Vulcan Waterproofing Co.

National Labor Relations Board - Board Decisions

Mar 31, 1999

327 N.L.R.B. 1100 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1100
Vulcan Waterproofing Company and International
Brotherhood of Teamsters, Local 714. Case 13–
CA–34708
March 31, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND BRAME
On March 20, 1998, Administrative Law Judge Tho-
mas R. Wilks issued the attached decision. The Respon-
dent filed exceptions, a supporting brief, a motion to re-
open the record, and a reply brief in support of the mo-
tion. The General Counsel filed an answering brief, a
motion in opposition to Respondent’s motion, and a mo-
tion to strike the Respondent’s attached exhibit and the
Respondent’s exception 4.
The National Labor Relations Board has delegated its
authority to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
1. In agreeing with the judge’s finding that the Re-
spondent had knowledge of the union activities of em-
ployees Antonio Maney and J. D. McClinton at the time
they were discharged, we rely on the judge’s credibility
finding that Senior Foreman Kevin Naugle, an admitted
supervisor, who witnessed Maney and McClinton engag-
ing in union activities, reported what he saw to General
Manager Dennis DeLaura. We also rely on the judge’s
finding that DeLaura, in turn, informed Production Man-
ager Tommy Smith, who made the decision to discharge
the two employees.
In any event, it is undisputed that Naugle, who admit-
tedly had knowledge of the employees’ union activities,
played a key role in the discharge decision. Thus, in
discharging Maney and McClinton, Smith relied on
Naugle’s report that Maney and McClinton engaged in
alleged insubordination and Naugle’s recommendation
that the employees be discharged. For these reasons, we
agree with the judge that the Respondent possessed
knowledge of the union activities of Maney and McClin-
ton prior to terminating them.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996)
and Excel Container, 325 NLRB No. 17 (1997).
3 As a result, we find it unnecessary to rely on the judge’s inference
that the Respondent’s foremen, other than Naugle, would have testified
adversely to the Respondent had they been called.
2. In its Motion to Reopen the Record, the Respondent
requests that the record be reopened to introduce a tran-
script from an Illinois State Court proceeding in which
McClinton pled guilty to disorderly conduct. The plea
stemmed from McClinton’s alleged threat of bodily harm
to Naugle at an unemployment hearing held 5 months
after McClinton’s termination. In its motion, the Re-
spondent argues that the evidence is new and bears on
the judge’s credibility finding that Naugle exaggerated
the abusiveness of the drivers’ alleged insubordination.
We deny the Respondent’s motion. First, we find that
the motion was not “promptly” filed as required by Sec-
tion 102.48(d)(2) of the Board’s Rules. The guilty plea
was made on September 25, 1997, about 6 months before
the judge’s decision was issued. Although the Respon-
dent claims in its motion that the evidence is “new,” it
does not explain why it did not bring this evidence to the
judge’s attention prior to the issuance of his decision.
Second, the Board has long held that it will not reopen a
record so that a party may attack a judge’s credibility
resolutions. P & T Metals, Inc., 316 NLRB 1189 fn. 2
(1995). Here, the Respondent states in its motion that it
seeks to introduce the additional evidence in order to
“call into question the accuracy of the ALJ’s credibility
findings and establish that the ALJ’s assessment of the
credibility of Naugle and McClinton was erroneous.”
For these reasons, we deny the Respondent’s motion.4
ORDER
The Respondent, Vulcan Waterproofing Company,
River Grove, Illinois, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging employees because of their activities
on behalf of the International Brotherhood of Teamsters,
Local 714.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Antonio Maney and J. D. McClinton full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Antonio Maney and J. D. McClinton whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
4 In light of our denial of the Respondent’s motion, we find it unnec-
essary to rule on the General Counsel’s motion to strike the Respon-
dent’s proffered exhibit and the Respondent’s exception 4.
327 NLRB No. 170
VULCAN WATERPROOFING CO. 1101
Antonio Maney and J. D. McClinton, and within 3 days
thereafter notify them in writing that this has been done
and that the discharges will not be used against them in
any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its River Grove, Illinois facility copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since November 11, 1996.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

WE WILL NOT discharge employees because of their
activities on behalf of the International Brotherhood of
Teamsters, Local 714.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Antonio Maney and J. D. McClin-
ton full reinstatement to their former jobs or, if those jobs

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Antonio Maney and J. D. McClinton
whole for any loss of earnings and other benefits result-
ing from their discharges, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharges of Antonio Maney and J. D.
McClinton, and WE WILL within 3 days thereafter, no-
tify them in writing that this has been done and that the
discharges will not be used against them in any way.

