Victor Chemical Works

National Labor Relations Board - Board Decisions

Nov 23, 1959

125 N.L.R.B. 278 (N.L.R.B. 1959)

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examination of the record leads to the conclusion that it played no part in La Dow's
decision to discharge Kilgore It is clear that La Dow, as he testified, based his
decision to discharge primarily on the July 22 incident I conclude therefore that
Kilgore was discharged by the Respondent because he engaged in union activities
for 10 minutes away from his work station on July 22 Nor do I conclude upon the
state of the entire record, even mindful of the foregoing 8 (a)( 1 ) v olations of the
Act, as found, that it can be held that the reason for his discharge was pretextual and
that the asserted reason was not the true reason which would be necessary in order
to establish a discriminatory motive When Kilgore requested reemployment in
January 1959, he was informed that the Respondent would await the outcome of the
hearing herein I find that he was not refused reemployment for reasons violative of
the Act
On the basis of the entire record, I find that the General Counsel has failed to prove
by the required preponderance of the evidence that the discharge of Kilgore and
later refusal to reemploy him were motivated by reasons violative of the Act I shall
therefore recommend that the complaint be dismissed to the extent that it alleged a
violation of Section 8 (a) (3) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof
V THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
Having found that the Respondent has engaged in interrogation, threats, and
solicitation of employees to abandon the Union, and has interfered with, restrained,
and coerced its employees in derogation of their rights secured by Section 7 of
the Act, I shall recommend that it cease and desist therefrom
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following -
CONCLUSIONS OF LAW
1 United Textile Workers of America, AFL-CIO, is a labor organization within
the meaning of the Act
2 By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act
3 The aforesaid unfair labor practices are unfair labor practices affecting com-
mence within the meaning of Section 2(6) and (7) of the Act
[Recommendations omitted from publication ]
Victor Chemical Works and James E. O'Connell
Victor Chemical Works and Thomas Dean. Cases Nos 19-CA-
1574 and 19-CA-1582 November 23, 1959
DECISION AND ORDER
On June 29, 1959, Trial Examiner Maurice M Miller issued his
Intermediate Report in these cases, finding that the Respondent had
not violated Section 8 (a) (1) and 8 (a) (3) of the Act by discharging
either James E. O'Connell or Thomas Dean, and recommending that
the consolidated complaint be dismissed in its entirety, as, set forth in,
the copy of the Intermediate Report attached hereto t Thereafter,,
125 NLRB No 35
VICTOR CHEMICAL WORKS 279
James E. O'Connell filed exceptions to the Intermediate Report with
a supporting brief, and the Respondent filed a brief in support of the
Intermediate Report and Recommended Order.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
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 briefs, and the entire record in the
cases, and hereby adopts the findings,2 conclusions,3 and recommenda-
tions of the Trial Examiner.
[The Board dismissed the consolidated complaint.]
1 As no exceptions were taken thereto, we adopt pro forma the Trial Examiner's recom-
mendation that the complaint be dismissed insofar as it alleges unlawful discrimination
with respect to Thomas Dean.
2 The Intermediate Report contains certain minor inaccuracies, such as the statement
on page 284 that O'Connell was assigned to work on the shop oven whereas he was assigned
to an induction fan. however, •these inaccuracies do not affect the Trial Examiner's
findings and conclusions, nor our concurrence therein.
8 We find that complainant O'Connell was discharged for attempting to induce a work
stoppage in violation of a contract between Respondent and the Union which banned
work stoppages. As this conduct of O'Connell was not a protected activity under the
Act, his discharge therefor was not a violation of the Act. For this reason, we adopt
the Trial Examiner's recommendation that the complaint be dismissed.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed and served, the General Counsel of the National Labor
Relations Board caused a consolidated complaint and notice of hearing to be issued
and served upon Victor Chemical Works, designated as the Respondent in this report.
In the consolidated complaint it was alleged that the Respondent had engaged in un-
fair labor practices affecting commerce within the meaning of Section 8(a) (1) and
(3) of the National Labor Relations Act, as amended, 61 Stat. 136. In the Respond-
ent's answer, duly filed, the jurisdictional allegations of the consolidated complaint
were admitted; certain factual allegations were also admitted, but the commission of
any unfair labor practice was denied.
Pursuant to notice, a hearing with respect to the issues was held at Butte, Montana,
from October 6 to 10, 1958, before the duly designated Trial Examiner. The General
Counsel and the Respondent were represented by counsel; the complainants, James E.
O'Connell and Thomas Dean, filed appearances in their own behalf. Each of the
parties was afforded a full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues. At the outset of the
case, counsel for the Respondent renewed a motion for a bill of particulars previously
filed, which had already been granted in part and denied in other respects. The
motion was further granted in part; certain additional particulars were then supplied,
orally, by the General Counsel's representative. At the close of the -testimony, oral
argument was heard. Briefs have been received from the Respondent and the
General Counsel's representative; they have been duly considered.
Upon the entire record in the case, my observation of the Respondent's plant, and
my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Victor Chemical Works, to be designated as the Respondent in this report, is a
Delaware corporation engaged throughout the United States in the manufacture
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and sale of chemical products ; its plant at Silver Bow , Montana, is the only plant
involved in this consolidated case. During its most recent fiscal year, prior to the
issuance of the consolidated complaint in this matter, the Respondent purchased over
$1,000,000 worth of materials , of which more than 50 percent was shipped to the
firm from points outside the State in which shipment was received . During the same
fiscal year, the firm sold products valued at more than $1,000,000, of which more
than 50 percent was sold and shipped to purchasers located outside the State in which
the sale and initial shipment occurred.
The Respondent concedes its status as an employer engaged in commerce within
the meaning of Section 2(2),(6), and (7) of the Act, as amended. In the light of
this concession , and on the basis of the Board 's established jurisdictional policy-
see Siemons Mailing Service, 122 NLRB 81 and related cases-I find the assertion of
the Board 's jurisdiction in this case warranted and necessary to effectuate the statu-
tory objectives.
II. THE LABOR ORGANIZATION INVOLVED
International Hod Carriers, Building and Common Laborers Union of America,
Local No. 163, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act , which admits employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Background
1. The plant and its supervisors
The plant of the Respondent at Silver Bow , Montana, scene of the controversy with
which this case is concerned , is devoted to the manufacture of elemental phosphorus.
It receives phosphoric ores by rail. The manufacturing process begins with the
washing of these ores to remove slime; the concentrate which results is conveyed to
kilns, within which heat is applied to effect a further concentration of the ore into a
nodular product. Nodulized ore, together with coke and silicon, is then conveyed to
one of several electric furnaces. A high temperature reaction is induced, and the
phosphorus is volatilized as gas; the remainder of the material in the furnace is then
removed as molten slag. In its gaseous form, the phosphorus is condensed and
handled as a liquid, through a purification step and subsequent storage. Thereafter
it is loaded into tank cars for shipment.
Throughout the period with which this case is concerned, Superintendent L. O.
Streitmatter was in charge of the firm's Silver Bow plant. One of his immediate
subordinates, Master Mechanic W. P. Hunter, supervised the maintenance depart-
ment, with the help of Richard J. Harry, the assistant master mechanic. Under
Harry, I find, Martin Firko, Joseph Bosch and Charles Kramer served as maintenance
department foremen. The complainants in this consolidated case, James E. O'Connell
and Thomas Dean, were both employed in the department.
2. Safety considerations
The available evidence establishes that phosphorus is a very dangerous material.
Taken internally, it is poisonous; additionally, I find, it burns on exposure to air, and
must, therefore, be kept under water at all times. (When loaded for shipment, for
example, liquid phosphorus is pumped into a tank car filled with water, which is
displaced as the material enters. A layer of water must be kept on the surface of
the phosphorus at all times, however, and the material itself must be cooled and
solidified before actual shipment. Strict regulations of the Interstate Commerce
Commission govern the handling of tank cars loaded with phosphorus, while in
transit.) Because of these hazards the officials of the Respondent, I find, routinely
stress the need for safety measures by employees. There is a continuous employee
training program, which deals with the characteristics of phosphorus; employees are
instructed with respect to the action to be taken if they come in contact with it, and
with respect to the personal precautions necessary while handling it. Shower. facili-
ties to facilitate the removal of any phosphorus in contact with the skin are scattered
throughout the Silver Bow plant.
Detailed contractual provisions with respect to safety have been embodied in the
trade agreements in effect at the Respondent's plant throughout the period with
which this consolidated case is concerned. And the Respondent, I find, provides
opportunities for frequent employee dental examinations and care, if needed, because
of the particular damage phosphorus may cause in teeth . In this connection, also,
warning signs have been posted throughout the plant; they read as follows:
VICTOR CHEMICAL WORKS 281
WARNING NOTICE
ALL EMPLOYEES OF THIS DEPARTMENT MUST WASH THEIR
HANDS THOROUGHLY BEFORE EATING MEALS OR SMOKING, AS
PHOSPHORUS IS VERY POISONOUS AND INJURIOUS IF GOTTEN
INTO THE MOUTH, PARTICULARLY IF THE TEETH ARE DECAYED.
THIS WARNING IS FOR YOUR BENEFIT, AND MUST BE HEEDED.
VICTOR CHEMICAL WORKS
Such a sign , I find , was posted in the Respondent's machine shop at the Silver Bow
plant, and was readily visible to the maintenance men in the firm's employ.
B. The discharge of O'Connell
Facts
1. Work history
James E. O'Connell, one of the Complainants in this consolidated case, began
work for the Respondent on March 5, 1953, at the Silver Bow plant, in the main-
tenance department. He was classified as a mechanic's helper, class A, in that
department on the date of his termination, to be noted in this report. In the
absence of contradiction, his testimony establishes that his work was criticized only
once during his period of employment; in August 1957, Master Mechanic Hunter
advised him that he was not working fast enough. O'Connell was not warned,
however, that he might be discharged.
