Dollar General Corp.

National Labor Relations Board - Board Decisions

Mar 25, 1971

189 N.L.R.B. 301 (N.L.R.B. 1971)

DOLLAR GENERAL CORPORATION 301
Dollar General Corporation and Mitchell Lewis and
Plymouth Eaton
Dollar General Corporation and Tommie Jones
Dollar General Corporation and Billy Word and Billy
Landrum . Cases 9-CA-5525-1, 9-CA-5525-2,
9-CA-5647, and 9-CA-5728
March 25, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On December 1, 1970, Trial Examiner Owsley Vose
issued his Decision in the above-entitled consolidated
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that Respondent did not engage in certain other
unfair labor practices and recommended that these
allegations of the complaint be dismissed. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in these cases, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Dollar General Corporation, Scottsville,
Kentucky, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
In reaching our conclusions, we do not rely on the background events
or inferences arising therefrom concerning the unsuccessful organizing
effort at the Company's Scottsville warehouse in 1964
TRIAL EXAMINER'S DECISION
STATEMENT Of THE CASE
OWSLEY VOSE, Trial Examiner: These consolidated cases
189 NLRB No. 41
were tried before me at Scottsville, Kentucky, on Septem-
ber 8 and 9, 1970, pursuant to charges filed on February 12,
1970, May 12, 1970, and July 6, 1970, respectively, and an
amended consolidated complaint issued on July 28, 1970.
The amended consolidated complaint, as further amended
at the hearing, alleged that the Respondent, hereinafter
sometimes referred to as the Company, had discharged the
five Charging Parties in violation of Section 8(a)(3) and (1)
of the Act and had engaged in various acts of interference,
restraint, and coercion in violation of Section 8(a)(1) of the
Act.
Upon the entire record, my observation of the witnesses,
and after considering the briefs filed by the General
Counsel and the Respondent, I make the following'
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Company, a Kentucky corporation, is engaged at its
facilities at Scottsville, Kentucky, in warehousing and
distributing merchandise to its retail outlets in 17 states.
During the year preceding the issuance of the complaint
herein the Company shipped more than $50,000 worth of
merchandise to outlets in States other than Kentucky
Upon these facts, I find, as the Company admits, that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
District No 53, International Association of Machinists
and Aerospace Workers, AFL-CIO , herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Company's Violations of Section 8(a)(3) and
(1) of the Act
I Sequence of events
a. Background
In 1964 an unsuccessful effort was made by a few of the
drivers operating out of the Company's Scottsville ware-
houses to interest their fellow drivers in joining the
Teamsters Local 89 which has its headquarters in
Louisville, Kentucky. Drivers Mitchell Lewis, Dee Doug-
las, and Ray Garrison (now the Respondent's dispatcher)
went up to Louisville to see about organizing the men in
Local 89
The Company has a practice of giving raises in pay in
January of each year. Plymouth Eaton, who had been a
driver for the Respondent for over 5 years was given a raise
to $2.05 per hour in January 1969. In February 1969 the
Company's president, Cal Turner, Sr, announced at a
meeting of all the drivers that the Company was
discontinuing the practice of allowing the drivers to retain
the cash discount which the service stations from which
they bought their gasoline had previously paid them.
Turner, Sr, also announced at this meeting that he was
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
giving the drivers an additional 10 cents per hour
across-the-board. At the time Turner, Sr., made this
announcement he stated that he was giving the raise to keep
drivers like Garrison and Douglas from going to Louisville.
At this time Garrison was still a driver. Garrison was not
made the dispatcher until July 1969.
On June 16, 1969, Barbara Mayes, one of the Company's
office employees, was having lunch in the South Winds
Restaurant in Scottsville with several fellow workers when a
friend, Floyd Connor, entered the restaurant. Connor is a
representative of the Union. Mayes invited Connor to join
the group at her table Connor, whose appearance in the
restaurant at this time was entirely by chance, commenced
discussing the strike settlement agreement recently reached
at the Woodmaster plant in Scottsville After Connor
mentioned that the Woodmaster employees had been
granted nine paid holidays, Mayes stated that the
Company's employees received only four and she or
someone else in the group apparently went on to make
other remarks which were critical of the wages which the
Respondent was paying. Four days later Mayes was
summoned to the office and questioned about the incident
A week later, on June 23, Mayes was discharged,
purportedly for criticizing the holidays and working
conditions of the Company and making remarks
"belittling" the Company. Later that day Mayes telephoned
Cal Turner, Sr , and asked him if the reason for her
discharge was her talk with Union Representative Connor
Turner's reply, according to Mayes' credited and undenied
testimony, was
that [Mayes] was a victim of circumstances, at
the wrong place, at the wrong time, and that they didn't
like the threats that were being made about [the
Company] would be next, and that they couldn't have
any union sympathizers or friends of people in the
union in their organization.
The facts summarized in the preceding paragraph were
found by Trial Examiner Sydney S. Asher in his decision
dated January 30, 1970, in an earlier proceeding against the
Company, Case 9-CA-5247 Upon these facts Trial
Examiner Asher found that Mayes' discharge "was
motivated by the Company's desire to isolate its employees
from union organizers and to weed out potential union
sympathizers " Mayes' discharge, the Trial Examiner
concluded, violated Section 8(a)(3) and (1) of the Act. The
Company failed to file exceptions to this decision and it
became the decision of the Board pursuant to Section 10(c)
of the Act (Order of the Board dated March 3, 1970).
' Dugas admitted telling Eaton to keep his mouth shut, but explained
that Eaton "had a bad habit of just talking all the time and some people
took him wrong" and that he "wanted him to be a little more humble you
might say, about some of the things that the Company was trying to do "
Dugas was not questioned concerning Eaton's testimony concerning the
South Winds Restaurant inquiry, but he denied generally questioning
Eaton about meetings or concerted activity of any kind I find Eaton's
testimony plausible on its face and Dugas' denial unconvincing As appears
below, I find Dugas' testimony in another respect completely unbelievable
b The commencement of the drivers ' organizational
efforts, the Company 's response
About the end of September 1969 Plymouth Eaton, Billy
Landrum and Buell Petty had a discussion at a motel in
Kingsport , Tennessee , about the possibility of organizing a
union among the Company's drivers Landrum had
previously talked to Clovis Blankenship , a representative of
the Union from Bowling Green , Kentucky Commencing
early in October , Eaton met with various other drivers in
restaurants around the warehouses and inquired of them
whether they would sign union cards. Finally, it was
decided to have a supper meeting at the South Winds
Restaurant of those interested in a union to discuss their
problems concerning their runs , seniority, and wages.
Witnessess place this meeting at various times, Eaton's
testimony indicating that it was held about the middle of
October, and Lewis placing it around the end of October.
While a few of the drivers showed up at the South Winds
Restaurant , the record fails to show what actually went on
on this occasion Apparently, the meeting broke up early
because of the apprehensions of those present that one or
more of the Company's supervisors was spying on the
meeting . There is no first-hand testimony in this case,
however, that any such surveillance was engaged in by any
of the Company 's supervisors , and the two supervisors
named in hearsay testimony both denied engaging in such
conduct. I find that no such surveillance occurred.
