Vulcan Materials Co.

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By picketing Babcock Company and Sales, Inc., on January 29, February 5, 19, and 26, and March 5, 1961, and by picketing Pawliger Building Industries Inc., on January 29 and February 5, 1961, the Respondent induced and encouraged individuals employed by Sales, Inc., and Pawliger Building Industries , Inc., to engage in a strike or a refusal in the course of their employment to perform services with an object of forcing or requiring Babcock Company and Pawliger Building Industries, Inc., to cease doing business with H. L. Robertson and Associates, Inc., thereby engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) (B) of the Act. 5. By picketing Babcock Company, Sales, Inc., and Pawliger Building Industries, Inc., on the dates set forth in paragraph numbered 4, above, the Respondent threatened, coerced, and restrained Babcock Company, Sales, Inc., and Pawliger Building Industries Inc., with an object of forcing or requiring Babcock Company, and Pawliger Building Industries, Inc., to cease doing business with H. L. Robertson and Associates, Inc., thereby engaging in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B) of the Act. 6. By threatening Fred J. Butz, and by handing Butz a handbill during the course of picketing, as set forth under section III , above, the Respondent induced and en- couraged an individual employed by Pawliger Building Industries , Inc., to engage in a strike or a refusal in the course of his employment to perform services with an object of forcing or requiring Pawliger Building Industries , Inc., to cease doing busi- ness with H. L. Roberston and Associates, Inc., thereby engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) (B) of the Act. 7. By distributing handbills to .the public on dates set forth in paragraph numbered 4, above, the Respondent did not engage in unfair labor practices within the meaning of Section 8(b) (i) and (ii) (B) of the Act. 8. Other than as above found , the Respondent has not engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii ) (B) of the Act. 9. The above unfair labor practices are unfair labor practices within the mean- ing of Section 2( 6) and (7) of the Act. [Recommendations omitted from publication.] Birmingham Slag Division of the Vulcan Materials Company and United Steelworkers of America , AFL-CIO. Case No. 15-CA-1939. June 14, 1962 DECISION AND ORDER On February 27, 1962, Trial Examiner A. Norman Somers 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 Intermediate Report attached hereto. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 137 NLRB No. 76. BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 613 rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Upon the entire record in the 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, Birmingham Slag Division of the Vulcan Materials Company, Birmingham, Alabama, its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee in order to discourage membership or activity in United Steelworkers of America, AFL-CIO. (b) Interrogating its employees concerning their affiliation with, activity in support of, or interest in the above or any other labor or- ganization, in a manner constituting interference, restraint, or coercion. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer C. T. Broadway immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of his discharge, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, time cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due un- der the terms of this Order. (c) Post at its various plants, stations, shops, and working places in the Montgomery, Alabama, area, copies of the notice attached hereto marked "Appendix." 1 Copies of said notice, to be furnished by the IIn 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 " 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regional Director for the Fifteenth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifteenth Region, in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that Respondent violated Section 8 (a) (1) of the Act by the conduct of Edwin Openshaw. APPENDIX 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 discharge or otherwise discriminate against any employee in order to discourage membership or activity in United Steelworkers of America, AFL-CIO, or in any other labor organization. WE WILL NOT interrogate our employees concerning their affilia- tion with, activity in support of, or interest in the above or any other labor organization, in a manner constituting interference, restraint, or coercion. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right of self- organization, to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act, or to refrain from any and all such activities. WE WILL offer to C. T. Broadway reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and we will make him whole for any loss of pay suffered as a result of his discharge. BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 615 All our employees are free to become or remain or to refrain from becoming or remaining members of United Steelworkers of America, AFL-CIO, or any other labor organization. BIRMINGIIAM SLAG DIVISION OF TILE VULCAN MATERIALS 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. Employees may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone Number, 529-2411, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter was heard before the duly designated Trial Examiner in Montgomery, Alabama, on November 13 and 14, 1961, on complaint of the General Counsel (issued October 11, 1961, on a charge filed by the Union on June 29, 1961) and the answer of Respondent. The issue was whether Respondent's discharge of C. T. Broadway was discriminatorily motivated in violation of Section 8(a)(3), and whether Respondent had infringed upon the rights of its employees in other ways in violation of Section 8(a) (1) of the Act. The parties waived oral argument and have filed briefs, which have been duly considered.' Upon the entire record (as corrected on notice to the parties), and upon careful observation of the demeanor of the witnesses and the character of their testimony as a whole, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED Respondent, Vulcan Materials Company, is a New Jersey corporation , having its principal place of business in Birmingham , Alabama. Through its Birmingham Slag Division it is engaged primarily in producing and selling road materials , such as sand, gravel, etc., in about 30 areas throughout the State of Alabama, including also the Montgomery area, where the events here involved occurred. The purchase of material shipped to it directly from outside the State and the income for goods or services supplied by it to customers outside the State, exceed $50,000 a year in each catogery. Respondent does not dispute either the existence or the assertion of the Board's jurisdiction over it. United Steelworkers of America, AFL-CIO, the Charging Party, hereinafter called the Union, is a labor organization within the meaning of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICES A. The discharge of C. T. Broadway 1. Introductory synopsis and statement of applicable standards of appraisal The case is in the main concerned with the discharge of C. T. Broadway, which occurred during the Union's campaign of organization among Respondent's em- 1 The Trial Examiner gratefully acknowledges the assistance of counsel in their briefs. Avoiding the failing, all too common among some counsel, of limiting their discussions to, evidence favorable to their contentions, they have candidly faced up to the evidence- against their positions as preludes to well-reasoned arguments as to why, on balance, the conflicts should be resolved in favor of their respective sides 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees in the Montgomery area. Sometime before his discharge, the Union's representatives, in discussing arrangements for a Board election, told a company official that Broadway would be one of the Union's observers at the ballot -taking. Several weeks later, Broadway, on his return from 2 weeks' duty as a captain in the National Guard, was informed he was discharged because he was thought to be at fault for the damage to the engine of a bulldozer operated by him , which had broken down just before he left for the National Guard. The manner of the in- vestigation and the harshness of the penalty, when compared with Respondent's demonstrated tolerance toward breakages in its heavy line of work, along with the fact that Respondent was opposed to the Union, is in large part the basis for the General Counsel's contention that the incident in question was seized upon as a pretext to be rid of Broadway because of his special role in the Union. There is much in the treatment of Broadway to warrant inquiry. The determi- nation of his guilt was concededly made during his absence on military leave, with no prior indication that he was suspected of being at fault for the damage or any opportunity given him to state his