Comet Trailer Corp.

National Labor Relations Board - Board Decisions

May 12, 1989

293 N.L.R.B. 1025 (N.L.R.B. 1989)

COMET TRAILER CORP
Comet Trailer Corporation and General Teamsters
Union, Local No 524, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO Cases 19-CA-19693 and 19-CA-19703
May 12, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On December 14, 1988, Administrative Law
Judge Clifford H Anderson issued the attached de-
cision The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a
memorandum in support of the judge's decision
and reply to the Respondent's exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and beefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order
as modified 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Comet Trailer Corporation, Selah, Wash-
ington, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied
1 Insert the following as paragraph 2(d) and re-
letter the subsequent paragraphs
(d) Make whole employee Richard King for
any losses he may have suffered as a result of the
Respondent's unlawful transfer of him on February
23, with interest, as set forth in the remedy section
of the decision "
2 Substitute the attached notice for that of the
administrative law judge
1 The Respondent has excepted to the judge s credibility findings The
Board s established policy is not to overrule an administrative law judge s
credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect Standard Dry Wall Prod
ucts 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951) We have
carefully examined the record and find no basis for reversing the find
rags
2 Contrary to the judge s stated intent in the remedy section of his de
cision the recommended Order and notice do not include a provision re
quinng the Respondent to make whole Richard King for any losses re
suiting from his unlawful transfer Although it is undisputed that as
stated by the judge King s wages and hours were not changed by his
transfer the transfer may have had an adverse impact on other benefits
Accordingly we shall modify the recommended Order and substitute a
new notice to provide make whole relief if necessary to King
APPENDIX
1025
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT take away the leadman position of
employees or otherwise demote employees because
of their handbilling in support of General Team
sters Union, Local No 524, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO
WE WILL NOT transfer employees to positions
where they have less contact with other employees
because of those employees' handbilling or other
union activities
WE WILL NOT lay off employees because of their
handbilling or other union activities
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
cise of the rights guaranteed by Section 7 of the
Act
WE WILL reinstate employee Harold Volland to
his position as liner crew leadman and we will
make him whole, with interest, for any losses he
may have suffered as a result of our illegal demo-
tion of him
WE WILL return employee Richard King to his
former position of inside expediter and we will
make him whole, with interest, for any losses he
may have suffered as a result of our illegal transfer
of him
WE WILL make employees Byron Hahner and
Larry Taylor whole, with interest, for any losses
they suffered as a result of our illegal layoff of
them
WE WILL expunge from our files any reference
to the adverse actions we have taken against em-
ployees Volland, King, Hahner, and Taylor, and
WE WILL notify them in writing that this has been
done and that any evidence of the adverse actions
taken against them will not be used as a basis for
future personnel action against them
COMET TRAILER CORPORATION
Catherine M Roth Esq, for the General Counsel
Gary E Lofland Esq (Lofland & Associates), of Yakima
Washington , for the Respondent
Mark L Rogstad Business Representative , of Yakima,
Washington, for the Charging Party
293 NLRB No 131
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
CLIFFORD H ANDERSON, Administrative Law Judge I
heard these consolidated cases in trial at Yakima, Wash
ington, on June 29 and 30 1988 The matter arose as fol
lows
On February 26, 1988, General Teamsters Union
Local No 524, affiliated with International Brotherhood
of Teamsters Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO (the Union or the Charging Party)
filed a charge docketed as Case 19-CA-19693 with the
Seattle Regional Office of the National Labor Relations
Board against Comet Trailer Corporation (the Employer
or Respondent) A copy of that charge was receipted for
by Respondent on March 2, 1988 On March 2, 1988, the
Charging Party filed a second charge against Respondent
docketed as Case 19-CA-19703 A copy of this charge
was receipted for by Respondent on March 7, 1988
Thereafter on April 28, 1988, the Acting Regional Direc
tor issued an order consolidating cases, consolidated
complaint, and notice of hearing concerning the above
captioned cases
The consolidated complaint alleges and the answer
admits that in February 1988 Respondent demoted em
ployee Harold Volland, transferred employee Richard
King, and laid off employees Larry Taylor and Byron
Hahner The complaint further alleges Respondent took
these actions because of the employees union activities
in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act) Respondent avers that
the actions against employees (1) were undertaken for
business reasons at a time when Respondent had no
knowledge of the employees union activities and (2)
were undertaken without animus against the employees
because of their known or suspected union activities
All parties were given full opportunity to participate
at the hearing to introduce relevant evidence, to call ex
amine , and cross examine witnesses , to argue orally, and
to file posthearing briefs
On the entire record, including able postheanng briefs
from the General Counsel and Respondent and from my
observation of the witnesses and their demeanor I make
the following
FINDINGS OF FACT
I JURISDICTION
Respondent is a State of Washington corporation with
an office and place of business in Selah, Washington
where it is engaged in the business of manufacturing
truck trailers Respondent, during the 12 months immedi
ately preceding the date of issuance of the complaint, a
representative period, in the course and conduct of its
business operations, had gross sales of goods and services