Shortly after this meeting Wayne Dugas, a buyer for the
Company and admittedly a supervisor within the meaning
of the Act, questioned Eaton about the meeting at the
South Winds Restaurant . Eaton replied that he knew
nothing about the meeting and explained that he had dust
returned from Oklahoma After further conversation Dugas
told Eaton that he was doing a good job but he "was talking
too much," and warned him to keep his mouth shut.'
After the meeting at the South Winds Restaurant the
drivers got together in small groups at the Cedar House
Restaurant and other public places to discuss organizing a
union . Cedar House Restaurant is across from the
Company's main warehouse. Cecil Patterson, the ware-
house superintendent , complained at one of the Company's
monthly meetings about the drivers' getting together at the
Cedar House On other occasions Patterson questioned
Tommie Jones about what the men did at these meetings, as
Jones credibly testified Patterson also objected to the
drivers getting together at truck stops in other States, as
Driver Mitchell Lewis credibly testified. On one occasion
after Lewis had spoken briefly to Tommie Jones while
passing through the warehouse , Patterson stated to Lewis
And I find it doubtful that Dugas, who incidentally is the son-in-law of the
Company's president would tell Eaton to shut his mouth merely as a piece
of fatherly advice, as Dugas' testimony implies Rather . I conclude that
Dugas' statement , made as it was in the course of a conversation in which
the South Winds Restaurant meeting was mentioned , was intended as a
warning to Eaton to cease his concerted or union activities Dugas'
questioning of Eaton about the South Winds Restaurant meeting and his
warning to Eaton to cease his concerted activities constituted interference,
restraint, and coercion in violation of Section 8(a)(1) of the Act
DOLLAR GENERAL CORPORATION 303
that the Company "didn't want us bunching up on
company property "2
James Ogles, a department head in one of the warehous-
es, told Tommie Jones during this period that he was
talking too much and that they "had better break it up."
Ogles, together with Harold Steenbergen, another depart-
ment head, threatened Jones on another occasion that the
employees were "going to get fired if we didn't stop having
these meetings." Ogles went on to say, according to Jones'
credited and undemed testimony, that "they tried to get it
in in 1964 and it didn't happen . . `You guys are going
to get fired."'
Early in November Eaton had dinner with Jimmy Briggs
at a motel in Corinth, Mississippi. Briggs was a company
supervisor in this area Eaton and Briggs were both
involved in moving one of the Company's stores After
dinner Eaton informed Briggs that the drivers were
thinking about affiliating with a union Eaton mentioned
that he, Billy Landrum and Buell Petty were all interested.
Briggs said in response that the drivers had better watch
their step, for they "would be fired" if the Company found
out about it
On Saturday, November 29, 1969, Eaton had a second
conversation with Supervisor Dugas in the course of which
Dugas again warned Eaton that he was "talking too much"
and that he "had better go and keep [his] mouth shut and
quit congregating with other guys." t As found below,
Warehouse Superintendent Patterson commented to Tom-
mie Jones 2 days later that he "had been talking too much
and going to too many meetings "
c The discharge of Mitchell Lewis on November 29
Before discussing the facts relating to Lewis' discharge it
is necessary to state certain facts concerning a change in the
Company's procedures which was effected about the
middle of October 1969 which have an important bearing
upon Lewis' discharge This change also figures significant-
ly in the discharge of Plymouth Eaton, discussed below
The operation of the Company's tractors and semitrail-
ers, which the drivers here involved drove, is subject to the
Regulations of the Department of Transportation, Federal
Highway Administration, Bureau of Motor Carrier Safety
Section 295 8 of such regulations, as amended and in effect
prior to January 1, 1968, provides that all motor carriers
shall require their drivers to prepare daily logs covering all
trips showing, among other things, hours off duty, hours
driving, hours on duty not driving, area covered, and the
2 Patterson was not questioned specifically about these incidents
However Patterson generally denied making any effort to interfere with
the actisiues of the employees with respect to meeting and conferring
about wages, hours and working conditions I credit the employees'
specific testimony in preference to Patterson's general denial
' Like Dugas' earlier warning to Eaton to keep his mouth shut Dugas'
statement to Eaton on this occasion also violated Section 8(a) (I) of the
Act
i Dispatcher Garrison testified that about 2 weeks after the Federal
Highway Administration issued a safety compliance report on September
18 1968, a report which reflected that the Company and the drivers had
committed several hundred violations of the Federal Highway
Administration's regulations the then dispatcher passed out among the
drivers a form of vehicle condition report prepared by the Company The
implication in Garrison's testimony is that the forms were put into use at
this time although Garrison did not specifically testify to this effect The
daily mileage. Section 296.7 provides that all motor carriers
shall require their drivers to submit at the completion of
each day's work or tour of duty vehicle condition reports
listing all defects in the vehicle or indicating that none were
found. This section further provides that all such reports
shall be carefully examined by the carrier and retained for 3
months
Prior to the middle of October 1969 the Company had
required its drivers regularly to submit their daily logs but it
had not examined them as required in the regulations And
it had not required the furnishing of vehicle condition
reports, section 296.7 of the regulations had been virtually
ignored by the Company in actual practice.`'
At a company meeting held on a Saturday morning about
the middle of October the Company announced a new
policy to the drivers. Jimmy Polston, the Company's
personnel manager, and Ray Garrison, the dispatcher,
stated to the drivers, so Garrison testified, that "they were
to run legal, keep all their paperwork up, to turn it in at the
end of each trip and their paperwork was to consist of daily
logs, vehicle condition reports, trip reports and fuel
tickets." Garrison further testified that the men were
instructed not to work more than 60 hours in any 7-day
period, nor spend more than 15 hours on duty, in any 1 day,
nor put in more than 10 hours driving time in any I day
This was in accordance with the Federal Highway
Admininstration Regulations.5
Five drivers were questioned at the hearing concerning
the Company's procedure regarding the furnishing of
vehicle condition reports (referred to in the record by the
drivers as defect reports) Eaton and Jones testified that
after the meeting in the middle of October they understood
that the reports were to be submitted only when there were
defects to be reported. Lewis, who had not attended the
October meeting, testified that after the meeting he received
vague information from other drivers about the necessity of
filling out vehicle condition reports when there was a defect
to be reported Landrum and Word testified that it was not
until after Lewis was discharged on November 29, that the
Company commenced strictly enforcing the Federal
Highway Administration Regulation regarding the submis-
sion of vehicle condition reports after every trip No
employee testified to a contrary understanding.