2. Union activity
Throughout the period with which this case is concerned, I find, O'Connell main-
tained union membership. From July 1956 to May 1957, he served as vice presi-
dent of the organization. In both 1956 and 1957, he also held membership on the
steering committee of the Union and its negotiating committee; he served as the
secretary of each group. In March 1957, when the Silver Bow plant was closed by
a labor dispute, O'Connell was designated secretary of the Union's strike com-
mittee. As such, I find, he was a strong supporter of the Union's initial decision,
later modified, to bar supervisors from the Respondent's plant during the course
of the labor dispute. (The strike in question lasted approximately 16 days. Addi-
tional material findings with respect to its conduct will be noted elsewhere in this
report.) In May 1957, at the request of Chief Steward Ager, O'Connell served as
a union representative in the third step of the contractual grievance procedure with
respect to two grievances. And in December 1957, I find he filed four grievances
on behalf of himself or others.
In various trade agreements negotiated and executed by the Respondent and the
Union, after the January 31, 1952, certification of the latter as the exclusive bar-
gaining representative of the Silver Bow employees, there has been a provision,
designated as Section 19.4 of the agreements, that:
Work necessary to maintain full production of the plant shall continue to be
performed by the employees . .. .
In 1956 and 1957, I find, the retention of this contractual language without change
was an issue in negotiations. The Respondent's principal negotiator demanded the
elimination or substantial modification of the provision noted; Chief Steward Ager
and O'Connell vigorously advocated its retention without change, on the ground that
it tended to preserve work opportunities for maintenance department men. In the
1956 agreement section 19.4 was, in fact, retained without change; the Respondent
reached a supplemental agreement with the Union, however, with respect to certain
specified projects, not involving new construction undertaken to increase the plant's
productive capacity, which the Respondent would nevertheless be permitted to com-
plete with the assistance of independent contractors. In the 1957 negotiations, also,
the Respondent sought elimination or modification of the quoted contractual pro-
vision; Ager and the complainant, I find, again voiced strong opposition. Ultimately,
again, the section was retained without change; the Respondent's right to complete
unfinished maintenance projects on the 1956 list with independent contractors was,
however, reaffirmed.
Upon the settlement of this issue in the 1957 negotiations, an impasse was reached
with respect to wage rates. This resulted, I find, in a 16-day strike. At the outset
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the work stoppage, the Union insisted that supervisory personnel would not be
permitted to enter the plant, even to perform preventive maintenance work. Several
supervisors attempted to cross the Union's picket line, without success. When the
representatives of the company announced, however, that they would not negotiate
the issues in dispute pending a reversal of the Union's position in this regard, a
majority of the negotiating committee of the organization voted to permit the
Respondent's supervisors to pass through picket lines. Chief Steward Ager and
O'Connell, I find, made up the minority group which attempted, unsuccessfully, to
press for the retention of the Union's exclusionary policy.
In the light of the evidence summarized above, the General Counsel argues that
O'Connell was a "prominent" leader of the Union herein, whose activities as a con-
tract negotiator and strike leader were regarded by the Respondent as a "thorn"
in its corporate flesh. And, upon the entire record, I am inclined to agree that
O'Connell did pursue-with the cooperation of Chief Steward Ager, noted-a
"strong" line in contract negotiations, with respect to the disputed "maintenance of
work" clause, and a "strong" line in the conduct of the 1957 strike, with respect
to the Respondent's right to insist that its supervisory personnel be permitted to
enter the plant. I am satisfied, also, that the officials of the Respondent were fully
aware of O'Connell's demonstrated intransigence in these respects. The available
evidence, however, cannot be said to provide a clearcut, objective indication that
the Respondent's supervisory officials regarded O'Connell as a "thorn" to be plucked.
Such a conclusion would have to rest entirely upon an inference. Its validity will be
discussed elsewhere in this report.
3. O'Connell's discharge
a. The doughnut incident
On December 31, 1957, Plant Superintendent Streitmatter, accompanied by Master
Mechanic Hunter, made a routine inspection of the machine shop. While so en-
gaged, they observed a paper bag, which contained doughnuts, in a small steam-
heated oven used primarily to bake repaired and reconditioned electric motors.
(For a substantial period prior to Streitmatter's discovery the maintenance men, I find,
had been using the oven to heat cans of food for lunch, particularly during the winter
season. Occasionally, the oven had been used to heat pastry. For several days prior
to December 31, 1957, specifically, it had been used to heat doughnuts purchased
in bulk by the maintenance men. The testimony of Master Mechanic Hunter and
Richard Harry, taken at face value, would tend to support an inference that they
were unaware of the fact that the men in the shop had used the oven to heat food,
prior to Streitmatter's discovery. Since the oven, however, rests on the open machine
shop floor within the sight of any shop visitor, the testimony of Hunter and Harry
in this connection might well be open to doubt. Upon the entire record, its credibility
need not be assessed now.) Streitmatter immediately expressed concern about the
safety hazard involved, since he thought it likely that any food in the oven would be
contaminated by phosphorus. He admonished Hunter, I find, to remind the main-
tenance men of this hazard, and to instruct them not to put food in the oven. Despite
his admonition, no such instruction was issued on the date of the plant superin-
tendent's tour.
On January 2, 1958, after being advised that the oven was still being used to
heat doughnuts, Streitmatter again directed Hunter to remind the men under his
supervision of the hazard involved, and to advise them that anyone who placed food
in the oven, or ate anything heated in it, would be sent home.
This information was relayed to the employees on January 2, 1958, by Assistant
Master Mechanic Harry; specifically, I find, Streitmatter's admonition was repeated
by Harry to Chief Steward Richard Ager of the Union, who was asked to repeat it
to other maintenance men. This action on Harry's part appears to have been
consistent with past practice.
The men in the shop, however, appear to have been resentful of the restriction
thus placed upon their use of the oven to heat food, particularly in view of the
Respondent's antecedent failure to provide them with a lunchroom or luncheon
area, with heating facilities. In any event, I find, most of them quickly reached
agreement that a collection would be undertaken to finance the purchase of addi-
tional doughnuts, to be heated in the oven on the following day. (The available
evidence would warrant an inference that this course of action was primarily under-
taken to demonstrate the resentment of the maintenance men, based upon the Re-
spondent's restriction of their right to warm food in the shop oven in the absence
of any effort to provide a facility which the men could use to heat their meals with
VICTOR CHEMICAL WORKS 283
less risk. In the context of this case, however, the motives of the men may be dis-
regarded as immaterial.) Early on the morning of January 3, 1958, Chief Steward
Ager was assigned by Harry to repair a compressor located outside of the shop;
O'Connell was assigned to assist him. In the course of a brief visit to the shop at
9 o'clock, approximately, while busy on this assignment, Ager took one of the
doughnuts out of the bag which had been placed in the shop oven earlier that day.
His action was observed by Assistant Master Mechanic Harry, who reminded him
that he would be liable to suspension in the event of any further transgression. Ager's
response was a comment to the effect that he would probably have another doughnut
later in the morning.
Upon the temporary completion of his compressor assignment Ager, accompanied
by O'Connell, returned to the machine shop. He was assigned to a task in the
shop, which O'Connell helped him set up. (Thereafter, I find, O'Connell had no
definite assignment. Ager did not require his services as a helper after the initial
setup of his own task was completed. O'Connell, therefore, was available for a new
assignment.) Very shortly thereafter, a situation which led to Ager's suspension,
and his ultimate discharge, developed. The chief steward's testimony with respect to
the incident, which I credit in the absence of effective contradition, reads as follows:
As I recall, at approximately 11:00 a.m. Mr. Harry told me that the Brown
hoist was broken down, something about the air line, and told me to make the
necessary repairs. I gathered up the tools I anticipated I would need, put on
my jacket, as the weather was cold, walked across the shop approximately 25
feet, and picked up a doughnut, and was walking out of the shop, when Mr.
Harry stopped me. He says, "Now this is the third time I've told you. You
go home until I call you." I says, "Right now?" And he says, "Yes," and I
says "O.K.", so I walked over to my work bench, put my tools away, took my
coat off, and some fellows stopped me and asked me what I was doing, and I
said I was being sent home.
When questioned further by the men in the shop as to the reasons for the Respondent's
disciplinary action, Ager reported that he was being sent home for eating a doughnut.
He put his tools away, picked up his lunch bucket, and proceeded to the change
house, near the plant gate-sometimes designated as the "dry" in the record-to
shower and dress.
Prior to his departure, however, the maintenance men in the shop had "crowded"
around Ager's bench. There was considerable discussion. Someone observed,
"Well, I ate doughnuts, I'm just as guilty as he is." And there appears to have been
a suggestion that the rest of the men ought to go home. Almost immediately after
Ager's departure, also, someone in the group observed that the maintenance men
"outside" ought to be told of his suspension.
Thereupon, I find, O'Connell-accompanied by Ray Miller, a fellow employee-
left the shop, on his own initiative, to advise the maintenance men at work elsewhere
in the Respondent's plant of the fact that Ager had been sent home. On his way out
to convey this information, O'Connell observed maintenance employees Sherr and
Mattson on their way to the shop. Nothing was said to them. The complainant did
report Ager's suspension, however, to a number of his fellow maintenance men;
the record establishes that he spoke to employees Bennett, Myers, Kuhn, Mahoney,
and McVerney in the course of his plant tour.
The testimony of O'Connell, which I credit in the absence of effective contra-
diction, establishes that these employees were informed, at the very least, of Ager's
suspension. When Myers received this information, I find, he asked, "What are
we going to do?" O'Connell, according to his own testimony, replied, "Well, what
do you think?" and proceeded on his way. In response to a similar inquiry by
Kuhn, O'Connell observed, however, that some of the men in the shop were talking
about going home.
McVerney, although not a maintenance man, was the Union's shop steward for
the yard department. When informed that Ager had been suspended, he reported
that he had seen the chief steward in the change house. He, too, questioned
O'Connell as to what the men were going to do. "Well, I don't know," was
O'Connell's reply. McVerney then observed that the yard department was so small
that it could do nothing; this remark ended the conversation. O'Connell and Miller
returned to the shop.
