Automotive Armature Co., Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1981

256 N.L.R.B. 270 (N.L.R.B. 1981)

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Automotive Armature Co., Inc. and Charles Pugh.
Case 25-CA-11797
June 1, 1981
DECISION AND ORDER
On March 4, 1981, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed limited cross-exceptions, a reply brief,
and a brief in support of the Administrative Law
Judge's Decision.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions and briefs and has decided to
affirm the rulings, findings,' and conclusions of the
Administrative Law Judge his recommended
Order, as modified herein. 2
The Administrative Law Judge, inter alia, prop-
erly held that Respondent violated Section 8(a)(1)
of the Act by discharging Pugh on January 18,
1980. In discussing this action, he stated that the
principal issue is whether Respondent was "wholly
or partially motivated" by Pugh's suggestion to his
fellow employees on January 11 that they go on
strike to secure a raise in pay. Although the Ad-
ministrative Law Judge concluded that the dis-
charge was "substantially, if not solely motivated"
by Pugh's strike talk, he nevertheless found that all
other reasons given by Respondent for discharging
Pugh were pretextual. In this connectin, the Ad-
ministrative Law Judge found, and we agree, that
Respondent was not motivated by (1) Pugh's re-
quest for a -day delay in starting his December
26, 1979, run; (2) his delayed departure with re-
spect to another run until late afternoon on January
2, 1980; or (3) his failure to attend the company
meeting on January 11.3 Thus, despite the Admin-
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings.
The Administrative Law Judge made, and we hereby correct, the fol-
lowing inadvertent errors which, however, do not affect the validity of
his findings: (1) Driver Charles Pugh was the fourth rather than the third
most senior driver. (2) Respondent President Jack McGuire questioned
Pugh on January 11 rather than January 5, 1980, concerning the comple-
tion of his run. (3) Pugh returned to the garage from another run at 7:15
p.m. rather than 7:15 a.m on January 17, 1980. (4) Driver William (Chet)
Kindel was called into McGuire's office on January 18 rather than Janu-
ary 17, 1980
2 As Respondent's unfair labor practices do not warrant the broad
Order recommended by the Administrative Law Judge, we shall include
"narrow" language in the Order. See Hickmot Foods. Inc., 242 NLRB
1357 (1979).
3 The Administrative Law Judge erred in stating that Respondent on
January 21, 1980, invoked group I of its rules and regulations which re-
quires a series of prior warnings for absenteeism. Although Respondent
256 NLRB No. 43
istrative Law Judge's use of the terms "in part"
and "substantial" with respect to Respondent's mo-
tivation, 4 it is clear from his elimination of all other
reasons as pretextual that he in effect held that the
discharge was solely motivated by Pugh's sugges-
tion to other employees that they engage in a strike
or work stoppage. 5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Automotive Armature Co., Inc., Mooresville, Indi-
ana, its officers, agents, successors, and assigns,
shall take the action set forth in the recommended
Order, as so modified:
Add the following paragraph as (d):
"(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act."
in fact cited group IV which provides for discharge following and em-
ployee's first offense in refusing to carry out a supervisor's instructions
and intentionally slowing down or interfering with production, this pur-
ported reason for the discharge 3 days after it took place has no merit in
view of its character as an afterthought and the Administrative Law
Judge's holding that Pugh's strike talk was the only reason for his termi-
nation.
4 In accordance with Wright Line, a Division of Wright Line, 251
NLRB 1083 (1980), we disavow such language.
See Limetone Apparel Corp., 255 NLRB No. 101 (1981)
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge:
Upon unfair labor practices filed in Case 25-CA-11797
on January 30, 1981, by Charles Pugh, an individual,
herein called Pugh or the Charging Party, the General
Counsel, on behalf of the Regional Director for Region
25, issued a complaint against Automotive Armature Co.,
Inc. (herein called Respondent or Company) on March
6, 1980.
The complaint in substance alleged that Respondent
interfered with, restrained, and coerced its employees in
the exercise of their Section 7 rights; by threatening its
employees with discharge if they talked about engaging
in a concerted work stoppage; by forbidding its employ-
ees to talk about engaging in a concerted work stoppage;
and by discharging an employee for discussing employ-
ees engaging in a concerted work stoppage, all in viola-
tion of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
On March 11, 1980, Respondent filed an answer to the
complaint denying that it has engaged in any unfair labor
practices as alleged in the complaint.