VULCAN WATERPROOFING COMPANY
Sheryl Sternberg, Esq., and Alan Satyr, Esq., for the General
Counsel.
Donald S. Rotschild, Esq., and Mark C. Gross, Esq. (Goldstine,
Skrodzki, Russian Nemel and Hoff, Ltd.), of Summit, Illi-
nois, for the Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. The un-
fair labor practice charge was filed against Vulcan Waterproof-
ing Company (the Respondent), on November 12, 1996, by
International Brotherhood of Teamsters, Local 714 (the Union).
After an investigation of that charge, the Regional Director for
Region 13 issued a complaint against the Respondent on March
6, 1997. The complaint alleges that the Respondent discharged
its employees Antonio Maney and J. D. McClinton on Novem-
ber 11, 1996, because of their union and/or other protected
activities in violation of Section 8(a)(1) and Section 8(a)(3) of
the Act. The Respondent filed a timely answer to the complaint
on March 6, 1997, which admitted the discharges but denied
any unlawful motivation.
The issues raised by these pleadings were litigated before me
in a hearing held in Chicago, Illinois, on July 7, 8, and 9, 1997.
Those issues were: (1) whether the knowledge of the dis-
charged employees’ union activities by low-level supervisors
ought to be imputed to the higher production manager who
decided to discharge them immediately after their union activi-
ties; (2) whether the timing of the discharges and circumstantial
evidence raised an inference of union animus sufficient to sup-
port a conclusion that such animus, at least in part, motivated
the discharge; (3) whether the discharged employees engaged
in work-related misconduct at the same period of time as their
union activities which in whole or in part motivated their dis-
charge; and (4) whether the Respondent would have discharged
the alleged discriminatees for such misconduct had they not
engaged in union activities.
At the hearing, the parties were given full opportunity to ad-
duce relevant testimonial and documentary evidence and to
argue orally. They also were afforded opportunity to submit
posttrial briefs, which were received on October 1 and 2, 1997.
The briefs submitted by the parties fully delineate the facts
and issues and, in form, approximate proposed findings of fact
and conclusions. Portions of those briefs have been incorpo-
rated here, sometimes modified, particularly as to undisputed
factual narration. However, all factual findings are based on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1102
my independent evaluation of the record. Based on the entire
record, the briefs, and my observation and evaluation of the
witnesses’ demeanor, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all material times, the Respondent, a corporation with an
office and place of business in River Grove, Illinois, the Re-
spondent’s facility, has been engaged in the waterproofing of
homeowners’ basements. During a representative period, the
Respondent, in the course and conduct of its business opera-
tions, purchased and received at its River Grove, Illinois facility
products goods, and materials valued in excess of $50,000 di-
rectly from points outside the State of Illinois.
It is admitted, and I find, that the Respondent has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that International Brotherhood of
Teamsters, Local 714, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent, whose facility at issue in this proceeding is
located in River Grove, Illinois, is engaged in the business of
waterproofing basements. The Respondent’s general manager,
Dennis DeLaura, oversees the Respondent’s general business
operation. According to DeLaura, his duties include managing
the sales force and office staff, handling customer problems, as
well as overseeing the Respondent’s advertising, marketing,
and equipment maintenance. Subordinate to DeLaura is Fleet
Manager Richard McGuire and, for the last 6 years, Production
Manager Tommy Smith. Fleet Manager McGuire is a mechanic
who is responsible for maintaining the vehicles owned and
operated by the Respondent. Production Manager Smith is
responsible for organizing and dispatching the crews who per-
form the waterproofing work, as well as ensuring that the crews
complete their work on schedule.
Although DeLaura has the residual authority to hire and fire
production workers, i.e., laborers and drivers, he has delegated
that responsibility to Smith. In the preceding 6 years, Smith
testified that he has been solely responsible for discharging
from 15 to 25 drivers and 25 to 30 laborers. He has also been
solely responsible for the hiring of production workers.
In addition to the fleet manager and production manager, the
Respondent employs a senior foreman, Kevin Naugle. Naugle
substitutes for Production Manager Tommy Smith when Smith
is away from the facility, and otherwise works as a crew fore-
man. According to Naugle’s uncontroverted testimony, he is
“in charge of” all of the other foreman. Naugle testified that as
a foreman, he possesses the independent authority to terminate
employees under his supervision. However, in the past 6 years
as foreman, he has exercised that authority without prior con-
sultation with any other person on only one occasion. That
incident involved an employee who refused to perform a job
task at a jobsite.
During the relevant period herein, each work crew dis-
patched by the Respondent to perform waterproofing work
typically consisted of a foreman, a driver, and four laborers.
The Respondent employed seven foreman, including Naugle,
and utilized seven crews. The laborers and drivers making up
these crews had been instructed that when they were at a job-
site, each crew member must follow any order given by a fore-
man.
At the time material, the Respondent employed as foremen,
in addition to Naugle, the following persons whose supervisory
status under the Act was stipulated: Darren Henderson, David
Carpenter, Nelson Sanchez, Daniel Cosme, Juan Santiago, and
Alfonso Wooten.
On an average day, when the foremen and drivers arrive at
the Respondent’s facility, they report to the production man-
ager’s office to receive their job assignments for that day. The
drivers proceed to their assigned truck and drive to a materials
yard to pick up materials needed for that day’s work. The
driver then heads to the jobsite to meet his crew and foreman
who drove to the jobsite in another of the Respondent’s vehi-
cles. After the crew completes their work for the day, the
driver hauls the accumulated debris to a dumpsite for disposal.
B. The Alleged Discriminatees
Alleged discriminatees Antonio Maney Jr. and J. D. McClin-
ton began working at Vulcan as truck driver/laborers in June
1996. They are close friends who drive to work together. They
continued working for the Respondent until they were termi-
nated on November 11. According to the record evidence,
Maney normally started work for the Respondent at 6:45 a.m.
and quit work whenever the work was completed. He did not
have a regularly scheduled quitting time. On numerous occa-
sions, Maney reported to Vulcan’s facility early in order to fuel
the Respondent’s trucks. He was paid an extra $25 weekly for
performing this duty. In approximately September, the Re-
spondent, on two separate occasions, sent Maney to New York
to drive the newly acquired trucks from New York to the Re-
spondent’s River Grove facility.
Maney testified that prior to his discharge on November 11,
he had never received any written or verbal warnings, had
never been suspended or put on probation, or had ever had any
“real” work problems. His cross-examination testimony proved
that testimony to be disingenuous. In mid-August 1996, he
knowingly participated in unauthorized work for a noncustomer
for which the Respondent was not paid. His entire crew, in-
cluding the foreman, was involved. The foreman was later
terminated. The crew, including Maney, were admonished and
required to reimburse the Respondent by deductions from fu-
ture earnings. Maney’s own version of the admonishment con-
cedes that DeLaura, at the very least, suggested that his conduct
consisted of “stealing.” Maney responded that he followed the
orders of his foreman as he had been previously instructed to do
at the jobsites. Regardless of whether Maney did not feel that
he did anything wrong, the admonishment and reimbursement
arrangement clearly constituted a “work problem” at the very
least. However, the Respondent has encountered similar seri-
ous work problems with other production employees but, in
those situations, it memorialized the discipline in written form
and obliged the employees to enter into a written probation
agreement. Maney’s problem was resolved verbally, and he
was not put on probation of any kind for the incident.
More seriously, Maney admitted that he and McClinton had
been jointly accused by Smith of stealing about 17 gallons of
gasoline from the newer dump trucks purchased in September
1996 to which they were assigned as drivers. They both vigor-
VULCAN WATERPROOFING CO. 1103
ously denied the allegation. Maney admitted that this occurred
in early October 1996 before any union activities. He admitted
that Smith told him a couple of days later that he was taken off
the new trucks which uniquely had a second reserve gasoline
tank from which gasoline was found missing despite the non-
exhaustion of gasoline in the main tank. He admitted that
Smith assigned him to the old single tank vehicles temporarily.
I credit Smith’s uncontradicted testimony that he told Maney
that he was reassigned pending an investigation. Smith testi-
fied that he subsequently discovered that the tanks of the new
vehicles were inadvertently not connected by the manufacturer,
and thus normal usage of gasoline from the reserve tank was
impossible. Clearly, from Maney’s own testimony, which es-
sentially corroborated Smith, Maney was not assigned to a
newer dual-tank for the remainder of his employment. Maney
testified that he was not personally aware whether McClinton
was similarly barred from new vehicle assignment despite his
pretrial affidavit testimony to that effect.
Smith testified that he forbade both McClinton and Maney
from driving the newer vehicles pending an investigation about
3 weeks prior to their November 11 discharge, although the
first complaint of unaccounted fuel use arose about 1 or 1-1/2
months before November 11. Naugle testified that the truck
reassignment occurred at least 2 months before November 11.
DeLaura testified that he relayed to Smith the business absentee
owner’s complaint of excessive gasoline use at the end of Sep-
tember and that Smith reported back in mid-October his inves-
tigation, his conclusion of suspected culpability of the alleged
discriminatees, and his decision to next remove them from the
new trucks. Therefore, according to Smith, they had not been
removed from the trucks in mid-October. In cross-
examination, after confrontation with the investigation position
statement to which he contributed and which was submitted to
the Regional Director, DeLaura testified that he “believed” the
truck reassignment occurred on October 21.
McClinton testified that during his employment by the Re-
spondent, he had never received any written discipline, had
never been suspended, and had never been placed on probation.
He testified that prior to his discharge, he had not been con-
cerned that his job was in jeopardy. He denied having been
transferred from new truck driving assignments in October and
denied knowledge that Maney had been so transferred. He
testified that he was certain Maney continued to drive a new
truck but, in any event, never discussed it with him. It is highly
improbable that these close confidants and friends did not dis-
cuss such a significant incident. McClinton admitted that
Smith’s gas-stealing accusation was made to the two employees
jointly, as testified to by Maney. He testified that it occurred at
the end of October but when confronted with his pretrial affi-
davit, he grudgingly conceded that it may have been in early
October as he testified in his affidavit. McClinton testified that
the gas-stealing accusation did not cause him to fear discharge,
and he insisted that he continued to drive the new dual tank
trucks up to his discharge except “maybe” for 1 or 2 days.
Like Maney, there is no evidence that McClinton was ever
issued a formal written warning or reprimand or put on proba-
tion. In the past, other employees had been put on formal pro-
bation entailing written probation agreements for such miscon-
duct as the appropriation and selling of the Respondent’s mate-
rials for personal gain, which the Respondent characterized as
“thievery” in its personnel files. Thus, it would appear that the
Respondent had a high tolerance level for what it perceived as
thievery, which did not result in discharge. This is understand-
able in light of Smith’s testimony that it is difficult to hire
competent truck drivers who do not “tear up” or “wreck” trucks
assigned to them by incompetent handling. He testified that
Maney and McClinton “took care of the trucks pretty good.”
Thus, McClinton’s testimony that he was not concerned that
his job was in jeopardy because of the thievery accusation of 17
gallons of gasoline does not appear to be as disingenuous as it
might otherwise appear. However, I cannot accept McClin-
ton’s denial that he was transferred off the new truck driving
assignments. Maney was accused of the same misconduct, and
he admitted the transfer of himself and even the transfer of his
confidant, McClinton, in his pretrial affidavit. I find Smith’s
testimony more probable and convincing on this point. Smith,
however, made it clear that the initial truck reassignment was
not a general employment probation but was limited to use of
the new trucks, i.e., if Smith ultimately confirmed his initial
belief that the two drivers were guilty, they would be perma-
nently barred from new truck assignment. Thus, gasoline
thievery did not warrant discharge, and it is undisputed that
Smith did not initially warn them that their jobs were in jeop-
ardy because of gasoline thievery. Thus, one of the Respon-
