The Babcock & Wilcox Co.

THE BABCOCK & WILCOX COI\IPANY 239 The Babcock & Wilcox Company and International Brother- hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No. 903. Case No. 26-CA-903 (formerly 15-CA-1488). July 25, 1960 DECISION AND ORDER On March 29, 1960, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the ,Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair practices and recommended that the allegations of the complaint with respect thereto be dismissed. Thereafter, the Respondent, the Charg- ing Party, and the General Counsel filed exceptions to the Inter- mediate Report, and supporting briefs. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,2 conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Babcock & Wilcox Company, West Point, Mississippi, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees coercively concerning their union membership and sentiments; attempting to coerce employees to vote against the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No. 903; soliciting employees to assist Respondent in preventing other employees from joining the said Union or to assist in procuring their withdrawal from it; warning employees to withdraw from the said 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. O The Trial Examiner found that Brooks' coercive charge that Redus and'Covington were union organizers violated Section 8(a) (1) of the Act. As this charge was accompanied by an implied threat that being seen talking to a union organizer would affect Redus' job, we agree with the Trial Examiner that this statement was coercive. 128 NLRB No. 36. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union and promising benefits to do so; threatening the loss of benefits and threatening to replace colored employees with white employees if the said Union should come in; and threatening trouble if em- ployees should file an unfair labor practice charge. (b) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its plant at West Point, Mississippi, copies of the notice attached hereto marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by other material. (b) Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that except as found herein, the com- plaint be, and it hereby is, dismissed. 3 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate employees coercively concerning their union membership and sentiments; attempt to coerce employees to vote against International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union 903; solicit employees to assist us in preventing other employees from joining the said Union or to assist us in procuring the withdrawal of other employees from said Union; warn employees to withdraw from said Union and promise bene- THE BABCOCK & WILCOX COMPANY 241 fits to do so; nor will we threaten the loss of benefits, threaten to replace colored employees with white employees if the said Union should come in, or threaten trouble if employees should file an unfair labor practice charge. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No. 903, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. THE BABCOCK & WILcox COMPANY, Employer. Dated------------ ---- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act as amended (61 Stat. 136), was heard in West Point, Mississippi, on December 8, 9, and 10, 1959, pursuant to due notice and with all parties represented. The amended complaint, issued on October 26, 1959, by the General Counsel of the National Labor Relations Board and based on charges duly filed and served, alleged in substance that Respondent engaged in unfair labor practices proscribed by See- Ition 8(a)(1) and ( 3) of the Act (1 ) by a series of specified acts of interference, restraint, and coercion from November 1958 through April 1959 , and (2) by discriminatorily discharging and refusing to reinstate Tom Avant on November 12, 1958, and Cleo Eaton on January 21, 1959, because of their union membership and acitvities. Respondent denied all allegations of unfair labor practices. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS ; THE LABOR ORGANIZATION INVOLVED I find on facts alleged in the complaint and admitted in the answer (i.e., annual extrastate shipments of boilers valued in excess of $50,000) that Respondent is engaged in commerce within the meaning of the Act, and that the Charging Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Introduction and issues In October 1958 the Charging Union began , through Fred F. George, Jr., district representative, an organizing campaign at Respondent's West Point plant, which employed some 600 employees . The management had received prior word from the Brunswick, Georgia, plant that George had informed it he was moving into West Point, and George from time to time furnished to A. A. Murray, plant manager, lists of the names of employees who had joined , aggregating ultimately around 200 members up to January 19, 1959 . An election was held on April 24, which was won by Respondent 308 to 217, though the Union's objections are still undisposed of. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Numerous witnesses testified on both sides concerning numerous alleged incidents of interference, restraint, and coercion which were attributed to Respondent's super- visors (A. A. Murray, plant manager; C. H. Fields, personnel manager; Lawrence Brooks, J. B. Gilliland, L. Kinard, Prentiss Brewer, J. W. Gandy, Jack L. Young, Perry Ford, Ray Bennett, and Darrell Thompson). The issues on those incidents are mainly factual, though in some instances questions are presented whether Re- spondent's conduct was, as a matter of law, violative of the Act. The issues con- cerning the alleged discriminatory discharges of Tom Avant and Cleo Eaton are also purely factual. Turning first to the Section 8(a)(1) violations, the evidence will be summarized under the names of the respective supervisors, to whom ,the statements and conduct were attributed. B. Interference, restraint, and coercion 1. The evidence Darrell Thompson Billy Frank Faulkner testified that before the election in April, Thompson dis- cussed the Union with him at Faulkner's home in the presence of Faulkner's wife, telling Faulkner among other things that he wanted Faulkner to "pull out" and help the Company to keep the Union from coming in, and that he would help Faulkner to get a better job (as a leaderman) by speaking to Murray. Faulkner testified that Thompson talked with him to similar effect on a second visit to his home. Thompson denied Faulkner's testimony and denied that he was ever at Faulkner's home. He testified that Faulkner once stopped at his home and invited him to go to a union meeting and that he told Faulkner of his experience with unions and explained his reasons for not going. C. H. Fields Faulkner testified that