AUTOMOTIVE ARMATURE CO., INC. 271
The hearing in the above matter was held before me in
Indianapolis, Indiana, on August 6 and 7, 1980. Briefs
have been received from counsel for the General Coun-
sel and counsel for Respondent, respectively, which 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
I. JURISDICTION
Respondent Automotive Armature Co., Inc., is, and
has been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of
the State of Indiana, where it has maintained a principal
office and place of business in Mooresville, Indiana,
herein called the facility, where it has always been en-
gaged in the manufacture, sale, and distribution of rebuilt
automotive and related parts.
Respondent, in the course and conduct of its business
operations, during the calender year ending December
31, 1979, sold and shipped from its Mooresville, Indiana,
facility, products, goods, and materials valued in excess
of $50,000 directly to points located outside the State of
Indiana. During the same representative period, Re-
spondent, in the course and conduct of its business oper-
ations, purchased and received at its Mooresville facility,
products, goods, and materials valued in excess of
$50,000 directly from points located outside the State of
Indiana.
The complaint alleges, the answer admits, and I find
that Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
It. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Respondent is an Indiana corporation with its principal
place of business located in Mooresville, Indiana, where
it is engaged in rebuilding automotive electrical parts,
such as generators, starters, and alternators. A significant
part of the operations of Respondent's business involves
the picking up of such parts for repair as well as the de-
livery of the repaired parts to various locations in the
States of Indiana, Kentucky, Tennessee, Michigan, Mis-
souri, Illinois, Wisconsin, and Ohio.
To further carry out the pickup and delivery aspects
of its business operations, Respondent has employed and
maintained seven truckdrivers. They were hired in the
following order; Bob Whitlow-who was off on sick
leave until January 21, 1980, Chet Kindale, Charles
(Bud) Pugh, John Wagner, Paul (Fuzz) Bain, Luther
Ridgeway, and Daniel (Danny) Sparks.
Respondent also employs Marvin Sparks (father of
Danny Sparks and husband of Rosie Sparks), as foreman
over the garage and maintenance of tractors and trailers.
It employs Rosie Sparks as the dispatcher of trucks and
the maker of assignments for Plant I. In total, Respond-
ent employs approximately 300 people at its Mooresville
facility, and it utilizes diesel road drivers and garage me-
chanics.
At all times material herein, the following named per-
sons are now, and have been at all times material herein,
supervisors of Respondent within the meaning of Section
2(11) of the Act; Jack McGuire-President, Marvin
Sparks-garage foreman, and Rosie Sparks-dispatcher.
During Bob Whitlow's period of sick leave in January,
Luther Ridgeway, who works part time in the garage
and drives part time (road and city), drove full time in
Whitlow's place. Respondent's drivers are paid 50-hours
pay regardless of the time they spend on the road. They
are paid $6.05 per hour plus travel expenses.
In addition to the eight above-named States to which
its truckdrivers drive, they also drive what are called
warehouse runs to Atlanta, Georgia, New Jersey, and
Dallas, Texas. These runs are highly preferred runs be-
cause the warehouse employees do the loading and un-
loading, and the driver has no stops between these desti-
nations and its Mooresville facility.
In December 1979 and January 1980, Respondent em-
ployed 80 to 100 employees on the second shift and 200
employees on its first shift.
Respondent's Exhibit 2, "Rules and Regulations for
Safety and Discipline," which had been in existence for
the past several years, provided as follows:
Regulation Group I:
Third Offense
Fourth Offense
Fifth Offense
Sixth Offense
Verbal Warning
Written Warning
3-Day Suspension
Discharge
Jack McGuire, president of Respondent for the past 7
years, participates in the daily operations of the plant and
he encourages employees, including drivers, to talk to
him and to bring him their problems. He further testified
that the above-mentioned rules and regulations for safety
and discipline are followed and progressively enforced
by Respondent.'
B. Truckdriver Duties and Assignments
A composite of the essentially undisputed and credited
evidence established that Respondent's road drivers make
runs to auto parts stores in the II States heretofore
named, during which runs they may make from 3 to 28
or 30 stops, to either pick up auto parts to be rebuilt, or
to deliver such parts that have been rebuilt. The pickup
and loading and the delivery and unloading procedure is
accomplished by the drivers wheeling a metal drum con-
tainer of parts onto an air hoist winch on the trucks. The
road drivers also make one-stop runs to automotive
warehouses where warehouse employees perform the
loading and unloading duties. These runs, generally to
Atlanta, Georgia, Dallas, Texas, and New Jersey are
highly preferred by the drivers because generally there
are no intervening stops and they have no loading and
unloading responsibility. Additionally, because such runs
are highly preferred, they were assigned to the most
I he facts w forth aho'se are essentially undisputed and are not In
conflict ill the record
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
senior drivers during the period with which we are con-
cerned herein, December 1979 and January 1980.