version ; the penalty was difficult to square with Respondent's contemporaneously demonstrated tolerance in respect to damage to equipment, which is concededly quite frequent in Respondent 's heavy line of work; and Broadway, a prior foreman of Respondent's, who had supervised others in the operation and maintenance of the very kind of equipment here involved, who was in line to fill the next foreman 's vacancy, and who Respondent's witnesses conceded had not before been guilty of the kind of laxity now attributed to him and was unlikely to repeat it, would have seemed a most unlikely prospect for being thus determined to have been lax without obtaining his version first or to have been punished in that extreme manner even if believed culpable in that single instance. However, unlike an arbitration proceeding , the considerations above recited are not conclusive in our kind of inquiry , but are relevant only for their bearing upon whether the cause assigned is the real cause of the discharge , as opposed to being what the General Counsel here contends it was-a pretext to mask an antiunion motivation . The appraisal of the reason assigned by the employee normally comes into play when the incident relied on is advanced by the employer to offset a prima facie showing otherwise appearing , that the discharge was inspired by antiunion animus. As explained in Mike Persia Chevrolet Corporation of Houston, 134 NLRB 1402 (IR): "If there is independent evidence to warrant the inference that the motive was to advance or discourage union activity, then the matter of whether the cause assigned is `good' or `bad' is not an ultimate subject of inquiry but merely an evidentiary item bearing on the weight of the evidence advanced by the em- ployer to offset that inference ." This is on the assumption that employers do not ordinarily discharge for a "bad" cause, and hence "testimony that that was the real cause does not carry the kind of persuasion to offset an inference of a dis- criminatory motive, flowing from other evidence, which a `good' cause would carry." Ibrd The difficulty with the General Counsel's case here is that it lacks a showing of antiunion animus, which , standing on its own feet, warrants an inference that the discharge had an antiunion motivation , and against which is to be appraised the employer's claim that the reason assigned by it was the real reason for the discharge. The General Counsel here relies, as he perforce must, upon the manner of the discharge and the nature of the discipline as being so disparate as to betray a hostility made comprehensible only by Respondent's admitted purpose to have the employees reject the Union and, by that token , Broadway's leadership in it. But to provide the support for an inference of antiunion motivation , which the remainder of the record does not supply , the precipitating reason would have to be so lacking in rational basis that on the "presumption . . . that people in the conduct of business affairs act out of rational motives" (Sears Roebuck and Com- pany, 123 NLRB 1236, 1264), the evidence in regard to the Union , though insuffi- cient in itself to support an inference of retaliatory animus. serves alone to give rational content to an otherwise irrational act See also Clanton E Smith and Willard Smith, d/bla Clayton -Willard Sales, 126 NLRB 1325, 1340 Where, how- ever, the reason assigned is merely "bad" in the sense of being insufficiently per- suative to offset an inference of antiunion motivation otherwise warranted : then, in recognition of the fallibility of even honest judgment, the unpersuasiveness of the reason would not ordinarily make up, as would a totally irrational reason , for the absence of an independent basis for inferring that the action was inspired by anti- union animus : or assuming warrant for such an inference, then , under the burden of proof home by the General Counsel , there would still be the question of whether it is sufficiently strone to override the sworn disavowals of those participating in the decision that Broadway 's role in the Union, as disclosed by the union representa- BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 617 tives to the official in question, was communicated by the latter to, or otherwise known by, them. 2. The evidence considered in the light of above a. Union organization and extent of Respondent's interest and knowledge of it There are two periods here considered-the first preceding Broadway's discharge, which occurred June 26, and the second thereafter up to the election held in August. As to the first, what appears is that early in May, which was about the time that the Union began its organizing campaign, Edwin Openshaw, general superintendent of the Montgomery area, according to the testimony of Elmer Gist, §uperintendent of Cook station (where Broadway worked), asked Gist whether he "had heard anything about them getting into the Union," to which Gist replied he had not. Gist also testified that shortly afteward he saw union stickers prominently displayed on the cars of about 10 or 12 employees, Broadway's among them The union rep- resentatives and Broadway testified that Broadway attended all of its weekly meet- ings, had signed up six employees; and that he had been chosen as the liaison be- tween the employees and the union representatives and as an observer for the Union in the forthcoming election. Finally, there is the testimony of the union representa- tives that in a discussion on May 29, between them and Grady Self, Respondent's vice president of administration, concerning a mutually agreeable date for a Board election, they mentioned that Broadway was their contact man with the employees and was to be a union observer at the election? The evidence concerning the Union after Broadway's discharge consists of single conversations with two separate employees held in mid-July, one initiated by Open- shaw, and the other by Alva Ray, a supervisor, who is not otherwise involved in the events here considered. Deferring the details and the resolution of the con- flicting versions to a later stage of the discussion, it would seem clear, quite without regard to whether they constituted separate unfair labor practices as alleged, that they reflect a pronounced desire on the part of Respondent that the employees reject collective bargaining and continue the then mode of dealing individually with the Company Openshaw in his own version quoted himself as saying that "the company would rather that we did not have a union" and that "I hope we don't have a union." The same was expressed by Vice President Self in addresses which he made to the employees at the various stations-not alleged as violations-wherein the theme, supported by Respondent's reasons therefor, was that "the Company is opposed to a union," and in his opening address to the employees he introduced the subject by reciting that on receiving, on May 15, written notification from the Union of its having been designated as representative of the employees in the Montgomery area- It was somewhat of a surprise to the Company to receive such a notice as this, because the Management of your Company had no idea that you were dis- satisfied to the extent that you would petition an outside party to represent you. b. The damage and the ensuing discharge The damaged equipment was the engine of a bulldozer operated by Broadway since about April 1 (approximately the time he went back to rank-and-file status from that of working foreman, that demotion being unrelated to merit). The vehicle had been purchased secondhand, and by about a week before June 9, when the engine broke down, Broadway reported to Cook Station Superintendent Gist that it was using up an excessive quantity of oil-4 gallons a shift as against a normal of I to 2. Gist a The occasion for mentioning him was that Self proposed a date in June. to which the union representatives demurred because they understood that a substantial number of the employees would then be on duty at the National Guard, and they indicated they would check with Broadway, whom they identified in the manner indicated They testified that Self said he too would check, whereupon they stated there were a number of persons in the Montgomery area by that surname and they accordingly gave him Broadway's specific initials ; and that Self made a note on paper at that time They did not see the note and they admitted also that both parties were taking notes throughout the discussion. While Self did not testify (be being in a hospital for a leg injury during the hearing, and Respondent's counsel at the end of its case having- declined the Trial Examiner's proffer to have Self's testimony taken there), the persons participating in the decision to discharge Broadway denied that Broadway's role had been communicated to them by Self or that they otherwise knew of It, and Gist denied that he had told anyone of his having observed a union sticker on Broadway's car 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then indicated the oil would have to be checked twice during a shift-at