dent’s arguments is greatly undermined, i.e., McClinton and
Maney rushed to engage in union activity as a protection
against anticipated discharge. The Respondent, however, raises
another argument that after they became active in the Union,
they arrogantly engaged in disruptive insubordination during
the week commencing Monday, November 4, under the as-
sumption that union activities granted them complete immunity
from lawful discipline.
C. The Union Activities
According to unrebutted testimony, McClinton began dis-
cussing working conditions complaints with fellow employees
at jobsites in July 1996. He testified that around mid-July at a
jobsite he stated in response to Naugle’s question of what he
thought of union representation that it would be “great” if the
employees could get a union onto the Respondent’s facility.
Naugle had been talking about benefits and holidays. McClin-
ton failed to give the full context of the conversation. Employ-
ees Manual Wilcher, Cosmo Wilcher, and Elisor Flores were
also present. Naugle did not contract McClinton. Over the
next couple of weeks, McClinton continued to have several
unspecified conversations with unspecified employees at un-
specified jobsites “about a union.”
According to Maney’s uncontradicted testimony, in “the lat-
ter part of” or at least “last 2 weeks of October,” at the Respon-
dent’s garage in the morning and at the jobsites, he had several
conversations with the Respondent’s foremen and employees
about a union. During these conversations, Maney asked the
foremen and fellow employees if they wanted to be represented
by a union and they responded in the affirmative. After these
conversations, Maney contacted Local 714 and spoke to Union
Representative Geno Rodriguez on an unspecified date. Rodri-
guez and Maney discussed the organizing procedure, and Rod-
riguez agreed to mail blank union authorization cards to Maney
so that he could get them signed by the Respondent’s employ-
ees. On about October 27, Maney received these authorization
cards at his home and immediately executed his own card au-
thorizing Local 714 as his bargaining representative.
The next day, October 28, Maney brought the remaining un-
ion authorization cards to the Respondent’s facility. Before
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1104
work started that day, Maney and McClinton, standing together
in the Respondent’s garage area according to Maney, or outside
the gates according to McClinton, distributed authorization
cards to the Respondent’s employees and foremen. They are
inconsistent as to who solicited which employee. They
watched while the employees and foremen read, executed, and
handed back the cards. McClinton also signed an authorization
card on October 28. McClinton and Maney, without contradic-
tion, testified that they witnessed Foremen Kevin Naugle,
David Carpenter, Alfonso Wooten, Samuel Cosme, Juan Santi-
ago, and Nelson Sanchez, as well as other employees, sign
authorization cards on October 28. Senior Foreman Kevin
Naugle, an undisputed statutory supervisor, admitted at trial
that all the drivers, laborers, and foremen witnessed Maney and
McClinton passing out union authorization cards to Vulcan
employees outside of Vulcan’s facility on October 28. After
the cards were collected by Maney and McClinton, Maney
delivered them to the Local 714 office.
On Friday, November 1, Maney approached Vulcan employ-
ees and foremen in the garage of the Respondent’s facility to
inform them that he had scheduled a meeting for November 4
to meet with union representatives and discuss the Union.
Maney also told them if they wanted the Union to represent
them, they had to stick together as a group. Although the No-
vember 4 meeting did not occur because of the union agents’
unavailability, Maney rescheduled the meeting to Monday,
November 11. Maney testified that on November 8 he met
with Vulcan employees and foreman before and after work to
inform them that the rescheduled union meeting would be held
on November 11 before work at a restaurant near the Respon-
dent’s facility. He testified that he told these employees and
foremen that they had to attend the November 11 meeting and
show support for the Union so that changes could be made at
Vulcan. His testimony is uncontradicted.
Meanwhile, on November 5, Local 714 filed a petition in
Case 13–RC–19497 seeking to represent a unit of all produc-
tion, laborers, truckdrivers, and shipping and receiving employ-
ees located at Respondent’s facility. On November 8, an agent
from Region 13 of the National Labor Relations Board elec-
tronically sent a facsimile (fax) copy of such petition to the
Respondent’s facility. According to the facsimile receipt, the
petition was received at the Respondent’s facility at 2:09 p.m.
on November 8. Although General Manager DeLaura testified
that he was away from Vulcan’s facility at 2:09 p.m. on No-
vember 8, he admitted that he received the “faxed” petition
shortly thereafter, at about 2:45 p.m. DeLaura testified that
although he had no experience with representation petitions,
when he received the “faxed” copy of Case 13–RC–19497, he
did not talk to anyone about it until the following Monday, at
which time he notified the owner of the Company that it had
been filed.
After the petition was filed and after Respondent had re-
ceived its copy, Vulcan employees, including McClinton,
Maney and one foreman, Samuel Cosme, met with a
representative of Local 714 on November 11 at the meeting
previously arranged by Maney. The meeting started between 6
and 6:30 a.m. at a restaurant located about a mile from
Vulcan’s facility. Foreman Samuel Cosme’s attendance at this
union meeting as well as Maney’s, and McClinton’s is
uncontroverted. The union meeting lasted about a half-hour.
During the workweek of Monday, November 4, through Fri-
day, November 8, Production Manager Smith was on his yearly
annual vacation visit to his mother’s home in Arkansas. He did
not return to his Illinois residence until about 9:30 to 10 a.m.
Sunday, November 9. Smith testified that he was not informed
nor had he been aware of any union activity of any employees,
including Maney and McClinton, or of any union organizing
drive at the facility. Naugle testified that he did not “discuss”
or have “conversation” with Smith or DeLaura about his own
union card-signing, nor Maney and McClinton’s union activi-
ties, nor the Union with Smith or DeLaura prior to the dis-
charges of Maney and McClinton. He testified that he did not
disclose his own card signing until the time of this trial.
DeLaura testified that he had no knowledge of Maney and
McClinton’s union activities, nor any knowledge of Naugle’s or
any other foreman’s union card signing or their union activities.
Except for Naugle, no other foreman was called on by Respon-
dent to testify in corroboration of Smith and DeLaura.
D. The Discharges
Maney and McClinton reported to work at the Respondent’s
facility after the November 11 union meeting concluded. No-
vember 11 was the first business day after the Respondent re-
ceived a copy of the petition filed by Local 714 in Case 13–
RC–19497. As soon as Maney and McClinton reported for
work on November 11, Production Manager Tommy Smith
abruptly confronted them and jointly told them that he had to
“let them go.” Maney and McClinton asked Smith why they
were being fired. According to their testimony, Smith stated,
“I’m not getting into that, you know why I’m firing you.” Ac-
cording to Maney, Smith then stated that DeLaura telephoned
him in Arkansas while on vacation and told him to discharge
both of them as soon as Smith returned. McClinton, however,
testified that Smith told them that DeLaura complained about
some unspecified problems and ordered Smith to get rid of the
“problems” when he returned. McClinton testified that when
asked to what problem he was referring, Smith refused to go
into details but merely said that his boss told him to take care of
the problem when he got back and that was what he was doing.
Maney and McClinton testified that Smith told them that if they
wanted their job back, they would need approval from De-
Laura; and if DeLaura “would okay it,” Smith did not have a
problem with hiring them back.
Smith testified that on the first Wednesday of his vacation in
Arkansas, i.e., November 6, he telephoned DeLaura to tend to a
matter he had forgotten regarding a promised pay raise or bo-
nus to another employee. He wanted to be sure it would appear
on the employee’s next check. During the conversation, ac-
cording to Smith, DeLaura told him “that he was having a lot of
trouble with the guys.” However, DeLaura “cut it off” and
said, “Well, I’m not going to mess up your vacation,” and
“we’ll talk when you get back.” According to Smith, DeLaura
made no explicit reference to either Maney or McClinton. De-
Laura, however, testified that he explicitly referred to Maney
and McClinton as causing problems for both himself and
substituting Production Manager Naugle. He agreed, however,
that he did drop the matter as one which Smith could handle on
his return to the office. I credit Maney and McClinton that
Smith alluded to a telephone call between himself and DeLaura
while he was on vacation which referred to some problem that
DeLaura had regarding them in explanation for the discharge.
Unless Smith mentioned it, the two employees would have had
no knowledge of it. Furthermore, Smith is contradicted by
VULCAN WATERPROOFING CO. 1105
DeLaura as to DeLaura’s explicit reference to the two drivers
by name.
According to DeLaura, during the November 6 telephone
conversation with Smith, he did not explain to him the alleged
problems. He testified, however, that on Monday, November 4,
Naugle complained that Maney and McClinton were giving a
“hard time” by insisting upon being assigned to the new trucks
which was contrary to Smith’s instructions. He testified that
Naugle also complained about Maney’s alleged refusal to sub-
mit toll receipts or the unused money for highway tolls, i.e., $2
according to Naugle or $1 according to Maney.
DeLaura testified that he also had a conversation with
Naugle that on November 5, both Maney and McClinton
threatened to use company vehicles to vote in that Tuesday’s
election and to use them to drive home. DeLaura told him to
stick to his guns and to not allow it. There is no evidence that
the alleged threats were actually acted on. DeLaura testified
that in the late afternoon of November 5, he had been subjected
to Maney’s insulting and abusive demands accompanied with
profanity to use an outer office facility telephone while De-
Laura was using it for business purposes. DeLaura, however,
does have his own private office.
DeLaura testified that on Wednesday, November 6, Naugle
reported to him that McClinton, in a fit of anger over a confron-
tation over a job assignment with him, slammed a two-section
door so forcefully that it broke a connecting pin and knob, and
that McClinton uttered profane epithets relating to DeLaura and
had threatened to get mechanic McGuire “f—” up. According
to DeLaura, Naugle told him “I think we should get rid of him.”
DeLaura testified, “I said, I don’t want to make any changes in
his department while he’s gone. I said, Kevin, I agree with
you, but we’re going to wait.”
It would appear from the context of his testimony that this
last conversation occurred before the late afternoon telephone
call from Smith in Arkansas and formed the “problems” De-
Laura had in his mind.
On November 7, McClinton admittedly did not report for
work at the usual 7 or 7:30 a.m. starting time and did not call in
to DeLaura to notify him that he would not work that day, long
after the crews were dispatched. DeLaura claims that he ad-
monished McClinton that he breached a 7 a.m. deadline call-in
rule. McClinton denied such rule, but common sense supports
DeLaura that such post-7 a.m. calls are useless for planning
crew assignments and that the employee is obliged to call be-
fore then if physically possible. McClinton’s explanation that
he was only obliged to call if a telephone was conveniently
nearby is patent nonsense.
McClinton did not appear for work on Friday, November 8,
but did call Naugle between 7:30 and 8 a.m.
No other work related problems were testified to by De-
Laura. There is no evidence at all that any other employee had
been disciplined in any way for failing to call in early with
notice of intended absence. There is no evidence what actual
disruption, if any, was caused by McClinton’s failure to call or
failure to report to work on those 2 days.
On Sunday afternoon from his home, DeLaura telephoned
Smith’s residence in Illinois and left a message with Smith’s
wife for Smith to call him that night on his return. Smith ar-
rived later and returned the telephone call between 9:30 and 10
p.m.
According to DeLaura, he told Smith in generalized form
about the alleged problems with McClinton and Maney, i.e., the
telephone dispute, “giving [Naugle] a hard time, being pretty
abusive to him throughout McClinton’s absence on Thursday
and Friday,” and “that they were giving [Naugle] a hard time
about being not able to drive the newer trucks.” According to
DeLaura, Smith responded, “Well, I’m going to get rid of them.
I thought I had them straightened out, but I guess I didn’t.”
DeLaura testified that he simply responded “fine” and gave
no instruction to Smith regarding McClinton and Maney. He
testified that he asked Smith when he intended to fire them and
Smith responded he would do so on Monday morning. De-
Laura did not explain what impelled him to telephone Smith
with these complaints at his home late Sunday evening, imme-
diately after Smith’s return from a long journey from Arkansas
instead of allowing Smith to at least get his feet in the facility
door on Monday morning. There is no explanation for the sud-
den urgency to intrude on the last moments of Smith’s vacation
to face a problem that DeLaura felt on Wednesday could be
deferred to Smith’s actual return to the business.
Smith’s version of the Sunday evening telephone call from
DeLaura presents a significantly different emphasis. Smith
testified:

Well, he was telling me that . . . he said J.D. [McClin-
ton] and Tony [Maney] they, like, ‘‘turned the place up-
side down while you were gone.’’ He said, ‘‘man, we had
a lot of trouble out of them,’’ . . . and he was telling me
about J.D. kicked a door in, Tony got into it with Kevin
about the trucks. I said ‘‘hold it. They knew they [were]
on probation for them trucks.’’

Smith could not recall what DeLaura said about the trucks.
However, he testified:

When he said the trucks, I said, ‘‘wait a minute.’’ I
said, ‘‘I’m getting rid of these guys because they know
they were on probation as far as them trucks concerned
[sic].” There should have been no . . . them trucks
shouldn’t have been brought up.

When asked what else he recalled, Smith testified:

That’s all I remember. Because when I said I was going to
get rid of them Dennis [DeLaura] said, ‘What? I said, ‘‘I’m
getting rid of them.’’ And I think that was about the end of the
conversation.

Smith testified that it was his sole decision to terminate
Maney and McClinton at about 10 p.m. Sunday night on No-
vember 10. He testified that he had no knowledge of the filing
of the representation petition on Friday, November 8, and had
no discussions with DeLaura about any type of union activity.
It is clear from Smith’s testimony, if credited, that his deci-
sion was made solely on the complaint raised to him about
problems allegedly raised by Naugle concerning McClinton and
Maney’s alleged continued demands to drive the newer trucks.
It is clear that he did not ever consider the other conduct. Hav-
ing heard the words “trucks,” he told DeLaura, “Wait a minute
. . . I’m getting rid of these guys because they knew they were
on probation as far as them trucks concerned [sic].
This conclusion is reinforced by Smith’s own version of the
response he allegedly made to Maney and McClinton when
they asked the reason for their discharge. He testified:

I said . . . I first told them, I said, I’m not getting into
that. You know why I’m firing you. they kept asking me,
‘‘well why. ’’ ‘‘Why?’’ I said, “[Y]ou know that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
situation with them trucks should have never came up you
know.’’ I said, “[Y]ou was on probation as far as them
trucks concerned [sic].’’

According to Smith, the two employees thereafter protested
that it was DeLaura who ordered them discharged, to which he
refused to comment. He testified, almost as an afterthought,
that before they departed, Maney stated, ‘‘Yeah, I got into that
damn Dennis [DeLaura], but I didn’t think I should have been
fired about that damn phone.” Smith testified that McClinton
stated as they departed, ‘‘Yeah, I f— the door up, but I don’t
see where that was reason to fire me.”
Maney and McClinton denied making those admissions. I
credit their denials. Such gratuitous confessions would have
been totally out of character for these two employees who had
consistently denied any wrongdoing of which they were ac-
cused, e.g., stealing gas and misuse of company time and prop-
erty, etc. Furthermore, there is no reason for them to have al-
luded to other issues when Smith, if he is to be believed, re-
ferred only to the new truck usage as the reason for their dis-
charge. On this point, I consider their testimony more probable
and their demeanor more certain and convincing than Smith.
Furthermore, I credit the drivers that Smith did allude to De-
Laura’s telephone call in explanation for their discharge. This
conclusion explains why the drivers bothered to call DeLaura at
all. As DeLaura testified, he never got involved in discharges
before, and there had never been any appeal from Smith’s dis-
charges. If Smith were credited, there would have been no
reason for the drivers to seek recourse to DeLaura.
After their terminations by Smith, Maney and McClinton
went to Maney’s home. Maney tried to contact DeLaura by
telephone, but was unable to reach him. When DeLaura re-
turned Maney’s telephone call, Maney asked DeLaura why he
was being terminated. DeLaura stated that “Tommy [Smith]
had his reasons . . . it was his [Smith’s] decision.” Maney
asked DeLaura again why he was being fired and DeLaura
replied, “Tommy doesn’t want you to work here anymore, and I
stand behind Tommy.” DeLaura admitted while testifying that
although Maney asked for the reasons for his termination, De-
Laura refused to specify them. DeLaura testified in an at-
tempted explanation for not telling his employee why he was
discharged. “It’s Monday morning. I don’t really have—well,
I didn’t really want to get into it.”
After Maney talked with DeLaura, he handed the telephone
to McClinton. McClinton also asked DeLaura why he was
fired. DeLaura again refused to state a reason for McClinton’s
termination, admitting during his testimony that he would only
tell McClinton that he was fired “because Tommy wanted to
fire you . . . for Tommy’s reasons, and I stand behind him.”
DeLaura also testified that he specifically told McClinton that if
he (McClinton) wanted to use Vulcan as a reference that De-
Laura would not give him a bad reference. DeLaura’s only
explanation for offering a good reference to such an offensive
and violent employee was that it was his Company’s routine
“policy” to do so. He, therefore, was willing to perpetrate a
fraud upon a prospective employer or, in fact, McClinton’s
misconduct was greatly exaggerated. DeLaura’s credibility is
thus greatly undermined. DeLaura further testified that the
discharge decision was Smith’s and there was no appeal avail-
able from it.
E. Alleged Misconduct
Smith testified that after he initially reassigned Maney and
McClinton to older trucks 3 weeks before November 11, he was
subjected to their recalcitrant objections 1 week prior to his
November 1 (Saturday) through November 10 (Sunday) vaca-
tion.1 Smith was imprecise as to when and how these alleged
conversations came about. He placed them as having occurred
in the facility garage. He testified that it was Maney who first
approached him and complained that it was not fair to be pro-
hibited from assignments to the newer trucks. Smith testified
that he responded “You’re out of those trucks,” admonished
Maney that he was being given a redemptive opportunity to
“get away” from a situation that makes him “looks like you’re
stealing gas,” and reminded Maney that he was not hired to
drive any particular vehicle. Smith testified that on an unspeci-
fied date before his vacation, McClinton approached him to
complain of the new truck assignment prohibition as “a lot of
bull shit.” Smith allegedly responded, “You are out of them
trucks. As far as them trucks concerned [sic], you’re on proba-
tion . . . I told you what I was trying to do.” Smith testified that
a few minutes later in a short conversation, McClinton apolo-
gized and said, “Yeah, I understand what you’re trying to do.
You have to do that; I understand that.” When prodded by the
Respondent’s counsel, Smith added to his testimony that when
they made their complaints, the two drivers used profanity such
as “f—and stuff using that kind of language.” Having now
recalled that, Smith’s recollection warmed up. He next testified
that Maney also “walked around in the office and f—this and
f—that, you know, waving his hands.” He testified that
McClinton would then join in and also use “cuss words.”2 He
also testified:

[A]nd they was telling me, like, bring Dennis [DeLaura] out
here; I’ll tell that mother f—ker the same goddamn thing.

. . . .

After they got so rowdy I just stopped saying anything
to them. I just walked away from them.

. . . .

I didn’t take no disciplinary [action] . . . you know.
One day . . . take that back. One day I put Tony [Maney]
on . . . J.D. wasn’t at work that day, and Tony got into it
with me about the truck and I put him on probation. I was
tempted to fire him, but I couldn’t.

When asked why he did not fire Maney on this unspecified
date, he answered, “Well, with my vacation coming up and
finding truc drivers was.”
His answer, unfortunately, was interrupted by the General
Counsel’s objection. When permitted to explain why he did not
fire Maney then and there, he testified:

. . . . and to find truckdrivers when I’m going out of town that
didn’t make no sense because I leave these guys in a big hole.
Because with the work that we had scheduled, they could not
do it with me firing truck drivers and I couldn’t take the
chance on messing up my vacation.

1 The actual workweek was November 4 to November 8.
2 He did not specify whether the conduct was prior to or after
McClinton’s apology nor did he try to explain such anomalous change
in McClinton’s behavior.
VULCAN WATERPROOFING CO. 1107

Smith testified that he had no further confrontations with
Maney or McClinton prior to his vacation. Thus, according to
Smith, before he set foot back in the facility, he decided on
Sunday night to discharge two competent drivers, who were
admittedly difficult to replace during a period of peak business,
without having time to arrange for adequate replacements and
without having investigated the secondhand generalized com-
plaint relayed to him by DeLaura from Naugle. He neither
interviewed the discriminatees nor did he interview Naugle for
the specifics of Naugle’s complaints before he made the dis-
charge decision which he allegedly based upon the truck as-
signment problems. He did not investigate the details of the
other complaints because, he testified, he clearly based his de-
cision upon the truck complaints reported made by Naugle.
Thus, he was not specifically advised, as Naugle testified, that
on one occasion, McClinton appropriated a new truck for his
assignment which he, Naugle, was constrained to re-appropriate
and turn over to another driver.3
According to Smith’s testimony, he discharged Maney and
McClinton because DeLaura told him on Sunday evening, min-
utes after he returned from Arkansas, that the two drivers “had
got into it with Kevin [Naugle] about the trucks.” The mere
utterance of the word “trucks,” he claims, promptly motivated
him to make a discharge decision.
Later in his testimony, Smith amended his testimony as to
what he said to Maney and McClinton when he discharged
them by adding that he told them, “You guys have put me
through hell, and I’m getting rid of you.” When asked to ex-
plain the nature of this “hell,” Smith did not allude to any of
DeLaura’s relayed complaints. Instead, he referred to unspeci-
fied dates during their employment the month before they were
discharged when they had complained to him about being as-
signed to certain crews or certain foremen. He explained:

Even some days, I shifted them around just trying to
satisfy them, you know, because me going on vacation try-
ing to get rid of them, you know, to fire them, I switched
them around.

He then added that they also had complaints about the dis-
tance of jobs to which they were assigned. Thus, now the dis-
chargees are characterized as joint complainers not only as to
truck assignments but as to foreman and jobsite assignment, the
latter which he admittedly and readily accommodated them
despite their alleged profanity uttered in the course of making
all of these complaints. The “hell” caused Smith appears to be
an accommodation of nontruck assignment complaints and, I
conclude, was thrown in by Smith at the tail of his testimonial
explanation as a disingenuous make-weight added on defense.
It is inexplicable that Smith would accommodate complaints
made to him in such an offensive manner. Clearly, however,
the thrust of Smith’s testimony is that he discharged the two
drivers because they continued to complain about not being
assigned to the two new trucks.
In cross-examination, counsel for the General Counsel at-
tempted to probe the ambiguity raised by Smith’s reference to
McClinton’s and Maney’s “probation” at the time of discharge