Each road driver has the same regular runs assigned
for the same week (4 weeks out of each month), inter-
mingled with a few extra runs. The warehouse runs are
generally assigned during the 5th week of the four 5-
week months.
In December 1976, truckdriver Pugh refused to take a
run because he could not use his truck which had to be
repaired. He was ordered to take another truck and he
refused to do so. In March 1977, Puqh refused to drive
another run and he was discharged. In October 1977, Re-
spondent's garage foreman, Marvin Sparks called Pugh
and asked him if he would like to have his old job back.
Pugh said, "Yes" and went to the office where President
McGuire told him he, McGuire, would rehire him on
one condition, if he would get along with dispatcher
Rosie Sparks, go where she assigns him, and not refuse
to do so. McGuire also told Pugh if he disagrees with an
assignment made by Rosie he should complete the as-
signment and take up his grievance with him, McGuire.
On Friday, December 11, 1979, Rosie Sparks assigned
Pugh to a warehouse run to New Jersey. When he was
assigned a regular run on December 26, 1979, Pugh
called Rosie and requested permission to delay his sched-
uled run until the next day, December 27. Rosie granted
Pugh's request, provided he completed his assignment.
Pugh departed on the assignment the following morning,
December 27, and completed 80 percent of the run. He
was not disciplined for not completing the entire run.
Such request by drivers to delay departure have been
made and approved by Respondent on several previous
occasions.
Respondent enclosed with its Christmas gift certificate
to all employees, a notice (G.C. Exh. 4) dated December
21, 1979, informing employees of a company meeting
scheduled for January 11, 1980. A notice (G.C. Exh. 5)
was also dated and posted on the bulletin board January
2, 1980, further notifying employees about the company
meeting on January I 1.
On January 2, 1980, Pugh was assigned a 28-stop self-
run to Michigan while other drivers, some with less se-
niority than Pugh, were given an extra warehouse run.
On the day before, January I fellow truckdriver Fuzz
Bain told Pugh that Rosie permitted Bain to select the
warehouse run to Atlanta, Georgia. Since Pugh was
third on the seniority list, with only Bill Kindale and
Chet Kindale being senior to him, and Bob Whitlow
having been absent on extended sick leave, Pugh felt he
should have been given the preference for a warehouse
run. Consequently, instead of departing on his Michigan
run at his usual departing time 6 or 7 a.m., Pugh went to
the office about 8 or 9 a.m. and asked Rosie for
McGuire. Rosie informed him that McGuire was not
there and may not be in until later. Pugh requested her
to call him (Pugh) at the garage when McGuire arrived
and Rosie agreed to do so. 2 Pugh then left the office and
went to the garage to wait for McGuire.
2 Pugh denied Rosie told him to go on his run, and I credit his denial
in this regard because I was persuaded by Rosie's demeanor and other
evidence of her conduct in dealing with Pugh, that she was emotionally
proemployer in attitude and was not testifying objectively.
Pugh received a call around 3 p.m. at the garage and
he went to the office. In the presence of Rosie Sparks,
Pugh told McGuire that he felt Rosie had treated him
unfairly in not assigning him a warehouse run while she
had assigned a warehouse run to less senior drivers.
Pugh also expressed an interest in the regular Atlanta
run if Whitlow, the most senior driver, did not return.
McGuire said if it could be worked out with Rosie and
the seniority list, Pugh could have it. The conference
ended. Pugh said that, after he returned from his Michi-
gan run on January 2, McGuire came to the garage and
asked him if he had completed his Michigan run, and he
replied, "Yes, all except two, the Tower, Michigan, and
Onaway, Michigan stops." Pugh testified he returned on
January 5 at 3:30 p.m. . .. and McGuire did not display
any dissatisfication or warn him about not completing
the run. McGuire did not deny this statement. Pugh was
nevertheless assigned a junk warehouse run that week-
end.
On the day of the scheduled meeting, January 11, Wil-
liam (Bill) Kindale was not on a run but reported to the
garage just after noon to await the Company's called
meeting. Shortly thereafter, while returninq from the
office, he saw McGuire and asked him if there was any
chance of his getting a raise. McGuire told him business
was slow, the Company was in debt, and he could not
see it at this time. Kindale then asked if he (Kindale)
slept in his truck could he get a raise and McGuire said
he would check into it and let him know later. Bill Kin-
dale returned to the garage where he met fellow workers
John Wagner, Chet Kindale, Bud Pugh, and Garage
Foreman Marvin Sparks. Kindale told them that they
were not going to get a raise. William Kindale, Jr., fur-
ther testified that Bud Pugh initiated the following con-
versation:
A. Well, Bud Pugh asked John if he wanted to
go out on a strike with us, that he wasn't going to
get no raise. And John Wagner told him he needed
the raise but he wasn't going to go out on no strike.
