, plant here involved where
he works most of the time. It is the testimony of Warren
Isaac that on or about Friday, November 16, less than a
week before the election, when he had gone to the water
fountain for a drink, Corsentino stopped him in front of
Corsentino's office and told Isaac that if he wanted to keep
his job, he had better start talking the Union down.
Corsentino stated that he was going to Indiana (where
Respondent has a unionized plant) and that when he
returned, he wanted to hear that Isaac had been talking the
Union down. Isaac also testified: "Well, me and him talked
for about, oh, about 10 or 15 minutes. He was telling me
about he didn't want nary a vote, not one, `I don't want
them to have one vote here and you better start talking it
down.' " Although they talked about different things
during this period, according to Isaac, and Isaac answered
some questions Corsentino asked, Isaac did not purport to
recall anything else that was said. Isaac, did not tell
Corsentino whether or not he would honor Corsentino's
request that he talk the Union down.
According to Isaac's further testimony, when he returned
to his work station one of the two forklift drivers-
identified as the one who had difficulty in speaking and
had a hoarse voice-asked what Corsentino-"was on [his]
case about" (a colloquialism meaning upbraiding), and
that Isaac replied that Corsentino "was just talking about
the Union."
When Corsentino returned from Indiana a few days
before the election, according to Isaac, he paused as Isaac
was loading a truck and told Isaac "I haven't heard where
you was talking the Union down ....'Ifyou're intending
to keep this job . . . you better start. I'd better hear where
you talked it down." Isaac did not reply and Corsentino
continued on his way down the dock. On cross-examina-
tion, Isaac testified that Corsentino added: "I can't talk to
you all no more, but it's 24 hours before the election."'
1 The reference to "24 hours before the election" would appear to be a
garbled and confused reference to the Board's Peerless Plywood (107 NLRB
TEXAS ROCKWOOL 583
Corsentino categorically denied having either of the
conversations with Isaac described above. He testified that
the only conversations with Isaac in November which he
could recall related to Isaac taking more than 20 minutes
for his luncheon break. Corsentino had talked to Isaac
about that, first in the lunchroom and later in his office in
the presence of Foreman Thompson, and Corsentino had
excused Isaac for taking more than the normal lunchtime
upon learning that Isaac had missed his 10-minute
morning break. Neither on these or on any other occasions
in November, according to Corsentino, did he ever say
anything to Isaac about talking the Union down.
Respondent's counsel, in attacking Isaac's credibility,
asserts that there is an inconsistency in Isaac's testimony as
to the location where the first alleged conversation with
Corsentino took place. I am not convinced that there is an
inconsistency in this respect. Isaac's testimony on direct is:
"I went out to get me a drink of water at the water fountain
and he stopped me in front of his office." On cross-
examination, he stated that the water fountain is near the
office and that he and Corsentino were "standing back
right by the lunchroom door." The record does not show
how far the lunchroom door is from the water fountain and
office, and, in the absence of any evidence to the contrary,
I would assume that the three places mentioned were in
close proximity to each other and that the conversation, if
it occurred, was in the vicinity of each. Nevertheless, I do
not find it easy to resolve the credibility issue here
presented. Unlike the situation before Judge Schneider in
the prior case where he credited Isaac's testimony
regarding alleged statements made by Corsentino when
Corsentino merely testified that he did not recall making
these statements attributed to him, here Corsentino flatly
denied making the statements testified to by Isaac. In this
particular instance, I cannot resolve credibility on the basis
of the demeanor of the witnesses, for each appeared
equally convincing to me. In other respects, to which I will
hereinafter refer, I have not wholly credited the testimony
of either Isaac or Corsentino and their general credibility
or lack of credibility does not help me here. There is one
further factor, pointed out by Respondent's counsel in his
brief, which tips the scales in resolving this difficult
credibility issue. Isaac testified that one of Respondent's
two forklift operators who observed Isaac and Corsentino
talking inquired of Isaac about the conversation and that
Isaac told him that Corsentino had been talking about the
Union. This employee, I believe, was sufficiently identified
by Isaac that he could have been called to corroborate the
fact that a conversation between Isaac and Corsentino had
occurred. The General Counsel, on whom the burden of
427 (1953)) rule which precludes employers and unions from making
election speeches on company tune to massed assemblies of employees
within 24 hours before the scheduled time for conducting an election, the
purpose of such rule being to allow time for the effect of electioneering
speeches to be neutralized by the impact of other media of employee
persuasion.
2 Under Respondent's savings plan Respondent contributes an amount
equal to that contributed by the employee, but the employee is not
permitted to contribute anything during the first year of his employment.