the start and at midshift. Broadway's shift was from 7 in the morning to 3 in the afternoon. According ,to Broadway, on the June 9 in question, when he began his shift, he made the usual check for oil and water, and filled the crankcase with oil, it then needing 3 to 4 gallons to fill it, about noon the engine began to cut off intermittently. Broad- way went to look for his working foreman, then for Gist, his station superintendent, then a mechanic at the station shop, and not finding any of them, he finally tele- phoned the main shop for the Montgomery area and described the trouble to Rip Lowder, the diesel shop superintendent. At this point Working Foreman Boyd en- tered and took over the telephone from Broadway. Lowder's instruction to Boyd, as related to Broadway, was that they put the safety switch on "manual," i.e , "take it off automatic." A function of the "automatic" as described by the General Coun- sel's witnesses on that point, i.e , Broadway and C E. Riley, a Cook station me- chanic, was that it shuts off the engine when it heats up because of insufficiency of oil or water.3 This was about 1 or 1:30 Broadway testified that during the in- terval that Boyd talked to Lowder, he checked the oil with the dipstick and that it registered one gallon low, an amount concededly sufficient to assure proper oil dis- tribution to all the parts; that for the remaining hour and a half or two of the shift, he operated the engine without any trouble, and that the needle on the oil pressure gauge was at all times upright, indicating proper distribution to all the parts .4 The first discovery that the dozer would not run was after the end of Broadway's shift, when he had just shut the motor off, and Henry Campbell, his successor on the next, or 3 p in., shift, asked Broadway to drive it over the 15 feet to the fuel tank. Broadway sought to comply, but it would not turn over, after trying to start it for 10 or 15 minutes, Broadway left for home. The next morning (he having on Friday completed his regular week preceding the two in which he was to be on National Guard duty, but having come in on Saturday at Gist's special request for general work around the station), Broadway learned that Gist, thinking the condition was due to dead batteries, had ordered new ones But when these were brought in, it did not start the motor; so the condition was then attributed to a defective starter (Campbell having indeed worn it down in his prolonged and futile efforts to turn the engine over) Gist asked Broadway to give him a hand at the station on Sun- dae as well, but Broadway begged off in view of his preparations for embarking upon military duty; and so as of the time that he left for duty, the order of business was either to repair the starter or to replace it with a new one. When Broadway returned to work on Monday, June 26, Station Superintendent Gist called him in to the office and, as Broadway testified, informed him that he was discharged because he had "burned the motor," i.e., had operated it with insufficient oil.5 This was the first intimation to Broadway that he was even suspected of blame in the matter. The chain of events culminating in the discharge of June 26 was as follows: A new starter was purchased and finally installed on Wednesday, June 14, but the motor still did not turn. It was then determined-as Station Mechanic Riley had suggested to Gist on Saturday morning-that the engine was, as it is alternatively put, "locked" or "frozen." The machine was then brought to the main shop of the Montgomery area where it was dismantled Inspection showed the standard ear- marks of an engine burned up for want of oil. (Part of the main and rod bearings were burned-being "scored" and "bluish" from extreme heat-and the crankshaft was completely dry.) General Superintendent Openshaw called at the shop the next day, Thursday, June 15 There in a conversation with Lowder-either Lowder alone, as would have appeared from his testimony at the outset of the case or which he "believe[d]" to have been in the presence of Maintenance Supervisor Tingle, as he later testified, but on either basis with Lowder doing "most of the talking"- Openshaw was shown the engine and given the finding above. Openshaw went down the next day, Friday, June 16, to Cook Station and spoke to Gist about it. Gist asked 3 Lowder did not testify but Marvin Tingle, his superior, and Respondent's mainte- nance supervisor, testified as Respondent's expert to a different function, which is dis- cussed, infra, at footnote S 4 The needle in an upright position splits the 320-degree arc of the pressure gauge at 60, which indicates the engine is receiving 60 pounds of oil pressure Maintenance Super- visor Tingle testified that to insure proper distribution to all parts at all times, there must be a constant pressure of 50 or 60 pounds s Gist testified he asked him whether he "knew that he had run the motor without oil " Concededly, the decision to discharge Broadway had already been made by hivher authority than Gist, so that even if Gist had couched his announcement in interrogative form, it was still but a declaration of the reason for an accomplished discharge. BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 619 "whether or not we should discharge Broadway ," to which Openshaw, as he testified, replied he "would let [Gist] know from Birmingham ." 6 On Tuesday or Wednesday of the following week (June 20 or 21), Openshaw discussed the situation in Birminb ham with his superior, J. A. Carnathan , Respondent's vice president of operations. ,Carnathan instructed that Broadway be discharged . Openshaw indicated Broadway was "in camp" and that the instruction would be carried out on his return. He tele- phoned the decision to Gist from Birmingham on Wednesday or Thursday (June 21 or 22 ), and Gist, in turn, greeted Broadway with it when he reported back to work on Monday, June 26. When Gist told Broadway of the reason for his discharge , Broadway, whose com- petence and sense of responsibility are not disputed, said that if he had in fact op- erated the motor with insufficient oil, he deserved to be discharged , but at the same time he insisted that the needle on the pressure gauge had indicated normal piessure all the time he had operated it.7 The next day Broadway visited the main shop and spoke to the mechanics . After this he spoke to Gist and Openshaw together. He repeated his statement of how the oil pressure gauge had registered normal (supra, footnote 7) and stated the mechanics at the shop informed him that in the dis- cussion which Openshaw had had with Lowder concerning the cause of the freezing of the engine, Lowder stated the blame was partially his because of his instruction on June 9 to cut off the automatic and operate on manual-a statement which Open- shaw ultimately admitted Lowder made to him. Gist and Openshaw said nothing in reply. (Tingle and Openshaw, in their own versions of the discussion at the shop, had not mentioned Lowder's statement, but Openshaw when specifically asked about it on cross-examination , admitted it . This mooted the objection raised by Respondent to Broadway's earlier testimony , which he gave before recounting his talk with Gist and Openshaw , to the effect that the mechanics had told him of Lowder 's statement. That testimony , then contingently received, would not have been considered as proba- tive of the contents of what the mechanics told him but simply as Broadway's ac- count of the basis of his protest to Gist and Openshaw.) The manner in which it was concluded that the blame lay with Broadway and that he should be discharged for it raises questions , some of which have been alluded to in the introductory part of the discussion . Thus, there was a departure from established procedure in that Respondent failed to get Broadway's version before deciding he was culpable , and indeed from prior precedent in the severity of the penalty. Within the preceding year, there had been damage to equipment, and the employees involved sustained no discipline even to the point of reprimand. It was explained that in their cases, an exonerating circumstance came to light , which made it difficult to "pinpoint" the blame. But that was the result of having been given a chance to state their versions in -a manner denied to Broadway . Indeed, the only prior instance of any discipline for damage to equipment dated back to 1955, when an employee was discharged because his engine had burned up for lack of water. The record is not specific as to whether his version was obtained first, but in citing it as a parallel to Broadway's case, Respondent did not qualify the concession that it was customary first to obtain the employee 's version with any indication that it had omitted the usual procedure with that employee, as it admittedly did with Broadway. Additionally, the prior instances, of damage, even with the employee 's version, did not have the counterpart of the situation here, where in the privacy of management's own councils, the very person being consulted in fixing the responsibility