3 McClinton generally denied the incident but admitted that a truck
transfer did occur at the jobsite when another driver came out to re-
trieve the other truck. McClinton’s lack of credibility on the new truck
driving prohibition was noted above. I credit Naugle on this point in
view of McClinton’s grudging, partial admission.
and the outset of Smith’s vacation. Smith, however, reaffirmed
that they were not put on general employment probation but
only as to new truck usage. He testified, “Yes, I always made
the statement, as far as the trucks were concerned.”
McClinton, as noted above, denied that he was ever removed
from the new trucks. Thus, he implicitly denied having made
any pre-November 1 complaints to Smith and the November 4
through November 8 complaints to Naugle about such prohibi-
tion.
In cross-examination, Maney denied that prior to his vaca-
tion, “Smith warned him that one more act of misconduct
would result in his termination” or “words to that affect.”
However, even Smith did not so testify. In further recross-
examination, Maney testified that Smith had told him that the
reason he was being removed from driving newer trucks tempo-
rarily was to discover how gasoline was missing. He testified
that he “accepted that for as long as they needed to have me in
that truck to find out what was going on with the gas.”4 This is
the extent of contradiction or rebuttal to Smith’s testimony
about McClinton’s and Maney’s “rowdy,” prevacation, truck
assignment complaints.
It is unclear why drivers would resort to such vehemence in
expressing a preference to drive newer vehicles. Anyone work-
ing for a living, day in and day out, driving a dump truck would
understandably prefer to drive a cleaner, quieter, smoother
riding, fresher vehicle for esthetic and comfort reasons. How-
ever, the Respondent’s four “old” trucks were model years ‘92,
‘91, ‘90, and ‘88. The new models were model years ‘97 and
‘96. There is no evidence of reliability problems, nuisance
breakdowns, or severe discomfort related to the “old” vehicles.
As Smith testified, it would make sense that a driver accused of
stealing gasoline from the dual-tank newer trucks would appre-
ciate being relieved of the occasion for future accusations.
However, if innocent, some such request is not improbable. I
conclude that it is therefore improbable that the two drivers
would have pressed their demands with such abusive, persistent
vehemence.
However, I find that Maney’s testimony does not constitute
an adequate, effective, or wholly convincing contradiction of
Smith. I discredited McClinton’s testimony with respect to the
new truck driving prohibition. I must credit Smith as to the fact
that prior to November 4, Maney and McClinton did complain
to him about being indefinitely removed from the use of the
newer trucks. I discredit Smith as to the use of abusive lan-
guage and “rowdy” conduct by Maney and McClinton. I find it
improbable, and I find his demeanor unconvincing. His hesi-
tancy and apparent fluster, when asked to explain the “hell” that
he had been subjected to, suggested a less than candid sponta-
neity.
With respect to the confrontations with Naugle and DeLaura
during the workweek of November 4 through November 8, I
am convinced that the Respondent’s witnesses grossly embel-
lished and exaggerated. However, I find that Maney and
McClinton tended to grossly minimize some of the confronta-
tions that admittedly occurred in some form. For example,
McClinton insisted that there had been no outstanding prohibi-
tion on the use of newer vehicles during this week, contrary to
even Maney’s testimony. Yet, McClinton admitted that Naugle
4 He had already admitted that Smith had accused him and McClin-
ton of stealing gas and, thus, had come to a conclusion as to where the
gasoline had gone.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1108
had sent another driver to retrieve a newer vehicle that McClin-
ton had taken to a jobsite. McClinton’s explanation that jobs
were often switched in the past was neither adequate nor con-
vincing. I have already credited Naugle that McClinton drove
the new truck against his orders. McClinton denied having
been so angered over a job assignment by Naugle on November
5 to such an extent that he kicked a two-section door open so
violently that a connecting pin was broken, as testified to by
Naugle. Yet, McClinton admitted that Naugle followed him
out the doorway as he departed that day, angrily swearing and
cursing at McClinton for no explicable reason. He admitted
“chuckling” as Naugle expostulated. McClinton testified that
Maney was not present. Maney testified that he did not “recall”
observing McClinton kick a door. However, he did recall ob-
serving McClinton opening the door, and he admittedly ob-
served Naugle pursuing McClinton out the door. Clearly,
McClinton engaged in some conduct that angered Naugle.
McClinton’s denial that he engaged in some kind of confronta-
tion is disingenuous. I credit the more convincing and not ex-
plicitly rebutted Naugle on this point. I also credit Naugle’s not
convincingly contradicted testimony that on the same day in the
evening as they were departing in the yard, Naugle confronted
McClinton and asked him how he could have mistreated
Naugle who had praised his past good work performance.
I also credit Naugle’s testimony that upon being so admon-
ished, McClinton apologized to Naugle and agreed that he
should never have treated Naugle in that manner but explained
that he “had a lot of things on his mind.”
Naugle testified without contradiction that it is the Respon-
dent’s policy that drivers who are given cash for paying high-
way tolls must turn in the toll received or the unused toll
money. It is undisputed that on Monday, November 4, or
Tuesday, November 5, a confrontation arose between Maney
and Naugle when Maney failed to return $1 or $2 in advanced
toll money or the receipts. Naugle testified that when asked
where the receipts were for $2, Maney replied that he ate the
receipts and explained that he used the money to eat lunch.
Naugle testified that he demanded the money but got no re-
sponse from Maney. Maney testified that he explained to
Naugle that there was no attendant present when he deposited
the 50 cents change into the toll booth basket upon his exit;
therefore, he could not obtain a receipt. This is what Maney
testified that he told Naugle. He did not testify that this is what
actually occurred. Maney admitted that despite this explana-
tion, Naugle repeated his demands for return of the money on
the next day but Maney responded that he had no money.
When Naugle asked what he was supposed to do about missing
company money, Maney admitted that he answered, “look here,
I ate the toll receipts,” and admitted that he told Naugle he had
used the money to buy lunch because he was tired of being
asked about $1. Even if Maney did proffer the aforesaid expla-
nation, it is understandable that Naugle would have rejected it.
By Maney’s own testimony, his explanation only accounted for
50 cents. More money was probably involved to have ac-
counted for Naugle’s concern. I find Naugle’s testimony more
probable and credible on this point. I credit Naugle that
Maney’s final response to the demand for $2 in toll money was
“F— them $2.00.”
With respect to the November 5 office telephone use con-
frontation between DeLaura and Maney, admissions by Maney
again lead me to believe that he did engage in some provocative
behavior when he tried to get at a telephone that DeLaura was
using for business purposes. It is undisputed that DeLaura
initially resisted, but then acquiesced to Maney’s demand to use
the outer office telephone, and explained to Maney that he was
using if for arranging the next day’s work and that DeLaura
reacted hotly and angrily to the requests which suggests that
something about the manner of the request was offensive. It is
admitted that in the office, Maney vocally characterized De-
Laura’s reaction in telling Maney to wait until he finished as
“tripping” and that DeLaura later demanded to know what
Maney’s urgency was and was told that Maney was in the proc-
ess of trying to arrange a personal ride home. Maney testified
that he considered his need to use the telephone to be equal in
importance to DeLaura’s arranging the next day’s work. How-
ever, again, the question remains as to whether DeLaura ought
to be credited as to the severity of personal abuse he claimed
that Maney directed to himself, i.e., the highest manager at the
facility. According to DeLaura, Maney said when demanding
to use the phone, “this place is tripping, what the” DeLaura
claimed that Maney said “this place is bullshit,” this guy [De-
Laura] is tripping,” and “get me the f— out of here” to the per-
son whom he called when DeLaura acquiesced and allowed
him to use the telephone. All this, he testified, occurred in front
of other employees. Maney is uncontradicted that Foreman
Darren Henderson and DeLaura’s own brother were immedi-
ately present. They were not called to testify in corroboration
of DeLaura. I must infer that their testimony would not fully
corroborate DeLaura. In view of the mild admonishment given
at the time, I conclude that it is improbable that Maney was so
personally abusive to DeLaura at the time as he testified or that
DeLaura considered it to be so serious. I conclude that De-
Laura exaggerated and embellished his testimony.
The remainder of Maney’s and McClinton’s alleged miscon-
duct toward Naugle in the workweek starting November 4 more
relevantly concerns the use of the trucks. Naugle testified that
as of Monday, November 4, he had been aware of Maney’s and
McClinton’s prior exclusion from new truck usage by Smith.
He further testified that although he was well aware that Maney
and McClinton had been advised of the exclusion by Smith, he
felt it necessary to again reiterate that message when he was
assigned to his duties as substitute production manager. Smith
did not tell him it was necessary to do so. As of that point, he
testified to having had no problem that necessitated that reitera-
tion. He did not testify that he was aware of any recalcitrance
toward Smith. However, if he is credited, that reiteration gave
rise to an alleged eruption of verbal insubordination, i.e., they
each responded “F—you.” According to Naugle, who admit-
tedly had the authority to fire them even in his capacity as sen-
ior foreman, he reacted by merely looking at them wordlessly.
On November 5, according to Naugle, upon giving Maney
and McClinton their morning assignments, Maney announced
his intention to use a company truck to go to the voting polls
after work. When told to vote before he works, Maney alleg-
edly answered “F—” that. Naugle testified that McClinton
joined in with the same threat and, when told to use the truck
only for work, he answered, “Hell, I might take the truck and
go home if I feel like it.” Naugle testified that when McClinton
was told not to do that, he just walked out of the office word-
lessly. Naugle did not testify that either driver actually dis-
obeyed his order to refrain from using their vehicles to vote or
to drive home that day.
Naugle testified that the door incident with McClinton oc-
curred on Tuesday also and that after McClinton apparently
VULCAN WATERPROOFING CO. 1109
contritely apologized to him that evening, the conversation
turned to the topic of new truck usage. He testified that after
apologizing, McClinton asked Naugle who had ordered Naugle
to keep the two drivers off the new trucks. I find this inquiry
improbable inasmuch as both Naugle and Smith testified to
direct confrontations by Smith and the drivers and they knew
well that it was Smith who gave them that prohibition. How-
ever, Naugle testified that he answered to McClinton that it was
“Rich [McGuire—mechanic]” and “Dennis [DeLaura]” that
had given these orders to Naugle to which McClinton retorted
“F—” Dennis and Rich. Further, according to Naugle, McClin-
ton, for some inexplicable reason, focused his newly erupted
anger upon the mechanic, saying “that he was going to have
somebody f—Rick up.” When asked for his response, Naugle
testified:

I just looked at him in disbelief that he would say
something about Dennis and Rich like that.