During his second year, he may contribute at the rate of 10 cents for each
hour worked, during his third year 15 cents, with like increases for each year
worked thereafter. Until December 1972 Respondent permitted employees
who quit their employment and were later reemployed to receive seniority
proof rests, did not call this employee. I therefore conclude
that the General Counsel has not established by a
preponderance of the evidence that the conversations
described by Isaac above in fact occurred.
C. The Events of November 21
November 21, the day before Thanksgiving, was Isaac's
day off from work. Although Thursday is normally payday
at Respondent's plant, Isaac knew that on account of the
plant being shut down for the Thanksgiving holiday,
paychecks as well as the annual Thanksgiving turkey and
other food would be distributed to the employees on
Wednesday, November 21. Accompanied by two friends,
he drove to the plant at about I 1 a.m. to pick up his check
and food box. He was told in the office that he would have
to return and attend a meeting at the plant at about 12:15
p.m. in order to get his check and box.
Isaac then left and drove off with his two friends to buy
some beer. Each consumed two cans of beer before they
returned to the plant and parked on the side of the road
opposite Respondent's warehouse. Isaac left his friends in
his car while he went in to attend the meeting.
The meeting was addressed by General Plant Manager
Lanny West. He read from a prepared text on the subject
of the election ' which was to commence at 6:30 a.m. on
Friday, November 23, pointing out why he felt the
employees should vote against the Union in the election. It
is not contended that anything in the prepared text, though
antiunion in flavor, was unlawful or grounds for setting
aside the election. At one point in the speech when West
referred to the employees' savings and insurance program,
he departed from the written text to call up to the platform
several individual employees, to hand out paychecks to
them and to explain the nature of the deductions on the
checkstubs of each. West also had in his hand the paycheck
for Willie Knight, an employee who had recently been
accidentially killed and who had been buried only 2 days
before the speech. Isaac and Johnny Turlin were among
the several employees called up to receive checks. West
used Knight's check to illustrate the insurance benefits
provided by Respondent to Knight's widow; he used
Isaac's check to illustrate how much more money an
employee at Respondent's Belton plant could make,
working overtime, than a similar employee at Respondent's
Indiana plant could make working 40 hours a week under
a union contract; and he used Turlin's check to illustrate
how Respondent's savings program, which was tied into its
seniority system, worked.2
Turlin is one of the employees who at one time had quit
his employment and, upon being reemployed prior to
credit for their prior employment in figuring the amount they were entitled
to contribute to the savings plan and the amount Respondent would
contribute in meeting the amount contributed by the employee,' as well as in
figuring the amount of vacation and other benefits. Credit! for prequit
seniority, however, was not given automatically . Employees had to ask for
it. In December 1972 Respondent discontinued giving prequit seniority to
those who quit subsequent to that date but, upon request, continued to
restore prequit seniority to those who were reemployed prior to December
1972.
Respondent never called any meeting of its employees to explain the
necessity for employees individually to request restoration of their prequit
seniority but contends that it posted a notice on its bulletin board
explaining this necessity. Isaac and quite a number of the other employees,
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 1972, had received credit for his prequit
seniority in figuring the amount he was entitled to and did
contribute and the like amount Respondent contributed to
his savings account. Immediately upon learning that
Turlin, a white man, had received credit for his prequit
seniority, Isaac (who is black) in a loud voice asked
whether Earnell Johnson, a black man who had been
reemployed after having quit, had received his seniority
back. Johnson replied that he had not and called out once
or twice in a loud voice: "Well, where is mine? How come I
didn't get my seniority back?" West asked Isaac as well as
a few of the other employees who were talking to be quiet
and assured them that they could have an opportunity to
ask questions after West had completed his speech. Isaac
was quiet for only a few minutes, then again started asking
other black men in the audience who had been reemployed
after having quit, whether they had received their seniority
back. Again West asked him to be quiet. Isaac, however,
continued to move through the crowd, asking the same
question of several other black men, some of whom told
him that they had not received their seniority back.