attributes part of the blame to himself.8 6In his testimony at the outset of the case, he indicated that was the extent of his reply to Gist Later, when called by Respondent , he testified he preceded this last by stating "it looked like we would have to [discharge Broadway] " He expressed it by saying the needle had pointed to 90, which he then thought to be the number at the center of the are of the pressure gauge , instead of 60 (supra, foot- note 4). The danger point , as Maintenance Supervisor Tingle testified , is where the needle falls back, either constantly or intermittently , to the left, below 50 , for that in- dicates the engine is not getting the requisite constant pressure of 50 or 60 pounds 8 Presumably to overcome the force of Lowder ' s statement , Maintenance Supervisor Tingle testified that the automatic would not have shut off the motor and that its only function is to control the solenoid mechanism, which prevents the energizing fuel from commingling with the lubricating oil. But Lowder 's assumption of part of the blame upon his instruction to shut off the automatic and operate on manual is rationally com- prehensible only on the premise testified to by Broadway and Mechanic Riley-that the automatic would have shut off the engine at the stage of a dangerously low supply of oil and thus have obviated the breakdown . At least that would seem to have been implicit 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lowder's instructions to Broadway would seem to have been in line with Re- spondent's contemporaneously demonstrated disposition to have proper care of the equipment defer to the exigencies of getting on with the job. Underscoring this apart from General Superintendent Openshaw's admission that damage to equipment was frequent in Respondent's heavy type of work, were two specific instances, both occurring in June 1961, the month in which Broadway was discharged. In each in- stance Station Mechanic Riley reported to Superintendent Gist that the machinery needed repairs, and Gist ordered that the machine be run until the Cook station, which was at its terminal stage, was worked out. In the first instance, Riley reported that on changing the oil in the dragline of a vehicle, he found an excessive amount of water had gotten into the oil pan; and in the other, that the transmission was out of order, the gear jumping from first to third. The result of compliance with Gist's instructions was that the pieces of equipment were badly run down: where water had mixed with the oil, the dragline continued to deteriorate so that the equipment finally had to be taken out for installation of new sleeves and a piston; and in the case of the deficient transmission, two gears were destroyed, requiring them and all trasmission bearings to be replaced. The same tolerance in respect to equipment damage would seem reflected also in the circumstances under which the employees in the incidents previously referred to were spared all discipline. The General Counsel cited a water pump incident in the summer of 1960, damage to a crawler crane in April 1961, and, indeed, Campbell's running down the starter of the very engine here involved during his futile efforts, after the end of Broadway's shift on the June 9 in question, to get it to turn over. While I would hardly attach the importance the General Counsel does to this last, the other two instances would seem to present a substantial contrast with the handling of Broadway's case. The water pump incident occurred in 1960, and involved the burning out of the engine for lack of water. Assuming no leakage in the mechanism, it was prima facie the result of the failure of the employee responsible for its maintenance to fill it with water at the start of the shift at 7 a.m. Against the inference, warranted by the circumstances, that the employees had failed to fill the pump with water, Respondent accepted the employee's story that he had in fact filled it at the start of the shift. Respondent explains its exoneration there on the ground that if the pump had had no water, it would have burned out immediately, and since it did not burn out until 2:30 p.m., the absence of water might have been due to a leak in the mechanism, and for that reason Respondent could not "pinpoint" the blame. The non-"pinpoint[ing]" elements would seem to have been present to at least equal degree in Broadway's case, even if Lowder's partial assumption of blame had not been deemed enough. The hypothesis that the burning out of the water pump engine might have been due to a leak in the radiator or hose could only have been based on an acceptance of the employee's word that he had filled the pump with water. In like vein, Mechanical Supervisor Tingle indicated that the inference that the engine had been run without sufficient oil would be dispelled if Broadway's word for it were to be accepted that the pressure gauge had at all times registered normal; 9 and he also testified that if the oil supply, at 1 or 1:30 p.m. of June 9, had indeed been but a gallon low, as Broadway testified his dipstick check then showed it to have been, the loss of oil during the remaining hour or hour and a half could, in the case of an engine using up to 3 to 4 gallons of oil in a shift, be due to a "leaky oil line" or a seepage in the oil system-which would cause the fuel to enter and burn up in the combustion chamber-a condition of which the pressure gauge would have given no warning. Tingle testified he checked for such a condition and found none to exist-a statement in the statement of Lowder, who, although the expert whom Openshaw named as the one who had shown him the engine and explained the reason for its breakdown (and indeed the man most familiar with the machine, he having gone over it at the time it was bought), was not produced to testify e His testimony was that the pressure gauge would still do so even if the supply in the crankcase-apart from the amount constantly needed in the filters-was as low as 2 gal- lons. (The capacity of the 10-gallon crankcase, above what is required for the filters, Tingle explained, is 61/2 to 7 gallons ) He explained that when the supply got to below two gallons, the attendant drop in constant pressure would be reflected on the pressure gauge by the needle's dropping to the left, below 50, "intermittently," i e , every 5 min- utes The needle would return to 50 or 60 when the oil flowed into the parts, but would revert to the deft when the oil left the parts and flowed back into the crankcase, and as the supply thus got completely used up there would be no oil flowing whatever and the needle would register zero. BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 621 rather calling for reconciliation with his testimony that on that type of vehicle, such excessive consumption of oil would be due to such seepage and the established fact that the engine in question had consumed oil that excessively. (Though Gist admitted that Broadway had reported that excessive consumption to ban a week before the breakdown, Tingle testified he had not been aware of it. Gist was not present during Openshaw's discussion at the shop on June 15, which resulted in the action culminating in Broadway's discharge, nor, so far as appears, had he previously been consulted on that aspect of it.) But apart from this last, there was no indication that the water pump showed any leak either-indeed Superintendent Gist, when twice testifying about the handling of the water pump incident, gave no intimation that such a possibility had even been considered-so the fact that the water pump continued to run until the afternoon, would thus have been indicative of the existence of a residual supply of water from the preceding shift, rather than confirmatory of the employee's story. The differences in the two cases, so far as the reasoning eye can see, is in the oppor- tunity given to the employee in the one instance to present his version and denied to Broadway in the other-in one case yielding the inference of culpability flowing from the circumstances to the employee's version of the precaution he had taken, and in the other drawing an inference of culpability in the teeth of the partial assumption of blame by the person being consulted, and hastening to inflict the extreme penalty without waiting for the employee's version against which to check the inference nevertheless assertedly drawn.io In the crawler crane incident of April 1961, the employee left his crane with the engine running, after which the boom jumped into gear, fell backward on top of the cab, and destroyed it at a cost of about $1,000. Here, too, Openshaw testified, after the employee was consulted, "we were not able to pinpoint the reason," because the jumping of the boom might have been the result of "some malfunction of the boom hoist itself," with no indication of what that malfunction was. The employee there involved emerged not only exonerated of blame for the damage but with not as much as a reprimand for the violation of the safety rule in leaving that kind of equipment unattended to, with