on January 25 he went to Fields' office as a result of a note on his timecard, that Fields ordered him to take off his union button, said the Company would not have a union in the plant, and asked Faulkner to help the Company to keep from being organized. Fields also referred to Cleo Eaton's dis- charge and said that Eaton was not the only one who would be fired. He also said the Company would fire all the union members and if that did not work they would close the plant down and move back to Barberton. Fields denied that he had any such conference with Faulkner on January 25 (a Sunday) or on any other day, and denied making all the statements which Faulkner attributed to him. He testified that he called Faulkner to his office in March, April, and May, 1959, that on two of those occasions he discussed Faulkner's absenteeism with him, and on the other the matter of a bad check charge. Jack L. Young Clifton H. Treadgeal testified that in December, Young stated he was surprised to see Treadgeal wearing union buttons since the Company had paid him $30 a week for some 5 months while Treadgeal was off (as a result of his accident), and that Treadgeal should have thought of that when he joined the Union. Young referred to a letter that Murray had sent to the employees, suggested that Treadgeal quit if he was not satisfied, and said that it looked as if a lot of the employees were forcing the Company to put them "out the door." Young then, suggested that Treadgeal go to Murray's office, tell him of their discussion and that Young had told Treadgeal to turn in his union buttons, and added that when he (Young) returned from vaca- tion, he hoped he would not see Treadgeal wearing the buttons. Treadgeal testified to another conversation in March 1959, when there was reference to a 10-cent raise Treadgeal had gotten. Young asked if the "union man" would give him 10 cents, and stated that if the Union came in and got the employees a raise, the Company would do as the American Box Company in Columbus had done, and lay off 200 employees. Young denied Treadgeal's testimony of a conversation concerning the Union. He testified that his conversation related only to Treadgeal's return to work after a long absence due to an accident, and that only his job and his health were discussed. Lawrence Brooks Treadgeal testified that around November 12, Brooks asked him to come to the office "for a little talk." Brooks there told Treadgeal he thought they understood THE BABCOCK & WILCOX COMPANY 243 each other better, that he was surprised to see Treadgeal with union buttons on, that work was short and they were stretching it out among the men, but if the Union came in they would shut the plant down. Brooks continued that there were some men he could trust and some whom he could not, and that if Treadgeal would stop down the road that afternoon and cancel his membership with the man who was parked there, Treadgeal could go on as if nothing had happened. Robert Brown, who had once been a leaderman , testified that between December 1 and 10, 1958, Brooks suggested that he read an article on supervising exforemen, which was contained in the supervisor's manual, and that Brooks later told Brown that if he would pull off his union button and "pull out," Brooks would put him in a "red-circle rate," but that if he did not do so , Brooks would ride him. George Redus testified that in the first week of November he was called into Brooks' office and that, after asking whether he liked his job, Brooks stated that Redus did not seem to care for it because he had seen Redus talking to Covington (another employee) and that Covington was an union organizer. When Redus denied discussing the Union, Brooks continued that Covington had already shown what side he was on and that when Brooks saw them talking , he figured they were of the same stripe. Brooks called Redus in again in a day or so, stating that they had him back for talking to two more men, and told Thompson , a supervisor, that if Redus gave any more trouble to bring him back and they would send him "out the gate." Redus testified that he was not discussing the Union with employees during work, that his work carried him to other areas of the plant , and that there was no rule against talk among the employees. He admitted on cross-examination that the subject of both conversations with Brooks was his absence from his place of work and that Brooks read him a company rule on the subject and a rule against solicita- tion on company time. There was also testimony by Charles Shelton, Jr., James Watt, James A. Cherry, and Jimmy Dunlap concerning reprimands which Brooks had given them about talking to other employees during working hours, or pushing men around, or making up their minds for them, and in which he threatened them with loss of their jobs unless they desisted . However, Dunlap's testimony was explicit that Brooks warned him about union solicitation on company time, and Cherry's testi- mony was to the same effect. Brooks denied the statements which Treadgeal attributed to him . He testified that he spoke with Treadgeal at the suggestion of Gilliland , because Treadgeal was unhappy about a demotion, and that at the conclusion of his explanation , Treadgeal stated that if he had known the circumstances he would not have joined the Union. Brooks admitted having asked Brown to read the article dealing with exforemen and explained that Brown appeared depressed about a reduction in rank . He denied threatening Brown or promising him ,a red-circle rate, and testified he did not know what it was. On cross-examination, however, Brooks admitted that the article or the manual which he showed Brown did mention red-circle rates, but repeated his denial of knowledge of what they were , and explained again that they were not in effect at West Point. Brooks admitted that Redus was twice brought to his office, and testified that he warned Redus about being away from his work area talking with other people, and that he read him the rule against soliciting on company time. Covington was one of the employees with whom Redus had been talking, and Brooks testified that there was no reason for Redus to talk with Covington in doing his job . Though Brooks testified he could not say that Covington was organizing for the Union, his testimony contained no denial of Redus' testimony that he referred to Covington as a union organizer nor of the other statements which Redus attributed to him. Brooks testified further that Redus admitted that he had not been talking about his job duties and promised not to do it again . (Darrell Thompson corroborated the latter testimony.) Brooks admitted that he also warned Shelton, Watt, Cherry , and Dunlap about soliciting for the Union on company time and that if they were caught it would