At one point Isaac remarked, "This is all just lily white
business here." He stated, "This is not right" and "This is
not fair." While moving about the room, Isaac-acciden-
tially according to him, but deliberately, according to
Assistant Superintendent Ed Vining-stepped on a 4 by 6
foot iron plate, causing it to rock and make a loud clanging
noise . Isaac then grinned broadly as he watched, while
Vining stopped the plate from rocking. West told Isaac that
he would be escorted from the room if he made any more
noise . Isaac, nevertheless, proceeded to ask another black
man if he had received his seniority back. West thereupon
instructed Plant Superintendent Harold Berndt and Assist-
ant Superintendent Vining to escort Isaac from the plant .3
As Vining approached on the left side of Isaac, Isaac at
first protested that he had a right to stay at the meeting,
then, swinging his'right hand from the area of his pocket
toward Vining's belt, asked, "Have you ever had a knife in
your belly?" Isaac laughed, as did other employees
watching, when Vining jumped backward. Isaac' did not
have a knife and it was obvious, after the event, that Isaac
was merely engaging in horseplay. As Vining and Berndt
were escorting Isaac toward the exit door, Isaac said to
Berndt, "Harold, you are a pretty nice guy but Ed [Vining]
is a chicken shit" and laughed afterwards. Near the door,
Isaac asked if he would get a turkey box and Vining told
him to take one. Vining followed Isaac a few feet outside
the door and said, "Happy Thanksgiving" or "Goodbye-
now, go ahead and get in your car and g'o home." Isaac
responded that he did not have to go home and that the
city or county owned 60 feet on each side of the road where
he was parked. Nevertheless, Vining persisted, "Why don't
as Respondent knew, could not read or write and some of them apparently
never learned that it was necessary specifically to request the restoration of
their prequit seniority in order to be entitled to it.
s The findings regarding what took place at this meeting are based upon
the testimony of Isaac , Vining, and employee Parker. I do not credit the
testimony of West that he' did not mention seniority or explain the savings
plan until after he had completed his speech and then only in response to
questions asked.
4 Vining testified that he had smelled alcohol on Isaac's breath and that
he acted as if he had been drinking, that is, "he was so out of hand ... he
was just so loud ... and you couldn't reason with him." Vining explained
you go on home? Maybe you'll feel better later on." 4 As
Isaac started toward his car, he told Vining, "Willie Knight
killed himself out here. You guys killed Willie Knight
working him so many hours and everything."
Isaac put his food box in the trunk of his car, then
observing Knight's widow whom he had known for over 21
years, in the second parked car behind his own, he went
over to talk to her. Vining followed him to Mrs. Knight's
car. Isaac stated that the Union had sent Willie Knight a
wreath but that the Company had not sent anything.
Vining responded that he believed the Company had sent
flowers or a wreath or something. He told Mrs. Knight that
Corsentino had a check for her and asked her to move her
car to the front door of the plant across the road and
offered to put her food box in her car for her. As she was
moving her car, Isaac talked to some of the other
employees at their cars, then, walking in the road toward
the plant, he told Vining, "I would like to beat the slut out
of you guys, all of you s.o.b.s." 5
Vining sought out General Plant Superintendent Corsen-
tino and told him that Mrs. Knight was waiting to see him,
but did not at that time mention Isaac. After Corsentino
had given Mrs. Knight her deceased husband's paycheck
and savings, he noticed Isaac across the road gesticulating
with his hands and talking in a loud voice, but could not
understand what Isaac was saying. Corsentino went across
the road and asked Isaac: "Why don't you leave and we'll
talk this thing over later when you have calmed down and
when you have sobered up." Isaac replied that he was not
on Respondent's property, that he was on county property
and that Corsentino could not make him move. Corsentino
insisted that Isaac had to move and Isaac said that
Corsentino could not make him move and he "would whip
him [Corsentino] up and down the highway." Corsentino
responded, "Well, fine, I'll just call the law and just have
you removed and have you picked up." Corsentino then
went into the plant and asked Superintendent Berndt to
call the police. Berndt did so but by the time the police
arrived, Isaac had already gone. Isaac's explanation was:
"Well, they went back inside, I didn't have nobody else to
argue with, so I drove off."6
D. Isaac's Discharge on November 23
A preelection conference was scheduled by a Board
representative for 6:15 a.m. on November 23, just before
the election which was to start at 6:30 a.m. Since Isaac was
to be the Union's observer at the election, he appeared at
the plant shortly after 6 a.m. with Union Representatives
Stewart and Mangram and Board Agent Maynes. When
General Plant Manager West arrived and saw Isaac, he
asked Union Representative Mangram: "What's this man
that Isaac was "usually a real quiet type person" and Vining had never seen
him talking loud before.
5 The findings with respect to what took place while Isaac was being
escorted out of the plant and up to this point are based upon the credited
testimony of Vining, corroborated in substantial respects by the testimony
of Isaac. I do not credit Isaac's testimony which is inconsistent with the
above account.
6 The findings in the above paragraph are based principally upon the
testimony of employee L. C. Bradley , who witnessed the scene while putting
his food box in a car parked just behind Isaac's car , and that part of
Corsentino's and Isaac's testimony which I credit.