Q. Okay. Do you recall whether Marvin Sparks
said anything?
A. Yes. He said that we better stop and think
about it. You know, business was slow and the
Company was in bad shape and we'd better think it
over for a while.
Q. Do you recall anyone else saying anything to
John Wagner after that, after his answer?
A. Yes.
Q. And who said it and what was said?
A. Well he asked John if he would go out on a
strike with us and John told him, he said no, he
needed a raise but he also needed his job. And then
I said, "John, you wouldn't go out with us?" And
he said no. And then Luther Ridgeway, he was
there, and he had some comments to make.
Q. Did any of the drivers at that time-was
Marvin Sparks present at this time?
A. Yes he was.
Q. Did any of the drivers, other than John
Wagner, say that they would not go out on strike?
A. No.
AUTOMOTIVE ARMATURE CO., INC. 273
With the exception of some witnesses, John Wagner
and Chet Kindale, other witnesses testified that Bud
Pugh's actual words were, "We shouldn't roll," rather
than, "Let's strike." 3 Wagner replied, "Sure, I could use
a raise but I need my job too." All of the drivers present
agreed they needed a raise. They discussed sleeping in
their trucks as a means of cuttinq expenses and possibly
making it feasible for a raise. Wagner acknowledged that
at a later point in time Pugh told him he was just kid-
ding, "we're not really going on strike." He also cor-
roborated Bill Kindale's testimony that Garage Foreman
Marvin Sparks said, in response to the suggestion to
strike, "That's the wrong way to go about it, let's talk to
Jack." Bill Kindale said Marvin Sparks said the Compa-
ny was in bad shape and they were not a union and
therefore, could not go on strike anyway. The scheduled
company called meeting was announced on the intercom
system several minutes after 3 p.m. About 3:30 p.m., Wil-
liam Kindale went to the meeting and Chet Kindale and
Bud Pugh remained in the garage. Foreman Marvin
Sparks told them as he was leaving that they ought to go
to the meeting.
At the meeting, McGuire told the employees the status
of business in the automotive industry was slow and
things did not look very good. He also told them that
the Company was having trouble with defective prod-
ucts; that it had a nurse and that fact had helped the
Company on their insurance. In the past Respondent usu-
ally gave its drivers a raise every year except on May 19,
1979, because it was unable to do so. A part of the
reason for the January 11 meeting was to inform the
drivers that Respondent might not be able to give the
raise this year. The mild winter contributed to slow busi-
ness because starters and generators tend to break down
more frequently in cold weather. During the meeting,
dispatcher Rosie Sparks noticed that Chet Kindale and
Bud Pugh were not present. At the end of the meeting,
she went to McGuire and asked him if he had noticed
that some of the truckdrivers were not present. McGuire
said, "No. Who?," and she said, Bud and Chet. She said
McGuire then swelled up and said, "[t]hat's it. I've had
it. He's finished." Rosie further testified that as she was
leaving the meeting she asked her husband, Foreman
Sparks, why Bud and Chet did not come to the meeting
and Sparks shrugged his shoulders and said, "Well Bud
is over there talking about not rolling Monday." Rosie
testified that she went immedietely to McGuire and in-
formed him about what Marvin told her Pugh had said
about not rolling.
C. Respondent's Discharge of Charles Pugh
On January 14, 1980, Pugh left for his regular Ohio
and Detroit run about 6 a.m. He returned Wednesday
about 8:15 p.m., went to his clipboard and noticed that
he was not scheduled for a run. He went home and re-
ported to the garage the next morning, Thursday, about
7:15 a.m. He was not given an assignment. On Friday,
January 18, McGuire called him at home around 1:30
I do not deem any significant difference between "Let's strike" and
"We shouldn't roll," for all practical purposes, and I find that Pugh
meant strike or work stoppage in any event.
p.m. and asked him if he would come to the office, he
would like to talk with him. Pugh reported to McGuire's
office about 2 p.m., and in the presence of Rosie, he tes-
tified the following conversation occurred.
McGuire told him to give his expense papers to Rosie
and asked him to go into the office. Pugh entered the
office, followed by McGuire who closed the door and
said, "We're calling it quits again." Pugh said he asked,
"What are you talking about?" and McGuire said, "For
your not going to that company meeting is what broke
the camel's back." He asked McGuire was he being fired
for not attending the company meeting and McGuire
said, "Yes." He asked McGuire if he knew he was not
the only driver who did not attend the meeting and
McGuire said, "Yes." Pugh asked him, "Did you fire
Chet Kindale?" and McGuire said, no, because "Kindale
did not have points against him like you do." "When I
hired you before, you said that you would get along
with Rosie Sparks." Pugh testified that their conversa-
tion continued as follows:
And I said, "I was getting along with Rosie."