valued in excess of $500,000 During the same period Re
spondent sold and shipped goods or provided services
from its facility within the State of Washington to cus
tomers outside the State, or sold and shipped goods or
provided services to customers within the State, which
customers were themselves engaged in interstate com
merce by other than indirect means of a total value in
excess of $50,000 Further, Respondent during the same
period, purchased and caused to be transferred and deliv
ered to its Washington State facility goods and materials
valued in excess of $50,000 directly from sources outside
the State of Washington, or from suppliers within the
State that in turn obtained such goods and materials di
rectly from sources outside the State The complaint al
leges, the answer admits, and I find that Respondent is,
and has been at all times material an employer engaged
in commerce within the meaning of Section 2(2) (6), and
(7) of the Act
II LABOR ORGANIZATION
Crediting the unchallenged testimony of Union Presi
dent and Business Representative Mark Rogstad, the
Union is an organization in which employees participate
and which exists for the purpose, in whole or in part, of
dealing with employers concerning grievances, labor dis
putes, wages, rates of pay, hours of employment, or con
ditions of work of their employees Accordingly, I find
that the Union is a labor organization as defined by Sec
tion 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
At all relevant times the Employer has been engaged
at Selah, Washington, in the production and sale of corn
mercial freight trailers The operation employs over 100
production employees At relevant times the following
individuals held the titles opposite their names There is
no dispute and I find that they were at all relevant
times agents of Respondent acting on its behalf and su
pervisors within the meaning of Section 2(11) of the Act
Name
Steve Owens
Charles Alexander
Glenn Collins
Ken Cleveland
David McPherson
Jack Pendarvis
Ken Reeser
Title
Plant Manager
Plant Superintendent
Service Parts Manager
Foreman
Foreman
Foreman
Foreman
In January and early February 19881 Respondents
employees initiated contacts with the Union and a preor
ganizational union meeting was held on February 10
Following a card solicitation campaign, the Union filed a
petition seeking to represent Respondents employees
The petition was docketed as Case 19-RC-11717 on
Friday February 19 with a copy of the petition ad
dressed to Respondent being placed in the mail by the
Seattle Board Office on Monday February 22
Following the events in dispute , an election was con
ducted by the Board among Respondent s employees on
April 14 and the Union was certified on April 22 as the
exclusive representative of Respondent s employees
' All dates hereinafter refer to 1988 unless otherwise indicated
COMET TRAILER CORP 1027
B February Chronology
1 The events of February 23
In order to publicize its recently filed petition, the
Union determined to handbill the Employer s premises
Three union officials including Mark Rogstad, the
Union s president and business representative , and seven
of Respondent 's employees participated in two morning
leafletting sessions designed to cover both of the morn
ing starting times of Respondent's production staff Thus
on February 23 three union representatives and three
employees leafleted from 5 30 to 6 30 a in at Respond
ent's premises and the same three Union representatives,
one employee from the earlier session and four new em
ployees handbilled from 7 a in to 7 30 a in The five em
ployees handing out leaflets at the second leafleting ses
sion that morning were Daryl Landsidel, the employee
from the earlier session Byron Hahner , Larry Taylor,
Harold (Tiny) Volland, and Richard King
The bulk of employees at Respondents facility started
at 7 30 a in so the second handbilling session involved
the greater degree of traffic and congestion at the entry
gate where the handbills were distributed The employ
ees and union representatives distributed a vivid yellow
handbill that announced the filing of the Union s petition
with the National Labor Relations Board and the fact of
an upcoming election There is no dispute that Owens
Respondents president, after driving into the facility, no
ticed the congestion at the gate and, after initially going
into the facility, exited the facility and approached the
handbilling area somewhat before 7 30 a m There he had
a conversation with the three union representatives while
the five employees working with them continued to dis
tribute handbills to passing employees as they funneled
through the gate to enter the workplace Owens conver
sation with the union representatives was, if somewhat
tentative, neither hostile nor of long duration During
Owens' conversation with the three union representa
tives the handbilling employees, who were scheduled to
commence work at 7 30 a in approached the union rep
resentatives handed over their stock of undistributed
handbills and in various fashions announced they were
going to work and would see the union representatives
again later These remarks were made while Owens was
still talking to the union representatives The employees
then went to the facility and commenced work Follow
ing the departure of the handbilling employees, Owens
concluded his conversation with the union representa
tives and returned to the facility The handbilling that
day concluded
Respondents supervisory and management staff nor
mally hold a production meeting in Charles Alexander s
office at 10 am each day On February 23 a regular
meeting was held Present were Steve Owens and Fore
men David McPherson, Jack Pendarvis, Kenny Cleve
land, Kenny Reesner, and others Soon after the conclu
sion of the management meeting, Jack Pendarvis ap
proached leadman Volland and informed him he was to
lose his leadman status and the concomitant wage premi
urn associated with the position About the same time,
Foreman David McPherson went to Richard King who
was working in the newly created position of expediter
McPherson informed King that he was being immediate
ly transferred to a position involving outside work with
little contact with other employees
2 The events of February 29
On February 29 the handbilling pattern of February 23
was repeated although no management agents engaged in