TEXAS ROCKWOOL
doing on Rockwool property? This mean is fired." Before
Mangram could answer, West told someone who was just
arriving, "Call the law. Warren's on the premises. Get this
man off." Corsentino and Respondent's counsel, Hunt,
followed by employee Weadock, who was to be the
Company's observer in the election, arrived as Union
Representative Stewart told West that he would make
Isaac's bond if West had him arrested and that the
scheduled election would be canceled because the Union
was unwilling to hold an election with its observer fired.
Stewart wrote out an unfair labor practice charge on the
spot and gave it to the Board agent. Corsentino told West,
"Well, hold it here, let me run this," then after a short
conference at one side between West, Corsentino, and
Hunt, one of them announced that the police would not be
called and that there would be no objection to Isaac
serving as an observer in the election. The union represent-
atives, though reluctant to proceed with the election, were
persuaded by the Board agent that the election should take
place and that the ballots would be impounded. Corsentino
told Isaac just before the election that he should return for
his paycheck during the afternoon.
Isaac did return for his paycheck that afternoon after the
election was over. He was never told why he was being
fired but Corsentino offered to take him back at that time
if the Union withdrew the charge filed on his behalf and
consented that the ballots be counted. Isaac replied that he
preferred for the Union to handle the matter.
Shortly after Isaac went home that afternoon, a police-
man arrived with a warrant for his arrest and he spent the
night in jail. A local attorney, at the request of Union
Representative Stewart, arranged for his release on bond
the next morning. The arrest apparently was made on a
complaint signed by Corsentino and filed with Justice of
the Peace Campbell on the afternoon of November 21. The
complaint was later dismissed by ti Le judge, without a
hearing, and without the knowledge or consent of
Respondent.
E. Reasons Assigned by Respondent for the
Discharge; Analysis and Conclusions
The decision to discharge Isaac was made on Wednesday
afternoon, November 21, after Corsentino had instructed
Superintendent Berndt to call the police. As Vining
testified , he walked into Corsentino's office just after the
police had been called , and upon learning "that Bobby
[Corsentino] had been insulted by him [Isaac], too,"
Vining told Corsentino, "Yes, he wanted to kick my ass out
there, too." Then, on the suggestion of either Corsentino or
West, the three of them decided to file a complaint with
Judge Campbell on the basis of "what happened in the
road" between Isaac and Corsentino . Before filing the
complaint, however, Corsentino talked to Respondent's
counsel, Hunt, on the telephone and on the basis of what
Corsentino told Hunt, the latter gave his consent that the
complaint be filed and that Isaac be discharged. On the
same afternoon, according to Corsentino, he made out
discharge papers for Isaac and bad his check ready for
delivery on Friday morning.
Corsentino testified that he fired Isaac because of
insubordination and threats and because Isaac asked
585
Corsentino to fire him. The latter reason was mentioned by
Corsentino for the first time on cross-examination. An
analysis of Corsentino's assigned reasons can best be made
after considering his entire testimony on this subject. He
was not asked the reason for Isaac's discharge on direct but
testified that he told Respondent's counsel on November
21 that he "wanted to fire the man because of his
insubordination and his conduct." On cross-examination,
he was asked and testified as follows (at transcript pages
286-289 and 298):
Q. Was the insubordination that you are talking
about the insubordination of allegedly using foul and
obscene language in describing certain supervisors?
A. No. He told me to go ahead and fire him, he
was just tired of this and he wanted to be fired.
Q. At what point did he do that?
A. This was out in the street .... Not in the
street, on the parking lot. His car was in the street. He
was on the parking lot.
Q. Then you fired him at his request, is that your
statement?
A. Right. Partially.
Q. That's the reason you fired him, because he
requested it?
A. This and he was-he'threatened me and one of
my supervisors and because of the insubordination.
Q. All right. The insubordination, is that the foul
language?
A. He wouldn't listen to anybody, I don't know
what you would-
Q. . . . I want to know what you fired him for. You
were the authority.
A. I said insubordination and threats.
Q. All right.
A. And that he asked me to fire him, too.
Q. . . . Second item was he was threatening. That
was where he alleged offered to whip the hell out of or
something to that effect?
A. Yes.
* * * * *
Q. The third item you say is insubordination. Now,
did he refuse to perform any work assignment of any
kind?
A. He refused to get off the parking lot ... well,
he wouldn't do what we asked him, what I asked him to
do, to leave there without no big-without any big
problem there in the parking lot, without causing a
commotion, just to quit and go on home, to quit
causing a commotion and go on home , and he says that
he just wasn't going to do it . I couldn't make him do
anything.