And then he asked me, he said, "You've never had
to ask me for a raise before, have you?" [Emphasis
supplied.]
And I said, "No, I haven't."
So he got up and left the room, and he came
back with a piece of paper with some figures on it,
and he was telling me that he couldn't afford to
give a raise, which I did not pay much attention to
him because I was already fired at the time.
On Monday, January 21, Pugh called dispatcher Rosie,
and their conversation was as follows:
A. I asked Rosie if I had been fired for not going
to a company meeting.
She said yes.
And I said, "Well, that's awful strange." I said,
"By your company rules I should have got some
kind of a warning a layoff, or something like that."
And she said the company rules don't mean any-
thing to the drivers. And then she said, "I'm on
company time. I don't have time to talk to you,"
and she hung up on me.
According to Rosie, she testified that she replied,
"Bud, you know why you were fired. You didn't do the
things you were suppose to, and then you didn't attend
the company meeting."
About a week after Pugh was discharged, William
Kindale, Jr., testified that he had a conversation with
Garage Foreman Marvin Sparks which was as follows:
A. Well, he said that he told his wife Rosie
Sparks that Bud was over there talking about going
on a strike and she told Jack McGuire that Bud was
talking about going on a strike. And he said he
liked Bud Pugh and he hated to see him lose his
job.
William Kindale II testified that he had never been ad-
vised by company officials that his presence was re-
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quired at company meetings; and that he had missed
company meetings but he was on the road at the time.
Kindale further testified that he remained in the garage
during the company meeting with Bud Pugh and left the
premises about 4 p.m. He said shortly after Manager
Sparks left the garage to attend the meeting, the tele-
phone rang and Pugh answered it. It was Rosie asking
for Marvin Sparks and Pugh told her he had left for the
meeting. Pugh did not tell him that Rosie had told him
on the telephone to attend the meeting. When he report-
ed to work on Monday, January 14, about 12:30, he said
he saw and gave the time of day to Marvin Sparks and
Jack McGuire and neither said anything to him about his
absence at the meeting on Friday. He went on his run that
day to Dallas, Texas, and returned on Thursday, January
17, about 11 p.m. He went to the garage Friday morning
and noted that his paycheck was not on the clipboard so
he called the office and inquired about his check. He was
informed that Jack McGuire had it and wanted to see
him. He went to the office and his conversation with
McGuire was as follows:
Q. And what do you recall was said at that time?
A. Well, I went in and set down and he said,
"Let's talk."
And I said, "All right." And I just set there and
he said, "You waiting on me to start?" I said,
"Yeah." And he said, "I hear you've got a prob-
lem." And I said, "Other than needing a raise I
don't have any problem." He said, "About the
Company meeting, why wasn't you there?" I said,
"I didn't think it was a have to thing, I thought it
was more for the employees in the plant than for
anybody else." And he told me that the meeting
was for all the employees and that he didn't care if
we had a meeting everyday, that if we had a meet-
ing I was to be there because I talked to the cus-
tomers and I needed to know what was going on.
And he said, "We need people that's 100% for this
Company." [Emphasis supplied.] And I told him
that I'd always been for the Company. That's about
all that was said.
Thereafter, Kindale said McGuire showed him a piece
of paper with figures on it explaining that there were 400
other people in the plant who needed a raise but the
Company could not grant it at this time. He said he ob-
served McGuire, whom he has known for 6 years, was
quite upset. He said after Pugh was discharged he had
the following conversation with Foreman Marvin
Sparks:
A. We was just talking about it and Marvin said
that Bud shouldn't have been talking about going on
strike since we wasn't Union or nothing. [Emphasis
supplied.] And he said that he happened to mention
to Rosie that Bud was over there talking about
going on strike and that he never thought that she'd
tell Jack. That was about all that was said.
William Kindale II further testified that he has known
of a less senior driver to be assigned an extra warehouse
run over a senior driver's preference to accept it. He also
stated that he had failed on about five occasions to make
all of the stops on a run and was not reprimanded. The
last time this occurred was in December, around the
Christmas season, and also during the New Year's week
in January. However, he indicated that neither incident
occurred during a short week and he did not have to
return to complete those runs. Rosie usually told him to
get them the next time. He was off I day to visit his den-
tist and he did, as is required, complete his run for the
remainder of the week.