Resolution of the sharply conflicting testimony concern-
ing the instructions given at the meeting in the middle of
October has been made much more difficlut by Garrison's
action, commencing in March 1970, in throwing away the
vehicle condition reports filed by the drivers after the
Company urges this interpretation of Garrison's testimony in its brief As
found below five drivers in effect testified that the vehicle condition
reports were not put into general use until after the company meeting in
the middle of October 1969 I credit the mutually corroborative testimony
of these five drivers
Polston testified that Mr Turner (I infer that this is Cal Turner. Sr
the Company s president) "sometime in September." after examining the
payroll records of the drivers instructed him and Garrison to make the
drivers "get legal" Cal Turner, Sr. was not called as a witness I cannot
believe that two of the Company's lower echelon supervisors would delay
for about 2 weeks or more before putting into effect the instructions of the
Company's president to see to it that the drivers went "legal " For this
reason I cannot accept Polston's testimony that Turner, Sr gave them
these instructions in September I find that Turner. Sr. gave these
instructions to Polston and Garrison in October after the drivers
commenced their discussions about securing union representation
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting in the middle of October. This was after the
Company had been put upon notice, by the filing of charges
with the Board in early February 1970, that the discharges
of Lewis and Eaton, assertedly for failing to file vehicle
condition reports, were claimed to be an unfair labor
practice.
Upon weighing the conflicting testimony and taking into
consideration the fact that the Company called no
employee to corroborate its version of the instructions
given at the October meeting and the further fact that the
Company destroyed the records which would have made it
possible to ascertain precisely the circumstances under
which vehicle condition reports were submitted after the
October meeting, I conclude that the testimony of the
General Counsel's employee witnesses is entitled to credit
and find that the instructions given on this occasion were to
file vehicle condition reports only when there was a defect
to be reported.
Lewis had worked for the Company as a driver for almost
9 years. Except for an alleged tendency to drive too fast
over speed ramps on the Company's premises, the
Company had no complaints about Lewis' work as a
truckdriver
As found above, Lewis had become interested in unions
years before, and this interest was known to Garrison,
Lewis' supervisor, who was largely responsible for Lewis'
discharge on November 29.
On Saturday, November 29, Lewis went to the dispatch-
er's office to pick up his paycheck. Garrison, the dispatcher,
told Lewis that Jimmy Polston, the personnel manager,
wanted to see him. Then the following transpired,
according to Lewis' credited testimony.
So I walked out and he followed me and went in to
office and Jimmy told me to sit down and I sit down
across the desk from him and he said, "I've got a letter
here for you " He reached in his desk and said, "I'm
going to have to discharge you at this time," so I said,
"Well, what do you mean discharge9 Fire?" and he said,
"Yes." I asked him "What for?" and he said, "For not
filling out defect reports and for not attending .
called meetings " . . . which I had been there like 3
months and 9 years and I don't remember but two
meetings I ever missed, there might have been three,
and I told him I didn't think it was right, that that
couldn't be what it was. And this letter he gave me, I
opened it and it had two checks and a blank piece of
paper. So I asked him what were the two checks for and
he said, "Well, it's customary to give one when they fire
you, a week in advance " I turned around and took out
one, picked out the one that I hadn't worked for and
pitched it over to him and told him I didn't receive
nothing that I didn't work for, and did not take it
Polston testified that on Thursday, November 27,
Garrison reported to him that he had been going over the
records which the drivers had filed since the company
meeting in the middle of October and had discovered that
Mitchell Lewis had not been filling out vehicle condition
reports Garrison also stated at this time that the majority
of the drivers had been doing so, but not every driver every
day. Garrison also reported to Polston, according to
Polston, that Lewis had been abusing equipment, and as an
example cited an occasion during the summer when Lewis
had called him about a broken gas tank strap, which
Garrison inferred, from observing some skid marks, had
been caused by Lewis' driving too fast over the speed
ramps.c Polston asked Garrison whether he had spoken to
Lewis about this incident and Garrison said no, but that he
had cautioned Lewis on other occasions about passing the
speed ramps. Polston immediately decided to discharge
Lewis, since, as Polston testified, "we had definitely told
them in the October meeting to file all reports and we had
instructed them to be legal and he [Garrison] had cautioned
him [Lewis] about the speed bumps himself " Both Polston
and Garrison testified that Polston mentioned Lewis'
asserted abuse of equipment during the discharge interview.
Lewis, called as a rebuttal witness, denied this. In view of
the fact that the incident of alleged equipment abuse had
occurred several months earlier and admittedly had not
been mentioned to Lewis at that time, I do not credit
Polston's and Garrison's testimony suggesting that equip-
ment abuse was a factor in Lewis' discharge.
Lewis testified that he had not been present at the
company meeting in the middle of October at which the
instructions to "get legal" were issued and that he had never
been told by Garrison or any other official of the Company
to turn in vehicle condition reports. Lewis admitted,
however, that a few weeks after the meeting he learned
from some of the drivers that they were filling out vehicle
condition reports on some occasions. However, according
to Lewis, he was informed that the reports were required
only when there was a defect to report
Garrison testified that on the Tuesday following the
meeting, when Lewis came back from his first trip after the
meeting, he informed Lewis that the meeting had been held
and gave him the gist of what had been said at the meeting,
including the requirement that vehicle condition reports
and the other papers be turned in at the end of each trip. On
rebuttal Lewis again denied that Garrison had ever spoken
to him in October about the vehicle condition reports, and
testified after examining his copies of the log sheets turned
in by him to the Company, that he was away on company
trips and not in Scottsville during Tuesday, October 14 and
21 and that on Tuesday, October 28, he left for Tennessee
and Alabama at 7 a.m, without speaking to Garrison
beforehand.
Lewis impressed me as attempting to testify truthfully
On the other hand, I have found unreliable Garrison's
testimony that he instructed the men at the meeting in the
middle of October to file vehicle condition reports after
every trip regardless of whether there was a defect to be
reported or not As stated above, five drivers testified to the
contrary The Company failed to produce a single driver to
corroborate Garrison's version. Under all the circum-
stances I do not credit Garrison's testimony that he
instructed Lewis privately that vehicle condition reports
should be submitted at the end of each trip.
6 Earlier in 1969 the Company had installed asphalt ridges , or bumps in
the pavement to slow up the drivers
DOLLAR GENERAL CORPORATION 305
d. The meeting at Eaton 's home on November 30
After Lewis ' discharge , about half of the Company's
drivers , of which there were about 20, got together on
Sunday night , November 30, between 6 and 7 p m. at the
home of Eaton , which is located southeast of Scottsville on
State Route 100 The purpose of the meeting was to discuss
what could be done about Lewis' discharge It was arranged
that Clovis Blankenship , the union representative from
Bowling Green , would be present Hardly had the men
arrived at Eaton 's home when Supervisor Wayne Dugas
drove by in a southeasterly direction (away from Scotts-
ville). Dugas peered in at the group as he drove by. The
drivers, apprehensive that they were being spied upon, left
Eaton's and drove toward Scottsville to the grounds of a
Tabernacle located about a half mile from Eaton's and
parked their cars there . About 20 to 30 minutes later Dugal
drove by the Tabernacle in a northwesterly direction
towards Scottsville After passing the group , Dugas drove
into a driveway , turned around and drove past the group of
drivers on the Tabernacle grounds a second time.? After
thus observing Dugas, the drivers decided to leave the
Tabernacle grounds and to assemble on the parking lot of
the Home Town Dairy Bar in Scottsville , which was closed
at the time However, two of the men, Jones and Harter,
fearful of theirjobs , decided that they would go on home.