Q. All right. Now, he, of course, testified that he
was out on public property. You say he was out there
blocking the parking lot, if I remember your testimony
correctly.
A. This is correct. His car was parked blocking the
parking lot.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. So the commotion you're talking about is that
he wouldn't move the car for you, is that a fair
statement?
A. No. He was causing a commotion out there. He
was stopping the people from getting out of the parking
lot. He was throwing his hands up hollering.
Q. Now I believe you also testified that Mr. Isaac
asked you to fire him, is that correct?
A. Well, he-yes, he asked me several times, and
the last time I took him up on it.
The third assigned reason for Isaac's discharge men-
tioned for the first time by Corsentino on cross-examina-
tion is not supported by the testimony of any other witness.
Isaac, recalled as a rebuttal witness, denied that he ever at
any time requested Corsentino to fire him. Employee
Bradley, called by Respondent as a witness after the
completion of Corsentino's testimony, credibly testified
that when taking his turkey box out to his son's car, which
was parked immediately behind Isaac's car, he overheard
the statements made by Isaac and Corsentino and never
heard Isaac ask to be fired. Moreover, no mention was
made of any such alleged reason by Respondent's counsel
in his opening statement at the hearing or even in his brief
filed subsequent to the hearing. I am convinced and find
that Isaac did not request that he be fired.
It is noted that the insubordination charged to Isaac was
not his conduct in disrupting the antiunion meeting which
he was required to attend on his day off from work in order
to get his paycheck but, rather, his conduct outside the
plant when Corsentino requested him to go home. Here
again, there is no other support in the record for
Corsentino's testimony that Isaac's car was blocking the
employees' cars from leaving the parking lot or that Isaac
was causing a commotion by standing on the parking lot,
hollering at people and preventing them from leaving. It is
clear from the record that Isaac's car was only one of
several cars parked on the shoulder of the road across from
the plant and that the parking lot across the road from the
plant had about a 300-foot frontage along the road, with
no specific points for entrance or exit. Cars could and did
pull out from the parking lot at any place along this 300
feet. Obviously one car, Isaac's, or even several cars, could
not have blocked the exit from the parking lot. Nor is there
any support for Corsentino's testimony that Isaac was
causing a commotion in the parking lot. Charlie Swinney,
one of Isaac's friends who was waiting for him in Isaac's
car, testified that Isaac was on the side of the road and
another man in the road when they had a conversation
about something, which Swinney could not hear because
the windows of that side of the car were closed. He saw
Isaac gesticulating with his hands but not in a threatening
manner. Respondent 's witness Bradley described both
Corsentino and Isaac as being across the highway from the
plant and about a car's length from his own car when he
heard the altercation. He testified that Isaac "was just
waving his hands normally" as he talked. Although I am
satisfied that Corsentino did see Isaac gesticulating and
talking to some of the employees as they were going toward
the parking lot, I am convinced from all the evidence that
he was not causing any commotion or in any way
preventing the employees from going to their cars or
leaving the parking lot.
Any commotion which occurred was manifestly caused
by Corsentino's arrival and request that Isaac leave and his
insistence that Isaac had to leave after Isaac protested that
he was on public property and would not leave. Although I
do not mean to condone the intemperate language used by
Isaac when he said he would whip Corsentino up and
down the highway, I do not believe that Corsentino
considered the statement as a serious threat or that he
feared any personal injury. Isaac made no move to put the
threat into execution and Corsentino, a younger and larger
man (34 years old and weighing about 170 pounds) than
Isaac (52 years old and weighing about 150 pounds) could
well have defended himself had Isaac made any move to
actually engage in a fight.
I have no doubt that Isaac on November 21 did engage
in disruptive conduct which warranted Respondent in
ejecting him from the meeting being addressed by General
Plant -Manager West. Corsentino did not assign that
conduct as one of the grounds for discharging Isaac,
however-perhaps because Respondent had required him,
a known strong union protagonist, to attend the meeting
on his time off, when he was not being paid to attend, in
order to receive his paycheck, because Respondent had
used Isaac's paycheck in furtherance of its purpose to
demonstrate to the employees that they would be better off
without the Union since, working overtime, they were
receiving more take-home pay than Respondent's union-
ized plant which was on a 40-hour work schedule, and
because Corsentino realized that statements made by West
about Respondent's savings plan and the restoration of
seniority under that plan to employees who had quit and
been rehired had probably provoked Isaac into countering
that argument of West for rejecting union representation
by trying to make the point that Respondent was
administering the plan discriminatorily in favor of its white
employees. To have assigned Isaac's conduct which tended
to disrupt the meeting as one of the reasons for discharging
Isaac would have raised the question whether Isaac was
engaging in a protected concerted activity-a question
which Respondent may have wished to avoid raising and a
question which I find it unnecessary to decide.