According to Pugh's logsheets, he did not leave on the
January 2 run until the next day, which Rosie stated that
she did not learn of until Pugh turned in his log sheets a
week or two after the trip. Rosie said Pugh's day off on
December 26, was unusual because it was the first time a
driver ever requested a day off during a short week (3
days), but she admitted Pugh essentially completed the
run. She said after the meeting with McGuire on January
2, the latter asked her to reconstruct Bud Pugh's runs for
the month of December so he could see for himself.
After she reconstructed Pugh's record on January 11,
she found she had given Pugh a warehouse run to New
Jersey in December which she had not mentioned to
McGuire because she did not remember at the time.
When she informed McGuire about this he exclaimed,
"Had you told me that, or had I known that when Bud
was here on January 2, I1 would have dismissed him."
President Jack McGuire testified that he made the de-
cision to discharge Pugh on January 11, 1980, because he
refused to go out on a run on January 2, 1980, until he
spoke with him (McGuire), and because Pugh called in
on December 26, 1979, and requested permission to
delay for I day, going out on a scheduled run. He said
his reasons were cumulative and that he communicated
these reasons to Pugh when he discharged him on Janu-
ary 18.
Analysis and Conclusion
The testimonial evidence of record is essentially with-
out dispute or conflict. However, to the extent that it is
conflicting, I was persuaded by the demeanor of employ-
ee-witnesses Chet Kindale, John Wagner, and William
(Bill) Kindale, as augmented by the circumstantial evi-
dence as a whole, that their respective versions were
truthful and Respondent's denial thereof was not.
Occasionally, witnesses testifying on direct examina-
tion will testify spontaneously and convincingly, but
when cross-examination is undertaken they not infre-
quently get gun shy, so to speak, and give the impression
of being unsure or exceedingly cautious, even though
they may be testifying truthfully. Witness Charles Pugh
was such a witness until he heard the bench's comment
reported. Thereafter, Pugh testified with improved recall
and assurance as the bench thought he would. Since his
testimony was also corroborated in a large part by the
above-named witnesses, I was persuaded that his testimo-
nial versions, which conflicted in minor respects with
those of Rosie Sparks, were truthful, and hers were not.
Thus, the principal issue presented by the credited tes-
timonial and circumstantial evidence herein, is whether
Respondent's discharge of Charles (Bud) Pugh on Janu-
_ - -
AUTOMOTIVE ARMATURE CO., INC. 275
ary 18, was wholly or partially motivated by Pugh's sug-
gestion to fellow employees on January 11, that they go
on strike for a raise; or was Respondent's only reasons
for discharging Pugh, his failure to attend the company
meeting on January 11, his requested I-day delay in de-
parture on December 26, and/or his delayed departure
until late afternoon on January 2.
It is particularly noted that at the time of its discharge
of Pugh on January 18, Respondent (McGuire) simply
told Pugh, "We're calling it quits again," and when Pugh
asked what are you talking about, McGuire said, "For
your not going to that company meeting is what broke
the camel's back." However, assuming arguendo, that Re-
spondent's reasons for discharging Pugh were cumulative
as it now contends, it is noted that although Pugh re-
quested the I-day delay on the December 26 run, his re-
quest was nevertheless approved during the short week
(3 days) by dispatcher Rosie Sparks. The record does not
show that Rosie Sparks expressed any dissatisfaction, or
issued any warning for Pugh on his return from his de-
layed December 26 run. In fact, Rosie acknowledged
that Pugh essentially completed the run. Under these cir-
cumstances, I find it difficult to conceive how Respond-
ent can now contend Pugh violated any rule or dis-
obeyed any order for which the delayed December 26
run can serve as any part of a basis for cause for his dis-
charge. If anything, the incident as established by the
credited evidence of record tends to reveal that Re-
spondent is now asserting this incident as a pretext to re-
enforce its other contended reason for discharging Pugh.
Respondent also contends that a part of his reason for
discharging Pugh was his delaying his run on January 2,
until he had spoken with President McGuire (about 3
p.m.). Although the testimony of Rosie Sparks shows
that McGuire asked Pugh if he could complete his trip
and Rosie intervened, assuring McGuire that Pugh could
complete his run, and Pugh agreed. The undisputed evi-
dence shows that when Pugh returned at 3:30 p.m. on
January 5, McGuire asked him if he completed his
Michigan run. Pugh replied, "Yes, all except two, the
Tower, Michigan and Onaway, Michigan stops."
McGuire did not deny that he did not express any dissat-
isfaction or that he did not discipline Pugh for not
making the two stops. Hence, the conclusion is inevitable
that the evidence involving Pugh's January 2 run does
not manifest any dissatisfaction by Respondent about the
two omitted stops. I therefore conclude and find that Re-
spondent either did not consider the delayed January 2
run as a basis for discharging Pugh, or that its reliance
upon the latter incident is so miniscule until its pretextual
nature is revealed thereby.