the engine running. Giving greater cause for wonderment is that Respondent should have reached this ex parte conclusion of culpability and on the basis thereof have visited the extreme penalty of discharge upon an employee of Broadway's admitted stature. Here was a man who, on a background of years of responsibility as a U.S. Army officer for the maintenance of over 75 heavy-duty vehicles, was given rapid promotions by Respond- ent. After starting as operator of a Euclid (a lighter vehicle), be was given the higher paying job of operating a bulldozer; then he was made a working foreman, at which for over a year he was entrusted with the supervision of others in operating and maintaining the very kind of vehicles involved in the discharge, and his recent reversion to rank-and-file status was but temporary (resulting from his displacement by an erstwhile superintendent whose station had been discontinued) and was await- ing the opening of the next foreman's vacancy. Also, assuming that Respondent concluded that Broadway was lax in that single instance, the decision to sever this admittedly top-ranking man altogether is hard to understand in the light of Open- shaw's avowal that "the purpose" of imposing such discipline is to insure against retaining an employee likely to damage equipment, and that Broadway's excellent record gave every assurance of his being completely capable of being entrusted with that equipment. Vice President Carnathan, whom Openshaw had consulted on Broadway's case, and who gave the instruction to discharge, acknowledged that he knew the established procedure for consulting the employee before determining fault or discipline had not been followed in Broadway's case, and he explained the visitation of the maximum penalty upon him on the basis of the example it would set for the 10 Nor can one quite see in mitigation of that difference the claimed higher cost of the damage in Broadway's case over that in the water pump incident Whether the cost of replacing the water pump was, as Gist first testified when called by the General Counsel, "something close to" that of repairing the dozer engine ($2,540), or "between $400 and $600," as he testified when called by Respondent the following day, it could hardly have altered the issue of culpability involved in each inquiry. Especially so when, as appears, Openshaw, at the time of his conversation in the shop which led him to take the steps culminating in Broadway's discharge did not know what the cost would be. Tingle testified that Broadway, after being told the condition of the engine, asked "how much is it going to cost," but that he could not then tell because the engine would have had to be stripped "to get a listing of the parts," which would then have had to be ordered and received, followed by submission of the bill. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees of the need for taking proper care of equipment.ii Openshaw, who had testified immediately before Carnathan, gave no indication that this had entered into the deliberations, and its application on that extreme basis would seem strangely abrupt in the face of a background of tolerance reflected not only in the specific instances cited but in the omission, in the safety rules booklet as distributed within the last 2 or 3 years, of damage to equipment as a dischargeable offense; and while this would hardly indicate that Respondent would take kindly to damage care- lessly caused, neither would one normally expect that an employer, against the back- ground of tolerance here presented, and the admitted frequency of damage as a regu- lar part of its heavy line of work, the risk thereof being sometimes knowingly assumed at the supervisory level in deference to the pressures of time, would select as the person on whom to visit such unwonted severity, an erstwhile foreman, slated to fill the next foreman's vacancy, whose story had not yet been obtained, and who had gone on military leave without the slightest intimation that he was suspected of being at fault. 3. Concluding finding The factor to which Carnathan attributed the severity of the action taken toward a man of Broadway's admitted calibre, namely, its effect upon the rest of the force as a whole, opens up an inquiry relevant to the ultimate issue. The first is just why Openshaw should have felt he had to go to Carnathan at all on a matter concerning which he had the full power of decision, as did even Gist, his subordinate. Openshaw testified he would "always" take up "a case of this nature" with Carnathan. He conceded that he had not theretofore consulted Carnathan about any discharge either in 1961 or even 1960. Although he testified he did so twice with Carnathan in 1959, the nature of these two matters was not specified nor was anything indicated about Broadway's case which differentiated it from those in which the decision was made by either Gist or Openshaw. If it be the amount of the damage, there is no indication that in the 1955 case, which involved a comparable amount of damage, the decision was made at other than the area level; and, as previ- ously indicated (supra, footnote 10), Openshaw did not then know what the cost of repair would be. Carnathan testified that Openshaw hesitated to discharge Broadway without check- ing with higher authority, but the record rather persuasively indicates that Gist and Openshaw hesitated to absolve Broadway without approval from Birmingham. Openshaw's earlier avowals, in explanation of why Broadway had not been given a chance to state his version as the employees in the incidents previously cited had been-that in contrast with theirs, Broadway's case was "cut and dried," indeed that he found in it "no extenuating circumstances," would seem to have taken on a different character after his admission, on cross-examination, that Lowder had assumed part of the blame because of his instructions when Broadway reported to him that the motor had been intermittently cutting out. Openshaw admitted that Broadway's prior flawless record alone would have warranted making inquiry of him before concluding that he had been lax in the manner attributed to him, and that though "the purpose" of discharge in such a case was to safeguard against entrusting equipment to employees likely to damage it, he "d[id]n't believe that [Broadway] would" damage equipment "even though [Respondent] retained him in [its] employ"; so that from his testimony as a whole and from the manner in which he gave it, one derived the distinct impression that he had in fact felt all along that Broad- way's case presented at least as many exculpatory elements to prevent "pinpoint[ing]" the blame as in the cases of the employees whom he and Gist, on that score, had spared all discipline. Gist, with whom Openshaw spoke after his consultation in the shop, admitted that he could not make up his mind about whether Broadway should be discharged. Openshaw's statement, in response to Gist's request for his opinion, that he would do so after higher consultation, would indicate the same doubt: and from the manner in which both conceded Broadway's high competence, and the esteem in which they apparently held him, one rather got the impression that had they been left free to act on their own, they would, in the light, among other things. of the diffusion of responsibility inhering in Lowder's assumption of part of the blame, and Broadway's excellent record, have exonerated him altoeether even before getting his story, or at least have waited until he returned from military duty to get his version. In these circumstances, the refusal of Gist and Openshaw to take responsibility for the kind of matter concededly within their competence, n He testified that- "If we had a temperate justice, so to speak, in this case all the rest of our operators would have gotten the opinion . . I won't say that they would, It Is possible that they would say, well this Company does not mean what they say about proper care and maintenance of equipment." BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 623 with Oppenshaw's hastening to submit it to Carnathan before getting the version of the employee involved, and Carnathan's summary order of dismissal without directing that the employee be interviewed first, or at least deferring the finality of his decision for the few days remaining until the employee returned from military duty so that he could give his story, are hardly "natural" (E. Anthony & Sons, Inc. v. NL.R.B., 163 F. 2d 22, 26 (D.C.D.C.), cert. denied 332 U.S. 773). And Carnathan's explanation for dispensing with obtaining Broadway's version-"Well, I don't hardly think that it would have done good"-is rather strange, coming from an executive who acknowledges that in his instructions to the supervisory force concerning the fixing of responsibility for disciplinary matters, to obtain the em- ployee's story is an integral part of the inquiry. Nor can one quite envision Gist and Openshaw, after the discharge, listening in stony silence to the protestations of innocence of a man just returned from military