Corsentino likewise rejected as a reason for discharging
Isaac the latter's conduct on the way out of the plant on
November 21-his playful pretense of knifing Assistant
Plant Superintendent Vining and calling the latter a
"chicken shit" after he jumped backward from the feigned
knife thrust. Isaac's gesture was clearly mere horseplay
which evoked laughter from the audience and his use of
foul language did not appear to offend Vining, for the
latter wished him a "Happy Thanksgiving" at the door and
himself later used rather earthy language when reporting to
Corsentino that Isaac had "wanted to kick [his] ass out
there, too."
I am convinced that Corsentino at the hearing selected as
the asserted reasons for Isaac's discharge the incidents
which occurred outside the plant in connection with the
attempts of Vining and Corsentino to force Isaac to leave
TEXAS ROCKWOOL 587
the area because, in Corsentino's view, Isaac's conduct on
the surface would seem less defensible. As already
indicated, I do not believe that Corsenhno regarded Isaac's
threat to whip him up and down the highway as a threat of
immediate violence. Isaac made no move to carry out the
threat. The threat, as Corsentino knew, was provoked by
Corsentino's insistence that Isaac immediately remove
himself and his car from public property, where he had a
legal right to be. Isaac's statement to Vining that he "would
like to beat the shit out of you guys, all of you s.o.b.s," was
likewise not a threat of immediate harm to anyone and
obviously was not taken seriously by Vining, for he did not
mention it to Corsentino when telling Corsentino shortly
thereafter that Mrs. Knight was waiting to see him . He told
Corsentino about it only later- when Corsentino told him
about his experience with Isaac outside the plant.
Both Vining and Corsentino knew that Isaac was
normally a very quiet man and that his conduct on
November 21 was explained in large part by the fact that
he was under the influence of alcohol. Vining testified that
Isaac was "usually a real quiet type person" and that
November 21 was the first time Vining had ever seen him
loud. Corsentino, too, conceded that Isaac normally was "a
good employee . . . . He was a quiet man. He done his
work and when he finished his work he sat down and
didn't cause anybody any problems no way, shape, or
form" but that "when he was a little bit under the influence
of alcohol, he would get a little bit obnoxious." Isaac had
never had alcohol on his breath while at work but a year or
two prior to November 1973, when Isaac had returned to
the plant on his day off from work to pick up his check,
Corsentino had smelled alcohol on his breath. Recognizing
Isaac's vulnerability to alcohol, Corsentino had on Novem-
ber 21 told Isaac to leave and return later to talk things
over when Isaac had calmed down and sobered up.
Viewing the total picture, I am persuaded that Corsenti-
no (whose decision it was to discharge Isaac), would not
have discharged him despite his offensive conduct outside
the plant on November 21 but for the fact that he knew
Isaac was a strong supporter of the Union and believed
that Isaac, whom he saw talking to other employees outside
the plant, was probably continuing to criticize Respon-
dent's policies , as he had done inside the plant in an effort
to counter Respondent's last-minute appeal to the employ-
ees to vote against the Union. If Vining told Corsentino
what Isaac had said to him in the road, as he said he did,
Corsentino knew that Isaac had not only attacked the
fairness of the application 'of Respondent's seniority rules
but had also accused Respondent of being responsible for
Willie Knight's death by working him long' hours,
accusations which could have had some effect upon the
election to be held on the day after Thanksgiving.
Unwilling to rely upon the actual facts, Corsentino felt it
necessary to justify his decision to discharge Isaac by
embellishing upon the gravity of Isaac's conduct and
adding an entirely new asserted reason for the discharge on
cross-examination . Thus, Corsentino testified that Isaac's
car was blocking the exit of cars from the parking' lot and
that Isaac himself was on the parking lot causing a
commotion and preventing employees from leaving-
charges denied by Isaac and not supported even by
Respondent's other witness to the events, employee
Bradley; and on cross-examination Corsentino testified
that he discharged Isaac in part because Isaac asked three
times to be discharged, something which I have found did
not occur. I find upon the entire record that the reasons
asserted by Respondent for discharging Isaac were
pretextual and that the real reason was Isaac's continued
adherence to and support of the Union. The discharge was
therefore in violation of Section 8(a)(3) and (1) of the Act.
In reaching this conclusion, I do not mean to condone
Isaac's threatening statements to Corsentino or to Vining.