cost their jobs or lead to discharge. J. B. Gilliland Treadgeal testified that when he began wearing a union button around November 10, Gilliland asked to look at it and then upbraided him for treating the Company that way in view of the fact that Treadgeal had been out some 6 months because of an accident. Gilliland told him how much it was costing the Company to furnish 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insurance and such other things as soap and towels, and stated that if the Union came in, the Company would take such benefits away.' Moses Reese testified that in November Gilliland, his supervisor, commented that he had seen Reese's name on a list of members the Union had sent to the Company, that he was surprised that Reese had joined, and that if the Union came in the Company would take out the coke machines and the washing powders in the washrooms. King David Roby testified that about 3 weeks before the election (on April 24), Gilliland asked him whether he was having anything to do with the Union, told him not to have anything to do with it, and to tell other employees not to do so. kGilliland returned in a few minutes and upbraided Roby for lying to him, stating that he had seen Roby's name on the sheet sent in by the Union. Gilliland also stated that he had been helping Roby, but if the Union came in, it would be every man for himself, and that Gilliland could not help him. Gilliland also upbraided Reese for using some of the money which he lent Reese (to buy a car tag) to join the Union. Gilliland denied the statements which Treadgeal attributed to him, denied that Treadgeal was wearing a union button or that the Union was mentioned at the ,time, and testified that their conversation related only to Treadgeal's classification following his return to work after an injury. Gilliland testified that Reese came to him a number of times to discuss the Union, stating at first he did not intend to have anything to do with it. There were further discusions after Reese began to wear a union button, with Reese explaining why he changed over. Gilliland denied the various statements which Reese attributed to him but testified to nothing affirma- tively which he said to Reese during the discussions. Gilliland admitted that he questioned Roby twice concerning his union membership after seeing his name on the Union's list, that Roby first denied and finally admitted it, but Gilliland denied the other statements which Roby attributed to him. He admitted, however, that he ,charged Roby with using part of his (Gilliland's) money to pay union dues. A. A. Murray Faulkner testified that on December 15 he was sent to Murray's office, where Murray ordered him to take off his union button and promised him a leadman's job at the first opportunity if he would do so and would help others from being organized. Murray also said they would close the plant and move it to Barberton before they would have a union in the plant. Murray added that if Faulkner decided to change his mind and pull off the button, to come back in and he would be taken care of and all would be forgiven, but if Faulkner did not comply, Murray would find some excuse to discharge him which would not relate to the Union. Roby testified that about 1'/2 months before the election Murray asked him in ,the plant what the matter was "with all you boys" and what the Company had done to them. When Roby answered "Nothing" to both questions, Murray continued, "Well, you know what to say, go on ahead and talk to the boys. You know what to tell them." Treadgeal testified that on April 23 Murray talked with him in the plant, stating he knew of Treadgeal's union activities because the men in the shop had informed him; that the best thing for Treadgeal to do to keep his job so that Murray would know how he voted was to stay away from the plant the next day (election day). Treadgeal testified that he met Murray downtown after the election, that Murray referred to a report that Treadgeal was at the plant and voted, and when Treadgeal acknowledged he had, Murray stated that they had ways of dealing with him. Watt testified that Murray talked with him in Brooks' presence after Christmas about his activities in signing up employees and warned him to "lay off" or he would be "through" if he were caught. Watt also testified that Murray again dis- cussed the Union with him on April 23. Murray asked first whether he could not find anymore buttons to wear (he was wearing three at the time) and why he got himself and the rest of the boys messed up in it. Murray stated he did not think it would do any good to try to talk Watt out of it, but Watt had better pray the Union did not get in, because if it did, "you colored boys won't have a job," and that he would replace the colored help with white employees. There was testimony by five other colored witnesses who were called separately into Murray's office, like Watt, on the day before the election, all of whom testified to coercive statements which Murray made. Roosevelt Cooperwood ( mispelled 1 Treadgeal was discharged in June 1959 , on the ground of physical disability, and filed an unfair labor practice charge which was dismissed by the Regional Director. A sub- sequent charge was pending at the time of the hearing. THE BABCOCK & WILCOX COMPANY 245 "Cooperhead" in the record) testified that Murray said if the Union came in, the employees working where he was would be replaced with white people and that he could not live in Mississippi anymore. Julius Poston testified similarly that Murray said he would take all the colored help off the machines and put them in the yard or lay ,them off if the Union came in. Murray also asked Poston why he joined the Union, and told him to go out and talk to the employees and try to get them off the Union. Murray also threatened Poston with serious trouble if Poston tried to file an unfair (labor practice) charge against him. William Adamn, Jr., testified that Murray said that if the "colored fellows" signed a union card, he would replace them with white labor. Robert Taylor testified that Murray asked why he joined the Union and if he knew how to fix his ballot in the election. Taylor replied that Mr. Fitzgerald had shown him how to vote against the Union. In a subsequent conversation in Fitzgerald's presence, Murray said to Fitzgerald that he should see how Taylor voted and that he voted against the Union. (Fitzgerald was not called as a witness.) Sylvester Hollis testified that Murray asked him why he signed a union card, and that when he answered he had probably done wrong to sign one, Murray told him he had a right to sign or not to sign. Murray denied in toto the testimony of Faulkner and Treadgeal, testifying that he had not in fact spoken with Treadgeal since the death of the