In the meantime, during his absence, employees Algra, Parkins, and Sorensen had
left the shop to go home. After O'Connell's return, employee Davis also left. A
group of maintenance men, I find, was still assembled in the shop. O'Connell's
testimony with respect to their discussion, which I credit, reads as follows:
they were discussing going home, and someone said, "Well, we should go
home. We ate the doughnuts as well as everybody else." Dick Harry said,
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Now, are you going home or aren 't you? You are going to have to make up
your minds," and he walked off. There was still more discussion , finally
somebody said , "Well, are they going to fire Ager?", and I said , "I don't know,
but I 'll find out ." I went to Mr . Harry and I asked Mr . Harry if Dick was
fired , and he informed me that he hadn 't made up his mind . I went back to
the men and I told the men what Mr. Harry said , and then Mr. Harry walked
over again and he said , "Now, fellows , you are going to have to make up your
minds. Either you are going back to work or you are going home," and he
walked away. I told the fellows then that "According to our union agreement
if you go out of that door the union can't back you up one bit." . I said
it to Mr. Duhame and whoever else was standing around . I told the men
that they were just out if they went out of there, and that they hadn't made
up their minds yet about firing Dick Ager, and that they should go back. to work,
is what I told 'em . . . Mr. Miller had been to the dry and came back in, and
Mr. Miller said , "I'm going home too. I ate the doughnuts too, I 'm as guilty
as the next one," and I told him again , "Ray, if you go out of that gate it will
mean your job. The union can't give you any protection at all, and it will mean
your job. Stay here," and he did.
In the meantime , pursuant to Assistant Master Mechanic Harry's request , the men-
with the exception of employees Algra, Parkins, Sorensen , and Davis , as noted-
had returned to work. O'Connell's request that he be permitted to visit the change
house was denied by Harry, presumably after Master Mechanic Hunter had been
consulted. The complainant was permitted to use the shop telephone, however,
and dialed the number of the Union's attorney but did not complete his call. He
was. subsequently assigned to work with two other men on the shop oven.
Despite O'Connell's credible testimony, noted, it is the contention of the Re-
spondent in this consolidated case that he actually attempted to induce various
maintenance employees to leave their jobs and go home, or in the alternative, that
he attempted, at the very least, to persuade them, expressly, to assemble at the shop.
No reliable, probative, or substantial evidence has been adduced, in my opinion, to
support either contention. Several of the Respondent's witnesses did testify that
they had "heard" of such efforts by O'Connell, but their testimony clearly deserves
characterization as hearsay; it cannot be accepted as probative of his conduct. (The
testimony in question was received for a limited purpose only, to establish the moti-
vation attributable to the Respondent for O'Connell's subsequent discharge, to be
noted.) As a witness for the Respondent, employee Kuhn only testified that O'Con-
nell had told him of Ager's suspension; he added that O'Connell had said he thought
"some of the fellows" were going to the shop. This testimony with respect to
O'Connell's remarks, despite its slight variance from the testimony which he prof-
fere 1, clearly does not establish that the complainant solicited or suggested a work
stoppage by his fellow employees, expressly.
The testimony proffered in the Respondent's behalf will support a factual conclu-
sion, at the outset, that Assistant Master Mechanic Harry had previously advised
Superintendent Streitmatter by telephone of the fact that Ager had been sent home,
and that he had voiced an expectation that he would need help to deal with the
discontent of the men in the shop. Master Mechanic Hunter, who was then in
Streitmatter's office, had returned to the shop office at once.
There, he received information from Foreman Bosch, I find, that employees Kuhn
and Gross, encountered in the yard, had reported the receipt of a message from
O'Connell with respect to Ager's suspension, coupled with a request by the com-
plainant that they go to the shop; Bosch informed Hunter, also, that the men had
asked him what to do. The foreman, I find, was asked to verify his report by sub-
jecting Gross and Kuhn to further inquiry. According to the testimony of Bosch,
the employees had repeated their earlier statement; their consistent attribution of
solicitation to O'Connell was again reported to the master mechanic. (Upon the
entire record, I am satisfied that Bosch actually did report to Hunter a conversation
he had had with Gross and Kuhn, in the course of which O'Connell had allegedly
been charged with soliciting their participation in a work stoppage. The testimony
of Bosch with respect to his actual conversation with Gross and Kuhn, however, has
not been corroborated. In the light of the divergent testimony of these employees,
as to their conversation with the foreman-and particularly in the light of their
failure to confirm any actual solicitation or suggestion by O'Connell with respect
to the abandonment of their work stations-I find the testimony of Bosch insufficient
to establish that his report to Hunter was consistent with the facts.) When Bosch
returned to Hunter and reported, Streitmatter was advised of the foreman's report.
The master mechanic, I find, recommended O'Connell's discharge on the basis of that
report-and the superintendent concurred. It was Hunter's decision, initially, that
VICTOR CHEMICAL WORKS 285
he be discharged after lunch. O'Connell advised Harry shortly thereafter, however,
that he had a headache and might have to go home at noon. His testimony with
respect to subsequent developments reads as follows:
He said, "Let me know before you do," which was customary. He came out
a short time afterwards and said, "We want you in the office." I went into the
office. Mr. Hunter was there,,and Mr. Harry, and Dick Harry said, "Jim, I'll
have to send you home," and I said, "For what?" Mr. Hunter said, "Tell him
he can take his tools and leave." I said, "Well, why am I being sent home?"
He said, "Tell him he can take his tools or leave them." I said, "I want to
know why I am being sent home." Mr. Hunter said, "For telling the men
to come into the shop." I said, "I made no such statement." He said, "Well,
the men told us this." I said, "I made no such statement. I went out and I
told the men that Dick Ager had been sent home and I felt that since he was
in this department that they should know about it." Mr. Hunter again said,
"Tell him he can take his tools and leave," or "Tell him he can take his tools
or leave them." I said, "I've got to know if I'm fired or not, so that the men
can file a grievance," and again Mr. Hunter said, "Tell him he can take his
tools and leave." At that time Mr. Harry and I left the office.
O'Connell immediately advised Harry of his desire to protest his discharge as a
contractual grievance. After a further attempt to convince Hunter that he had not
actually solicited employees to leave their jobs, or to meet in the shop, O'Connell
left the Respondent's plant.
0
b. The grievance procedure
Subsequent to O'Connell's termination, his grievance, and the grievances of the
other employees discharged as an aftermath of the doughnut incident, were processed,
I find, pursuant to the provisions of the agreement between the Respondent and the
Union then in full force and effect. These provisions set forth a five-step grievance
procedure:
1. Discussion of the grievance by the aggrieved employee, accompanied by
his Shop Steward if the employee so desires, and the foreman involved.
2. Discussion of the grievance by the Shop Steward of the employee, accom-
panied by the employee if the employee desires to be present, and the Production
Superintendent or Maintenance Superintendent of the company.
3. Discussion of the grievance by a committee of three Union-designated
employees, one of them from the department of the aggrieved employee, and
the company's plant superintendent or his representative; the employee com-
mittee could be assisted by an authorized Union business representative.
4. In the absence of a satisfactory settlement, achieved through discussion,
reference of the grievance to "arbitration" upon written notice by either party,
such arbitration to be conducted by single representatives of the Respondent
and the Union authorized to "hear" the matter, and to make every reasonable
effort to "decide" the grievance; decisions reached by such representatives would
be considered "final and binding" upon the Respondent, the Union and the
employee.
5. In the absence of a satisfactory settlement within fourteen days, selection
of a third party to act as the chairman of a board of arbitration, authorized to
make such an award as it may deem proper under the circumstances, in con-
formity with any relevant contractual provisions.
O'Connell's participation in the first step of this contractual procedure, at the time
of this discharge, has already been noted. Subsequent action pursuant to the
grievance procedure, however, was undertaken without O'Connell's being present.
During the procedure's third step, noted, the employee committee designated to
handle the complainant's grievance was assisted by W. B. Freebourn, a Butte attorney,
who functioned as the Union's authorized business representative. In the fourth
step, however, the attorney served as the Union's sole representative.
On February 25, 1958, after several informal conferences, Freebourn reached an
agreement with W. W. McKittrick the Respondent's representative as to the dis-
charge of O'Connell and the other discharges under consideration. The agreement
I find was expressed as follows:
The discharges of Ager, Davis and O'Connell will stand and the grievances
are denied. The discharges of Sorensen, Algra and Parkins are modified to
a disciplinary layoff with the employees to be reinstated on probation with a
warning that any future misconduct will result in immediate discharge. The
reinstatements will be without loss of seniority and without any back pay... .
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This grievance settlement, I find, was achieved through informal discussion, pre-
sumably based upon the information made available to Freebourn and McKittrick
as representatives; no witnesses were heard, and no record was made.
O'Connell did not attend any conference incidental to the disposition of his
grievance after the first procedural step, previously noted. He was never advised
that his right to attend any of these conferences would be recognized by the parties
involved, or that he would be afforded, upon request, the right to be represented by
counsel, or to present testimony. And the record will show, clearly, that he never
did request an opportunity to be present at any grievance step after the first, per-
sonally or vicariously; it will also establish that he never requested an opportunity
to have testimony adduced, at any stage, in support of the position taken by the
Union in his behalf.
Analysis
1. Contentions
It is the General Counsel 's contention , primarily , that the "circulation" of O'Con-
nell within the Silver Bow plant, in order to inform his fellow maintenance em-
ployees of the fact that Chief Shop Steward Ager had been sent home, constituted
a protected union or concerted activity , and that his discharge by the Respondent
for such conduct , therefore , involved an unfair labor practice . Alternatively,
however, it is argued that the Respondent did not discharge O'Connell because of
a good-faith belief that he had attempted to induce his fellow employees to leave
work; the General Counsel suggests that the Respondent relied upon the "circula-
tion" of O'Connell throughout the plant as a mere pretext to justify his discharge,
and that its actual motivation may be found in its resentment of his union activities,
particularly as a negotiating committee member.
The Respondent 's counsel entered a vigorous denial, of course , that O'Connell's
course of conduct , in the light of Ager's suspension, had merely provided the firm
with a pretext for discharge basically motivated by its resentment of his antecedent
union activity . Upon an assumption that O'Connell 's conduct after Harry 's suspen-
sion of the chief shop steward warrants consideration as the true and proximate
cause of his discharge, the Respondent asserts , primarily, that the complainant's
conduct did not involve concerted activity , and, secondly , that it was not, in any
event, entitled to consideration as protected activity , under the statute.
2. Conclusions
The available evidence, in my opinion, will not support the General Counsel's
contention that the Respondent's officials merely relied upon O'Connell's alleged
attempt to "foment" a work stoppage as a pretext to Justify a discharge actually
motivated by their resentment of his antecedent union activities.
