Gulf Coast Portland Cement Co.

GULF COAST PORTLAND CEMENT 47 Gulf Coast Portland Cement Co. and United Ce- melit, Lime and Gypsum Workers International Union, AFL-CIO. Case 23-CA-2539 January 9, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On November 9, 1967, Trial Examiner John P. von Rohr issued his Decision in the above-entitled proceeding, finding that the Respondent had not en- gaged in unfair labor practices as alleged in the com- plaint and recommending that the complaint be dismissed, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Coun- sel filed exceptions to the Trial Examiner's Deci- sion and a supporting brief. The Respondent filed limited cross-exceptions to the Trial Examiner's Decision and a brief in support thereof and in answer to the General Counsel's exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. herein called the Respondent or the Company, alleging that it had discharged employee James W. Goodman in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, 51 Stat. 136, herein called the Act. The Respondent's answer denies the allegation of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before Trial Ex- aminer John P. von Rohr in Houston, Texas, on June 27, 1967. All parties were represented by counsel and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs have been received from the General Counsel and the Re- spondent and they have been carefully considered.' Upon the entire record in this case and from my obser- vation of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a corporation licensed to do busi- ness in the State of Texas, with its principal office and place of business in Houston, Texas, where it is engaged in the manufacture and sale of Portland cement. During the 12 months preceding the hearing herein, the Respond- ent purchased and received goods valued in excess of $50,000, which goods were shipped directly to it from points and places outside of the State of Texas. During the same period, it sold and shipped goods valued in ex- cess of $50,000 from its Houston, Texas, plant to points and places outside the State of Texas. The Respondent concedes, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Cement, Lime and Gypsum Workers Interna- tional Union, AFL-CIO, is a labor organization within - the meaning of Section 2(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the complaint herein be, and it hereby is, dismissed. ' General Counsel has excepted to certain of the Trial Examiner's credibility findings As the clear preponderance of the relevant evidence does not persuade us that the Trial Examiner 's resolution of credibility is- sues was incorrect, we find insufficient basis for disturbing his credibility findings Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d 362 (C A. 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Trial Examiner: Upon a charge, duly filed, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23 (Houston, Texas), issued a complaint on December 23, 1966, against Gulf Coast Portland Cement Company, III. THE UNFAIR LABOR PRACTICES A. The Facts James W. Goodman, the alleged discriminatee herein, started work for the Houston Shell & Concrete Company on June 26, 1957. Houston Shell and the Respondent Company are commonly owned and are both under the presidency of Mr. E. B. Good. In 1962 certain employees of Houston Shell were given an opportunity to transfer to the Respondent Company, which was then commencing operations, if they so desired. Goodman was one of the employees to voluntarily accept such a transfer and he began working in the Respondent's maintenance depart- ment in May 1962. He continued to work there until Oc- tober 14, 1966, at which time he was discharged. The Union commenced an organizational campaign among Respondent's employees in the early part of Sep- tember 1966.2 Goodman was among the first employees to be in contact with the Union and he thereafter became an active union adherent. In addition to soliciting em- ployees for union membership, which activities occurred 1 The Respondent's unopposed motion to correct the transcript, which is made a part of the record herein, is hereby granted. 2 The campaign culminated with the Union winning an election con- ducted on November 18, 1966. 169 NLRB No. 8 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the plant during nonworking time and also included visits to the homes of employees, Goodman was I of 12 members appointed on the Union's organizing commit- tee.3 It is undisputed that on September 8, 1966, the Union notified the Respondent by letter of the names of the 12 employees, including Goodman's, who com- prised the organizing committee. The incident which is asserted by the Respondent as the cause for Goodman's discharge occurred on Thursday, October 6, 1966. As was their customary practice, a group of employees gathered before work in the morning in a small coffeeroom above the electrical shop to have coffee. On this morning the group included employees Goodman, Danny Villarreal, George Huling, Clinton Holder, Leonard Beason, Boyd Martin, and Reginald Hocutt. During the discussion which ensued, someone brought up the subject of the Union. While there is some variance in the testimony as to details, there is no dispute as to the substance of the discussion which fol- lowed. Thus, upon mention of the Union, Goodman stated that he thought the Union had enough backers to get in the plant. Employee Villarreal thereupon stated that even if this