duty and confronted with a conviction for a dereliction of a kind he had never theretofore committed, and of which he had not previously been told he was even suspected, unless they realized that this matter, though normally one within their full competence to handle, was, in Broadway's instance, out of their hands and beyond reach on the merits. Nor can one quite see the compassionate Openshaw, after being assured by a man whom he respected, and whose word he had every reason to accept, that the oil pressure gauge had registered a constant normal, and reminded of Lowder's own assumption of part of the responsibility, not being moved to reopen the matter for further inquiry or resubmit it to Carnathan, or at the very least, to say something to Broadway by way of explanation, except out of a sense of futility in knowing that this was not a matter to be handled in normal course, or one open for decision on the merits. The entire course of action in relation to Broadway is rather difficult to square with a genuine operational motivation. The arbitrariness of both the procedure for determining guilt and the extreme penalty visited on this respected and competent employee denotes a hostility which is rationally incomprehensible on the basis of normal operational considerations. This can hardly be laid down to mere caprice, first because of the normal presumption that people in the conduct of business affairs act out of rational motives, and secondly, because of Respondent's disclaimer of having been other than rationally motivated. In that context one cannot avoid giving consideration to the element in the record which alone gives rational content to otherwise rationally unmotivated action- Respondent's acknowledged opposition to the Union and Broadway's special role in it is disclosed by the union representatives to Vice President Self during the dis- cussion of arrangements for the forthcoming election. Since this last, when taken alone, does not establish the kind of antiunion animus which would indicate a dis- position to resort to retaliatory measures, then, if the action here under review, with all its infirmities, were rationally comprehensible in terms of an operational motiva- tion, I would hold that the General Counsel had not sustained his burden of proof. This would be on the principle, enunciated in the introduction, that the unper- suasiveness of a reason for the purpose of overcoming an inference of antiunion motivation otherwise warranted does not provide a basis for such inference where the record does not otherwise support it. But a different principle is logically called into play where the action is inherently incomprehensible in operational terms- where the conduct is characterized by a "treat[ment of] like cases differently" 12 and there is but one item in the record which rationally explains such disparateness. It is in that perspective that one must view the line of cases relied on by Respondent which stress the truism that "management can discharge for good cause, for bad cause or no cause at all," 13 for where the record fails to establish that the real cause was "for, or in discouragement of such activities as the act makes permissible," 14 it matters not what other cause it was. But this can hardly be said to foreclose inquiry into the character of the assigned cause as bearine upon what the real cause was- as indicated by the long line of authority in which such questions as how the con- clusion of culpability was arrived at with the employee in question compared with other emplovees, and how the penalty imposed upon the employee compared with that imposed upon others in like situations have been held to bear upon motive. Nor would one understand that it would be "second guess[ing]" the employer in thus inouiring into whether the "guess" the employer asserts he made was the one he had in fact made or had truly relied on. 12 Frosty Morn Meats, Inc. v N.L R B , 296 F. 2d 617, 621 (CA 5). 13 E g , N.L R.B v T A. McGahey, Sr, et at., d/b/a Columbus Marble Works, 233 F 2d 406, 412 (CA. 5). 14 Magnolia Petroleum Company v. N.L R.B., 200 F. 2d 148, 149 (C.A. 5). 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When an employer, during an employee's absence on military leave, and before the employee even knows he is suspected of responsibility, bypasses the usual pro- cedure of getting the employee's story first, finds him guilty in the face of the assumption of part of the responsibility by the expert being consulted in fixing the blame, and then visits the extreme penalty of discharge upon him in disregard of a blameless record in the past and the admitted unlikelihood that he will repeat the laxity attributed to him, and where this occurs in a context in which employees in like situations, have sustained no discipline or at the very least have been given a chance to state their versions, and in a further context in which damage to equipment is admittedly frequent in the employer's heavy operations, and where the risk thereof has at times been knowingly assumed at the supervisory level in deference to the pressures of time, of which this itself is an instance , as appears from Gist's instruc- tions to keep the machine in operation despite its excessive consumption of oil and in Lowder's instructions to Broadway, for which he assumed part of the blame, it is difficult to see how the disparate treatment of the employee in question can tenably be dissociated from the one element which differentiates him from the rest-the employee's leadership in the organization to which the employer as avowedly opposed. And this brings us to Carnathan's testimony that despite the admission that Broad- way's record gave every assurance against a recurrence of the kind of laxity attributed to him, he ordered him discharged as an example for the rest of the force. On the question of the kind of example the discharge of Broadway was likely to furnish the employees, Carnathan's assertion that it was one intended to imbue them with the need for proper care of equipment, bears appraising against the fact that Openshaw made no allusion to that factor in his account of his talk with Carnathan or in his statement of the purpose in discharging Broadway, and against the further fact that from the employees' point of view, in a context in which other employees of hardly greater, if indeed equal, stature were spared any discipline in comparable situations, and were at least heard before decision was made or action taken, the lesson con- veyed to them would be on the basis of the one aspect which from their point of view at least, differentiated him from the others-his special role in the pending organizational campaign and in the forthcoming election. Whether Carnathan in- tended it that way hinges on the probabilities: his explanation for rushing the decision before Broadway returned from military duty when he could be asked his version and for the disparate penalty imposed is rationally incomprehensible in terms of an operational purpose and achieves complete comprehensibility when considered in connection with Respondent's acknowledged opposition to the Union. It is against this element of probability that one must weigh the denials of Carnathan, Openshaw, and Gist, that the information which the union representatives gave to Vice President Self concerning Broadway's role as contact man and as an observer in the election then pending had not been communicated to them. These denials have received my most serious consideration, and I would have been inclined to give them controlling weight but for the fact that I could not conscientiously do so in the face of the imposing array of probabilities depriving them of credence. Quite apart from the principle that knowledge is inferred in situations where the probabilities rule out the likelihood of coincidence (as illustrated, for example, in another field of law, where in a suit for plagiarism the total similarity of the challenged product to the original so far dispels the likelihood of coincidence, that it warrants the inference, without need for independent proof, that the alleged plagiarist had access to the original), there is the fact that the information which Self received, considering his common interest with his associates in the matter involved, was of a kind which it would have been natural for him to communicate to them. His function as the management repre- sentative in charge of the arrangements for the election involved his being in touch with them. His making the rounds with Openshaw during his preelection speeches, although occurring after Broadway's discharge, were an aspect of his function to work in conjunction with the people in the operations branch on such a matter from the start, as would appear, for example, from his indicating to the union representatives (supra, footnote 2) that he too would check on the matter in connection with which Broadway's name happened to come up. On a matter in which Self was thus en- gaged with his associates on a common project and in pursuit of a common objective, it would