Finally, Respondent's contention that the straw that
broke the camel's back was Pugh's failure to attend the
company called meeting on January 11. While this
reason standing alone appears to manifest some plausibil-
ity and credibility, all credibility of it is destroyed when
it is considered in conjunction with the following factors:
I. Respondent's president, Jack McGuire, learned
about Pugh's and Chet Kindale's failure to attend the
January 11 meeting a few minutes after the meeting,
when he was so informed by dispatcher Rosie Sparks.
2. Respondent (McGuire) did not in fact warn or dis-
charge Pugh or Chet Kindale on January 11, when it
claimed it decided to fire Pugh.
3. Although Pugh went on a run January 14, Respond-
ent did not make any effort to contact him at the garage,
or while he was on the road, or at his home, until about
1 p.m. on January 18, when McGuire called him at home
and requested him to come into the office when he dis-
charged him.
4. After telling Pugh he was fired on January 18,
McGuire said to Pugh, "You've never had to ask me for a
raise before have you?" and Pugh said, "No." This ques-
tion by McGuire at this particular point in time, could
only have had reference to Pugh and the other employ-
ees' garage discussion about a raise and Pugh's sugges-
tion that they strike for a raise. That discussion and sug-
gestion by Pugh took place only a few minutes before
the company meeting on January 11, and President
McGuire was informed about Pugh's suggestion by dis-
patcher Rosie Sparks only a few minutes after the meet-
ing. Therefore, Respondent had knowledge of Pugh's
concerted activity in suggesting a strike.
5. During a conversation about a week after Pugh's
discharge, Garage Foreman Marvin Sparks told truck-
driver William Kindale, "Bud shouldn't have been talk-
ing about going on strike since we wasn't union or noth-
ing."
6. Respondent did not call Garage Foreman Marvin
Sparks as a witness to testify affirmatively on its behalf,
or to deny statements attributed to him by other wit-
nesses.
7. When truckdriver William (Chet) Kindale returned
from a run on January 14, he gave the time of day to
President Jack McGuire and Garage Foreman Marvin
Sparks and neither of them said anything to him about
his nonattendance of the January 11 company meeting.
8. When truckdriver William Kindale returned from
his Dallas run on January 17, he was called into the
office about his not having attended the January 11
meeting. During the office conference, President Jack
McGuire told him, "We need people that's 100 percent
for this company." The latter statement, which was not
denied by McGuire, could only have had reference to
Kindale's failure to attend the meeting while he was in
the company of, and/or in concert with Pugh, who had
just previously suggested that the drivers strike Respond-
ent for a raise.
9. Before discharging Pugh on January 18, President
Jack McGuire did not comply with Respondent's rules
and regulations for safety and discipline, Group I, out-
lined under topic A herein, but summarily discharged
Pugh without issuing him a verbal warning for a third
offense, a written warning for a fourth offense, a 3-day
suspension for a fifth offense, as the rules provide and
which McGuire, himself, testified he enforces progres-
sively.
10. About a week after Pugh's discharge, Garage
Foreman Marvin Sparks also told Bill Kindale in refer-
ence to his wife having told Jack McGuire that Bud was
suggesting that the drivers go on strike for a raise, said
he (Marvin Sparks) liked Bud Pugh and he hated to see
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him lose his job. The latter statement clearly implied that
Pugh was discharged for talking about going on strike.
As such, it was a real threat of a coercive and restraining
nature, on the exercise of employees' Section 7 rights, in
violation of Section 8(a)(1) of the Act.
Upon the foregoing, I conclude and find that Respond-
ent's discharge of Pugh was substantially, if not solely,
motivated by his January II suggestion that the truck-
drivers strike Respondent for a raise. Consequently, Re-
spondent's discharge of Pugh was an interference with,
coercion against, and a restraint upon the exercise of em-
ployees protected Section 7 rights (to suggest or in fact
strike), in violation of Section 8(a)(1) of the Act. Hugh
H. Wilson Corporation, 171 NLRB 1040 (1968). Pugh's
advocacy was protected because it related to matters of
mutual concern to all employees. Air Surrey Corporation,
229 NLRB 1064 (1977). Implied consent of other em-
ployees is presumed since there is no evidence of dis-
avowal by all of them with respect to Pugh's suggestion
of a strike. Akron General Medical Center, 232 NLRB 920
(1977).
It has been previously found herein that Respondent's
second reason for discharging Pugh (his delayed depar-
ture on January 2 in order to complain about what he
believed an unfair assignment system) was pretextual.