The others drove on to the Dairy Bar where they remained
about 20 minutes and then disbanded The record does not
disclose the nature of the discussions at the Dairy Bar.8
e The discharge of Tommie Jones on December 1
Jones was hired as a warehouseman in 1964 but was soon
given over - the-road truckdriving assignments on a
part-time basis Jones continued to be classified as a
warehouseman , however . Jones was usually given runs on
Thursdays and Fridays These runs would generally last for
a day or two Jones would then work Mondays, Tuesdays,
and Wednesdays in the warehouse Jones was paid an
hourly rate of $1 75 per hour whether engaged in truckdriv-
ing or working in the warehouse.
The Company 's warehousemen , according to Warehouse
Superintendent Patterson , ordinarily work 40 to 45 hours a
week The drivers work close to 60 hours every week. Since
the drivers under the Regulations of the Federal Highway
Administration are permitted to stay on duty for 15 hours a
day providing they do not drive for more than 10 hours of
this time, they accumulate hours rapidly . Thus, Jones in his
driving assignments on Thursdays and Fridays, could
accumulate substantially more on-duty hours than could
his fellow warehousemen who did no driving.
Warehouse Superintendent Patterson testified that about
2 years, before Jones was discharged , he instructed Jones'
departent head , James Ogles, to have Jones stop his
excess hours. Patterson further testified that he personally
talked to Jones about his hours "possibly 8 months or
maybe a year" before his discharge and again "3 or 4
months" before his discharge Later Patterson testified that
about 2 months before Jones ' discharge he told Jones that
"the hours had to be cut down ... it was a short
conversation . I didn ' t tell him I would fire him
Jones admitted that Patterson had been after him for some
time to "get the hours down."
Despite these instructions Jones' practice during most of
1969 was to put in enough additional hours in the
warehouse to bring his total hours up to 60 hours a week.
However, in the last 5 full weeks of Jones' employment he
did reduce his hours slightly , putting in the following hours
during this period : 56-1/2, 53 , 59, 53, and 58 -1/2. During
the previous 25 weeks Jones had regularly worked 60 hours
a week . This was largely before any union discussions were
taking place among the drivers.
Jones participated in the union discussions with other
drivers during October and November . As found above,
thereafter Warehouse Supervisors Ogles and Steenberger
warned Jones that the employees were "going to get fired if
[the employees] didn't stop having these meetings ." Jones
was one of the employees who attended the meeting at
7 The foregoing findings are based upon the credited testimony of
Lewis f aton Landrum , and Word , each of whom testified that the) saw
Dugan drive by the group at least once and Lewis and Eaton both testified
that they saw Dugan turn around and drive past the Tabernacle twice
Dugan admitted that he made one roundtrip past Eaton 's home and the
Tabernacle on the occasion in question but denied that he turned around
and drove away from Scottsville a second time Dugan also denied noticing
any employees at Eaton ' s home or on the Tabernacle grounds
Dugas testified that on the occasion in question he was going to visit
Bobby Reynolds a friend of his, who owns a farm in the vicinity of State
Route 100 about 14 miles southeast of Scottsville According to Dugas he
wanted to see Reynolds to ask his permission to "bow hunt" on his farm
As Dugas explained he "had gun hunted on [Reynolds ] land, but [he] did
want to see [Reynolds ] about how hunting" So he suggested as he left his
father-in - law's home with his wife and three children that they drive out to
Reynolds However he decided to turn hack without going on to Reynold s'
as he was rounding the bend where the Oak Forest Church was located
This church is located on State Route 100 about 3 to 5 miles past Eaton's
home Dugas' explanation for changing his mind about going on to the
farm is as follows
The Oak f orest Church they were having church and I told my wife at
that time we had better not go because I remembered Bobby is a
church going boy both he and his family I said "Well, I will just call
him when we get home " so we turned around
Dugas admitted that he did not know what church Reynolds attended
and stated that he did not think it was the Oak Forest Church
In view of the fact that Dugas did not know when he purportedly went
out to speak to Reynolds whether Reynolds was home at that time, the
further fact that a telephone call would have accomplished Dugas' whole
mission and particularly in view of the incredible explanation given by
Dugas for abandoning his mission , I conclude that Dugas concocted the
whole story in advance to give him an excuse for passing Eaton 's home at a
time that he must have had information that a meeting of the drivers was
going to take place Dugas ' questioning of Eaton about events at the
meeting at the South Winds Restaurant indicates that the Company was
not without channels of information concerning union - related activities I
find Dugas to be a wholly unreliable witness
" Dugas conduct in deliberately keeping the meeting of employees at
Eaton 's home on November 30 under surveillance constituted interference,
restraint and coercion in violation of Section 8 (a)(1) of the Act, as alleged
in the amended consolidated complaint The complaint further alleges that
Walter Gupton, a regional supervisor, engaged in surveillance of employee
meetings at various places on November 30 Lewis testified that Gupton
made two trips past the Tabernacle when the men were gathered there and
that he later drove through the parking lot of the Dairy Bar while the men
were there Gupton denied engaging in any such conduct None of the
other drivers observed Gupton at the Tabernacle or the Dairy Bar Lewis
described Gupton as driving a dark brown Oldsmobile , an automobile
which a ccording to Gupton, he did not acquire until after November 30
Under all the circumstances I conclude that a preponderance of the
testimony does not support the allegations of the amended consolidated
complaint concerning surveillance by Gupton These allegations are hereby
dismissed
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eaton's home to discuss Lewis' discharge. This is the
meeting on November 30, which Supervisor Dugas kept
under surveillance
Later in the afternoon on Monday, December 1,
Patterson called Jones into his office in the warehouse and
told Jones that he did not need him any longer Patterson
stated that he had attempted to cooperate with Jones, but
that Jones would not listen to him and continued to work
"too many hours " Patterson went on to say that Jones
"had been talking to much and going to too many
meetings" In addition, Patterson asked Jones on this
occasion if the drivers had had a meeting at Eaton's. Jones
refused to answer.9
f The discharge of Plymouth Eaton on December 2
The Company hired Eaton as a driver in 1963 and he has
worked for the Company steadily ever since. The Company
makes no claim in this case that Eaton was not a
satisfactory driver.
As found above, Eaton was one of the initiators of the
1969 movement to achieve union representation Dugas'
questioning of Eaton about the meeting at the South Winds
Restaurant and his repeated cautioning of him to keep his
mouth shut and to quit congregating with the other men
indicates that the Company for sometime at least suspected
that Eaton was involved in concerted or union activities
The Company's surveillance of the meeting at Eaton's
home on November 30 further demonstrates its awareness
of Eaton's involvement in the activities then going on
among the drivers and its concern about such activities
When Eaton reported for work on Monday, December 1,
his tractor was being repaired Dispatcher Garrison told
Eaton to come in that evening or the following morning.
When Eaton reported on Tuesday morning he was told to
see Personnel Manager Polston. Garrison accompanied
Eaton into Polston's office. Polston told Eaton that he had
failed to fill out a defect report on the tractor and trailer
and that he was being terminated When Eaton asked if this
was the only reason for his discharge, Polston replied,
"That's the only reason I have."