His conduct was reprehensible even if provoked by
Corsentino's and Vining's attempts to make him leave
public property. My conclusion is based, rather, upon my
conviction that Isaac's threats were not the motivating
reason for Isaac's discharge.
F. Alleged Independent Violations of Section 8(a)(3)
of the Act on or About November 21
and December 3
The General Counsel and Union contend that Corsenti-
no's statement to Isaac when the latter refused to move his
car and threatened to whip Corsentino up and down the
highway on November 21 that Corsentino would have him
arrested and Corsentino's subsequent filing of a complaint
resulting in Isaac's arrest constituted an independent
violation of Section 8(a)(1) of the Act. The Union argues
that the action taken by Corsentino was not based upon
any real fear of harm (a conclusion with which I agree) but
was taken because Respondent believed it would have a
coercive effect upon Isaac and the other employees. I am
convinced, however, that Corsentino had no such specific
coercive intent in taking such action. Rather, I believe that
Corsentino made the threat and carried it out because he
felt humiliated by Isaac's statements in the presence of
employee Bradley and possibly other employees. As Vining
described it, Corsentino "had been insulted" by Isaac. I
have no reason to conclude that either Bradley or any
other employee who may have heard Isaac's threat would
have been coerced in his right to vote freely in the election
by Corsentino's counter threat. It is accordingly found that
Respondent did not violate Section 8(a)(1) of the Act by
threatening to and causing Isaac's arrest.
On or about December 1, according to the credited
testimony of ex-employee Parker, Corsentino came to the
dock where Parker was then working and asked Parker if
he had received a letter from the Union regarding Isaac's
ejection from the November 21 meeting. Parker replied
that he had not received one but had seen such a letter.
Corsentino then asked whether Isaac ` was still thinking
about getting the Union in and Parker replied that Isaac
was. Parker asked Corsentino: "Reckon Warren will be
able to come back to work?" Corsentino replied that Isaac
could come back to work any time he wanted to.7
Interrogation of employees by an employer about union
Y Corsentino did not deny asking these questions and making these
statements but testified that he added a condition to his statement that Isaac
could come back to work at any time he wanted to. That condition was that
the unfair labor practice charges filed against Respondent and the Union's,
objections to the election would have to be dropped. Although I have no
doubt that that is what Corsentino meant-for those conditions remained
even at the time of the hearing-I do not believe that Corsentino bothered
to explain this to Parker.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities, especially union activities of other employees,
has usually, but not necessarily, been held by the Board to
be unlawfully coercive. The circumstances of each case
must be considered. On the bare facts here presented, I am
not convinced'that Corsentino's statements were coercive.
The significance of Corsentino's inquiry about the Union's
letter is not clear. In the absence of any suggestion to the
contrary, I would assume that Corsentino had heard about
such a letter and was merely interested, especially in view
of the pending unfair labor practice charges, in seeing a
copy to ascertain what the Union was telling the employees
about Respondent's conduct and was not trying to
ascertain whether Parker was pro- or antiunion. Corsenti-
no's inquiry as to whether Isaac was still thinking about
getting the Union in might well warrant an inference that
Respondent would be willing to take Isaac back if he had
given up his union proclivities but such an inference was
negated by Corsentino's statement that Isaac could come
back any time he wanted to-after Parker's affirmative
reply to Corsentino's inquiry. Neither the General Counsel
or Union have pointed out how anything said by
Corsentino during this conversation could have interfered
in any way with Parker's organizational rights. I do not
find any violation of Section 8(a)(1) based upon this
conversation.
N. THE OBJECTIONS TO THE ELECTION
The Union's first and second objections to the election
related to the announcement of Isaac's discharge just prior
to the preelection conference on November 23 and the
threat to have him arrested if he did not leave Respon-
dent's premises immediately. These two related objections
will be considered together.
Respondent contends that since there is no evidence that
any employee was told prior to the time he voted about
Isaac's discharge and the threat to have him arrested, it
cannot be inferred that Isaac's discharge and the threat of
arrest had any effect upon the results of the election. I do
not agree . Even if employee Weadock, the company
observer, who followed closely behind Corsentino and
Attorney Hunt as they approached the scene, did not hear
West's statement that Isaac had been discharged and
would be arrested if he did not leave the premises, it is a
fair inference from what followed immediately thereafter-
Union Representative Stewart's protest against holding the
election with the Union's observer fired or jailed and the
immediate filing by him of an unfair labor practice charge,
followed by the huddle by management representatives
and the subsequent announcement that they were with-
drawing their objection to Isaac remaining on the premises
and would not have him arrested-that Weadock learned
what had happened. But regardless of what _ employee
Weadock may have heard or failed to hear, it would seem
extremely unlikely that ` such an unusual event did not
come to the attention of employees in the voting unit prior
to the time they voted. In addition to Isaac, the two union
representatives and the Board agent, there were three
8 The threat to have Isaac arrested when he appeared at the plant on the
morning of November 23 was not alleged and therefore is not found to be
management representatives (Vining, Berndt, and Quality
Control Supervisor Jackson) present when West made the
discharge announcement and the threat to arrest Isaac. It
would have been unnatural for all of them in addition to
Weadock and Corsentino to have kept silent about such an
important matter throughout periods covered by the
polling, which started at 6:30 a.m. for the first shift and ran
between 12 noon and 1 p.m. for the second shift.