The complainant's active participation in union affairs, as an official and committee
member, virtually terminated in May 1957, some 7 months before his dismissal;
after the expiration of his vice presidential term, I find, O'Connell was only involved
in the prosecution of four grievances, of an unspecified nature. His activity within
the Union has been characterized by the Respondent's counsel as "minor" and
routine. Although such a denigration of his role in union affairs may be question-
able, nothing specific in the record, as I view it, will support the inference, urged by
the General Counsel's representative, that O'Connell was considered a "thorn" in
the Respondent's corporate flesh. Certainly, no objective indication of managerial
resentment with respect to his role in contract negotiations ever appears to have
been vouchsafed. Nor can the transcript be said to provide any reliable, substan-
tial, or probative evidence with respect to managerial resentment of his activity as a
strike committeeman. (With a single exception, to be noted elsewhere in this report,
the record reveals no evidence whatever which suggests employer animus with respect
to the Union or union members at the Silver Bow plant.) The mere fact that the
Respondent's negotiators may have suffered some frustration on two occasions,
despite their vigorous effort to have certain language in the firm's trade agreement
with the Union amended or deleted, will not support an inference that they held
O'Connell, personally, responsible. Nor can their vigorous opposition to the Union's
strict exclusionary policy during the 1957 strike, itself, sustain a conclusion that the
representatives of the firm were "galled" by the unsuccessful effort of Ager and
O'Connell to press for the continuation of that policy.
It is the General Counsel's contention, however, that O'Connell was treated with
disparate severity on the occasion of his discharge, and that the disparate treatment
he received ought to be considered indicative of an animus bottomed upon his ante-
cedent union activity.
e
VICTOR CHEMICAL WORKS 287
Reference is made to the fact that four men who left work in protest after Ager's
suspension were simply told that their time stopped at 11:15, and that they were not
discharged until the next day; the General Counsel would contrast their treatment
with that accorded O'Connell, who was dismissed immediately after the rest of the
employees had returned to work, on the basis of a supposedly " less serious" charge
of contract violation, without an opportunity to present his own version of the
situation. Reference is also made to the fact that no action was taken with respect
to employee Miller, O'Connell's companion on his plant tour, despite the fact that
his participation in the tour had also been reported to the firm's management. The
General Counsel also cited the fact that three of the four employees who did leave
work were subsequently permitted to resume work, despite the Respondent's flat
refusal to reinstate O'Connell, who had not even suggested that anyone leave the
plant. And, finally, reference is made to the "summary dispatch" with which
O'Connell was fired, without any investigation of the basis for his adamant denial
of the charge made against him. Standard-Coosa-Thatcher Company, 85 NLRB
1358, 1366. The argument is made that such precipitate action may, itself, be taken
as evidence of discriminatory motivation.
Upon the entire record, however, I find these references inadequate to justify a
conclusion that O'Connell was treated with disparate severity because of his prior
"militant and effective" activities.
The available evidence establishes, in this connection, that Algra, Sorensen, and
Parkins, three of the four employees who did leave work, were told that their time
would stop at 11: 15 by the assistant master mechanic, whose authority to effectuate
suspension or discharge on his own initiative has not been established. O'Connell's
termination, however, was effectuated by the master mechanic, with the plant
superintendent's concurrence. And the record shows that when these officials,
finally, undertook to consider the treatment merited by the four employees who had
left the plant, they were likewise discharged. The fact that O'Connell's discharge
was effectuated shortly after a work stoppage, within his department, had been fore-
stalled cannot, alone, support a conclusion that his dismissal ought to be considered
a penalty of undue severity.
Despite the General Counsel's characterization of O'Connell's contract violation
as "less serious" than that of the employees who left work-if, indeed, it merited
consideration as a contract violation at all-there would certainly seem to be room
for argument, at least, that an employer ought to be considered free to take dis-
ciplinary action against the presumptive instigator of a work stoppage, even after the
danger of such a development disappeared. The presence of such a motivation for
the Respondent's decision to effectuate O'Connell's discharge may only be inferred.
But the very fact that it can be inferred would, clearly, tend to weaken the per-
suasive impact of the General Counsel's suggestion that the Respondent must have
been improperly motivated, merely because it effectuated O'Connell's discharge after
the tense situation in the shop had ended.
O'Connell's discharge without an opportunity to present an explanation of his
conduct would, of course, tend to support a conclusion that the Respondent's action
actually reflected undue haste. Mere haste however-in the absence of other evi-
dence sufficient to sustain a conclusion that the officials of the Respondent were dis-
criminatorily motivated-cannot, itself, support an invidious inference as to the
existence of an improper reason for the discharge.
Upon the entire record, therefore, I am satisfied that the Respondent did not assert
its belief-with respect to O'Connell's alleged role as the instigator of a possible work
stoppage-merely as a pretext to justify his discharge. Rather, I am convinced that
the Respondent's management genuinely believed the complainant to have been in-
volved, at the very least, in an effort to cause maintenance employees on plant as-
signments to abandon their tasks and proceed to the shop. And the Respondent's be-
lief in this respect, was, I find, the effective cause of his termination.
This being so, was his dismissal effectuated under circumstances which would
justify administrative proscription under the statute, and affirmative relief? To a
consideration of this question, our attention must now turn.
The Respondent argues that O'Connell's conduct immediately prior to his dis-
charge did not involve union activity, since his decision to circulate and inform the
men of Ager's suspension was a personal one; reference is made to the conceded fact
that he held no union office at the time, the fact that he had not been designated by
the chief shop. steward to take any action, and the fact of his admission on the record
that he did not consider his conduct equivalent to the investigation of a grievance.
This contention, however, must be rejected as deficient in merit. The shop mainte-
nance men had already shown their concern over Ager's suspension, presumably
because of their fear that the disciplinary action taken against the Union's chief shop
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steward would impair its ability to function effectively as an employee representative.
Thus O'Connell's attempt to spread information with respect to Ager's suspension
clearly represented an attempt to foster union interests; the fact that his activity may
have been undertaken without official sanction, express or implied, cannot vitiate the
force of this conclusion.
Counsel for the Respondent also argues that O'Connell's plant tour on his own
initiative did not even involve concerted activity. This contention, however, must
likewise be rejected. O'Connell's tour, I find, did not involve a "private, personal"
expedition, as the Respondent claims. It was undertaken, clearly, to protect the
interest of the maintenance employees, considered as a group, in effective representa-
tion. Additionally, of course, it should be noted that employee Miller's participation
in O'Connell's tour was beyond dispute; this fact alone, certainly, would seem to
point up the fallacy of counsel's contention that the complainant's conduct did not
involve "group" or "concerted" action.
The Respondent, however, argues that the course of conduct which led to O'Con-'
nell's discharge cannot be characterized, legitimately, as protected concerted activity.
The issue thus presented must be considered close; no summary determination of the
question would be warranted. Upon the entire record, however, I find the Respond-
ent's position worthy of acceptance.
For many years, this agency has recognized that concerted activity is not always
protected. See Harnischfeger Corporation, 9 NLRB 676, 686. In the cited case, the
Board observed that:
We do not interpret [Section 7] to mean that it is unlawful for an employer to
discharge an employee for any activity sanctioned by a union or otherwise in the
nature of collective activity.
Judicial pronouncements have echoed this view. N.L.R.B. v. Ford Radio & Mica
Corporation, 258 F. 2d 457, 461 (C.A. 2). And Congress has noted the position of
the Agency, in this respect, with approval. House Conference Report, No. 510, 80th
Congress, pp. 38-39. Under the general principle noted, various types of conduct
have been held unprotected. Among the relevant cases cited by the Respondent's
counsel, certain decisions deserve particular note. The discharge of an employee
who left a production line to present a grievance, contrary to a plant rule, has been
held immune to statutory proscription. Doyle W. Terry, d/b/a Terry Poultry Com-
pany, at al., 109 NLRB 1097. Strikes of any character, in violation of a contractual
provision, drafted to preclude work stoppages pending resort to a grievance pro-
cedure, have likewise been characterized as beyond statutory protection. Mid-West
Metallic Products, Inc., 121 NLRB 1317. And similar rulings have been made with
respect to economic strikes in violation of contractural no-strike clauses. American
Gilsonite Company, 121 NLRB 1514, and previous cases. In the light of the avail-
able evidence, these decisional pronouncements must be recognized as persuasive.
In the General Counsel's brief, an analogy has been drawn between the Respond-
ent's treatment of O'Connell and cases of discharge attributable to the departure of
an employee from his work station without permission. If no antecedent rule against
such a practice has been promulgated by an employer, this Agency has frequently
held the cited ground for an employee's termination to be a mere pretext, advanced
to conceal the employer's discriminatory motive. Birmingham Publishing Company,
118 NLRB 1380; United Fireworks Mfg. Co., Inc., 118 NLRB 883; Watson Sea Food
and Poultry Company, Inc., 117 NLRB 1369. It is conceded by the General Counsel
that a different conclusion might be warranted in cases where an employer has
promulgated a rule, known to his employees, or issued direct instructions that they
may not leave their work. Terry Poultry Company, supra. His representative
argues, however, that the present record fails to establish the publication of any oral
or written instruction of this sort. And reference is made to the alleged failure of
the plant management to report its objection to unauthorized departures from work
during various discussions with union representatives.
As a witness for the Respondent, Plant Superintendent Streitmatter did concede,
substantially, that no specific plant rule had ever been published or promulgated for-
bidding unauthorized absence from a work station, generally. And the record will
support the General Counsel's assertion that the superintendent's comments to union
representatives, with respect to the impropriety of such employee conduct, were
limited to expressions of disapproval regarding plant tours by employees for the pur-
pose of inciting work stoppages; it will not support a factual finding that the plant
superintendent ever felt it necessary to protest employee "circulation" within the
plant for the purpose of conveying information only.
In the light of the available evidence, Streitmatter's failure to object, specifically,
to this particular type of employee activity cannot be construed as indicative of com-
VICTOR CHEMICAL WORKS 289
pany acquiescence ; no reliable , probative , or substantial evidence has been adduced
to support the General Counsel 's assertion that the management of the Silver Bow
plant had reason to believe conduct directed to such a limited objective common.
Although the plant superintendent's testimony will support an inference that he sus-
pected employee "circulation" within the plant for the dissemination of information
on certain occasions , it will not support any conclusion that he possessed definitive
knowledge with respect to particular incidents , or that he had ever been able to
attribute such conduct to specific employees.