be the natural thing for him to share with his fellow representatives of management such information as would be likely to be of mutual interest. And in a situation in which the Company is opposed to the Union, and where its reaction, on receiving on May 15, a notification from the Union that the employees had desig- nated it as their representative was, as Self stated it to have been in his first talk to the employees, one of "surprise . because the Management of your Company had no idea that you were dissatisfied to the extent that you would petition an outside BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 625 party to represent you," the extent of the Union's support among the employees and its source would be a matter in which Respondent had a deep interest, and in which management representatives would be disposed to share their information with each other. The desire for such information would seem implicit in Openshaw's inquiry of Gist when the Union made its first appearance at the plant earlier that same month; for though Openshaw asked, as Gist quoted him, whether he "had heard anything about them getting into the Union," it would seem reasonable to assume that Gist did not regard Openshaw's inquiry to be limited to its literal language any more than one would so construe an inquiry concerning whether one had the time: implicit in it would be a request for such information as Gist then had, and in view of Re- spondent's interest in the general subject, as he might later acquire. In these cir- cumstances, it would have been the natural thing for Gist to indicate to Openshaw the sources of the Union's support as he observed them from the union stickers on the several cars, including Broadway's, and for Self to inform his associates-Openshaw, who headed the area where the election was to be held, and the person with whom he would normally consult in regard to matters concerned with it, and Carnathan, who was in charge of all operations, including those in Montgomery, and whose office, like Self's, was in the Birmingham headquarters-concerning such a matter as the identity of the employee who the Union indicated to Self was its contact man with the other employees and an observer for it at the forthcoming election. Nor can it fairly be said that the testimony of these persons, when taken as a whole, possesses that unimpeached quality which endows their denials with a special credence superseding the probabilities. 15 These, taken in connection with Self's failure to testify, although opportunity for taking his testimony was proffered Respondent (supra, footnote 2) and the failure otherwise to explain a hostility to Broadway which the singularly disparate treatment of him connotes, warrant the inference that the management rep- resentatives shared with each other the knowledge of the one factor which, in the light of Respondent's opposition to the Union, alone makes such hostility, and the attendant disparateness, rationally comprehensible. The case has been close, and has presented difficulties of evaluation. But on the entire record, and having considered the strengths and the weaknesses on each side, I am of the conclusion that the balance tips in favor of the General Counsel's con- tention and that he has sustained his burden: that the unfortunate damage to the engine was employed as a colorable basis for imputing to Broadway, under a dis- parate procedure, a guilt which would not otherwise have been imputed to him but for his leadership in the Union; that but for such leadership, Respondent would not have denied him the usual opportunity to give his version before coming to a de- cision or taking action; that indeed but for such leadership, Respondent, even with- out Broadway's story but on the strength of Lowder's assumption of part of the blame and Broadway's hitherto flawless record, would, as it had done with the employees involved in the damage to the water pump and the crawler crane, have given him the benefit of the doubt; alternatively, and even if it had truly deemed Broadway lax in this lone instance, then, on the basis of a distinguished record free of that kind of laxity in the past and admittedly giving every assurance of its non- recurrence in the future, Respondent, but for Broadway's leadership in the Union, would still have retained him in its employ. Broadway's leadership in the Union being a producing cause of the termination, which would not have occurred but for it, Respondent, by thus discharging Broadway, discriminated in respect to his hire and tenure in violation of Section 8(a)(3), and interfered with, restrained, and 15 E g., Gist's shifts in position on various matters during his later testimony, when called by Respondent, from those given earlier, when called by the General Counsel (in- cluding the cost of the water pump, what employee had the responsibility for attending to it, and the matter of whether it had been at his behest that Broadway worked on the Saturday after the breakdown of the engine , when, in fact, Broadway could only have done so on authorization of the station superintendent-Gist) ; Openshaw's failure, in his first two accounts of the interview at the shop to mention that Lowder had assumed part of the blame for the occurrence, the belated admission of which undermined, as did also his other concessions in relation to Broadway, the veracity of his assertion that he had felt Broadway's case to be so "cut and dried" and without extenuating circum- stances," as to dispense with even asking Broadway's version of the occurrence ; and Carnathan's equally incredible explanation for denying Broadway the customary oppor- tunity to state his version-taken in connection with the fact that Respondent, with no explanation therefor, never produced the person whom Openshaw named as the one who, on his visit to the main shop on June 15, had given him both the reoprt and explanation on which he assertedly relied, and had made the crucial admission in question. 649856-63-vol. 137-41 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coerced its employees in the exercise of their rights under Section 7 , in violation of Section 8 (a) (1) of the Act.16 B. The two conversations occurring after the discharge of Broadway The General Counsel alleges as violations of Section 8(a) (1) two conversations in mid-July, one by General Superintendent Openshaw and the other by Alva Ray, surveyor and drill superintendent of the Montgomery area-each with a separate employee since laid off. Openshaw's conversation was with Matthew Maxie, a &eneral helper at Cook sta- tion . It took place while Openshaw was conveying Maxie for preparatory work at the area which was to be used after Cook station was worked out. In the course of the conversation , which touched upon the weather and also the size of the land and anticipated duration of the new station, Openshaw, as he admitted, initiated the sub- ject of the Union. Maxie testified that Openshaw said that "he thinks he treats the fellows nice. He give them a little increase every year, but, the past two years he didn't get a chance to give them an increase. He said if there was any way he could keep the Union out he was going to do it." Openshaw testified that after informing Maxie that management had met with the union representatives the other day to discuss the plants which were to be included in the forthcoming election , he said: Maxie, I have heard that some of the fellows would like to know how the com- pany feels about the union. . . . I don't know how you feel about it but I can tell you that the company would rather that we did not have a union. . That they feel that they can better manage their business for the benefit of all concerned by themselves. The company has given from year to year what they felt in the way of wage increases, other benefits, unproved working condi- tions, what they felt was justified and necessary and that some years we had done better than the other . The last year we did not give a wage increase, we did give five paid holidays and two and three weeks vacation . . . . You have been here since 1955, I believe, and if you think back you can remember that every year that we have improved working conditions , built a bath house, bathroom, have given raises and the company has done what they thought was necessary and justifiable in that way down here . I think everybody knows that it does not matter whether a man belongs to a union or does not belong to a union . He can join or not join. If we have a union, it wouldn't in any way affect his job. . . . Maxie, that is the way I feel about it and I hope that we don't have a union. Openshaw denied that he said that "if there was any way he could keep the Union out he was going to do it." Ray's conversation was with Richard R. Dozier, a general helper in the main shop. Ray had had only infrequent prior contact with Dozier, who was outside Ray's supervision . Ray admittedly initiated the conversation by calling that employee into his office as he was leaving the washhouse . Dozier gave the following version of