Again, we are presented work with an image of the acting
production manager tolerantly and silently absorbing such
abuse. The reader should take note that Naugle, as a witness,
did not present the image of an easily overwhelmable, recessive
personality. He is a big, burly, self-assured person with enough
raw sensitivity to have become spontaneously feisty when
cross-examined by a lawyer in court. Furthermore, this is an
individual who has worked in this tough business for 10 years,
6 of which as a senior foreman. He is the same person who
admittedly peremptorily discharged a laborer on the spot for
refusing to get to work at a jobsite. Finally, Naugle’s credibil-
ity is further undermined by the fact that Smith testified that it
was his idea and his decision that the two drivers be excluded
from newer truck usage, and not the decision of DeLaura or
McGuire. Naugle testified that Smith had told him at the time
that it was his decision. However, Naugle also testified that
DeLaura and McGuire had also told him of the reassignment
but not that they had ordered it. DeLaura testified that when
Naugle complained to him on Monday, November 4, about the
two drivers’ complaints about older truck usage, DeLaura re-
sponded:

[W]ell, that’s what Tommy [Smith] wants. It’s his policy, just
stick with it, you know, basically stick to the program. Don’t
worry about them giving you flack.

I find it particularly difficult to believe that Naugle, an assertive
and self-possessed senior foreman, would have unnecessarily
and falsely blamed DeLaura as the decision-maker, or espe-
cially the even more remotely involved McGuire. As to
McGuire, he did not testify.
Naugle and DeLaura testified that either the evening of No-
vember 5 or Wednesday morning, November 6, Naugle tele-
phoned DeLaura and related his version of the door incident,
the drivers’ insistence upon using newer trucks and job assign-
ment problems, Maney’s “misuse” of Respondent $1 or $2, and
recommended that they be discharged but that although De-
Laura agreed, he told him Smith would deal with it when he
returned. Naugle testified that because he was acting as a pro-
duction manager, he felt he should not discharge employees on
his own initiative despite the fact that he possesses and had
exercised such authority as a lower level foreman.
DeLaura testified that although he had the authority to dis-
charge McClinton, he had always deferred the actual discharge
decisions to the production manager from whose decision there
is no appeal. He failed to testified that he had ever deferred to
Smith an instance of insubordinate, abusive conduct directed to
him personally.
Maney testified that he had no conversations with Naugle re-
garding assignments to older trucks except for one instance on
Wednesday morning, November 6, when he asked Naugle why
he was assigning him to a jobsite 60 miles away at a time when
he was assigned to an older truck. He testified that he did not
challenge Naugle’s response, i.e., Naugle told him that is where
he wanted him to go. Maney denied that on Tuesday, Novem-
ber 5, he told Naugle that he intended to drive a dump truck to
the voting polls. However, he did not remember whether he
told him that he would drive it home that night. McClinton had
testified that he was never reassigned to older vehicles. Thus,
he implicitly denied Naugle’s reiteration of Smith’s orders to
that effect and any conversation related to it. He denied that he
abusively and angrily complained of a job assignment to
Naugle which precipitated the door incident. He denied having
apologized to Naugle the same day as the door incident, denied
having said to Naugle to “f—” DeLaura or McGuire, and de-
nied having threatened McGuire. He insisted that he behaved
properly to Naugle as acting production manager.
The credibility resolutions between the Respondent’s wit-
nesses and the alleged discriminatees raised a difficult problem
because I find all the witnesses have distorted the truth. I am
convinced that the two drivers did engage in some personal
confrontations with Naugle (and DeLaura with Maney) when
Naugle was acting production manager and probably did renew
requests to drive newer trucks contrary to their denials. How-
ever, I am also convinced that Naugle (and DeLaura) exagger-
ated the abusiveness of the two drivers’ conduct and/or the
seriousness of the way it was perceived. I find particularly
damaging to Naugle’s credibility his improbable testimony with
respect to McClinton’s threat to McGuire, his abusive reference
to DeLaura, and his improbable, silent sufferance of their abuse
in their presence. Naugle’s credibility is further undermined
when he testified as to the severity of alleged verbal abuse in a
less than forthright and convincing demeanor. I find that
Maney and McClinton did not personally and insubordinately
abuse Naugle in the manner as Naugle had testified they did.5
Analysis
The General Counsel has the burden of proving that pro-
tected activity was at least a partial motivating factor in the
Employer’s adverse employment decision. Having done so, the
burden then shifts to the Respondent to show that lawful rea-
sons necessarily would have caused that decision. Wright
Line., 251 NLRB 1083; NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983).
The Wright Line burden of proof imposed upon the General
Counsel may be sustained with evidence short of direct evi-
dence of motivation, i.e., inferential evidence arising from a
variety of circumstances, i.e., union animus, timing, pretext,
etc. Furthermore, it may be found that where the Respondent’s
proffered non-discriminatory motivational explanation is false,
even in the absence of direct evidence of motivation, the trier of
fact may infer unlawful motivation. Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Abbey’s
Transportation Services v. NLRB, 837 F.2d 575, 579 (2d Cir.