The unlawful discharge of a prominent union supporter,
who had been selected to act as the Union's observer at the
election, and the threat to have him arrested if he did not
leave the premises, are types of conduct which would
naturally tend to interfere with a free choice at the polls. I
find that such conduct by the Company constituted
grounds for setting aside the election .8
The Union's Objection 3 asserts that Isaac was ejected
from the captive audience meeting on November 21
because of his opposition to the Company's antiunion
point of view. This objection is rejected because, as I have
found, even though Isaac was apparently merely trying to
make counterarguments to meet West's arguments in the
preelection speech, the Company was nevertheless war-
ranted in having him escorted from the meeting for
disrupting the meeting and for refusing to wait until the
conclusion of West's speech to ask questions or make
statements, as West told him he could do. Objection 7
appears to be a general or coverall objection and, to the
extent that it may embrace alleged conduct not covered by
Objections 1 and 2, it is overruled.
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of
employment of Warren Isaac because of his union
sympathies and activities, thereby discouraging member-
ship in the Union, Respondent has engaged in an unfair
labor practice within the meaning of Section 8(aX3) and (1)
of the Act.
2. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
3. A preponderance of the evidence does not support
the allegations of the complaint that Respondent violated
Section 8(a)(1) of the Act except in connection with its
discharge of Isaac.
THE REMEDY
1. Recommendations regarding Case 16-RC-6413
In view of my fording that Respondent interfered with
the exercise by its employees of a free and untrammeled
choice at the polls by announcing the discharge of the
Union's observer and by threatening to have him arrested
if he did not leave Respondent 's premises where the
preelection conference and election was to be conducted
on November 23, it is recommended that the election
results be set aside and that Case 16-RC--6413 be severed
from this proceeding and remanded to the Regional
an unfair labor practice, but it is alleged and is found to be part of the
grounds for setting aside the election.
TEXAS ROCKWOOL 589
Director for ,Region 16 for the purpose of conducting a
new election at such time as he deems the circumstances
will permit the free choice of a bargaining representative.
2. Recommendations regarding Case 16-CA-5359
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act, my recommended Order will require that it
cease and desist therefrom and take the affirmative action
normally required to remedy unfair labor practices of the
nature found.
To remedy the discriminatory discharge of Warren Isaac,
Respondent will be required to offer him immediate and
full reinstatement , without prejudice to his seniority and
other rights and privileges, and make him whole for any
loss of earnings he may have suffered by reason of his
discharge, with backpay computed on a quarterly basis,
plus interest at 6 percent per annum, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act , there is hereby issued the following recom-
mended:
ORDERS
Texas Rockwool, Division of Rockwool Industries, Inc.,
Belton, Texas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating in regard to
the hire and tenure of employment of employees because
of their union sympathies or activities.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Warren Isaac reinstatement to his former job,
or, if such job no longer exists, to a substantially equivalent
position, without prejudice to his seniority and other rights
and privileges, and make him whole in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Belton, Texas, plant copies of the attached
notice marked "Appendix." 10 Copies of the notice, on
forms provided by the Regional Director for Region 16,
after being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that the notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not herein found.
IT IS FURTHER ORDERED that the election conducted in
Case 16-RC-6413, be and it hereby is set aside ; that said
case be and it hereby is remanded to the Regional Director
for Region 16 for the purpose of conducting a new election
at such time as he deems the circumstances permit the free
choice of a bargaining representative.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
19 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILT, offer Warren Isaac full reinstatement and
pay him for any earnings he may have lost as a result of
his discharge on November 23, 1973, plus 6 percent
interest.
WE WILL NOT discourage membership in Retail,
Wholesale and Department Store Union, AFL-CIO, or
any other labor organization, by discharging employees
or otherwise discriminating against them because of
their union sympathies or activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed under Section 7 of the Act.
TEXAS ROCKwooL,
DIVISION OF ROCKWOOL
INDUSTRIES, INC.