However, assuming arguendo, that Respondent relied on
Pugh's January 2 delayed departure and complaint as a
reason for his discharge, the delay and complaint consti-
tuted a legitimate exercise of employees' protected Sec-
tion 7 rights, and Respondent's reliance on it for dis-
charge was a violation of Section 8(a)(l) of the Act.
Finally, I further conclude and find upon the credited
and undisputed testimony of William (Bill) Kindale that
about a week or two after Pugh's discharge, Garage
Foreman Marvin Sparks told him that he (Sparks) had
told his wife Rosie that Bud was over at the garage on
January 11 talking about going on strike; and that he
(Sparks) liked Bud Pugh and hated to see him lose his job.
Such a statement by Garage Foreman Sparks, unques-
tionably a supervisor within the meaning of the Act, was
an implied threat to truckdriver Bill Kindale that em-
ployees' jobs were in jeopardy if they talked about going
on strike against Respondent. Such veiled threat was un-
questionably an interference with, a coercion against, and
a restraint upon the exercise of employees' protected
Section 7 rights, in violation of Section 8(a)(1) of the
Act. Milford Manor Inc., 233 NLRB 1283 (1977).
11I. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial Order, I shall rec-
ommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies
of the Act.
It having been found that Respondent interfered with,
coerced, and restrained its employees in the exercise of
their Section 7 protected rights, in violation of Section
8(a)(l) of the Act; by discharging an employee for sug-
gesting and talking about engaging in a strike or work
stoppage with other employees; by forbidding employees
from talking about engaging in a strike or work stop-
page; and by threatening employees with discharge if
they talked about engaging in a strike or work stoppage.
The recommended Order will provide that Respondent
make the employee discharged on January 18 whole for
any loss of earnings within the meaning and in record
with the Board's decision in F. W. Woolworth Company,
90 NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977), 4 except as specifically modified by
the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from or in any other
manner interfering with, restraining, or coercing employ-
ees in the exercise of their rights guaranteed by Section 7
of the Act N.L.R.B. v. Enwistle Mfg. Co., 120 F.2d 532,
536 (4th Cir. 1941).
Upon the basis of the above findings of fact and upon
the entire record of this case, I make the following:
CONCLUSIONS OF LAW
1. Automotive Armature Co., Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. By discharging employees for suggesting and talking
with other employees about engaging in a strike or work
stoppage, Respondent violated Section 8(a)(l) of the Act.
3. By forbidding employees from talking about engag-
ing in a strike or work stoppage, Respondent violated
Section 8(a)(l) of the Act.
4. By threatening employees with discharge if they
talked about engaging in a strike or work stoppage, Re-
spondent violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER s
The Respondent, Automotive Armature Co., Inc.,
Mooresville, Indiana, its officers, agents, successors, and
assigns, shall:
4 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
* In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
AUTOMOTIVE ARMATURE CO., INC. 277
1. Cease and desist from:
(a) Discharging employees because they suggest or
talk about engaging in a strike or work stoppage.
(b) Forbidding employees from talking about engaging
in a strike or work stoppage.
(c) Threatening employees with discharge if they talk
about engaging in a strike or work stoppage.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Charles (Bud) Pugh immediate and full re-
instatement to his former position or, if such position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights previously
enjoyed, and make him whole for any loss of pay suf-
fered by reason of the discrimination against him, with
interest, in the manner described in the section of this
Decision entitled, "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay under
the terms of this recommended Order.
(c) Post at Respondent's plant and place of business lo-
cated in Mooresville, Indiana, the attached notice
marked, "Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 25, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by Respondent for 60 con-
secutive days hereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced or cov-
ered by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
a In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had an opportunity
to present evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, as amended, and has ordered us to post this notice.
WE WILL NOT restrain or coerce our employees
in the exercise of their protected rights by:
(a) Discharging employees for suggesting or
talking about engaging in a strike or work stop-
page.
(b) Forbidding employees to talk about engag-
ing in a strike or work stoppage.
(c) Threatening employees with discharge for
suggesting or talking about engaging in a work
stoppage.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise and enjoyment of rights guaranteed
them by Section 7 of the National Labor Relations
Act, except to the extent that such rights may be af-
fected by unlawful agreements in accord with Sec-
tion 8(a)(3) of the Act.
WE WIl., offer Charles (Bud) Pugh immediate
reinstatement to his former position, or if such posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other
rights previously enjoyed, and make him whole for
any loss of pay suffered by reason of our discrimi-
nation against him with interest.
AUTOMOTIVE ARMATURE Co., INC.