The Respondent , however, appears to rely, primarily , upon section seventeen of its
Union contract as the "clear , well-publicized" rule by which O'Connell's course of
conduct ought to be tested . This section-a contractual "No Strike -No Lockout"
clause-embodies a union commitment on behalf of its members that:-
There will be no strike , boycott, picketing , work stoppage , slowdown or other
interference with the Company 's business by members of the Union during the
term of this agreement . . . . [Emphasis supplied]
The Respondent 's position with respect to the applicability of this language has merit.
While O'Connell 's plant tour, certainly , could not be characterized , appropriately, as
a strike, boycott , work stoppage , slowdown , or picket activity , the available evidence
will, in my opinion , support a determination that the Respondent could legitimately
construe it as "interference " with the company 's business.
The General Counsel argues that O'Connell did not abandon a work assignment
when he effectuated his unauthorized departure ; it is also argued that his various em-
ployee contacts were brief , and that they could not be said to have interrupted work.
As a matter of fact, there may be some factual merit in these contentions. Their
acceptance , however, would merely lead to a conclusion that O'Connell's interference
with company business was minimal ; they would not support a conclusion that such
interference did not occur.
The argument has also been advanced that the dissemination of information to
employees at work was an established and "long-tolerated" practice at the Silver
Bow plant. This characterization of the available evidence, however, must be
rejected. While the record will, in my opinion , support a conclusion that the plant
management may have had some reason to suspect that employees occasionally dis-
seminated information of mutual concern on company time , it certainly will not sus-
tain a finding that such conduct was knowingly tolerated . At most, as the firm's
counsel argue in its brief , the representative of the General Counsel was able to
adduce testimony with respect to a limited number of prior incidents when plant
officials may have been able to identify men presumably engaged in the type of
"circulation" which led to O'Connell 's discharge . And such evidence , even if ac-
cepted , would not warrant a determination that the Respondent ought to be pre-
cluded from disciplinary action when apprised of O'Connell 's plant tour . N.L.R.B. V.
Marion G. Denton, et al., d/b/a Marden Mfg. Co., 217 F. 2d 567, 571 (C.A. 5).
An employer 's waiver or condonation of past employee derelictions cannot effectuate
a forfeiture of his right, under the statute, to effectuate discharges for justifiable
cause.
In the light of the contractual , language noted, therefore , I am satisfied that Plant
Superintendent Streitmatter 's decision to authorize O'Connell's discharge did not in-
volve a statutory violation.
Elsewhere in this analysis of the record , it has been found that the plant superin-
tendent's decision was based on a foreman's hearsay report with respect to the
course of conduct attributable to the mechanic 's helper. Fairness compels a re-
ference to the fact that the accuracy of that report has not been effectively substan-
tiated; in the light of a fair preponderance of the evidence, indeed, I have been con-
strained to find that the report in question was actually erroneous . The General
Counsel, however, cannot legitimately argue that this agency ought to find O'Connell's
conduct protected merely because the available evidence , considered as a whole, will
not sustain a conclusion that Foreman Bosch made a correct report to management
officials who relied upon it to justify discharge action . If the challenged activity of
the complainant may legitimately be characterized-on the basis of his own credited
testimony-as sufficient to constitute "interference" with the company 's business, the
plant superintendent 's decision to authorize his discharge must be held beyond ad-
ministrative proscription.
It has been found , elsewhere in this report, that O 'Connell's own testimony will
support a factual conclusion that he was guilty of interference outlawed by the no
strike-no lockout clause of the trade agreement then effective at the Silver Bow
plant.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Legitimate inferences, derivable from the available evidence, provide additional
support, however, for the conclusion noted. On the basis of his prior service as
a union protagonist and employee spokesman, O'Connell's ability to anticipate the
probable reaction of his fellow maintenance men to the news he brought may
legitimately be presumed. The resentment generated within the group apprised
of the action taken by the assistant master mechanic had, of course, been made
apparent before he undertook his plant tour. In the light of this circumstance, I
find, he could have anticipated, reasonably, that the general reaction of the main-
tenance men at work in the plant-when informed of the chief shop steward's sus-
pension-would parallel that of the men assigned to work in the shop. And the
resultant possibility of some work stoppage-partial or complete, of limited or in-
definite duration-would also have been patent. (When asked if any of the main-
tenance men had been requested to repair to the shop, Ray Miller, O'Connell's com-
pansion on the plant tour, testified that: "We don't have to ask them. You just
tell them what's going on and all the men are interested enough to go to the shop
on their own." The complainant, I find, could reasonably have made the same
assumption.) To counter any possible inference that his "circulation" within the
plant was intended to bring about some sort of work stoppage, the General Counsel
asked O'Connell to state the motivation for his action. The complainant testified,
simply, that he had felt the men ought to know about Ager's suspension so that they
could form an opinion with respect to its import; he stated that he had thought the
men would then be able to meet at noon, if necessary, for the purpose of reaching
a decision as to the nature of any action they might wish to take. As the Respond-
ent's counsel has observed, however, O'Connell's effort to spread the necessary in-
formation immediately after Ager was sent home, approximately 1r/2 hours prior to
the firm's regular loch hour, belies his present attempt to invest challenged conduct
with a retrospective gloss. His own testimony, indeed, establishes that-when
queried by his fellow employees with respect to the action which the maintenance
men would take-he did not cite the need for a noon meeting to decide upon a course
of action, but referred, instead, to the fact that some of the employees had spoken
of a work stoppage. Despite his disclaimer of any intent to bring about a work
stoppage, therefore, O'Connell's conduct, in my opinion, would logically warrant
an inference that he knew, or had reason to believe, that his information would
bring the men with plant assignments to the shop, and that his plant tour was in-
tended to achieve that result.
In the light of this inference with respect to O'Connell's "true" motive, his course
of conduct clearly deserves characterization as an attempt to induce an unauthorized
work stoppage, or, at the very least, as an attempt on his part to interfere with the
company's business by causing the men to assemble at the shop. And the fact that
the plant superintendent was apparently persuaded to authorize his discharge by a
report which erroneously attributed to him the expression of such an objective may
be disregarded as immaterial. Without regard to the accuracy or inaccuracy of
Foreman Bosch's report, O'Connell's course of action-viewed exclusively in the
light of his own testimony, or in the light of the inferences, with respect to his
motivation, reasonably to be drawn from the whole record-involved a violation of
the contractual "No Strike-No Lockout" clause previously noted. Such activity is
not entitled to statutory protection.
C. The discharge of Dean
Facts
1. Work history
Thomas. Dean was employed by the Respondent from April 1953 until February
26, 1958. For a period slightly in excess of 2 years prior to his discharge, he was
employed in the maintenance department; during his last 9 or 10 months of service
he was a shift mechanic. The available evidence establishes that Master Mechanic
Hunter and Assistant Master Mechanic Harry praised his work; the Respondent's
brief, indeed, includes a concession that he was considered to be a good employee.
His last assignment as a shift mechanic, before his termination, was on the "after-
noon" shift, from 4 p.m. until midnight.
2. Union activity
During the March 1957 strike previously noted, Dean served as the chairman of
the Union's picket committee. This involved:
VICTOR CHEMICAL WORKS 291
lining of the pickets up on the picket line, and making sure that they got
their picket cards and [seeing ] that they come out on their scheduled times to
picket . . .
The complainant also spent considerable time on the picket line; while he appears
to have escorted one laboratory employee into the plant to complete an errand, he
participated fully, I find, in the enforcement of the Union's original determination to
exclude supervisory personnel.
The General Counsel has characterized Dean's role in the 1957 strike as a "promi-
nent" one; the assertion is made that he was "largely responsible" for the administra-
tion of the Union's exclusionary policy. And as noted, it is the General Counsel's
contention that the Respondent bitterly resented this policy; its resentment, allegedly,
had been given expression by Personnel Director Trenary, of the Silver Bow plant,
on at least one occasion.
The testimony of employee Myers, as the General Counsel's witness, was that
Trenary had visited him during the strike, while he was hospitalized as the result of
an accident, and that the personnel director had then indicated he was quite "put
out" by his inability to get into the plant. Questioned further with respect to
Trenary's comments, Myers testified as follows:
A. Well, he told me that this Hayden had stopped him from going into the
plant, and he acted, I guess, Hayden acted quite smart to him, you know.. . .
Well, he didn't like the way that the men were carrying out the strike, about
destroying property, and all this other stuff.
Q. Do you recall any names that he mentioned in connection with people
whose conduct he didn't like?
A. Yes . . . oh, Davis and Hayden and Miller and Ritter and Dean . . . I
believe he mentioned Ager, too.
Q. Did he say anything about the company's attitude toward these men?
A. No, not the company. He only expressed his opinion of it . He
didn't like it .. . well, he said the company would do something about them.
This testimony was categorically denied by Trenary. In the light of the available
evidence and my observation of the witnesses, however, I am satisfied that Myers
would have been more likely to remember a conversation of the tenor quoted, and
that his testimony with respect to Trenary's remarks deserves credit. It should
also be noted, however, that the remarks attributed to the Respondent's personnel
director were made in March 1957 while a work stoppage was in progress, that no
immediate action was taken against any of the employees Trenary named, and that
none of them were thereafter discharged, with the exception-7 or 8 months later-
of Davis and Dean.
Under the circumstances, the significance of Trenary's remarks as possibly in-
dicative of resentment attributable to the Respondent with respect to Dean, on the
basis of his picket line activity, must necessarily be evaluated in the light of other
evidence relevant to his discharge.
3.. Dean's discharge
a. The circumstances of the discharge
Friday, February 21, 1958, was the last day Dean worked at the Respondent's
plant. He worked the 4 p.m. to midnight shift on that date, I find, and was scheduled
to begin a 5-day layoff thereafter. Shortly before midnight, on February 26, the
complainant reported to work on the 12-8 a.m. shift about to begin; his timecard,
however, was not in the rack. When the shift mechanic asked the watchman where
his card was, he was informed that his foreman would see him in a few minutes.
Shortly thereafter, the complainant was invited into Trenary's office; there the furnace
foreman, Jay LaBresche, informed him that the Respondent would have to let him go.