were true, this did not mean that the Union would necessarily get a contract. Goodman replied that they were pretty sure of getting a contract, but if they had to, they would put up a picket line. Villarreal then spoke up and said that the State of Texas had a right to work law and that he would cross any such picket line. Employee Huling declared that he would, too. Goodman thereupon said that anyone who crossed the picket line would be beat up. Aggravated by this remark, Huling at this point asked Goodman to "come downstairs and take care of that now." Goodman declined, stating that it would not be he, but that it would be someone from the Union unknown to anyone who would do the beating up. The conversation among the employees thereupon broke up, with Goodman stating he had better "hush up" and that whatever he said might be taken to the office before the day was over.4 B. J. Showalter, Respondent's operations manager, testified that on the following Monday or Tuesday (Oc- tober 10 or 11) he was advised by Bill Hess, the opera- tions supervisor, that "there had been a threat made by Goodman in the electrical coffee shop." According to Showalter, Hess stated that he heard about the matter from Mr. Fry, the purchasing agent, who had learned about it through overhearing a conversation between em- ployees Huling and Holder. Showalter testified that due to a problem with the Company's rotary kiln he was not able to check the matter immediately, but that he did talk to Holder either late Monday or early Tuesday. Showalter said that at this time "I asked Mr. Holder if he had heard this thing. He said `Yes."' He thereupon asked Holder if he would give an affidavit, but told him that 3 There were approximately 60 maintenance and production employees employed by the Respondent during the period relevant hereto. 4 Testifying to the above conversation, Goodman and Hocutt were called as witnesses for the General Counsel. Testifying to the same con- versation as witnesses for the Respondent were Landrum, Huling, Holder, and Villarreal. From a composite of the testimony, I have set forth above the conversation as I am best persuaded that it occurred. However, in view of the admission by Goodman in his prehearing af- fidavit that "that morning (October 6) when I was supposed to have made the threat, I just don't remember what I said," I have given little weight to Goodman's version of the conversation as testified to by him at the hear- ing. It may be noted that Goodman also stated in his affidavit, "I could have said that someone from the Union we didn't even know would be the such a statement would be voluntary and that he would give him a day or two to think it over. During this conver- sation Holder furnished the names of Huling and Villar- real as having been present on October 6. Within the next several days, Sam Meason, the Respondent's controller, secured written statements from Holder, Huling, and Villarreal concerning the October 6 incident.5 On Thursday, October 13, Showalter con- sulted with Respondent's attorney, James J. Loeffler, and told him he thought Goodman should be discharged, but that he first wanted to clear this with Company President E. B. Good. Showalter testified that he talked to Pre- sident Good on October 14, apprised him of the Good- man situation, and recommended that Goodman be discharged. According to Showalter, Good agreed with the recommendation and told him not to delay the discharge any further. About the end of the day on October 14, Goodman, Huling, Holder, and Villarreal were called into Showalter's office. Showalter testified that he had the af- fidavits of Huling, Holder, and Villarreal before him. He testified that he took one of the affidavits (he did not re- call which one) and in the presence of the employees read to Goodman the first paragraph of the statement which, he said, contained the alleged threat made by Goodman. In testifying to this conversation, Showalter did not refer to the affidavit which he said he read to Goodman,6 but he testified that in substance the statement which he read to Goodman stated, "We will put a picket line around the plant, anyone that crosses it will get beat up." Showalter said that he then asked Goodman if he had made such a statement, and that Goodman admitted that he had. Ac- cording to Showalter, he then told Goodman that he "didn't want there to be any doubt about it whatsoever" and that he asked Goodman for the second time if he had made the statement. Showalter said that Goodman again affirmed that he had. At this point Showalter told Good- man that the Company would not tolerate threats and ad- vised him that he was discharged. While there is no material dispute concerning this part of the discharge conversation,7 there is a conflict in the testimony as to what transpired between Showalter and Goodman after the other employees then left the office. Goodman testified that he asked to speak to Showalter for a moment after the others had left and that Showalter granted him permission to do so. It was Goodman's testimony that at this point, "I told Mr. Showalter I was sorry, that if I knew this union was going to make me lose my job, I didn't know whether I would mess with it or not." He said that he then asked Showalter for a second chance, but that Showalter replied, "I can't give you a second chance, it's out of my hands." According to Goodman, he then asked Showalter, "Whose hands ! is it in, Mr. Goods?" but that Showalter replied "he didn't know." one to whip anyone crossing our picket line. I just don't know." 5 Testimony of Showalter. Meason did not testify as to his taking these statements from these employees. 