Polston testified that on Monday, December 1, Garrison
had reported to him that Eaton also had not been filling out
vehicle condition reports When Polston questioned
Garrison about why he had not given him this information
at the same time he had reported that Lewis was not filing
these reports, Garrison explained, according to Polston,
that the reports were not filed in any order and that he had
not finished reviewing all the reports at that time. Garrison
futther stated to Polston that a majority of the men had
filled out these reports most of the time, and that Lewis and
Eaton were the two exceptions. Polston immediately issued
instructions , as he testified, that Eaton be referred to him
before he went out on his next trip. The discharge followed
when Eaton reported for work the next morning
Eaton testified that he filled out the reports whenever he
found a defect to report and that he had filled out the forms
six to seven times since the new procedure was adopted.
v The foregoing findings are based on Jones' credited testimony
Patterson was not questioned about the additional comments attributed to
him by Jones about "talking too much" and his attendance at meetings
However, as indicated above, Patterson generally denied interfering with
This testimony is in direct contradiction to Garrison's
which is that Eaton had not turned in any defect reports at
all.
Garrison's action in discarding the vehicle condition
reports covering the crucial period, discussed above, greatly
handicaps me in ascertaining the true facts concerning the
extent to which Eaton and the other drivers turned in
vehicle condition reports after the October meeting Since
these reports were thrown away by Garrison after the
Company was put upon notice that the discharges of Eaton
and Lewis were being questioned before the Board,
Garrison's action is scarcely understandable. In view of
Garrison's action in this regard I infer that the discarded
records, if retained, would not have been helpful to the
Respondent's case. Under all the circumstances I conclude
that Eaton's testimony that he turned in six to seven vehicle
condition reports is entitled to credit in preference to
Garrison's testimony to the contrary.
g. The Company's instructions to drivers dated
December 6
On December 6 the Company issued a set of instructions
to drivers covering paperwork, unloading, Federal High-
way Admininstration Regulations, workweek, expenses,
and maintenance The pertinent portions of these instruc-
tions, which apparently were the first written instructions
issued in sometime, are quoted below.
TRUCK DRIVERS
December 6, 1969
I. To submit all paper work at the end of each trip
A. Log sheet or sheets
B. Drivers' Mileage Report
C. Fuel Tickets on purchases
D Drivers' Vehicle Condition Report
E. Delivery Receipts
*
h. Landrum's conversation with Turner on May 11,
1970
The union activity among the drivers apparently
completely subsided after the discharge of Lewis, Jones,
and Eaton on November 29, December 1, and December 2,
respectively
On February 9, 1970, Lewis and Eaton filed with the
Board's Cincinnati Regional Office charges alleging that
their discharges violated Section 8(a)(3) and (1) of the Act.
On March 25, 1970, the Regional Office issued a complaint
and scheduled a hearing on these charges for May 13, 1970.
On May 4, 1970, the General Counsel served on
Landrum a subpena calling for him to give testimony at the
hearing before the Trial Examiner on May 13. As far as
Landrum knew, he was the only employee served with a
the employees' union activities Jones candidly admitted facts which
weakened his case and in general impressed me as a thoroughly reliable
witness I credit Jones ' specific testimony and find Patterson 's general
denial unconvincing
DOLLAR GENERAL CORPORATION 307
subpena On May 11 Landrum went to Turner's office to
explain receiving the subpena. As Landrum testified,
I went to tell him that it looked like I had been bought
out by Mr. Lewis and Mr. Eaton and that I hadn't, all I
was going to do was to come up on the witness stand
and tell the truth.
There was further discussion and whenever I started to
leave, well, Cal Turner, Jr., told me, said, "You still
work for Dollar General Corporation and you should
remain loyal." Then he changed to something else and
he acted real nervous, but I don't remember what he
changed it to.
The amended consolidated complaint was further
amended at the hearing to allege that Vice President Turner
engaged in interference, restraint, and coercion by
threatening an employee on May 11, 1970, with reprisals
should he testify at a Board hearing which was scheduled
for May 13. The General Counsel argues that Turner's
statement constituted a threat of possible loss of Landrum's
job should he fail to remain loyal to the Company in his
testimony to be given 2 days later. While I do not regard
Turner's statement as a threat of possible discharge, it
reasonably may be construed as a warning of possible
adverse consequences if he failed to shade his testimony in
favor of the Company at the forthcoming trial. In my
judgment it is of utmost importance that prospective
witnesses in proceedings before the Board be free of all
forms of pressures to depart from the truth in their
testimony in Board proceedings and that it was Turner's
obligation in this situation to refrain from making any
statements tending to inhibit Landrum from testifying with
complete freedom. Turner's failure to observe this obliga-
tion in the circumstances of this case, in my opinion,
interfered with the right of all of the Company's employees
to enjoy the protection of the Board's processes free of all
hindrances tending to be destructive of their integrity.
Turner's conduct therefore violated Section 8(a)(1) of the
Act. Cf. W T Grant Company, 168 NLRB 93, 95-96;
Newland Knitting Mills, 165 NLRB 788, 793-794.
i. The discharge of Billy Landrum and Billy Word
on June 4, 1970
Landrum and Word were drivers for the Company. They
were personal friends and closely associated with one
another in their off-duty hours Landrum had worked for
the Company almost 7 years and Word over 3 years. Both
men took part in the union discussions which took place in
October and November, Prior to the discharge of Lewis,
Jones, and Eaton on November 29, December 1, and 2,
respectively. Both Landrum and Word attended the
November 30 meeting at Eaton's home which I have found
was spied upon by Supervisor Dugas.
About 8 a.m. June 4, 1970, Landrum and Word were
summoned to the office of Vice President Turner. Turner,
in the presence of Warehouse Superintendent Patterson,
told the two men that he had information that they had
come in drunk on the night of May 21. Both men
immediately denied having done so and said that they knew
that it was against company rules to come in drunk. Word
added that if he came in drunk he would expect to be fired.
Turner then told the two men to step outside and wait, but
not to drive a company vehicle, and that he wanted to see
them later after he had had a chance to investigate the
matter further.
While Landrum and Word were waiting they checked
with Garrison, the dispatcher, and ascertained that five
other drivers had been with them at the warehouse after
they returned on the night of May 21.One of these drivers
was on the premises that morning, Gary Wright, and
Landrum and Word asked him if he would speak to Turner
and vouch for the fact that they had not come in drunk on
May 21. Wright agreed but the three men found Turner
unavailable. So the three men went into Patterson's office
where Wright stated to Patterson that to the best of his
knowledge neither Landrum nor Word were drunk or had
been dunking when they came in on May 21. Patterson
replied, according to both Landrum and Word, that "he
didn't have anything to do with it, that he didn't know why
he was dragged in on it." (The drivers took their orders
from Garrison, the dispatcher, and not from Patterson, the
warehouse superintendent.)
About 3 hours later, Landrum and Word were called
back into Turner's office. After waiting a short while for
Patterson to return, Turner stated as follows, as Landrum
testified:
.. . he said he had been doing some real fast
investigating and that he was just going to have to
terminate our job on the evidence that he had on us. He
said that his information wasjust too good and we then
asked him who told him that we were drunk and he said
he shouldn't reveal that to us. We then asked him to
give us until that night until the drivers came in and we
could call the boys in that had been with us that night
and let them tell him that we hadn't been drunk because
we hadn't.