conversation or, apparently on this record, approached
the employees or union representatives during the hand
billing The same union officials and employees of Re
spondent were involved in the second handbilling Later
that day, employees Byron Hahner and Larry Taylor,
who were two of the three employees employed in the
truck repair department, were laid off These employees
were not recalled to work until the week of March 11
C The Adverse Actions
1 The demotion of Harold (Tiny) Volland
Harold Volland, a very large and tall man who bears
the nickname Tiny was hired by Respondent in No
vember 1984 and in that year was appointed to the posi
tion of leadman over the liner crews He had been super
vised by Jack Pendarvis, foreman of the final Bay Area,
since Pendarvis became foreman in 1984 In addition to
acting as leadman over the liner crews, Volland was di
rectly involved in the axle assembly process This in
volved mounting tires, axles, landing gear etc, in the
axle assembly area that is within the liner crews ' general
work area
Volland testified that throughout the period he
worked as liner crew leadman and axle installer, no one
from management ever complained to him about his per
formance as leadman or suggested that it was difficult
for him to be an effective leadman over the liner crew
while being simultaneously involved in axle installation
Jack Pendarvis testified that since his assumption of
foreman responsibilities over Volland in 1984 Volland s
work duties and the quality of his performance as lead
man had not changed Pendarvis testified that from the
very beginning Volland was, of necessity spending a
large part of his time on the installation of axles, wheels,
and doors and was therefore unable to give sufficient
time to being leadman over the liner crews A result of
this Pendarvis testified, was that liner crews mistakes
were often corrected after the fact with concomitant ex
pense rather than being prevented before they occurred
Thus in Pendarvis view Volland had at all times since
1984 been consistently unable to perform adequately as a
liner crew leadman
Steve Owens, plant manager had been urging his su
pervisory team in early 1988 to achieve greater efficien
cies in the manufacturing process to reduce costs and in
crease profits Pendarvis testified however that he did
not consult with Owens regarding his decision to replace
Volland as leadman Rather, he testified he simply in
formed his immediate supervisor, Plant Superintendent
Charles Alexander that he intended to demote Volland
and replace him with two leadmen who were to be part
of the liner crew and have no additional nonlead respon
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sibilities Pendarvis testified Chuck Alexander responded
that he saw nothing wrong with it ' 2
Pendarvis testified that as of February 23 he was
aware only of longstanding rumors of union activity at
the facility Thus he testified that although he observed
the handbilling on the morning of February 23, he did
not associate it nor Volland with specific union activities
among Respondent's employees Further he suggested
that even were he to have learned of Volland s union ac
tivities they would not have in any way affected his de
cision to remove Volland's leadman status
There is no dispute that Pendarvis came to Volland
soon after the 10 a in management meeting on February
23 and informed Volland, in Pendarvis recollection,
that we d have to remove him from leadman because he
wasn t doing the job that that entailed, and that there
were some things about my job that aren t fun that I
didn t like to do but that had to be done Volland was
informed that he would be losing his leadman wage pre
mium Volland became displeased and, in his recollec
tion, asked Pendarvis if his demotion had anything to do
with my union organizing Pendarvis did not recall the
subject of union organizing being raised in this conversa
tion
Thereafter two new leadmen were appointed and Vol
land, minus his leadman status and concomitant wage
premium, continued in his axle and wheel assembly posi
tion to the time of the hearing
2 The transfer of Richard King
Richard King was hired in 1986 and, after holding a
variety of positions in inventory parts, and shipping and
receiving was put in charge of the toolcnb in January
The toolcrib was apparently a staffed general storage
area where various tools necessary to the production
process were stored and issued to production personnel
on an as needed basis Sometime in early February, King
was assigned the new position of expediter under the su
pervision of David McPherson the foreman in charge of
the warehouse inventory and shipping receiving
The new expediter position was intended to eliminate
the need for production employees to leave their work
stations and go to the toolcnb or elsewhere to obtain
needed tools or materials Rather the expediter during
regular rounds, would copy down needed items from
posted clipboards at specially situated work stations and
deliver the needed items on his next round King testified
that the new process was resisted by some employees
who continued to go to the toolcrib rather than await
delivery of needed items at their work stations Further
King testified he found it necessary to ask employees at
particular work stations if they needed additional materi
als that they had not thought to enter on the work sta
tion clipboards This solicitation process involved dis
cussions with employees concerning needed materials
while moving from work station to work station The
record is clear that management thought that King took
too much time speaking to employees about their parts
and tool needs and failed to adhere to the planned prac
tice of simply recording and filling the material requests
entered at the work stations 3
Glenn Collins, the service parts manager, testified that
after observing King and listening to complaints from
foremen on the floor about him, he determined that King
was spending too much time making his rounds primarily
because he spent too much time speaking to employees
Collins testified he would take these complaints to Dave
McPherson, King s supervisor, and that, as a conse
quence of these complaints, King s performance would
improve for a few days but would then deteriorate
Collins testified it was his decision to remove King
from the new position of expediter and transfer him to