latter's father in July or August 1958. Murray also denied the conversation which Roby testified to, though he testified that Roby ponce volunteered that he joined the Union because of pressure but would not vote for it. Murray told him that if he were bothered on company time, to let Murray know. Murray admitted having warned Watt about signing up employees on company time and that he was subject to discharge if he broke the Company's rule in that regard. As for Watt and the other five witnesses who testified to being called into Murray's office the day before the election: Murray testified that as a result of complaints from Eugene Brooks, a colored employee, that he was being threatened by other colored employees in the shop (corroborated by Brooks), and because of other rumors concerning the manner in which the election would be conducted, he called some 13 (out of 55) of the colored employees separately into his office, asked them whether they had any questions concerning their right to join or not to join the Union, told them the election would be by secret ballot, and answered their questions. He denied asking whether they had joined the Union, denied threatening any of them, and denied in toto all allegations of the complaint which related to him. Murray also denied specifically the statements which Cooperwood, Poston, Adamn, and Taylor attributed to him. He also denied the coercive content of the statements which Watt and Hollis testified to, though he admitted asking Watt ("who looked like a Mexican general") why he could find no more buttons to wear, and admitted telling Hollis (who volunteered that he signed a card ) that it was his business whether he signed or not. Murray testified that though he intended to talk to all the colored employees that day, his attorney, Smith, arrived around 9 a.m. and advised him that it was not "legal" to do it as he was doing, and that as a result he later called all of them together in a group and read them a written statement which Smith prepared (and which the General Counsel disclaims as violative of Section 8(a) (I)). Perry Ford Artie Bert Hunter testified that on April 23, Ford asked if it was true he was president of the Union (he had been elected in January), and told him that if the Union were voted in the next day, the Company would close the plant. Ernest E. Jeffcoat, a member of the Union's committee, testified that on April 23, Ford inquired whether worry about the Union was affecting his work and stated that he (Ford) would like to see Jeffcoat get out before he got messed up and that he would talk to Jeffcoat again before the election. The next day, Ford told him in part that knowing how Jeffcoat hated the night shift, he would put Jeffcoat on a straight day shift if he would pull off his union button and vote on company time. Ford also said he had just heard that if the Union won the election, the plant would be closed and moved back to Barberton, but that if Jeffcoat got on the Company's side, that fact would become known and he would not have any trouble getting a job if the plant should move away. Jeffcoat took off his button, threw it on the floor, and later voted on company time. Ford admitted that he asked Hunter (who was wearing a union button at the time ) if he had been elected president of the Union , but denied telling him the plant would be closed if the Union came in . Ford flatly denied Jeffcoat 's testimony. He admitted that after the election he put Jeffcoat on another (day) job, but testified 577684-61-,vol. 128-17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it was a matter of coincidence , as he needed an experienced man on the other job and as Jeffcoat was entitled to it as the senior man in the department. J. W. Gandy Jeffcoat testified that in November, Gandy questioned him about why he decided to join the Union, told him he let Gandy down, and suggested he talk to Murray, pull off his button, and get out before he got messed up. Gandy also said that there was a chance of prounion employees being fired despite Murray's assurances to the contrary. Brown, who was secretary-treasurer of the Union, testified that on the night before the election, Gandy reported as "good news" that if the Union won the elec- tion the next day, the Company would close the plant and move it back to Barberton, Ohio, but if Brown would help the Company defeat the organizing campaign by not serving as the union observer the next day and would pull off his button, he would give Brown back his leaderman's job when the election was over. Gandy also said that Brown would have a hard time finding a job near West Point, because everyone knew of his connection with the Union. Gandy denied having any conversation with Jeffcoat concerning the Union. Though admitting that he discussed the Union with Brown (and with other em- ployees who approached him on the subject), he denied making the statements which Brown attributed to him. He testified that he told Brown (and others) his experiences with unions and stated his opinion that the Union would not help them any. Prentiss Brewer James Watt testified that on two occasions in November Brewer questioned him about whether he had joined the Union and told him his name was on a list in the office. Watt denied membership the first time, but when he admitted it on the second, Brewer told him he had better try to get out of it. Watt also testified that about a week before Avant was fired Brewer criticized him for spending too much time out of the shop and for having a long conversation with "Tom," stating he had heard that Watt and "Tom" were both union organizers. Watt testified that the only Tom he knew was Tom Avant, and answered the General Counsel's leading question that he had had "that conversation" with Avant. Brewer denied Watt's testimony and testified further that he did not know Avant and knew no Tom who was a union organizer. Brewer testified, however, that he twice reprimanded Watt for leaving his job, because he assumed Watt was soliciting membership for the Union, that he told Watt he heard that he was an organizer, and warned him against soliciting on company time. He denied questioning Watt about his union membership or suggesting that he get out of the Union. Brewer testified further, however (and this testimony seems directly related to Watt's first testimony above summarized), that he once asked Watt whether Watt was being mistreated and told Watt that he did not need a union. Ray Bennett James Gilreath testified that on April 23 Bennett asked him what made him turn against the Company and told him, "Don't you know if you vote this union in they will close this plant down and move it." Gilreath refused to discuss union activity further on company time and property. Bennett flatly denied Gilreath's testimony. He testified that Gilreath and many other welders under his supervision wore union buttons. 