what was said: he stopped me and called me back and asked me did I attend the meeting. I said what meeting and he said the meetings and I asked him again, what meet- ings was he talking about and he said , "The meetings that the boys go to," and I said , "Yes, I attend them," I told him, "quite often," I said, "Every time that they have a meeting" and he asked me then , he says did I join the Union and I told him "Yes, I signed a card." He asked me, he says, "What do you think about the Union?" and I told him , "It was not a better thing in the world and as far as I know that that is my first time going into it." Then he asked me, he le Due consideration has been given to the fact that in the election held among the approximately 90 employees in the Montgomery area , the Union polled a substantial majority of the votes . But it is well established that the legal consequences of an em- ployer's actions , as in the case of a union's , are not determined by the actual effect upon the employees , as distinguished from the tendency of such action Due consideration has also been given to the fact that in the Birmingham area, the employees have been organized and that Respondent has for some time past had a contract with the Union covering those employees . The record is clear, however , that this did not lessen Respond- ent's aversion to the prospect of its hitherto unorganized group in the Montgomery area becoming organized Indeed, in the same address in which Self described Respondent's reaction to the Union 's letter on May 15 , he cited his prior "dealings with the United Steelworkers of America" as a basis for viewing such prospect with disfavor in Montgomery. BIRMINGHAM SLAG DIV. OF VULCAN MATERIALS CO. 627 says, "I reckon you are going to be on strike Monday morning " and I said, "As far as I know I don't know anything about a strike at all." He says, "This con- versation that you and I are talking about ," he asked me not to say anything about it. I told him that I would not . He says, "You sure that you would not say nothing about it?" and he said, "Whatever you do do not say anything about it" and I said, "No." But I did say anything about it. I brought it up at the Union meeting at the time. Ray denied that he asked whether Dozier had attended the meetings. After being asked whether he had pledged Dozier to secrecy, he gave the following version of their talk: Not in that sense. . . The conversation, to the best of my knowledge, had gotten to the raise of six cents an hour out in the shop. I mentioned to Richard, "Well, you got an increase in pay," or something of that sort. . . . Then he proceeded to tell me, this in general , and I pay no attention to it because I guess this is what they were talking about . Well, I don't remember whether I asked him how but I don't recall whether I did . But I did assume that he may or may not have been talking about the union. I did make this statement. I said, "Richard, I don't think it would be good to talk to me about what I think you are talking about." He said, "Yes, that is right." There was nothing more said about the conversation as far as union . I have never mentioned the word "union" to him at all . It was him to me. On the basis of my close observation of the witnesses and the appraisal of the quality of the testimony in terms of content and the probabilities , I credit Open- shaw's version of his conversation with Maxie and Dozier's version of Ray's con- versation with him . I have previously indicated that Openshaw struck me as a compassionate person, not given to uttering threats. Except for Maxie's attribution of the statement that he would keep the Union out in "anyway" he could, the two versions are concurrent, except that Openshaw elaborated upon the benefits given by the Company to the employees . At best to the General Counsel , the disputed state- ment was but Maxie's interpretation of Openshaw's comments; and even if it be sound, the fair meaning is derived from the kind of appeal which preceded it. It followed pretty much the line of views, arguments , and opinions embodied in the shortly ensuing addresses of Vice President Self, in the preparation of which Open- shaw had collaborated . In that context, I would conclude that the fair import of Openshaw's statement was that the Company would do what it could to carry home to the employees the viewpoint he had just expressed and in which indeed he was soon to assist Self. On fair appraisal , I would conclude that Openshaw 's comments are within the limits permitted by Section 8(c), and I find they did not violate Section 8(a)(1). Ray's version reflects a good deal of the elements , which were even more apparent at the hearing, of a man troubled by what he remembers and is trying to forget it. In the context of a pending election , his going out of his way to call this laborer in was manifestly in relation to the very issue involved in the election . Of course, he did not use the word "union" at the outset, but it could hardly have been clearer that this was the subject of his inquiry , and that he did ask Dozier about his at- tendance at its meetings and his opinion of it. Respondent suggests the absence of a context which would give the inquiry a coercive connotation within the doctrine of Blue Flash Express, Inc., 109 NLRB 591. I do not agree. To be specially called in by a representative of management, who has had little prior contact with him , and to be specifically asked about his affiliation with a union , to which the employer is avowedly opposed, is hardly an incident calculated to imbue the employee with a sense of security-especially in Dozier's case. A score of years ago , during his eighth or ninth year with Respondent , he sustained an injury to an arm , which apparently limited his utility, which would tend to make an employee of that character feel less secure in his position than the ordinary employee . Nor can we divorce this from the back- ground of the discriminatory discharge of Broadway . Ray's action, when taken as a whole, considering the manner in which it was initiated, the kind of employee with whom it was done, the nature of the inquiry made, the pledge of secrecy with which it was concluded , and against the background of the prior unfair labor prac- tice, had a restraining and coercive tendency and thus offended the proscription of Section 8(a) (1). M. THE REMEDY The usual cease and desist requirement will issue, here of a broad character, since a discharge for union activity goes to the heart of the Act, (N.L.R.B. V. Entwistle Mfg Co., 120 F. 2d 532, 536 (C.A. 4); as well as the standard remedial requirement 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for reinstatement of Broadway to his former or substantially equivalent position (The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827, 829), without prejudice to seniority and other Tights and privileges, and for making him whole for any pay losses by reason of the discrimination, within the principles enunciated in F. W. Woolworth Company, 90 NLRB 289, and N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. Upon the findings above and the entire record , the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. By discharging Broadway because of his membership and activity in the Union, Respondent discouraged membership therein by discriminating in respect to the hire and tenure of employees , thereby engaging in an unfair labor practice within the meaning of Section 8(a) (3) of the Act. 2. By the above, and by the conduct of Alva Ray, a supervisor , in interrogating an employee concerning his affiliation and sympathy with the Union, in the manner, circumstances , and context in which the same occurred, Respondent interfered with, restrained, and coerced employees in the exercise of their rights as guaranteed by Section 7 thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. By the conversation of the general superintendent with Matthew Maxie as heretofore found, Respondent did not engage in an unfair labor practice within the meaning of Section 8 (a) (1) of the Act. [Recommendations omitted from publication.] Local 373, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and Carleton Brothers Company. Case No. 2-CD- 219. June 15, 1962 DECISION AND ORDER QUASHING NOTICE OF HEARING STATEIIIENT OF THE CASE This is a proceeding under Section 10(k) of the Act following a charge filed by Carleton Brothers Company, herein called Carleton, against Local 373, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, herein called Plumbers or the Respondent, alleging that the Plumbers unlawfully coerced Carleton and certain other em- ployers with the object of forcing Carleton to change work assign- ments from the employees of Orange and Rockland Utilities, Inc., herein called Orange and Rockland, to employees of Thomas J. Kemp- ton, Jr., herein called Kempton. A duly scheduled hearing was held before James J. Graham, hearing officer, on January 23, 24, and 31, 1962, at New City, New York. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prej- 137 NLRB No. 80.