what was, in effect, a parallel parts job that involved
physically larger parts that were stored outside the facili
ty Collins testified he reached his decision because of his
unhappiness with King s work as expediter and because
of the need to have the outside work done by someone
with King s knowledge of parts, parts numbers, and re
lated information Collins testified the decision to transfer
King was his and was not made in conjunction with or
at the request of any member of management Collins
testified that he had begun thinking about removing
King from the inside expediter position the first week
Collins started and he began to received complaints
about King s work The actual decision to move King in
Collins testimony, was made no more than 2 days before
his actual transfer Collins specifically denied either
asking Steve Owens about the transfer or receiving any
orders or instructions from Owens or other members of
management to transfer King
King testified he learned of his transfer from Dave
McPherson soon after the morning management meeting
on February 23 He testified that McPherson came to
him and told him he was to be transferred to a new pose
tion King was told to remain in his work area until his
replacement, Ken Campbell then the outside parts
person he was to replace arrived He was then to show
Campbell the duties of the expediter job Later, pursuant
to McPherson s instructions, King reported back to
McPherson and was shown the duties he was to under
take as parts man outside the facility He was explicitly
instructed that he was to remain outside that they
didn t want me inside King testified to a second con
versation with McPherson regarding his transfer occur
ring approximately a week or two after the event King
testified he met with McPherson alone in McPherson s
office King asked McPherson why McPherson thought
he had been transferred McPherson replied, in King s
recollection, that he knew that I pissed off somebody
real bad But he wouldn t say who King then asked if
McPherson meant Owens, but again, in King s recollec
3 Sometime during the period King held the new position of expediter
z There had been a second leadman in the liner installation department but before February 23 King was instructed by management not to dis
That individual lost his leadman position on February 1 for reasons un cuss union matters or union organizing while he was on company buss
connected with the events in question From that time until Volland s ness circulating through the plant from work station to work station
loss of the leadman position Volland was the sole leadman in the liner King testified that in response to this admonition he gave up discussing
department union matters at the facility save on his own time
COMET TRAILER CORP
tion, McPherson would not respond in any manner to
the question King asked McPherson how long his out
side assignment would last and McPherson told him it
was going to last indefinitely McPherson testified he had
no recollection of a separate conversation with King re
garding the reasons for King 's transfer to the outside po
sition He further testified he had no recollection of
making any suggestion to King that King had pissed
somebody off Further McPherson testified he had no
memory of any conversation with King involving Steve
Owens McPherson did recall a conversation with King
approximately a week after King was transferred in
which he told King that he was transferred because his
performance in the expediter job was "not working out
as we anticipated because King was taking too much
time going from section to section
King also testified that when his new outside duties
would infrequently require him to enter the building,
McPherson would come up to him and tell him to leave
the building at the soonest opportunity because McPher
son was getting his butt chewed whenever King was
seen in the building McPherson testified that following
King's transfer, when he had occasion to see King in the
building, he did not tell King to return outside because
McPherson was going to get in trouble Rather McPher
son testified he simply told King that as soon as he was
done with his inside duties he was to 'go back out and
resume his outside duties
Kings wages and hours were not changed by his
transfer Respondent notes, on brief, in essence, all that
occurred was that Campbell and King switched a part of
their jobs " King remained in his outside position as of
the day of the hearing
3 The layoff of Larry Taylor and Byron Hahner
In addition to its manufacturing operation, Respondent
maintained a repair department where warranty and gen
eral repair work on commercial trailers was undertaken
In February three employees worked in the repair de
partment Byron Hahner one of Respondents most
senior employees hired in 1984 Larry Taylor hired in
1986 and Bruce Amston, a relatively new employee
The repair department was located in the final Bay Area
and until the change, occurring in March, was super
vised by Jack Pendarvis
There was no dispute that the repair department was
running low on work and in early February, it became
evident to management that there was not sufficient
work to keep the repair department employees busy in
trailer repair Pendarvis testified that, in the week pre
ceding February 29, anticipating the end of available
work in the repair department, he considered other
places within his area of supervision where Taylor and
Hahner could be transferred Pendarvis testified that he
determined there was no logical place where the men
could be put He testified further that he then talked to
other foremen about the possibility of transferring the
1029
men to positions under others but that no openings exist
ed 4
Larry Taylor testified that at 2 o'clock on the after
noon of February 29, Jack Pendarvis came to him and
told him he was sorry that he was going to have to let
me go because they were closing down the trailer
repair He said that he was sorry but this was not
temporary A week later when Taylor returned to work
to pick up his paycheck, he had a second conversation
with Pendarvis in which Pendarvis told him that Tay
lor's layoff was temporary Taylor testified he asked
Pendarvis why he had been told the layoff was perma
nent the week before but Pendarvis simply said he was
sorry if the wrong impression had been conveyed but
that it was `,lust a temporary layoff Byron Hahner tes