According to Word, Turner "wouldn't do that, he said he
had no other choice but to let us go."
At the hearing Turner testified that at the first discharge
interview he mentioned that there was some "confusion"
about the date of the incident of drinking while on duty,
and added that "I think we are talking about May 14."
When he called the men back in for the second interview,
according to Turner:
I said, Fellows, it happened on the 14th or 21st... as
far as I was concerned I had completely reliable
information and there was no point in dragging the
misery out, it was going to boil down to a question of
whom I believed and I was believing the testimony
against them.
Both Landrum and Word denied that there had been any
mention of the drinking incident having occurred on May
14. For reasons fully stated below I credit Landrum's and
Word's testimony in this regard.
The original source of the Company's information
concerning Landrum's and Word's alleged drinking was
Arnold Polston, one of the Company's night watchmen.
According to Warehouse Superintendent Patterson, Pol-
ston came to him on June 2 and reported to him that
Landrum and Word "had come in drinking" on some
unspecified occasion a week or 10 days earlier. Patterson
testified that he immediately passed this information along
to Turner. Turner questioned Polston about the incident
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the next evening, June 3. Turner's testimony about this
interview with Polston is as follows:
He [Polston ] said that he had heard them talking in a
loud tone of voice, laughing, and when he got up to
them at the back of their truck, he said, "Oh, my, what
have I gotten myself into" because he could tell they
were drinking and I asked him how he could tell they
were drinking and he said, "I could smell it."
I said, "Could you smell it on the breath of both the
these men?" and he said, "Yes." He said, "I got away
from there as soon as I could. I didn't want to get
involved and then they left when I got away and Billy
Landrum was so badly under the influence that he was
staggering. Billy Word was under the influence, but not
so badly."
He did say that Red Petty was on the property and I
asked him if Red Petty showed any evidence of having
consumed alcoholic beverages and he said that he had
observed nothing on Red to indicate that he had.
Polston, the watchman, testified that on May 14 he went
on duty at i I p.m and that at about midnight two vehicles,
driven by Landrum and Word, came in at "a real fast
speed," not 3 feet apart, and that "a split second" later a
third vehicle, driven by Petty, arrived According to
Polston, when the drivers had not left the premises in their
own vehicles in 15 minutes, he went back and investigated
When Polston reached the area he heard some "laughing
and talking" and upon getting "real close" to them he
observed Petty a few feet from Landrum and Word and
that "they was under the influence of alcohol." As Polston
turned around, so he testified, he saw Landrum
"staggering" up to his truck. In his direct testimony Polston
mentioned only Landrum specifically and the "they" to
whom he referred to as being under the influence of alcohol
apparently included all three men who were together there,
Landrum, Word, and Petty. On cross-examination, Polston
placed Petty over 100 feet away from Landrum and Word
and too far away from Polston for him to be able to smell
beer on Petty's breath. Polston was not questioned at the
hearing concerning the facts which he related either to
Patterson or to Turner concerning the incident of May 14.
As found above, Turner terminated the first discharge
interview by telling Landrum and Word that he wanted to
investigate the matter further. The Company's investiga-
tion, as far as the record shows, consisted of several
telephone calls. Turner placed telephone calls to two of the
other drivers, Buell (Red) Petty and Travis Waller. Petty
was out on the road and it took some time to reach him.
Incidentally, neither of these drivers had attended the
meeting at Eaton's home on November 30 which was
observed by Supervisor Dugas.
Turner testified that he called Waller first. As I interpret
Turner's testimony, he asked Waller first whether Landrum
and Word had been drinking on the night of May 21.
Waller replied, as Turner testified, that "he didn't know
11, Petty testified that Turner prefaced his remarks during this call by
stating , " You are not in any trouble I would like to ask you something "
Then , according to Petty, Turner , after reminding him of his schedule on
May 21, asked whether he had seen "anyone drinking, drunk or drinking
on company property" that night Petty testified that his reply was, "No, I
didn't see anyone" and "I didn't see anything to drink " Petty 's testimony
about the particular night in question." Then the following
conversation took place, according to Turner:
.. I said, "Have these two ever been dunking while
on duty for Dollar General Corporation?" and he said,
"Yes " I said, "Are you talking about one of them or
both of them?" and he said, "I am talking about both of
them."
Turner testified that in talking to Petty he first reminded
him of the trip which Petty had made on May 21 and then
asked whether Landrum and Petty had been drinking on
May 21. Petty's reply, so Turner testified, was that he did
not know. Then Turner asked, "Have these two ever been
drinking while on the job." Again Petty answered that he
did not know. When asked what date he was talking about
in his conversation with Petty, "the 14th or 21st," Turner
answered,
I was describing to him his run on the 21st I didn't have
the information about the 14th, but I did ask him about
both dates because I already knew that there was some
confusion. I already really suspected that it was the
14th, but he said that he didn't know for sure.io
Thus for the second time in his testimony by referring to
the "confusion" about the dates and his suspicions about
the May 14 date, Turner implied that he had knowledge
before the second discharge interview that the incident had
actually occurred on May 14. But there was no cause for
any "confusion" about this matter. The driver's logs which
the Company keeps in accordance with the Regulations of
the Federal Highway Administration accurately record the
times on which drivers leave and return on trips and their
approximate location on every hour while they are away on
trips. If the Company had actually checked these logs
during the first interview with Landrum and Word, as
Turner's testimony indicates, it would have ascertained
without any doubt that May 14 was the day Watchman
Polston was talking about , for it was unusual for the three
drivers, Landrum, Word, and Petty, and these three drivers
alone, to arrive at the same time, about midnight. By
examining the logs of these three men for other days during
this period it could have determined whether there was any
other night to which Polston could possibly have been
referring. Also, if the Company had examined the logs of
the drivers for the night of May 21 it would have discovered
at once that a larger group of drivers, including Landrum
and Word, arrived at about the same time around 9:30 p.m.
and that consequently May 21 could not have been the
night to which Polston was referring. In view of the fact that
the Company had available records which would have
enabled it in a very short period of time, certainly in no
more than 30 minutes, conclusively to determine the night
to which Polston's report of drinking referred, I do not
believe Turner was telling the truth when he testified that he
told the men at the first discharge interview that there was
"confusion" about the dates and that he thought "we are
talking about May 14." For the same reason I cannot
believe Turner's testimony that he informed the two men at
about Turner's call to him does not mention any inquiry by Turner
concerning drinking on May 14 As to the fact of Landrum's and Petty's
drinking on May 14, Petty testified that they had not been drinking on the
night of May 14, as far as he knew Petty added. "I didn't see anything or I
didn't smell anything and 1 had come with them all the way out of the
Carolinas together "
DOLLAR GENERAL CORPORATION 309
the second discharge interview that the incident "happened
on the 14th or 21st ." In my opinion , Turner in referring to
the confusion about the dates and the possibility that the
incident had occurred on May 14 was relating a fact of
which he did not acquire knowledge until after the
discharge of Landrum and Word . For certainly by the time
of the second discharge interview , which occurred about 3
hours after the first , if there had been any suggestion of
confusion regarding dates, Turner would have been able to
determine definitely by checking the drivers ' logs that the
incident had occurred on May 14.