2. Concluding findings As the foregoing summary shows, a credibility question is presented on virtually every statement of coercive content which was attributed to Respondent's witnesses. Resolution of those questions turn on a variety of factors, including in part corrob- oration or lack of it, preponderance or weight of countertestimony, demeanor, interest or bias, and inherent probabilities and improbabilities. Consideration of those and other factors, including the preponderance of the evidence on the entire record, have led me to certain conclusions which narrow considerably the field in which credibility must be resolved on the face of disputant testimony. Because their testimony bordered on the improbable and was otherwise sug- gestive of bias or extreme interest, I am unable to accept (absent corroboration and over the denials of Respondent's witnesses) the testimony of Billy Frank Faulk- ner and Clifton H. Treadgeal. In Faulkner's case it is notable that available cor- THE BABCOCK & WILCOX COMPANY 247 roboration was not called to support his claims of Thompson's two visits to his home and of the conversations there. Though a number of witnesses testified to warnings from supervisors (particularly Brooks) about discussing the Union or signing up employees, I am persuaded from the entire evidence that on most of those occasions the supervisors were calling at- tention to the Company's rule against soliciting membership during work time and to vulnerability to discharge for violating it .2 The testimony of the General Counsel's witnesses was usually reconcilable with that view, particularly Watts' concerning Murray's warning, and Dunlap's and Cherry's concerning Brooks' warn- ing. Redus, too, admitted that Brooks read him the rule against solicitation on company time. On the other hand, the preponderance of evidence lies plainly against Murray concerning his individual interviews with colored employees on the day before the election. Five of them testified to substantially similar effect that in addition to questioning them about why they joined the Union, Murray threatened them with replacement by white employees if the Union were voted in. Murray's denials are not credited over the cumulative weight of that testimony, particularly in view of his admission that he desisted on the advice of counsel that his conduct was not legal.3 The foregoing findings eliminate the unfair labor practices charged to Respondent through the conduct of C. H. Fields, Darrell Thompson, and Jack L. Young, and much that is charged through Brooks. In Murray's case the findings, for and against, cover all the evidence concerning his conduct except for Roby's testimony that Murray suggested he "talk to the boys," but that testimony was not explicit enough to support a finding that Murray was referring to the union? There remain in Brooks' case the issues on Brown's testimony, as well as that portion of Redus' testimony as to the first conversation with Brooks concerning Covington. What is persuasive on the Brown conversation are Brooks' admission that he gave Brown the manual to read and his denial of knowledge of what a red- circle rate was, despite his admission when confronted with the manual that the subject was covered in it. I therefore find Brooks' explanations and denials to be unpersuasive, and I credit Brown's testimony. Brooks also admitted or failed to deny the substance of Redus' first conversation concerning Covington. Though Brooks could properly warn Redus against solicit- ing for the Union on company time, his conduct went beyond that. His charge that Redus and Covington were of the same stripe as "union organizers" was plainly intended to inhibit and restrain legitimate organizational activity. In Gilliland's case there remains the testimony of Reese and Roby. Though Gilliland admitted the conversation with Reese and testified in some detail as to what Reese said to him on the subject of the Union, he mentioned nothing which he said in reply save that it was Reese's business as to how he felt. It was plain from his description of the conversations that his participation was not so limited. Gilliland admitted further that he was in fact surprised at Reese's action, though he continued to deny that he told Reese that he was. Gilliland also admitted the fact and some of the substance of Roby's testimony, including his reputed pursuit of Roby concerning his union membership, his resentment concerning Roby's use of his money to pay union dues, and his charging of Roby with that fact. As Gilliland's testimony tended to support and confirm much that Reese and Roby testified to as above summarized, their testimony is credited. Coming to Perry Ford, Ford's admitted inquiry whether Hunter had been elected president of the Union appeared to be only a casual inquiry, devoid of coercive intent, which cannot be found violative of the Act. And once Hunter affirmed his office, it is improbable that Ford would have made the bold threat which Hunter attributed to him. Absent corroboration, Hunter's testimony cannot be credited over Ford's denials. Similarly, because of the improbabilities in the testimony of Jeffcoat (a committeeman) and the absence of corroboration on any point ( includ- ing the throwing of his union button on the floor) Jeffcoat's testimony cannot be credited over Ford's denials. In Gandy's case, Jeffcoat's testimony, having been previously rejected where not corroborated, is again rejected in view of Gandy's denials. Brown's testimony con- cerning Gandy's alleged threats and promises also bordered on the improbable in 2 The General Counsel makes no contention that the rule was unlawful. 3 Murray's fallibility thus exposes the weakness in Respondent's argument, in support of the credibility of all its supervisors, that Attorney Smith had previously instructed them as to what they could and could not lawfully do * It is to be noted, however, that Murray made the suggestion explicit to Poston on April 23, that Poston try to talk the employees out of the Union. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD view of his known connection with the Union. In the absence of corroboration, Gandy's denials are credited. In Brewer's case the content of the conflicting testimony given by him and Watt must alone be relied upon in resolving credibility, there being no other guide or apparent aid in the record. Analysis of that testimony persuades me that each must be credited in part and disbelieved in part .5 Watt's testimony, insofar as it concerns Avant, is suspect on a number of scores. First, the time was prior even to Avant's earliest claim of union membership. Avant offered no corroboration of Watt's claim of a conversation between them and testified to no warning from the Company concerning soliciting on company time, though admitting numerous interviews on other subjects (see section C, 1, infra). Furthermore, it was not plain from Watt's initial testimony (prior to leading) that Brewer's alleged reference was in fact to Avant. Under the circumstances, Brewer's testimony is credited in his denial of Watt's testimony concerning a union organizer known as Tom. However, Brewer's other testimony cannot be credited. He endeavored to ex- plain his discussions of the Union with Watt on the basis of warning him against soliciting union membership on company time because he had heard Watt was a union organizer. However, his own testimony disclosed that the discussions were not so limited. Thus he admitted asking Watt on one occasion whether Watt was being mistreated, and then telling Watt he did not need a union . That conversation had no logical connection with his warning about solicitation, and it tended to confirm Watt's testimony concerning Brewer's pursuit of him on the subject of his union membership. Watt's testimony is therefore credited that Brewer interrogated him as to his membership in the Union and warned him that he had better get out. In Bennett's case there is nothing in the record which helps to resolve the head-on conflict. As the General Counsel offered no direct corroboration and no evidence of any similar statements made by Bennett to other employees, Bennett's denials are credited. On the basis of the foregoing credibility resolutions and the other findings made above, I conclude and find that Respondent engaged in interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act by: (a) Murray's interrogation of employees on April 23, 1959, concerning their union membership and sentiments, his threats to replace colored employees with white ones, his attempt to coerce Taylor to vote against the Union, his solicitation of Poston to talk employees out of the Union, and his threat of trouble if Poston should file a charge. (b) Brooks' promise of benefit to Brown if he would remove his union button and withdraw from the Union and his coercive charge that Redus and Covington were union organizers. (c) Gilliland's threat that Respondent would take away the coke machines and soap powders if the Union came in, and his solicitation of Roby's assistance in preventing other employees from joining the Union. (d) Brewer's interrogation of Watt concerning his union membership and his warning that Watt should withdraw from the Union. C. Discrimination 1. Tom Avant Tom Avant was discharged on November 12 by C. H. Fields, personnel manager, who (Avant testified) informed Avant he was being discharged because of calls from business people (including Sears, Roebuck) that he was behind in his bills. It is unnecessary to make a detailed summary of the evidence for it is plain that the record as a whole will not support a finding of a discriminatory discharge for two reasons: (1) the General Counsel failed to establish knowledge of Avant's union membership (if, indeed, he was a union member at the time), and (2) the evidence established that Avant was discharged for the cause assigned by Respondent, i.e., .creditor complaints of delinquent accounts. (1) Avant testified specifically that he joined the Union on November .11 (1 day before his discharge) but later identified his card which purported to bear the date November 6, and testified that he signed the card away from the plant on the 6 "It is no reason for refusing to accept everything that a witness says, because you do not believe all of It; nothing is more common in all kinds of judicial decisions than to believe some and not all" . .. N L.R.B v. Universal Camera Corporation, 179 F 2d 749, 754 (C.A 2) ; H. N. Thayer Co., 115 NLRB 1591, 1593-1594, footnote 5, and cases there cited. THE BABCOCK & WILCOX COMPANY 249 solicitation of Hook Brown, another employee. On cross-examination, however, concerning the word "Hold," which appeared at the top of the card, Avant testified that he directed Brown to hold the card and not to turn it over to George (the union representative) until he could ascertain how many employees had joined the Union, because he did not want the Union to divulge his name to the Company until more members were signed up. Though he never told Brown when to release the card, he was informed later that it was released. George's letter of November 8 to the Company listed the names of some 125-odd members, but did not list Avant, whose name was first contained on an additional listing in George's letter dated November 15. Avant testified to no other knowledge on Respondent's part before his discharge, and his description of his participation in union activities forms an insufficient basis for inferring knowledge in view of the size of the plant (approximately 600 employees). The only other evidence of knowledge was Watt's testimony that Brewer once reprimanded him concerning a conversation with "Tom," a "union organizer," but Brewer' s denial of that testimony has been credited for reasons stated under section B, 2, supra. (2) Respondent offered uncontroverted evidence of a long history of complaints from business concerns about Avant's delinquent accounts and garnishments and of repeated warnings which Fields had given him. Avant's record in that respect was much worse than that of any other employee, including James Watt, who testified in rebuttal to some four sessions with Fields concerning creditor complaints. What finally triggered Avant's discharge was a complaint from Firestone Home and Auto Supplies, dated October 28, threatening renewal of an old garnishment, and a letter from Sears, Roebuck & Company, dated November 8, complaining that Avant had not met his obligations to it. Sears had made a similar complaint in December 1957. Fields testified that he called in Avant, reviewed his record with him, re- minded him he had been repeatedly warned and given a final warning, and that he discharged Avant on the basis of the two pending letters. Millard Long who was present, corroborated Fields' testimony, including the reference to the previous warnings, and testified that Avant acknowledged the truth of Fields' statements. That testimony is credited over the uncorroborated testimony of Avant, which was not greatly in conflict as to his record of delinquent accounts and his previous sessions with Fields. The foregoing findings make immaterial testimony by Avant and George con- cerning their visit on November 13 to Sears' store and their efforts to get a letter or a statement from Fields' wife, who was Sears' credit manager, and from Mrs. Ganns, manager of the store, concerning the status of Avant's account. Also im- material was the testimony of Avant and Fields concerning Avant's efforts to obtain reinstatement on November 13 and Fields' refusal to reconsider. It is therefore concluded and found that aside from failing to establish knowledge of union membership, the General Counsel failed to establish by a preponderance of the evidence that Avant's discharge was discriminatorily motivated. 