tified that on the afternoon of February 29, Pendarvis
came to him and told him they were closing down their
repair shop and I was being permanently laid off
He also told me to check in my tools that I had checked
out through the tool room Pendarvis testified that he
informed both Hahner and Taylor about their layoffs and
was clear that the layoff was to be indefinite but that I
couldn't give them an answer as to an exact date or any
thing when they would be called back ' On the same
day Bruce Amston was transferred to a welder position
In preparing Respondents layoff `paperwork for
Hahner and Taylor on February 29, Pendarvis filled out
a "termination of employment' form for each individual
in which he indicated the individuals had been laid off
for lack of work and inability to absorb the employees
into the rest of the work force With respect to both
Hahner and Taylor, however, Pendarvis made a specific
notation they were not recommended for reemployment
Pendarvis testified he did this because he did not believe
either Hahner or Taylor worked at a sufficient speed to
justify his retention or recall Pendarvis conceded how
ever that he had not expressly warned either employee
or discussed either s work speed in a manner that would
have conveyed the suggestion that his employment status
was in jeopardy
Both men were recalled to work the week of March
11 and recommenced repairing trailers at their previous
wage rate The trailer repair department however, had
been relocated and was no longer under the supervision
of Pendarvis After February 29, Pendarvis had no re
sponsibility for the repair department or the recall of
laid off staff
The General Counsel entered into evidence a docu
ment prepared by Respondent counsel listing 12 individ
uals hired or rehired by Respondent between the dates
February 22 through March 3 for various unit jobs in
cluding machine operator, assembler, and liner crew
Testimony concerning the document suggested that the
indicated hire date may in fact have been the new em
ployees first day of employment and that, in that event
the date of a decision to hire any given individual would
have preceded the hire date to some degree
* Pendravis testified that he spoke to Foremen Ken Cleveland Kenny
Reeser and Roy Stempson These individuals did not testify at the hear
ing
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
D Analysis and Conclusions
1 Arguments of the parties
The General Counsels primary argument is that
during his conversation with the handbillers on February
23 Owens became aware of the union campaign to orga
nize the facility and, more importantly, of the four em
ployees of Respondent engaged in handbilling activities
who were the subject of this litigation The General
Counsel argues that Owens went from his conversation
with the union organizers almost immediately to the Feb
ruary 23, 10 a m management meeting and there, at the
very least initiated the decisions (1) to remove Vol
land s leadman status, (2) to transfer King, and (3) either
at that time or based on the additional provocation of
the handbilling on the morning of February 29, to per
manently layoff Hahner and Taylor
More specifically the General Counsel argues that
Owens, undeniably familiar with his own employees, was
able to immediately identify the handbilling employees
who were in close physical proximity to him dunng their
handbilling and, even more directly, when they returned
their undistributed handbills to the union organizers Re
spondent denies that Owens gained knowledge of these
employees union activities in this manner Steve Owens
in his testimony specifically denied that he was able to
tell which, if any, of Respondents employees were dis
tributing rather than simply receiving handbills Thus,
argues Respondent, Owens as a consequence of his con
versations with the union organizers on the morning of
February 23, knew only that a union campaign was un
derway and not who if anyone, among his employees
supported the Union
The General Counsel relies heavily on the close timing
of Volland s demotion and King s transfer each occur
ring essentially immediately after the management meet
ing on the morning of February 23 which meeting in
turn occurred soon after Owens exposure to the hand
billing In opposition to the General Counsel's evidence
Respondent adduced the testimony of the supervisors in
volved in taking the actions at issue that their actions
were their own and were not made in response to or in
consultation with Owens The supervisors also testified
that at the time the events occurred, they were not
aware of the union activities of Volland, Hahner or
Taylor Finally, they testified that the actions taken were
entirely motivated by business decisions free from any
consideration of union activities of the employees
Respondent also emphasized the paucity of evidence
suggesting animus by Respondent against the Union or
employees who supported the Union dunng the Union s
campaign to organize Respondent Thus counsel for Re
spondent noted (1) that the complaint was free of allega
tions of independent violations of Section 8(a)(1) of the
Act, (2) that there was no evidence of any kind of hostil
ity to employees because of their union activities evident
on the record and finally and (3) that the Employer
simply chose to admonish King not to engage in organi
zational activities with other employees during the
course of his employment rather than discipline or termi
nate him, thus showing a forgiving rather than retaliato
ry attitude toward employees union activities
The General Counsel argues the precipitous nature of
the actions taken by Respondent show they were based
on the handbilling incident Thus the General Counsel
argues that, although Pendarvis testified he had been
aware of Volland s leadman problems since 1984 he had
not expressly discussed the matter with Volland nor
taken any previous action about the matter despite 5
years of allegedly consistent disapproval of Volland s
leadman activities until immediately after the manage
ment meeting The General Counsel further argues that
Volland s demotion occurred midmorning on a Monday
in the middle of a payroll period-an unusual time for a
long needed change The General Counsel asks Why
was Volland not warned at any time preceding the hand
billing? Why was his demotion necessitated midday and
midweek?