Although Turner testified that Polston reported to him
that Landrum was "so badly under the influence that he
was staggering" the delay between the date of the incident,
May 14 , and the date on which Polston reported it to
Patterson , June 2, almost 3 weeks , suggests that Polston
exaggerated the seriousness of the incident It is hard to
believe that a responsible watchman upon seeing a
truckdriver come in in one of his employer 's vehicles
staggering drunk would delay almost 3 weeks in reporting
the incident . Polston 's delay is all the more incomprehensi-
ble in view of the fact that his son , Jimmy Polston , was the
Company's personnel manager , who had the authority to
hire and fire. Arnold Polston 's explanation for the delay is
that he tried to call Patterson , the warehouse superintend-
ent, but that he was out and that it was not until his fourth
call that he reached Patterson . When asked why he did not
call his son , the personnel manager , Arnold Polston
explained as follows:
Well, the night that I went to work Mr . Patterson met
me down there at 8:00 and went around with me to the
clocks and come back and told me if I needed a cup of
coffee or anything or anything happened to call him.
I find this explanation wholly unconvincing.
2. The Company' s contentions , conclusions
concerning the discharges
a. Lewis and Eaton
The Company contends that Lewis and Eaton were
discharged for their continued failure and refusal to file
vehicle condition reports. As found above, Dispatcher
Garrison gave oral instructions to a group of drivers, not
including Lewis, about the middle of October concerning
the filing of what the drivers called "defect reports ." Lewis,
who was sick at the time of the meeting, was never given
any instructions by the Company as to the filing of these
"defect reports." The other drivers who attended the
meeting received the impression that these reports were
required only when there was a defect to be reported. No
driver testified to a contrary understanding.
Lewis, who had not received any instructions from
management concerning these reports, did not file any such
reports in the approximately 6 weeks' period between the
meeting and his discharge . Eaton , as I have found , filed six
or seven such reports. Although the Company contends
that Lewis and Eaton were the only two drivers who
consistently failed to file vehicle condition reports,
Garrison destroyed or did away with such reports as were
filed by other drivers , which would have provided an
accurate measure of the extent of, and the nature of, the
reports which the drivers as a whole submitted after the
October meeting.
Prior to the commencement of the discussions among the
drivers about the desirability of organizing, the Company
had ignored the Federal Highway Administration Regula-
tions concerning the submission of vehicle condition
reports. Even after the Federal Highway Administration
inspector turned in an adverse safety compliance report in
September 1968 which cited the Company for failing to
require drivers to make vehicle condition reports, the
Company did not change its previous lax procedures. Only
after the organizing discussions began did the Company
attempt to come into compliance with the regulations
concerning the submission of vehicle condition reports. At
the meeting in the middle of October , the Company orally
communicated to the drivers who were present its
instruction concerning the filing of these reports . Even then
the Company failed to make clear to the drivers that the
regulations required the drivers to submit reports after
every trip , regardless of whether there were any defects to
be reported or not.
Six weeks after the meeting in the middle of October
Lewis, who had never been informed by the Company of
the new requirement , was suddenly discharged by the
Company, purportedly for failing to file vehical condition
reports. Lewis was given no warning whatever that his
failure to submit vehicle condition reports might result in
his discharge . One would expect a little better treatment of
a satisfactory driver of almost 9 years standing. i i
Garrison was aware of Lewis' interest in unions as a
result of Lewis' participation, with Garrison , in the 1964
effort to organize the drivers in the Louisville Teamsters
Local.
With respect to Eaton , he was discharged 2 days after the
meeting held at his home to discuss steps to be taken to
protest Lewis' discharge . This meeting was attended by
about 10 of the Company's drivers and a representative of
the Union This is the meeting which was kept under
surveillance by Supervisor Dugas.
Eaton, who was one of the initiators of the 1969
movement to secure union representation, had previously
been warned by Dugas to "keep [his] mouth shut and quit
congregating with other guys."
As in the case of Lewis, Eaton was discharged allegedly
for failing to file vehicle condition reports. However, unlike
Lewis, the credited testimony establishes that Eaton had
filed six or seven such reports . As found above, Garrison's
destruction of the vehicle condition reports filed by other
drivers (after being alerted by the filing of the charges by
Lewis and Eaton that these reports would have an
important bearing on the disposition of their cases)
precludes my comparing Eaton 's record with the records of
11 The Company 's only other complaint against Lewis was that he had a the time it occurred This incident was not mentioned to Lewis at the time
tendency to drive too fast over the speed ramps on the Company ' s of his discharge 1 conclude that this incident was an afterthought,
premises However , the only specific incident mentioned by Garrison , the advanced by the Company in a belated effort to bolster its otherwise weak
dispatcher , who discharged Lewis, had occurred months earlier , during the case against Lewis
summer , and Garrison had not even spoken to Lewis about this incident at
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other drivers with regard to filing vehicle condition reports.
And like Lewis, Eaton, who had been a satisfactory driver
for over 6 years, was discharged without a word of warning
that a discharge would be the penalty for failing strictly to
comply with the Company's new requirement regarding the
submission of vehicle condition reports, a requirement
which was not clearly explained to the drivers and which
was not promulgated in writing until December 6, after the
discharge of Lewis and Eaton.
That the Company was opposed to the organization of
the drivers is amply established in this record, As found
above, early in 1969 President Turner, Sr., in granting a
wage increase announced in effect that his purpose was to
keep the drivers from going to Louisville to seek assistance
from the Teamsters Local there in organizing the drivers. In
June 1969, the Company discharged Barbara Mayes, as the
Board found in the earlier case, in order "to isolate its
employees from union organizers and to weed out potential
union sympathizers." Supervisor Briggs warned Eaton in
the first part of November that the drivers would be fired if
the Company found out abour their interest in the Union.
Supervisors Ogles and Steenbergen also threatened that
employees would get fired if they did not stop having
meetings and otherwise engaging in organizational activi-
ties.
Under all the circumstances I conclude that Garrison
took it upon himself in the latter part of November to check
the vehicle condition reports in an effort to find an excuse
for getting rid of some of the active union sympathizers.
Finding that Lewis had filed no reports and claiming that
Eaton had not filed as many reports as other drivers,
Garrison, I conclude, seized upon these facts and utilized
them as a pretext for eliminating these two drivers from the
Company's employ. Garrison's real reason in terminating
these two union sympathizers, I find, was to squelch the
organizing activities in the early stages, and to pose an
object lesson for the other drivers as to the very serious
consequences of even considering having a union represent
them. Discharges for such a reason interfere with, restrain,
and coerce employees in the exercise of their right to engage
in concerted activity for their mutual aid and protection
and therefore violate Section 8(a)(I) of the Act. Such
discharges are also violative of Section 8(a)(3) of the Act, in
my opinion, even though in this case the employees had not
reached the stage of affiliating with a specific union or
designating a specific union as their bargaining representa-
tive, for such discharges constitute discrimination in regard
to tenure of employment and terms and conditions of
employment which discouraged membership in unions in
general. In any event it is immaterial whether these
discharges be regarded as violations of Section 8(a)(3) or
Section 8(a)(I) for in either case the remedy would be the
same.
b. Tommie Jones
The Company contends that Jones was discharged for
failing to heed its instructions to reduce his hours from
about 60 to between 40 and 45 a week . According to
Warehouse Superintendent Patterson, he had been seeking
for about 2 years to get Jones to reduce his working hours.