In response to Dean's inquiry, LaBresche gave "unsatisfactory work and misconduct"
as the reason for his termination. The complainant's protest was countered with a
gesture by LaBresehe which implied, I find, that the decision to effect Dean's termi-
nation for the reason cited had not been made by him. Trenary then advised Dean
that he was free to take his check and his tools. The shift mechanic replied,
however, that he wished to pick them up later that day, in the presence of a shop
steward. When asked to provide an explanation for Dean's discharge, ' Trenary
replied that it would have to be secured from Master Mechanic Hunter or his
assistant.
Upon Dean's subsequent return to the plant, he found Assistant Master Mechanic
Harry in Trenary's office. When requested to state the reasons for the discharge,
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however , Harry merely repeated the comment that the shift mechanic had been
discharged for unsatisfactory work and misconduct . Dean immediately initiated a
grievance with respect to his discharge , and assembled his possessions , in preparation
for departure.
Before he left, however , Dean addressed certain remarks to Personnel Director
Trenary which should be noted. The record establishes that he was then aware
of the fact that the Respondent had previously employed an investigator to check
his possessions , and to keep his home under surveillance , for reasons to be noted
elsewhere in this report . His resentment of the Respondent's action, I find , motivated
his final remarks to the personnel director. Dean's credible testimony with respect to
these remarks-which matched Trenary's version generally-reads as follows:
I said to Mr. Trenary, "Trenary, I've got something to say to you." I
said, "I had a talk with your man on the hill last night," and I said to him,
"Also you went in my house the other day and you looked through my base-
ment pretty thoroughly," and I said, "He didn't find anything there that
belonged to Victor Chemical." He said, "I don't know what you're talking
about." . and then I said-I was mad-I said, "Do you remember in
some of those talks at safety meetings that we used to have around this plant,
you used to say, "If a man would shoot across the highway once a month
with a gun, that somebody would eventually get hit," and he said "Yes,"
and I said, "One day you are going to get hit if you keep going in front of my
house slow the way you do, and I've had a lot of target practicing with my 06,
and my boys have had a lot of target practicing with their 22s." .. .
The record establishes that Dean's last observation stemmed from his belief that
Trenary had slowly cruised past his home in an automobile on the public highway
approximately 2 days previously, in connection with the investigation to be noted
hereinafter. After the comments noted, Dean left the plant.
b. The grievance procedure
Dean's grievance with respect to his discharge was processed, I find, pursuant to
the contractual grievance procedure previously noted. Like O'Connell, he did
not attend any conferences incidental to the disposition of his grievance after the
first procedural step. He was never advised, either, that he was entitled to attend
any of these conferences, or that his right to be represented by independent counsel
and to present testimony through witnesses, would be recognized by the parties
privy to the trade agreement then effective. No attempt on his part to assert any
of these rights, prior to the ultimate disposition of his grievance, has been cited.
In the fourth step of the grievance procedure, the Respondent was represented by
F. B. McCoy and the Union by Carl Rydberg, an International representative. On
April 1, 1958, these individuals agreed that the Respondent's discharge of Dean
would stand, and that his grievance would be denied.
The complainant's testimony establishes, absent any indication to the contrary,
that Rydberg had not attempted to confer with him, personally, prior to the
achievement of this agreement, in the fourth step of the contractual grievance
procedure.
Analysis
1. Contentions
Elsewhere in this report , it has been noted that Dean was advised, at the time of
his discharge, that his services were being terminated for unsatisfactory work and
misconduct, unspecified. The answer filed by the Respondent in this consolidated
case, however , includes a flat assertion that:
Thomas Dean was discharged because he was involved in the disappearance
of Company property and sabotage or attempted sabotage of Company
equipment.
It is the General Counsel's contention that the plant management actually resented
his activity as the Union's picket committee chairman during the 1957 strike and
availed itself of certain incidents of theft and sabotage to justify his discharge. The
Respondent insists, however, that it did not rely upon these incidents as a mere
pretext, but discharged the complainant because of a "good faith belief" with respect
to his involvement in the theft and sabotaged noted . (Additionally ,. it is asserted in
the firm 's behalf that Dean forfeited any right to reinstatement when he threatened
Personnel Director Trenary with personal injury , after his discharge .) The General
VICTOR CHEMICAL WORKS 293
Counsel, however, argues that the Respondent's management possessed no reliable,
probative, or substantial evidence with respect to Dean's involvement in theft or
sabotage. The various incidents cited by the plant superintendent to explain the
origin of his alleged belief as to Dean's guilt are characterized, generally, as insuffi-
ciently related to the shift mechanic; in the light of the available evidence with
respect to each of these incidents the General Counsel would contend, apparently,,
that no reasonable man could derive a "good faith" belief with respect to another
man's culpability, and that any assertion of reliance upon such a belief should,.
therefore, be considered pretextual.
2. Conclusions
Preliminarily, our attention must be directed to the various incidents of theft and
sabotage which allegedly led the plant superintendent to formulate a belief with
respect to Dean's involvement.
The available evidence establishes-absent any attempt on the part of the General
Counsel to enter a denial-that incidents of sabotage, or attempted sabotage had
been noted for some time prior to February 21, 1958, at the Silver Bow plant. Addi-
tionally, a substantial amount of portable company property had disappeared, I
find, under circumstances suggestive of theft.
In the Respondent's behalf, evidence has been adduced with respect to several
incidents which, allegedly, generated suspicion of the shift mechanic's possible
involvement in the presumptive thefts noted. Among others, an occasion was cited.
when Streitmatter discovered Dean attempting the removal of an electric motor
from the plant brick shed. Additionally, the plant superintendent referred to an
occasion when the pin used to fasten the hasp of the padlock on a storeroom door
was discovered filed away in such a fashion as to permit unauthorized entry; a plant
watchman had discovered the filed pin on Dean's shift, and the shift mechanic,
pursuant to his foreman's instruction, had replaced it with another welded with
stainless steel to prevent any future filing attempt. And, finally, reference was made.
to the fact that Dean had been observed, shortly before his discharge, under circum-
stances suggestive of his possible involvement in the disappearance of some scaffold
braces. (The testimony adduced in this connection indicated that Dean had been
observed one night headed past the machine shop, toward a dark and unfrequented
plant area; later that night four sets of scaffold braces were found outside of the
plant fence, relatively close to the area within which Dean had disappeared. The.
braces appear to have been found by a night foreman, under circumstances which
led him to conclude that they had been thrown over the fence. When his observation
was reported to the plant management, a responsible official decided that the braces.
would be left untouched, so that anyone who came to remove them could be observed..
During the "afternoon" shift, however, some time after darkness fell, the braces.
appear to have been removed by someone unknown to the watchman on duty.)
With respect to each of these incidents of theft or attempted theft, the Respondent
argues that the "finger of suspicion" pointed to the shift mechanic, and that Streit-
matter's ultimate decision to have him dismissed rested, partially at least, on his.
belief with respect to Dean's possible guilt.
The motor incident, I find, may well have furnished some justification for sus-,
picion. Dean's version of the incident, which I credit-without attempting to set.
it forth in detail-would seem to warrant a conclusion that he did not act with
felonious intent; nothing in the shift mechanic's testimony, however, can be charac-
terized as sufficient to impair the validity of Streitmatter's ultimate determination
that no shop supervisor had actually "assigned" him to remove the brick shed motor.
Under the circumstances-even if I could find that Dean had not been engaged in an
effort to steal the motor-the plant superintendent could reasonably have formed a
suspicion, certainly, with respect to his intent.
Streitmatter's belief with respect to Dean's possible responsibility for the damage
done the storeroom padlock, however, cannot be characterized as reasonably justi-
fied. In the Respondent's behalf, it is argued that the shift mechanic was a logical
suspect because the damaged lock had been discovered on his shift. This fact alone,
however, cannot be considered sufficient to support even a suspicion that the padlock
pin had been filed on his shift, or that he was the one responsible.
Additionally, I find, the plant superintendent's imputation of theft to the shift
mechanic, in connection with the disappearance of the scaffold braces, cannot be
considered reasonable. While his apparently unauthorized presence in a certain
plant area, near the place where the braces were later discovered, would certainly
have justified an investigation, subsequent developments ought to have been con-
535828-60-vol. 125-20
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sidered sufficient to lift the "finger of suspicion" from him. When Dean was ob-
served by Foreman LaBresche headed past the shop, he was not seen to be carrying
any braces; nor does the record establish that he was headed in the general direction
of the storeroom where the braces were kept. The plant management, of course, was
free to infer that the shift mechanic could have removed the braces from their place
of storage, previously, and that he could have thrown them over the fence, for later
recovery, after passing from the furnace foreman's view. The persuasive impact
of any such inference with respect to Dean's culpability, however, would have been
substantially impaired by the subsequent removal of the braces while he was on
duty within the plant. As the General Counsel's representative has observed in his
brief, Dean could not have taken the braces from their resting place outside the
plant fence except by.going out a gate, observed by a watchman, or by ascending
an 8-foot fence topped with three strands of barbed wire. In the absence of evidence
that the shift mechanic left the plant during the shift in question, and in the absence
of evidence sufficient to suggest a motive for his theft of scaffold braces only, I find
merit in the General Counsel's contention that suspicion of his possible involvement
in the disappearance of the braces cannot, reasonably, be justified.
With respect to Dean's supposed participation in sabotage or attempted sabotage,
reference was made to four incidents. The first of these in point of time, involved
the insertion of sugar in the gas tank of a company dump truck. Thereafter, early
in January 1958, an expensive conveyor belt, used to carry ore to storage, was
slashed and torn severely enough to require replacement, at a cost of $10,000,
approximately. And thereafter, a kiln cooler fan, part of a cooler which Dean had
just repaired, ceased operation under circumstances sufficient to support an inference
that someone had turned it off.
In the light of the available evidence, I find merit in the General 'Counsel's con-
tention that Dean's connection with these three incidents has not been established.
Since the Respondent's official family never did learn the circumstances under which
sugar was inserted in the dump truck's gas tank, no real attempt has been made,
in this case, to connect Dean with the incident directly. There is no contention by
the General Counsel that the incident did not occur; Dean's testimony, however,
would warrant an inference that he was not on duty when the sugar was discovered.