The General Counsel argues that King s transfer, like
Volland's demotion, occurred essentially immediately
after the February 23 morning management meeting
without any convincing explanation of the close relation
ship between Volland s demotion and the union handbill
ing Second, the General Counsel emphasizes that King s
transfer was designed not only to punish King but also to
end or at least greatly reduce any contact between King
and other unit employees within the facility 5
Respondents supervisors denied taking Kings union
activities into account in making their decision to trans
fer King They also specifically denied that Owens
caused or initiated King s transfer Again business rea
sons were asserted as justification for what was essential
ly a transfer between King and another individual in
their respective inside and outside expediter positions
The General Counsel did not challenge the fact that
Taylor s and Hahner s layoffs within the truck repair de
partment were caused by lack of work Rather the Gen
eral Counsels case is predicated on the notion that truck
repair employees Taylor and Hahner were long expert
enced employees in the repair of trailers and utilized
skills that would have allowed them to be transferred to
other positions within the facility rather than be laid off
In this connection the General Counsel relies heavily on
the fact that a significant number of new hires and re
hires occurred during the relevant period
Further the General Counsel notes that Pendarvis in
laying off the employees indicated that they were not to
be eligible for rehire In the General Counsels view,
Pendarvis action, in effect, to terminate by refusal to
recall two experienced employees on the basis of slow
ness on their part is in fact evidence that Pendarvis was
told to get nd of them and cover the true reason with a
seemingly benign reason Respondent asserts that the lay
offs were based on two simple propositions first the lack
of work in truck repair and second the lack of nontruck
repair positions for Taylor and Hahner Respondent
5 It is clear that at least Collins and McPherson knew of King s union
activities prior to February 29 because they were the agents of Respond
ent who earlier admonished him not to engage in union activities while
working on companytime In the General Counsels theory either this in
formation was ultimately communicated to Owens who thereafter caused
King s transfer or the knowledge was not shared with Ownes who as a
result of observing King s handbilling made his own independent discov
ery of King s union activities and then caused him to be transferred
COMET TRAILER CORP 1031
notes it never accepted Pendarvis notation that the two
men not be eligible for recall and that in fact when
truck repair work became available the men were re
called
Finally, the General Counsel argues that the conversa
tions between the foremen and the alleged discrimina
tees, as described above, reveal that the foremen were
acting, not on the basis of independent business decisions
that adversely affected the employees, but were rather
acting, even if unwillingly, under orders and in further
ance of Owens' determination to discriminate against the
employees because of their union handbilling activities
2 Resolution of conflicting versions of events
Both the General Counsel and Respondent on brief
have marshaled in a persuasive manner the legal authori
ties that govern analysis of discharge and adverse action
cases under the National Labor Relations Act In my
view however the resolution of this case is dependent
not so much on an analysis of law as on a resolution of
conflicting version of fact This case presents evidence
marshaled by the General Counsel respecting timing,
knowledge, probability, etc, opposed by the testimony
of Respondents agents denying knowledge and asserting
benign reasons for the adverse actions taken by Respond
ent Further there are certain credibility issues concern
ing disputed elements of conversations between the fore
men and the adversely affected employees
Respecting the General Counsels contention and Re
spondent's denial that Steve Owens became aware of the
handbilling activities of the alleged discrimmatees on the
morning of February 23 I reject the position of the Re
spondent and the testimony of Steve Owens and sustain
the General Counsel Thus I find that the events de
scribed by the witnesses as occurring on the morning of
February 23 amply demonstrate that Owens was aware
of the specific identity of Respondents employees who
were taking an active part in the handbill distribution
process In reaching this result, I have considered the
testimony of Owens in which he specifically denies that
he was able to make the identifications alleged On the
basis of my determination that Owens demeanor was
significantly less than persuasive during his testimony in
this regard, I specifically find that Owens given the cir
cumstances described above, could not have failed to
specifically identify the four employees involved herein
who were handbilling on the mornings of February 23
and 29 Thus, I discredit his denials It is completely
beyond imagining that an individual such as Tiny Vol
land, a giant of a man who was acknowledged to be per
haps the largest individual working at Respondents facil
ity, could have handed undistributed leaflets to a union
organizer who was standing with Owens without Owens
recognizing the employee as a member of the unit and as
an active handbiller It is simply inconceivable that
Owens would not have been both very interested in such
an identification and have been able to identify all four
employees involved Owens incredible denials do not
withstand the strong contrary evidence
The removal of Volland's leadman status and the lay
offs of Hahner and Taylor call for an evaluation of the
credibility of Pendarvis and the employees concerning
the events as well as the testimony of Owens and Pen
darvis denying that the actions were a result of Owens