2. Cleo Eaton The evidence concerning Eaton's discharge on January 21 presents a somewhat closer question. Knowledge of union membership was here undisputed. George's first letter to the Company on November 8 had listed some six Eatons among the union members, including C. Eaton. Calvin Leon Eaton went to Murray's office in November, apparently to straighten out some report that his name was on the list, and informed Murray that he was not the C. Eaton on the list, but that it was his cousin Cleo. Cleo Eaton had worked for Respondent since 1952, and was a class B welder under L. D. Kinard at the time of his discharge. Eaton testified that he had con- versations with Kinard as early as November about his work "being unsatisfactory and about unions," that on November 14 or 15 Kinard asked if he had heard about James Hubert Eaton taking off his pins and withdrawing from the Union 6 and told Cleo he would have to do the same if he expected to continue to work for Kinard. Kinard continued that if Eaton would comply, and would do what he could to get the other Eatons to withdraw from the Union, he would have a steady job with the Company, and Kinard would see that he had an A welding test soon; otherwise he would be fired. Kinard also told Eaton that Murray was making an example of the Eatons, and that would go a long way towards defeating .the Union's drive. When 6Although Eaton testifled that his statement (furnished to the Board by the Union) Included references to hearsay statements made by James Hubert Eaton to the effect that Murray had ordered him to remove his union buttons and withdraw from the Union under threat of discharge, James was not called as a witness. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .Eaton rejected Kinard's suggestion, Kinard concluded, "You'll be sorry, you wait and .see." The only other conversation which Eaton testified to was on January 20, when _Kinard told him his work was not satisfactory, that no man could wear a union pin -and continue working under him, and that Eaton should take off the pin or suffer -the consequences. Eaton testified that because of the noise in the plant he had .trouble hearing, and that he therefore asked Kinard to step outside. Kinard asked .if Eaton was trying to threaten him, but Eaton stated that he wanted to go outside so he could hear and understand better. At that time Brooks came up and Kinard !reported that Eaton had threatened him. Eaton repeated his explanation, and Brooks stated that there was a conference room especially for such discussions. Kinard told Brooks that Eaton's work was not satisfactory, and Eaton replied that he could do no more than time permitted. Eaton admitted that despite the noise he heard everything that Kinard said. While testifying as a witness he exhibited no difficulty in hearing normal conversational tones. The next morning Brooks took Eaton into Fields' office and Fields paid him off, telling him he was discharged because of disrespect for supervision. Eaton did not ask what Fields was referring to. Eaton admitted that Perry Ford had once criticized his work and that they argued about it. He denied that he had otherwise been warned about his work or about disrespect for supervision. However, on cross-examination Eaton admitted that Kinard had criticized his work on "a few little occasions" and once criticized him for going to the washroom too often. And though stating his opinion that Kinard was "picking on" him more than anyone else because of his union button, Eaton admitted that some 25 of the 50-odd men under Kinard wore buttons. Eaton denied on cross-examination, and later on rebuttal, having made statements to other em- ployees to the effect that he was going to whip some supervisor if they did not quit riding him about his work. Kinard flatly denied the alleged November conversation. Kinard testified that in January he had been watching Eaton's work because it had been slack for several days, and that on the 20th he charged Eaton with not giving him 8 hours of work. Eaton's reply was that his work was all right, he was doing all he could, and he was working for B & W, not for Kinard. When Kinard told him he would nevertheless have to satisfy Kinard, Eaton became upset, reared back, and said they could discuss the matter better on the outside. Kinard judged from Eaton's attitude and manner of speaking that Eaton was asking him out to give him a whipping. Brooks came up, and Kinard reported what Eaton had said. Brooks corroborated Kinard, testifying that Eaton was in a belligerent frame of mind, and that though he claimed he could not hear Kinard, he had no difficulty hearing their conversation conducted in a normal tone of voice. Brooks informed Eaton that he knew that Kinard was going to speak to him concerning his job per- formance and that he (Brooks) knew that Eaton deserved "a talking to." Brooks went to the personnel office and reported the incident to Fields, stating that Eaton was too belligerent to handle on the floor, and Fields directed that he and Kinard submit written reports. After submitting the two reports to Fields,? Brooks took Eaton to Fields' office the next morning and was present when Fields told Eaton he was being discharged for willful disrespect to supervision. Fields' testimony was corroborative of Brooks', though he testified he told Eaton he was discharged for willful disrespect of and insubordination toward supervision. Fields testified that he had previously reviewed the reports made by Kinard and Brooks and that he based the discharge on those reports (which were in substantial accord with their testimony on the stand). Murray testified that at Fields' request, he reviewed Eaton's personnel folder and directed Fields to discharge Eaton. Respondent offered the testimony of several witnesses in substantiation of Eaton's attitude toward supervision. James R. Calder. Sr., a supervisor, testified to a cor- rective interview with Eaton in September 1958, when he criticized Eaton's job per- formance and told him he would have to improve his work. Eaton defended his output, and said among other things he did not like to be "chewed out" by anyone. 