6 Respondent's attorney indicated that he did not have the affidavit(s) with him at the hearing. 7 Concerning his conversation with Showalter in the presence of the three employees, Goodman testified that Showalter asserted that, "These three men have come forth and signed an affidavit you threatened to beat the hell out of them if they crossed the picket line." Goodman said that he responded with the statement, "No, sir, I said they would get their butts whipped for crossing it." Goodman testified that Showalter then asked the question for the second time and that he gave the same answer. GULF COAST PORTLAND CEMENT 49 Goodman further testified that during the conversation Showalter stated that the Company could not condone any violence or threats and that "there was just no room for a union in the company." He responded, he said, with the statement that "It looks like there may have to be room in the Company for a union." Additionally, Good- man testified that at one point in the conversation Showalter told him, "I know you are on the Organizing Committee, because we have a letter from the Union with your name on it showing [you are a] representative of the Union and a plant organizer." His testimony, however, was confusing as to the context in which the latter state- ment was allegedly made. As to the conversation which occurred between Good- man and himself after the other employees had left, Showalter testified that the only mention of the Union by Goodman was a statement by him that "if he knew his as- sociation with the Union would cost him his job, he wouldn't have gotten in it." Showalter denied that he made any statement to the effect that there was no room in the Company for a union. I credit this denial by Showalter. The testimony reflects that Showalter con- sulted with Respondent's attorney before discharging Goodman and that he was quite aware that it was neces- sary to proceed with caution in dealing with any labor relations problem that might arise during the Union's or- ganizing campaign. I just cannot believe that Showalter would permit himself to make any statement while ter- minating Goodman, that could be construed as relating this employee's discharge to Company opposition to the Union. I also credit Showalter's denial that during the conversation he told Goodman that he knew Goodman to be on the Union's organizing committee.8 This completes the facts as to Goodman's discharge. However, in support of Goodman's case and for the pur- pose of showing Company hostility to the Union, the General Counsel introduced in evidence the following notice which concededly was posted on Respondent's bulletin board the afternoon of September 28 and the morning of September 29, 1966. TO: ALL PRODUCTION AND MAIN- TENANCE EMPLOYEES FROM: E. B. GOOD With our permission, the National Labor Relations Board, an impartial governmental agency, will con- duct an election in our plant lunchroom between 3:00 to 5:00 p.m. on the afternoon of Friday, November 18, 1966. All production and maintenance employees including leadmen, laboratory technicians and plant clerical employees will be eligible to vote. The payroll period for voting eligibility is the payroll period ending at 8:00 a.m. on Monday, October 3, 1966. This election will decide whether or not you wish to be represented solely and exclusively by the gypsum workers' union. It is our experience that the union has no real interest in you or your families, but are only interested in the monthly union dues, assess- ments and other monies that such bosses expect to collect from you. Your company is wholeheartedly opposed to the gypsum workers' union and feels very strongly that you do not need a union in our small plant. The union cannot make good on their promises to you, and they will only cause conflict and trouble and will not help anyone. We are sure that most of you are good, loyal em- ployees and do not wish to give up all of your in- dividual rights to this so-called union. To those few employees who now appear to be interested in the union, we can only suggest that, if they want to give up all individual rights to the union, they should go get a job somewhere else where they will be just a number and not a person. Your company will con- tinue to be completedly fair with all of you, and we do not want the union here. We ask all of the many loyal employees to help us de- feat the union. Let's keep the union where it belong - OUT. A NO vote on November 18th means no union. B. Additional Facts; Conclusions It is the contention of the General Counsel that Good- man's statement concerning the effect of a picket line if the Union were selected and if a strike occurred was of a speculative nature and therefore did not really constitute a threat. I connot agree, Having found that Goodman made an unequivocal statement that employees who at- tempted to cross a picket line would be beat up by someone from the Union, in the event a picket line ever were established, I think it clear that this statement must be viewed as a threat to the employees who were present when the statement was made.9 Nevertheless the issue remains, as alternatively raised, whether the Respondent in fact discharged Goodman for making the threat or whether Respondent seized upon the threat as a pretext for ridding