instructions I simply do not believe Pendarvis and
Owens in their denials of any nexus between the hand
billing events and the actions taken by Pendarvis against
the employees involved First I find it totally incredible
that Pendarvis should have endured as would be neces
sary to believe if his testimony be credited 4 years of
Volland's inadequate leadman duties before, entirely on
his own motion, removing Volland s leadman s status
hard after the management meeting on the morning of
February 23 The fact that Pendarvis did not give Vol
land warnings or notice of the potential for loss of his
leadman s status and the fact that the demotion occurred
in the middle of the workday and in the middle of a pay
roll period together rise to the level of strong evidence
that the demotion was an unanticipated implementation
of a decision suddenly arrived at I found Volland to be
a very credible witness who made every honest effort to
truthfully describe the events as they occurred Based on
my observation of Pendarvis as a witness, I have no such
confidence in either the truth or the spontaneity of his
testimony Crediting Volland over Pendarvis, I find that
the postdemotion conversations with the differences de
scribed supra, occurred as testified to by Volland I fur
ther find Pendarvis testimony that he arrived at the de
motion decision on his own without consultation con
tact, or instruction by Owens is simply untrue Rather, I
find that Owens either at the management meeting or at
some other time between his observation of the handbill
ing and the time Pendarvis spoke to Volland made it
clear to Pendarvis that he must take adverse action
against Volland because of Owens hostilities to Vol
land s union activities
I reach a similar conclusion respecting employees
Taylor and Hahner There is no question and the Gener
al Counsel does not challenge the evidence on this
record, that work in the truck repair department was ex
hausted on February 29 Taylor and Hahner however,
were experienced employees who could fill in and had
filled in in other positions at the facility Moreover the
General Counsel has proved and I find that their layoffs
came at a time when Respondent was hiring numerous
employees in miscellaneous unit positions I find credit
ing the employees over the contrary testimony of Pen
darvis based again on his inferior demeanor as discussed
supra, that Pendarvis in fact told employees Taylor and
Hahner that they were permanently laid off and that he
did this and further, marked their termination forms so
that they would not be considered eligible for reemploy
ment because of instructions from Owens that he should
do so either simply on the basis of the authority of
Owens or because they had engaged in the union activi
ties described above Thus, on the basis of the record as
a whole and his significantly inferior demeanor, I reject
Pendarvis testimony that he did not inform the employ
ees that they were permanently laid off The testimony
by Hahner and Taylor both credible witnessess, as well
as the undisputed events belie Pendarvis testimony in
this regard I further reject his uncorroborated testimony
that he consulted with other supervisors and that they in
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formed him there were no positions available for these
individuals Because Pendarvis was attempting to ensure
that the men would not be recalled by marking their ter
mination papers not eligible for recall, it seems highly
unlikely he would simultaneously try to place them in
other departments in the plant
In summary then I find that Pendarvis testified to a
series of false reasons for taking the actions he did
against employees Volland, Taylor and Hahner, and that
the true reason in fact for the actions taken was the in
struction of Owens to punish them for their handbilling
activities at Respondents facility
Respecting King, it is clear and I find, that he was
transferred to the outside expediter position to punish
him for his handbilling activities and to isolate him from
other employees Respondent did not seek to justify
King s transfer on the basis of his earlier arguably unpro
tected discussion of union matters with employees on
companytime Rather Respondent relied on the testimo
ny of its agents that independent business reasons caused
the transfer, that the transfer was undertaken completely
without consideration of King s union activities and, fur
ther, that the transfer was undertaken without suggestion
or instruction from Owens King like Volland suffered
his change in job status immediately after the manage
ment meeting on February 23 Having rejected Owens
testimony that he had nothing to do with the actions
against other employees on the same grounds I reject it
concerning King King was not informed of or warned
about the likelihood of a transfer The testimony of
McPherson and Collins suggesting that the transfer was
not related either to Owens, the handbilling or the Feb
ruary 23 management meeting was singularly unconvinc
ing Rather I believe that they, like Pendarvis, were
simply acting under instructions from Steve Owens to
consummate his animus against King and the others be
cause of their handbilling in support of the organizational
efforts of the Union In this regard I explicitly credit
King, who I found a witness with a persuasive demean
or in his attribution, denied by McPherson that
McPherson told him that his transfer was based on his
having pissed off' an agent of management This con
cession to King by McPherson like the concessions at
tributed by Pendarvis and credited earlier even though
denied by the foremen in question, suggests to me that
the foremen were not willing participants in the antiun
ion campaign but were rather acting under the instruc
tions of superior authority Their unwillingness was in
my view revealed to the employees in the credited coin
ments attributed to them as described above and despite
their denials at the hearing under the scrutiny of their su