The available evidence establishes also-in the absence of contradiction-that the
conveyor belt was slashed at a time which did not coincide with Dean's scheduled
duty hours. (There is testimony that the conveyor belt was slashed during the
second week of January; the record establishes, also, that it was damaged during the
afternoon shift. Dean's testimony in rebuttal, which counsel for the firm made no
effort to contradict, establishes that he worked on the graveyard shift for 3 days
during the week in question, that he was then off 2 days, and that he worked on the
day shift for 2 days.) The record testimony with respect to the shutdown of the
cooler fan, in my opinion, suggests some basis for official speculation, at least, with
respect to Dean's possible responsibility, since his presence in the vicinity of the fan
just prior to the shutdown has not been disputed. It should be observed, however,
that Streitrnatter's speculation in this connnection did not crystallize into suspicion
that Dean had been responsible until his possible connection with a later instance
of attempted sabotage, to be noted, was discovered. Only then, retrospectively, does
the plant superintendent appear to have reasoned that Dean could have turned off the
cooler since he had just completed a repair assignment on the fan. When the validity
of this retrospective judgment was challenged in cross-examination, however, Streit-
matter admitted that he had never been apprised of Dean's whereabouts at the time
when the cooler fan was shut down. He also conceded that his ultimate suspicion
with respect to Dean's responsibility for the failure of the fan to operate rested upon
his belief that the shift mechanic had been the only person near the button utilized
to cut off the fan when the incident occured; upon the entire record, however, I am
satisfied that a kiln operator and his helper were also nearby. Streitmatter initially
took the position that their presence lacked significance; he insisted that the cooler
fan could not have been turned off from their regular work station at the control
panel near the kiln; later, however, he conceded that he might be mistaken in this
belief. The record does establish that there was another button, which could be
used to turn off the fan, at the kiln operator's work station. It also establishes that
several other employees worked in the vicinity of each button, and, indeed, that
fans had been turned off, previously, while the "cooler" was in operation. Under
the circumstances, any firm conclusion that Dean had turned off the fan would
clearly have been unwarranted.
Since the Respondent's brief, however, concedes that the "most immediate" cause
of Dean's discharge was another extremely serious act of attempted sabotage, dis-
covered on the last day he worked, the specific incident-and Dean's involvement,
VICTOR CHEMICAL WORKS 295
.if any-would seem to be a matter of-prime concern ; it is contended in the Respond-
ent's behalf that the incident-which occurred on February 21, 1958, Dean's last
day of work prior to his 5-day layoff-crystallized Streitmatter 's previously vague
suspicion that Dean had been involved in sabotage attempts . According to the plant
superintendent , also, it motivated a decision on his part to authorize a private
investigation with respect to Dean 's possible involvement in the disappearance of
company property . This catalytic incident , therefore , must now be noted.
Shortly before midnight , as the night of February 21, 1958, drew to a close,
employee Boehling, the powerhouse operator , discovered loose plugs on the crank-
case filler spouts of two auxiliary diesel -powered engines . The engines in question
were installed in the powerhouse of the Silver Bow plant to provide emergency
.electric power in the event of a transmission line failure. It is clear, absent dispute,
that temporary power failures could cause serious plant damage , since the Respondent
maintains its furnace operations and kiln operations with electricity , and since it
must also maintain a cooler system at the kiln heads, and sufficient electrical power to
pump essential water in case of any power emergency . When the loose plugs were
checked, Boehling, in Dean 's presence , recovered a wad of paper towels from the
crankcase of the northernmost diesel. The powerhouse operator immediately at-
tempted to reach Foreman LaBresche . Within a few minutes, the latter arrived,
accompanied by Foreman Clarke, his scheduled relief on the graveyard shift. Shortly
thereafter, I find, Dean left. (There is a record conflict with respect to the circum-
stances of his departure . The testimony of Dean was that he left the plant after
the arrival of Shift Mechanic Sullivan , his graveyard shift replacement . There is
other testimony , however, suggestive of his departure prior to Sullivan 's arrival.
Shift mechancis at the Silver Bow plant are not supposed to leave prior to the arrival
of their replacement for the following shift. Since the discovery of a paper towel
wad in the filler spout of the northernmost diesel engine , conceivably , could have
engaged the attention of the witnesses proffered by the firm , Dean's testimony that
his departure followed Sullivan 's arrival, has not, in my opinion , been effectively
contradicted . The assumptions of the plant management with respect to Dean's
departure time on this occasion , however, do not appear to have been considered
significant when the decision was made to dismiss him , under circumstances previously
noted. The testimonial conflict in that regard , therefore , has not been resolved.)
After Dean 's departure , I find, a complete examination of the crankcase of the
northernmost diesel revealed the presence of a variety of foreign materials; these
included paper towels, wax paper, a rag , a steel pin , several flashlight bulbs, and
hacksaw blades . Testimony adduced in the Respondent 's behalf , which the General
Counsel has made no real effort to contradict , establishes that any attempt to operate
the diesel unit in question with this material in the crankcase might well have resulted
in serious damage. When the crankcase of the other diesel engine, nearby, was
similarly examined , it was found to contain paper towel wads, apparently inserted,
also, through the en fine's filler spout.
Information with respect to the attempted sabotage of the diesel engines was
immediately communicated to Plant Superintendent Streitmatter, who reached the
plant sometime after midnight . After some discussion and speculation with respect
to the identity of the possible saboteur, this management official decided that Dean
was the most likely culprit . His testimony in this connection , which I credit, reads
as follows:
First of all , I talked it over with Mr. Hendrickson and the other supervisor
there . . . Ray Clark . We discussed the situation very thoroughly .
We attempted to determine who could have done this . . . We talked with the,
well, the men had already talked to the previous powerhouse operator, they
talked with the powerhouse operator who relieved that man, and we tried to
determine as nearly as we could the facts as to what had happened , and also
tried to speculate as to who would want to do it, why it would be done, and
just to put everything we possibly could together to determine how this thing
had occurred ... It.was my conclusion that Tom Dean must have done this.
When pressed for an explanation as to the basis for this conclusion, the plant super-
intendent characterized it as bottomed upon -a "series of events" prior to the at-
tempted sabotage of the diesels . Among other things, his testimony indicates that
some weight was given to Dean 's possible involvement in the plant thefts, pre-
viously noted.
In the light of the available evidence-without reference to any other incidents
of theft or attempted sabotage-I find Streitmatter's conclusion with respect to
Dean's "possible involvement" in the effort to damage the auxiliary diesels, "reason-
ably" justifiable.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The attempt to sabotage the engines was discovered at the end of Dean 's shift;
the diesel units in question were close to the shift mechanic's powerhouse headquar-
ters. While the record will not sustain any factual conclusion as to the time at
which the sabotage was attempted , there would seem to be sufficient evidence to
sustain a finding that the foregoing materials discovered in each diesel 's crankcase had
been inserted some time after 2:30 that morning-approximately 22 hours before
their discovery-when the diesels had last been tested. The available evidence does
establish , of course , that Dean had a number of work assignments outside the power-
house during his shift, but it also reveals that he did spend some time within the
powerhouse , close to the diesel units , where his work bench was located. The
powerhouse , it is true, was not closed to employees , and as the General Counsel's
representative has pointed out, a number of Dean 's fellow workers could have been
near the diesels . However, the testimony of Powerhouse Operator Boehling,
which has not been contradicted in this respect , would clearly warrant an inference
that comparatively few employees ' came to the powerhouse ordinarily-and that
those who did came primarily to use the water fountain . In the General Counsel's
brief, Boehling's testimony that he only saw the shift mechanic and various fore-
men enter , on the night now under consideration , has been characterized as insub-
stantial; an attempt is made to explain it away on the basis of the operator 's confes-
sion that his duties occasionally required him to visit areas from which he could not
observe the powerhouse entrances, and his further testimony that his normal work
station did not command a clear view of the diesel units . Boehling, however, did
not testify that the diesels were outside his view for the entire shift. While his
testimony , obviously , cannot be said to foreclose the possibility that other employees
may have entered the powerhouse , it does tend to vitiate the persuasive impact of
any argument-based , at best , upon inference-that they did.
In this connection , also, reference might appropriately be made to one observa-
tion which I was able to make during my visit to the Silver Bow plant . The filler
spout of the northernmost diesel unit is located on its west side, immediately adjacent
to Dean 's regular work area; the bulk of the diesel unit , itself, would seem
to be sufficient to screen anyone within that area from the powerhouse operator's,
view, most of the time . The filler spout of the southernmost diesel unit , however,
is located on its east side; the movements of anyone tampering with the spout plug
on that engine would have been within view of any fellow worker in the regular
powerhouse work area . Since most of the material utilized to effectuate the sabotage
attempt was discovered in the crankcase of the northernmost diesel, an inference
would certainly seem to be warranted that the saboteur 's effort to effect damage
to that diesel unit was less hurried than his attempt to damage the southernmost
engine. And if his efforts were less hurried, logic suggests , at least, that the pro-
spective saboteur may have had more time because he was able to rely upon the
bulk of the diesel unit involved to screen his activity . Dean, of course, had a work
area set aside for his use behind the northernmost diesel unit , and his presence
there would not have been remarked as unusual.
These aspects of the situation , I find, could reasonably have suggested the "possible
involvement" of the shift mechanic to the plant superintendent.
The record establishes , however, that Streitmatter did not take immediate action
based upon his suspicion . Instead , he requested local counsel for the Respondent
to obtain the services of a private investigator for the purpose of seeking further
evidence with respect to the activity of the shift mechanic . Before the end of
Dean 's 5-day layoff period, the investigator presented an oral report , submitted later
in written form , which did not deal with Dean 's responsibility for any sabotage,
but did include an expression of opinion that he had stolen company property. It
was after .the plant superintendent 's receipt of this report, I find , that his decision
to effectuate Dean 's discharge was made.
In the course of the investigation which the Regional Office of this Agency made
after the charges in this consolidated matter were filed , Streitmatter provided a state -
ment which set forth the rationale behind his decision as follows:
Over a period of the last year or so, a substantial amount of company property,
including tools and equipment and other items of a substantial value, disap-
peared from the company plant. In addition , there were several instances of'
sabotage and attempted sabotage to operating equipment in the plant. At the
time the company was unable to fix responsibility for these things on any par-
ticular employee , but an increasing amount of circumstantial evidence pointed
towards the involvement of Thomas Dean in both the disappearance of property
and in the attempted sabotage . As a result of an extensive and professionally
conducted investigation we were convinced that Dean was connected with those-
VICTOR CHEMICAL WORKS 297
occurrences . When the reports of this investigation were finally made it became
evident that Dean's continued presence in the plant could no longer be tolerated.