5 In view of the credibility evaluations herein, I do not credit
Naugle’s testimony that at Maney’s unemployment compensation hear-
ing, McClinton threatened to get Naugle “f—ked up.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1110
1988); Rain Ware, Inc., 735 F.2d 1349, 1354 (7th Cir. 1984);
Williams Contracting, Inc., 309 NLRB 433 (1992); Fluor
Daniel, Inc., 304 NLRB 970 (1991).
Motivation of union animus may also be inferred from the
record as a whole, where an employer’s proffered explanation
is implausible or a combination of factors circumstantially sup-
port such inference. Union Tribune Co. v. NLRB, 1 F.3d 486,
490–491 (7th Cir. 1993). Data Systems Corp., 305 NLRB 219
(1991); Fluor Daniel, Inc., supra. Direct evidence of union
animus is not required to support such inference. NLRB v. 50-
White Freight Lines, Inc., 969 F.2d 401 (7th Cir. 1992).
An inference of animus has been found to have been appro-
priately raised by timing, knowledge, and the manner of dis-
charge implementation. Sawyer of Napa, 300 NLRB 131, 150
(1990), citing NLRB v. Rain Ware, 732, F.2d 1349, 1354 (7th
Cir. 1984). However, mere coincidence alone, without other
circumstantial evidence, may not always support an inference
of animus. Chicago Tribune Co. v. NLRB, 962 F.2d 712 (7th
Cir. 1992), cited by the Respondent.
Knowledge of an employee’s protected activities acquired by
a lower level foreman may be imputed to the higher managerial
decision-maker, absent contrary evidence by the employer who
has the burden of such proof. GATX Logistics, Inc., 323 NLRB
328 (1997); Dr. Philip Medal D.D.S., Inc., 267 NLRB 82
(1983).
The Respondent argues that the decision-maker herein, pro-
duction manager Smith, and the involved general manager,
DeLaura, had no knowledge of the alleged discriminatees’ un-
ion activities and that it has sustained its burden of proof with
the testimony of Naugle that he did not so inform either De-
Laura or Smith. The Respondent ignores the uncontroverted
evidence that other foremen, admitted supervisors under the
Act, were aware of and even participated in the union activities
of Maney and McClinton. They also observed the two drivers
soliciting attendance on Friday afternoon for the Monday morn-
ing meeting with the union agent. Foreman Cosme attended
that meeting. None of these foremen, currently employed by
the Respondent as its agents and presumably friendly to it, were
called as witnesses. The General Counsel argues, and I agree,
that it must be inferred that they would testify adversely to the
Respondent, i.e., that they had reported such activities. The
General Counsel appropriately cites United Parcel Service of
Ohio, 321 NLRB 300 fn. 1 (1996); Grimanay Farms, 314
NLRB 73 fn. 2 (1994); and Par O Sol, Inc., 211 NLRB 333,
337 (1974).
The Respondent argues that a foreman who has signed a un-
ion card, as had Naugle, would not likely have informed of
union activities. That presupposes, however, that the foremen
did so in good faith and not as undercover informers. Evidence
that nontestifying foremen signed union cards does not satisfy
the Respondent’s burden of proving that they did not inform on
the employees’ union activities.
With respect to Naugle, I agree with the General Counsel
that that his testimony that he did not report these union activi-
ties nor that he himself signed a card until the time of trial is
highly improbable and not credible. As noted above, I found
that Naugle falsely exaggerated the misconduct of Maney and
McClinton to the benefit of the Respondent’s positions. He
testified that he recommended the discharge of the two drivers
to DeLaura and that he presented to DeLaura a plethora of
complaints, even including the pettiness of missing receipts for
$2 in tolls. If Naugle wanted the two drivers terminated as
much as he testified that he did, it is inconceivable that he
would not have reported their union activities to DeLaura.
Furthermore, I am not persuaded that Naugle, a senior foreman
of 6 years and a substitute production manager, clearly self-
identified with the Respondent’s management, would not have
reported this fact to DeLaura. I am convinced that he did so
and that DeLaura reported that to Smith. In any event, it is not
disputed that Naugle recommended to DeLaura that the two
drivers be discharged, that DeLaura relayed his recommenda-
tion, and that Naugle had knowledge of the union activities.
I find that Smith most certainly was possessed with knowl-
edge of Maney’s and McClinton’s union activities. At the very
least, he testified that he acted upon Naugle’s reports of their
older truck complaints, and Naugle admittedly had such knowl-
edge.
The Respondent argues that it did not retaliate against the
two drivers because of their union activities but was motivated
by their audacious insubordination. To the implicit question
raised by such a proposition, i.e., why would the employees act
in such a perverse manner, the Respondent argues as follows.
The employees, following the gasoline theft accusation, per-
ceived their jobs to be in jeopardy and, therefore, they con-
tacted the Union. They were admittedly informed that if they
subsequently lost their jobs on the pretext of misconduct, they
would be reinstated upon recourse to the Board. On that
knowledge, it is argued, they engaged in conduct calculated to
provoke the Respondent to adverse action because the two
drivers felt they were immune from any discipline.
As noted earlier in this decision, theft accusation and actual
thievery itself did not necessarily result in discharge. There is
no evidence that employees who had engaged in thievery were
ever immediately discharged. At most, they were permitted to
enter into written probation and reimbursement agreements.
McClinton and Maney were never threatened with discharge
for anything. They were never placed on general employment
probation. Smith clearly conceded that his truck-use probation
was limited to use of the newer vehicles, the outcome of which
was, at most, permanent new truck exclusion. This Respon-
dent, therefore, was proven to be a most tolerant employer up to
the time of the receipt of the union-filed representation petition.
Although the thievery accusation may have motivated their
union activities in part, there is nothing in the record other than
pure speculation that they were motivated to engage in miscon-
duct because of a false perception of absolute immunity. There
is no evidence that they were told by the union agent that if
discharged, they were not obliged to seek work to minimize any
backpay due to them or that they were told that Board processes
would not take months and maybe years to obtain redress.
I find it more probable that Respondent exaggerated their
misconduct than that they perversely engaged in grossly abu-
sive insubordination in the misconception that the law gave
them absolute immunity. Indeed, there is no evidence that they
were ever told that they possessed absolute immunity from
lawfully motivated discipline.
I find that the General Counsel has proven knowledge of
Maney’s and McClinton’s union activities. I further find that
the General Counsel has adduced evidence from which to infer
the Respondent’s union animus, not only by the factor of timing
of the discharges but also from record evidence as a whole and
other circumstantial evidence.
First, the Respondent’s proffered reasons for the discharge
varied form the testimonial evidence of Smith, the alleged deci-
VULCAN WATERPROOFING CO. 1111
sion-maker, from the testimony of DeLaura, and from that prof-
fered in the Respondent’s argument at trial and its pretrial posi-
tion statement. The position statement asserted that the two
drivers were discharged “for a combination of theft, insubordi-
nation and failing to show up for work.” This was reiterated
early at trial in argument relating to the General Counsel’s sub-
poena duces tecum.6 Smith’s testimony shifted away from and
did not support that position. Furthermore, no Respondent
witnesses suggested that suspected gasoline thievery was any
factor at all. According to Smith, the issue was the demanded
use of the newer trucks.
Where a respondent vacillates in its position and, for exam-
ple, deviates from proffered explanations in pretrial position
statements, and later proffers different testimonial explanations,
“. . . an adverse inference may be drawn that the real reason for
its conduct is not among those asserted.” Black Entertainment
Television, 324 NLRB 1164 (1997), citing and quoting from
Sound One Corp., 317 NLRB 854, 858 (1995).
Additionally, the credited evidence discloses that the dis-
chargees were not informed of the reasons for their discharges
when they repeatedly requested an explanation. Furthermore,
testimony which exaggerated what obstreperous, nontruck as-
signment conduct they may have engaged in was not even re-
lied upon by the alleged decision-maker, Smith. In any event,
Smith failed to make even the most basic of investigations as to
that conduct or even the conduct upon which he allegedly based
his decision. Evidence of non-new truck related misconduct
essentially tended to obfuscate the issue and was irrelevant to
Smith’s decision. Smith himself did not allude to it in cross-
examination but, instead, he dredged up reliance upon the other
alleged conduct which was proffered for the first time, i.e., pre-
November 1996 complaints about crew assignments which he
cited as an explanation for the “hell” he allegedly told the dis-
criminatees that they caused. Additionally, I have found that
Smith and DeLaura each gave contradictory statements to the
dischargees as to who made the discharge decision. DeLaura’s
promise to McClinton of a good job reference further under-
mined the Respondent’s proffered defenses.
Finally, the Respondent failed to disclose the urgency of the
sudden change in DeLaura’s decision to wait until Smith actu-
ally returned to work before he confronted him with the alleged
insubordination. No overt misconduct occurred except
McClinton’s absence for 2 days which I have discussed above
as being inconclusive as to severity of misconduct. Nothing
new occurred except the receipt of the representation petition
and the announced union meeting of employees with the union
organizing agents. Smith offered no explanation as to why his
position had changed from the time of the alleged prevacation
new truck use demands. Earlier, he had decided that it would
be too disruptive to business operations to discharge two com-
petent hard-to-replace drivers because it would leave the Re-
spondent understaffed when Smith, the hiring manager, would
be away. Yet, Smith allegedly decided to fire the drivers Sun-
day evening before having had time to arrange for replacements
and before the beginning of the workweek.
The evidence adduced by the General Counsel establishes
that he has at least met his Wright Line burden, even if not
demonstrating that the Respondent’s defense was pretextuous.
I find that the Respondent’s defense was indeed false, con-
trived, and pretextuous. However, alternatively, I find that the

6 Tr. p. 32, LL. 7–14.
Respondent did not sustain its Wright Line burden of showing
that it would have discharged Maney and McClinton even in
the absence of their union activities. It is insufficient merely to
show that other valid reasons existed because, as Wright Line
requires, the Respondent must show that those reasons not only
existed but that they in fact motivated the discharges. The Re-
spondent was shown to be previously a very tolerant employer,
having suffered the retention of employees, including laborers,
who engaged in actual thievery of its property. There is evi-
dence that laborers who refused direct work orders had been
discharged. Maney and McClinton were hard-to-replace, com-
petent truckdrivers. Past confrontations, including believed
thievery of 17 gallons of gas were tolerated. The credited evi-
dence failed to disclose that Maney and McClinton engaged in
the severe, known, relevant insubordination regarding new
truck use which motivated the alleged discharge decision-
maker. There is no evidence that past demands for truck or job
assignments were ever grounds for discharge or even discipline.
Smith admitted that he had previously accommodated assign-
ment change requests. I have discredited his testimony and
Naugle’s testimony that the drivers engaged in a personally
abusive manner of making the assignment changes as described
by the two managers. The Respondent has failed to show that it
has encountered similar conduct, actually found here to have
been engaged in by other employees, which warranted dis-
charge. Consequently, I conclude that the Respondent has
failed to sustain its Wright Line burden, and I find that Maney
and McClinton were discharged in retaliation for their union
activities as alleged in the complaint, in violation of Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. As found above, Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act, and the Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. As found above, Respondent has violated Section 8(a)(1)
and (3) of the Act, and, further, I find such violations affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
3. Respondent has not violated the Act in any other manner.
THE REMEDY
Having found that the Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act, I
recommend that it be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
purposes of the Act. Having found that the Respondent unlaw-
fully discharged Antonio Maney and J. D. McClinton, I rec-
ommend that it be ordered to offer them immediate and full
reinstatement to their former positions or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and to make them whole for any loss of
earnings and other benefits computed on a quarterly basis from
the date of discharge to the date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]