7 Brooks' report concluded as follows Based upon Eatons sour attitude to all supervision and his proneness to belligenev to supervision in their efforts to seek (this mans) Eaton's cooperation for more efficient production I recommend Eaton be discharged before he loses control of him- self to the extent of doing harm to some one in a supervisory capacity because he has made statements to fellow workers that he would lick any one of the bosses who caused him to lose his job. THE BABCOCK & WILCOX COMPANY 251 Melvin Moore, who once worked with Eaton, testified that after Calder's talk with Eaton, Eaton seemed upset and stated he was not going to take anything off any leader or foreman and that "before this was over he was going to whip somebody, some of the foremen or leadermen." Moore reported the conversation to Calder. Spurgeon Clitte, Jr., testified that on one occasion when he passed on to a group of employees Kinard's criticism that they were not turning out enough work, Eaton informed him that he and Calder had had a "run in" before, that he was tired of people talking about his work not being satisfactory, and that it was going to be "too bad" for any of his leadermen if they should fire him or lay him off. Clitte admitted, however, that he did not report Eaton's statement to Kinard until a couple of days after Eaton's discharge. John R. Smith testified to an occasion when Eaton complained that Ray Bennett, a supervisor, had not spoken to him, and stated that people like Bennett were the first ones who would be gotten rid of "after we get our union in." Supervisors J. W. Gandy and Perry Ford testified to occasions when they had corrective interviews with Eaton for loafing on his job and for his work performance, and Calvin White, a former supervisor, testified that Eaton was gen- erally disagreeable and difficult to work with. Eaton, called in rebuttal, denied that Fields mentioned the word "insubordination" in discharging him, denied threatening to beat any of his supervisors, and testified he could recall no conversation with Clitte or threatening to get even with Calder. He made no denial of the testimony concerning the corrective interviews. John E. Hardy gave vague, indefinite, and immaterial testimony about seeing Kinard and Brooks talking together on some occasion which he assumed was the day before Eaton's discharge. Concluding Findings Determination of the question whether Eaton was discriminatorily discharged turns entirely on a resolution of the credibility issues between the respective wit- nesses for the General Counsel and the Respondent. Preliminarily, it should be noted that Faulkner's testimony concerning Field's alleged reference to Eaton's dis- charge has been rejected for reasons stated under Section B, 2, above. We therefore start with Eaton's testimony (and Kinard's denial) about a conver- sation in November during which Kinard allegedly ordered him to remove his union pin and withdraw from the Union under threat of discharge unless he complied, and the further threat (which Kinard allegedly attributed to Murray) to make an ex- ample of the Eatons Though Eaton linked Kinard's threats to a similar incident between Murray and James Hubert Eaton, the latter was not produced to lend even circumstantial corroboration to Eaton's claims. Furthermore, Eaton not only ignored Kinard's alleged threats for over 2 months without incident, but he admitted that some 25 of the 50 employees under Kinard wore union buttons. Significant also was the absence of any evidence that Respondent was making an example of the Eatons, six of whom remained in Respondent's employ at the time of the hearing. Eaton's testimony concerning the allegd November conversation is therefore rejected on the basis of the foregoing reasons and the additional ones which are set forth in resolving the issues concerning the discharge incidents. Going to January 20, Eaton claimed, significantly, that Kinard repeated his No- vember statement that Eaton could not continue to work under him unless he removed his union pin (Eaton and 25 others had worn pins since the alleged No- vember conversation). Aside from that claim, there was nothing in his testimony that would support a finding of a discriminatory discharge. Indeed, the rest of his testimony was about as favorable to Respondent's theory as that of its own witnesses. Thus Eaton admitted he heard everything that Kinard said, that Kinard mentioned his unsatisfactory work, that he invited Kinard to step outside (a traditional form of invitation to settle differences by fisticuffs), that Kinard charged him with making a threat, that Kinard immediately reported to Brooks that Eaton had threatened him, and that he asked for no explanation when Fields told him he was discharged for disrespect for supervision. Significantly also Eaton made no claim either to Brooks or to Fields that Kinard had ordered him to remove his union button under threat, though Brooks participated in part of the conversation. The foregoing facts are persuasive of acceptance of Kinard's denial that he made any reference to Eaton's union button. That resolution leaves without substantial support, the General Counsel's case that Eaton was discharged because of his union membership and activities, since Eaton's other testimony did not differ greatly from that of Kinard, Brooks, and Fields as to the circumstances of his discharge. When the foregoing facts are coupled with the testimony of other employees and super- 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visors as to Eaton's general attitude of resentment toward criticisms by supervisors and his threats to whip or to get even with those who reprimanded him, they estab- lish that Eaton was discharged for the cause assigned . It is so found. III. THE REMEDY Having found that Respondent engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. I shall also recommend that the complaint be dismissed insofar as it charges Respondent with unfair labor practices under Section 8(a)(3) of the Act. Upon the basis of the above finding of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Charging Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 3. The aforesaid unfair labor practices having occurred in connection with the operation of Respondent 's business as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent did not engage in unfair labor practices proscribed by Section 8(a) (3) of the Act as alleged in the complaint. [Recommendations omitted from publication.] Caroline M. Layton White, d/b/a Layton Oil Company and Oil, Chemical and Atomic Workers International Union of North America, AFL-CIO. Case No. 16-CA-1249. July 25, 1964 DECISION AND ORDER 'On December 17, 1959, 'Trial Examiner John F. Funke issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief., Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. 'The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 1 The Respondent has requested oral argument . As the record and brief adequately present the issues and the position of the parties , the request for oral argument is hereby denied. 128 NLRB No. 27.