Consequently he was discharged . [Emphasis supplied.]
When questioned with respect to this statement , however, the plant superintendent
qualified it with the observation that his decision to dismiss Dean was made on the
basis of "all of the evidence" accumulated at the time. The private investigator's
report, according to Streitmatter, was thus merely one of the factors which con-
tributed to his decision.
Considered as a factor in the plant superintendent's decision, the investigator's
report does appear to have been influential ; Streitmatter's testimony reveals that his
actual decision to dismiss the shift mechanic was not made until February 26, 1958,
immediately after his receipt of the report.
As the General Counsel has noted in his brief, however , the report shed no light,
whatever, on the question of Dean's responsibility for sabotage or attempted sabotage.
Nor did it cite evidence of probative worth indicative of Dean's involvement in theft.
The substance of the report need not be detailed, but I find the General Counsel's
characterization of it worthy of note:
The only inference a reasonable man could draw from the report as a whole
is that the investigator had, up to that time [February 25, 1958] discovered
nothing but apparently had suspicions.
I find this evaluation of the report's significance sound. Standing alone, it would
not-in my opinion-commend itself to any "reasonable" man as a basis for dis-
charge action , especially in view of the indication it contained that the investigation
requested was not yet complete.
If the Respondent's defense with respect to Dean's termination could be construed
to rest, exclusively , upon the contention-advanced in the course of its presentation-
that the results of the private investigation ordered by Streitmatter were sufficient
to justify the shift mechanic's discharge, it would deserve rejection.
Upon the entire record , however, I am satisfied that the Respondent has really
sought to justify Dean 's dismissal on the basis of its "good faith" belief with respect
to his culpability , based upon the entire complex of circumstances noted in this report.
Under cross -examination , Streitmatter conceded that he had not been apprised of
any direct evidence sufficient to establish Dean's responsibility for the disappearance
of any company property , or his responsibility for attempted sabotage, at the Silver
Bow plant. In the Respondent 's behalf it is argued , however, that the shift mechanic's
connection with various incidents of theft and sabotage was strongly indicated, and
that the indications in question were sufficiently strong to warrant the formulation
of a good-faith belief with respect to his cupability.
The General Counsel, as previously noted, contends that the complex of informa-
tion relied upon by the plant superintendent to sustain his inferences with respect
to Dean deserves characterization as too flimsy to support any "good faith " belief
in that regard ; on the basis of this contention, it is asserted that the stated reason
for his discharge must be rejected as a mere pretext. Reference is made, inter alia,
to the fact that Dean had never actually been by a responsible official under suspicious
circumstances , and to the fact that the plant management has never been able to
determine his motive for the sabotage of company equipment . (Testimony by the
plant superintendent that the local sheriff's office and the Federal Bureau of Investiga-
tion have both been unable to fix responsibility for the damage to the plant 's conveyor
belt, and the attempted sabotage of the diesel units, is also cited as significant.)
It is argued that no responsible management would formulate a belief that an
employee with a good work record-like that of the shift mechanic-had been
guilty of theft or sabotage , on the basis of circumstantial evidence subject to the
infirmities noted in this report, especially in the absence of any effort to afford the
suspected individual pan opportunity to explain suspicious circumstances.
In the light of the available evidence , I find myself constrained to reject this line
of argument as deficient in merit.
Despite my agreement with the General Counsel's representative that much of
the information available to Plant Superintendent Streitmatter , objectively con-
sidered, deserves characterization as insufficient to justify suspicion with respect to
Dean's culpability , some of it , previously noted, must be considered reasonably
sufficient to suggest the possibility of his involvement in questionable conduct. I
have, therefore , concluded that Plant Superintendent Streitmatter did formulate a
belief, rightly or wrongly, with respect to Dean's involvement in theft and sabotage,
and that his decision to effectuate the shift mechanic's discharge was motivated by
that belief. The argument of the General Counsel to the contrary has not been
persuasive.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evidence sufficient to sustain a conclusion that some assigned reason for dis-
charge was merely a pretext cannot, of course, support a conclusion, itself, that the
discharge was discriminatorily motivated. Independent evidence sufficient to sustain
a factual inference with respect to the existence of an illegal motive must be avail-
able. With respect to Dean, however, the General Counsel has conceded that the
existence of such an illegal motive on the Respondent's part would "necessarily"
have to be inferred. It is argued, as noted, that the reason assigned for the shift
mechanic's discharge was never supported by evidence sufficient to persuade a
"reasonable" management to effectuate a discharge; on this theory it is asserted
that "the only possible inference" to be drawn from the record is a conclusion that
the Respondent actually intended to effectuate Trenary's threat to do something
about the men whose strike conduct it resented.
As the Respondent's brief asserts, however, Dean's only significant union activity
at the Silver Bow plant was his service as the picket committee chairman during the
organization's 1957 strike. Nothing in the record will support an inference that
the shift mechanic was responsible for the Union's decision to exclude supervisors
from the plant during the strike; or that he was particularly zealous in the execution
of that union policy; or that the plant officials considered his service as a picket
captain any more detrimental to company interests than the service of any other
striker. Trenary's indication of personal resentment with respect to Dean's activity
as a strike leader cannot, realistically, be said to establish animus attributable to the
Respondent with respect to the shift mechanic; there is nothing in the evidence to
indicate that his resentment was ever communicated to other management officials,
nor will the record sustain a conclusion that he contributed anything to Streitmatter's
decision with respect to Dean's discharge. (The testimony of employee Myers does
not even establish that Dean, himself, was particularly resented by the firm's per-
sonnel director; according to Myers, Trenary cited several employees whose activity
he disliked, without undue emphasis upon Dean's strike participation. And despite
the fact that three of the six men named by the personnel director were no longer
in the firm's employ by February 26, 1958, nothing in the record will sustain a
conclusion that they were subjected to discrimination statutorily proscribed.) An
inference that the Respondent discharged Dean because it resented his antecedent
strike activity may be possible theoretically, but the record will not support a con-
clusion that it must be considered the only inference possible. When requested to
draw a similar inference, the United States Court of Appeals for the Fifth Circuit
refused. N.L.R.B. v. T. A. McGahey, Sr., d/b/a Columbus Marble Works, 233 F.
2d 406, 412-413 (C.A. 5). In the cited case, the court observed that:
If the discharge was excessively harsh, if lesser forms of discipline would have
been adequate, if the discharged employee was more, or just as capable as the
one left to do the job, or the like then, the argument runs, the employer must
not actually have been motivated by managerial considerations, and (here a
full 180 degree swing is made) the stated reason thus dissipated as pretense,
nought remains but antiunion purpose as the explanation. But as we have so
often said: management is for management. Neither Board nor Court can
second-guess it or give it gentle guidance by over-the-shoulder supervision.
Management can discharge for good cause, for bad cause, or no cause at all.
It has, as the master of its business affairs, complete freedom, with but one
specific definite qualification; it may not discharge when the real motivating
purpose is to do that which Section 8(a)(3) forbids. . . . Rotation in per-
sonnel is a common thing. The Employer does not enter the fray with the
burden of explanation. With discharge of employees a normal, lawful, legiti-
mate exercise of the prerogative of free management in a free society, the fact
of discharge creates no presumption, nor does it furnish the inference that an
illegal-not a proper-motive was its cause. An unlawful purpose is not
lightly to be inferred. In the choice between lawful and unlawful motives, the
record taken as a whole must present a substantial basis of believable evidence
pointing toward the unlawful one.
These considerations would seem to be particularly apposite here. Upon the record,
taken as a whole, I conclude that Dean was not discharged because the Respondent
resented his union activity. Plant Superintendent Streitmatter, I find, acted, instead,
on the basis of an honest belief-sound or unsound, right or wrong-that the shift
mechanic had been involved in one or more incidents of theft and sabotage. His
dismissal, therefore, cannot be said to have involved the commission of an unfair
labor practice. Under the circumstances, of course, I find it unnecessary to consider
the Respondent's further contention that Dean's "threat" to shoot the firm's per-
sonnel director, after his discharge, deserves characterization as misconduct sufficient
to bar his reinstatement.
SEVILLE-SEA ISLE HOTEL CORPORATION 299
D. The significance of the grievance procedure
In the Respondent 's answer reference is made to the fact , previously noted, that
each of the complainants in this consolidated case filed a grievance with respect to
his termination ; it is asserted that each of these grievances was duly processed to the
fourth step of the contractual grievance procedure , and that an agreement was
reached at the step indicated , with respect to each grievance , that the discharge in
question would stand. The Respondent argues that each of the agreements reached
in the fourth step of the grievance procedure ought to be recognized by this agency
as sufficient justification for the agency 's refusal to assert its remedial powers.
Spielberg Manufacturing Company, 112 NLRB 1080 . In view of my determination,
however, that neither of the discharges challenged involved the commission of any
unfair labor practice , the legal issue presented by the Respondent 's contention does
not appear to require consideration.
In the light of the factual findings noted in this report, and upon the entire record
in the case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent , Victor Chemical Works, is an employer within the meaning
of Section 2(2) of the Act , engaged in commerce and business activities which affect
commerce , within the meaning of Section 2(6) and ( 7) of the Act , as amended.
2. International Hod Carriers, Building and Common Laborers Union of America,
Local No. 163, AFL -CIO, is a labor organization within the meaning of Section
2(5) of the Act , as amended.
3. The General Counsel has failed to establish by a fair preponderance of the
evidence that the Respondent discriminated against James E. O'Connell and Thomas
Dean, within the meaning of Section 8(a)(1) and ( 3) of the Act, as amended.
[Recommendations omitted from publication.]
Seville-Sea Isle Hotel Corporation Operating the Seville Hotel 1
and International Union of Operating Engineers , Local 491,
491A, 491B, AFL-CIO, Petitioner. Case No. 12-RC-482. No-
vember 23, 1959
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Claude B. Calkin, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent employees of
the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons: 2
'The name of the Employer appears as amended at the hearing.
a For the reasons discussed below, it is unnecessary to resolve the contract- bar question
raised herein.
125 NLRB No. 42.