itself of this member of the organizing commit- tee. The pros and cons of this case are exceedingly close. Considering first the evidence in favor of the General Counsel, it is of some significance that Goodman was an employee of longstanding (over 9 years), and that his record throughout his employment was a good one. Goodman credibly testified that he had never been laid off and that he never before had been reprimanded or warned for any misconduct. The very length of his em- ployment tenure in itself is clearly indicative that the Company was satisfied with his work performance. Thus, even though Goodman's threat rendered him chargeable with misconduct, it might be argued, in view of Good- man's record and since this was his first offense, that Respondent might well have been satisfied to warn or otherwise reprimand Goodman without resorting to the 8 I do, however, credit Goodman's uncontroverted testimony that he asked Showalter for a second chance, but that Showalter refused. I Cf Pascow Steel Corporation, 163 NLRB 572, Gulf Container Cor- poration, 161 NLRB 734. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extreme penalty of discharge.10 When this is coupled with the fact that Respondent was strongly opposed to the Union and to the organizational activities of its em- ployees, it cannot be said that Respondent's motive in discharging this active union adherent is not open to question." Turning to the other side of the case, it is in Respond- ent's favor that, notwithstanding its strongly stated op- position to the Union, it did not, throughout the Union's organizing campaign, engage in any conduct which inter- fered with, restrained, or coerced the rights of employees guaranteed under Section 7 of the Act.12 Goodman, on the other hand, admittedly made the threat that, if a picket line were established, employees who attempted to cross it would be beat up. The effect of this threat upon the em- ployees to whom it was made might well be considered particularly grave in view of the fact that Goodman was a member of the Union' s organizing committee.'3 The Respondent was aware that Goodman occupied this posi- tion and undoubtedly so were the employees. It can hardly be argued that an employer, as here, must tolerate coercive statements made by employee organizers to "Showalter testified that the Respondent maintained a set of rules, ap- parently set forth in a handbook which is distributed to new employees, which sets forth some type of a warning system for certain offenses. How- ever' the rules were not introduced in evidence and the record does not reflect the nature of any such warning procedure or the offenses which may be involved . While the Respondent well may have introduced the handbook of rules for such bearing as it may have upon the case, I think the burden here was upon the General Counsel to establish, if he could, that Goodman's discharge was not in keeping with Respondent's rules and practices. This he failed to do. In the above connection, the General Counsel argues that Respondent's action in discharging Goodman for having made a threat was inconsistent with its failure to take any action against employee George Huling because of Huling's "threat" to take Goodman outside. In the context of the entire conversation, as heretofore set forth, I think it clear that Hul- ing's statement was not a "threat" in the same sense as was Goodman's, but rather was a spontaneous reaction by him to the statement by Good- man which immediately preceded it. If anything , this reaction by Huling reflects that he indeed took Goodman's statement seriously. other of its employees during the course of an organiza- tional campaign. While the case is not free from doubt, upon the entire record, I am persuaded that any inference that Goodman was discharged because of his union ac- tivity is no greater than the inference that Respondent discharged this employee because of the unprotected ac- tivitiy in which he engaged on October 6, 1966. On this state of the record, I do not believe that the General Counsel has established by the requisite preponderance of the evidence that Goodman was discharged in viola- tion of the Act. It is, accordingly, recommended that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. I have not overlooked the evidence pertaining to an incident between employee Hocutt and his foreman , Pat Caldwell. However, I find this matter to be trivial and irrelevant and do not deem it necessary to discuss it. It is not mentioned in the General Counsel's brief. 11 That Respondent was hostile to the Union is manifested in the notice to employees, heretofore set forth, in which Respondent not only stated that it was "wholeheartedly opposed" to the Union, but in which it went so far as to suggest that those employees interested in the Uniom might seek employment elsewhere. 12 The Respondent of course had a perfectly legal right to oppose the Union as long as it did so without the commission of any unfair labor prac- tices. As to the notice posted by the Respondent on September 28 and 29, it may be noted here that the complaint does not allege, or does the General Counsel contend, that the notice or any statement therein is violative of the Act. However, as has been indicated, I have considered the notice as evidence of Respondent's hostility to the Union, this a rele- vant element to the issue herein. 13 I do not deem it necessary to decide Respondent's contention that Goodman was an agent of the Union.