periors clearly reveals that Respondent's actions taken
against the four employees were not benign or independ
ently initiated actions on the part of the foremen
4 Conclusion
In summary I have found that the General Counsel s
factual contentions have been sustained in their entirety
I have found that Respondents attack on the General
Counsels case as to knowledge of union activity fails
and Respondents defense of independent business justifi
cation for the actions taken against the four employees is
explicitly rejected as pretext designed to cloak the true
motive for the actions taken Rejecting Respondents de
fense primarily on the unconvincing demeanor of Re
spondent s witnesses Owens Pendarvis, McPherson, and
Collins I have found it clear that the actions taken
against the employees were taken on Owen s instructions
and because of their handbilling on behalf of the Union
Given the above factual findings, Respondents actions
against the four employees because of their distribution
of union handbills is a clear violation of Section 8(a)(3)
and (1) of the Act and I so find
REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be or
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act With respect to the loss of Volland s leadman
status, I shall recommend that Respondent restore his
leadman s status and make him whole for any loss of
earnings or other privileges and benefits he may have
suffered by reason of Respondents discrimination against
him I shall recommend that King be restored to his pre
vious position of inside expediter and that he be made
whole for any loss of earnings or other rights and bene
fits he may have suffered by reason of Respondents dis
crimination against him Inasmuch as the record reflects
that Hahner and Taylor have resumed their work in
truck repair, I shall restrict my recommended Order to a
requirement that Respondent make whole these two em
ployees for any loss of earnings and other rights and ben
efits they may have suffered by reason of their wrongful
layoff Backpay shall be computed in the manner set
forth in F W Woolworth Co, 90 NLRB 289 (1950) with
interest as provided in New Horizons for the Retarded,
283 NLRB 1173 (1987) interest on and after January 1
1987, shall be computed at the short term Federal rate
for the underpayment of taxes as set out in the 1986
amendment to 26 U S C § 6621 Interest on amounts ap
proved prior to January 1 1987 (the effective date of the
1986 amendment to 26 U S C § 6621) shall be computed
in accordance with Florida Steel Corp 231 NLRB 651
(1977) Respondent shall also be required to remove any
reference to these adverse actions from the employees
files and to notify the employees involved in writing that
this has been done and that the adverse actions will not
be the basis of any later action against them Sterling
Sugars, 261 NLRB 472 (1982)
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2) (6), and (7) of the
Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 Respondent violated Section 8(a)(3) and (1) of the
Act by engaging in the following acts and conduct in
February
(a) Removing the leadman status of employee Harold
Volland because of Volland s activities in distributing
handbills in support of General Teamsters Union Local
COMET TRAILER CORP
No 524, affiliated with International Brotherhood of
Teamsters Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO
(b) Transferring employee Richard King from the po
sition of inside expediter that involved regular contact
with other employees to the position of outside expediter
involving essentially no contact with other employees
because of his handbilling activities in support of General
Teamsters Union, Local No 524
(c) Laying off employees Byron Hahner and Larry
Taylor because of their handbilling activities in support
of the Union
4 The above unfair labor practices affect commerce
within the meaning of Section 2(2), (6) and (7) of the
Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed6
ORDER
The Respondent Comet Trailer Corporation , Selah,
Washington , its officers agents successors , and assigns,
shall
1 Cease and desist from
(a) Demoting leadmen because of their union activities
(b) Transferring employees because of their union ac
ti vities
(c) Laying off employees because of their union activi
ties
(d) In any like or related manner interfering with, re
straining , or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act
6 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
1033
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Restore employee Harold Volland to his position as
leadman
(b) Restore employee Richard King to his position as
inside expediter
(c) Make whole employee Harold Volland for all
losses incurred as a result of Respondents unlawful de
motion of him from leadman on February 23, with inter
est as set forth in the remedy section of this dDecision
(d) Make whole employees Byron Hahner and Larry
Taylor for all losses incurred as a result of Respondent s
unlawful layoff of them on February 29 until their recall
in March, with interest as set forth in the remedy sec
tion of this decision
(e) Remove from King, Volland, Hahner and Taylor s
files any reference to the adverse actions taken against
them and notify each in writing that this has been done
and that the unlawful adverse actions discussed above
will not be used as a basis for future personnel actions
against them
(f) Post at its Selah, Washington facility copies of the
attached notice marked Appendix ' Copies of the
notice, on forms provided by the Regional Director for
Region 19, after being signed by Respondents authorized
representative shall be posted by Respondent immediate
ly upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted Reasonable steps
shall be taken by Respondent to ensure that the notices
are not altered, defaced or covered by other material
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
7 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board