First Patterson worked through Jones' department head
and later he had personal conversations with Jones about
his hours. Jones admitted that Patterson had been after him
for some time to "cut down" on his hours.
Although Jones was a warehousman primarily under
Patterson's jurisdiction, for the first 2 days of his workweek,
Thursday and Friday, Dispatcher Garrison frequently sent
Jones out on driving assignements . Jones was the only
warehouse employee who served in this dual capacity.
Despite the fact that Patterson had been after Jones to
reduce his hours for about 2 years, for almost all of the last
year of his employment Jones continued to work approxi-
mately, 60 hours a week, the hours put in by the Company's
regular drivers, without any action being taken by
Patterson. 12 It is implicit in Patterson's testimony that he at
no time warned Jones that he would be discharged if he
failed to reduce his hours. However, after the union
discussions had been in progress for a while, and the day
after Jones had attended the meeting at Eaton's home to
consider Lewis' discharge, Patterson suddenly, and without
further warning, terminated Jones' employment. At the
time Patterson did so he commented to Jones that he "had
been talking too much and going to too many meetings."
Prior to his discharge Jones had been warned by company
department heads that employees would be fired if they
persisted in their organizing activities.
The Company does not question the fact that Jones had
served it satisfactorily during the 5 years Jones had worked
for the Company, both in his capacity as a driver and as a
warehouseman.
The foregoing facts strongly suggest that Patterson was
motivated by antiunion considerations in deciding to let
Jones go. I do not believe that Patterson, after having
tolerated Jones' 60-hour workweek for so long, would have
acted so precipitately and drastically, and without an
adequate warning to Jones, had he not known that Jones
was involved in the union discussions then in progress and
believed that Jones was seriously interested in achieving
union representation for the employees. I conclude that
Patterson's explanation for Jones' discharge is spurious and
that the real reason for Jones' discharge was Patterson's
desire to eliminate another employee who was actively
supporting the movement to unionize the Company's
drivers. Jones' discharge violated Section 8(a)(1) and (3) of
the Act.
c. Landrum and Word
The Company contends that Landrum and Word were
discharged on June 4, 1970, because Vice President Turner
had received a report from the night watchman that they
had come in from their run on the night of May 14 under
the influence of alcohol.
As found above, in the first of the discharge interviews
Turner accused the men of having come in drunk on the
night of May 21. Both Landrum and Word denied that they
had come in drunk on this occasion. Turner asked the men
11 In the last 5 weeks of Jones' employment, Jones did reduce hie hours
ehghtly, to an average of 56 hours per week
DOLLAR GENERAL CORPORATION
to step outside and wait , explaining that he wanted to
investigate the matter further . The night of May 14 was not
mentioned at all by Turner in the first interview.
Turner's investigation was largely confined to ascertain-
ing whether Landrum and Word had come in drunk on
May 21 . The two other drivers reached in the course of the
investigation , Waller and Petty, after being asked whether
Landrum and Word had come in drunk on May 21 , replied
that they did not know . Turner then asked both Waller and
Petty whether Landrum and Word had ever been drinking
while on duty. Waller replied , according to Turner , both of
them had been . Petty's response was that he did not know
whether Landrum and Word had engaged in drinking while
on the job . Neither Waller nor Petty was asked about the
two men coming in drunk on May 14, which the Company
now contends is the date on which the incident in question
occurred . This was the extent of Turner 's investigation, as
disclosed by his own testimony . 73 Apparently no investiga-
tion was made of the drivers' logs which would have at once
revealed that May 14 rather than May 21 was the night to
which the night watchman was referring . An examination
of the drivers' logs would also have disclosed that Waller
was not present when Landrum and Word returned on May
14 and consequently could givp no information about
whether Landrum and Word had been dunking on this
occasion.
As found above , Landrum and Word were called back
into Turner's office about 11 a.m. and notified by Turner of
their discharge . Turner refused to disclose to the two men
the source of the information against them and refused
their request that he wait until that evening before taking
action so as to enable them to produce witnesses to vouch
for the fact that they had not been drinking on the night of
May 21 . (Some of the drivers who had been present when
Landrum and Word returned on May 21 were due back in
Scottsville that evening .) Again, no mention was made
during this second interview that the night to which the
watchman was referring was May 14.
The facts summarized above reveal that after receiving a
belated report (almost 3 weeks later) of alleged drinking by
Landrum and Word , Turner acted hastily after a cursory
investigation which did not even consider the conduct of
the two men on May 14, which the Company now contends
is the crucial date . When the investigation disclosed no
information backing up the original report of drinking on
May 21 , Turner accepted the vague statement of one driver
that both men at some undisclosed time or times had "been
drinking while on duty" for the Company, notwithstanding
the denials of the two men, and refused to allow the two
men to confront their accusers or to produce witnesses in
their behalf . It is my conclusion that Turner did not
conduct a good -faith investigation into the truthfulness of
the report which he received about Landrum's and Word's
alleged drinking on the job, but rather leaped at the
opportunity presented by the report to get rid of the two
men. The question remains as to what motivated Turner in
acting as he did with respect to Landrum and Word.
Landrum was in on the original discussions with Eaton
and Petty about the feasibility of organizing the drivers and
311
Landrum was the first to contact Blankenship , the union
representative , about this subject . In Eaton 's conversation
with Supervisor Briggs at Corinth , Mississippi , early in
November, Landrum was among those named by Eaton as
being interested in a union . Both Landrum and Word had
attended the meeting at Eaton 's home on November 30 to
consider Lewis' discharge. More recently , Landrum, in his
conversation with Turner on May I1 about being
subpenaed by the General Counsel , in effect reminded
Turner of his association with Lewis and Eaton.
The Company has shown itself to be alert to intervene at
the first sign of union interest among the employees. The
discharge of Barbara Mayes in June 1969 after a chance
conversation with a friend who happened to be a union
representative demonstrates the Company 's propensity in
this regard . Company President Turner , Sr., frankly stated
after Mayes' discharge that the Company "couldn't have
any union sympathizers or friends of people in the union in
their organization ." After the drivers commenced their
union discussions in September 1969, supervisors objected
to the drivers getting together not only at restaurants in
Scottsville but also at truck stops in other States, sought to
break up discussions among employees in the warehouse,
and threatened that employees would be fired if they did
not cease their discussions with one another and having
meetings . These threats were actually carried out when the
Company discharged Lewis, Eaton , and Jones about
December 1.
The pattern of the Company 's conduct in the past has
been to get rid of union sympathizers , or even friends of
union representatives , at the first opportunity. The
discharge of Landrum and his "buddy," Word , after the
most inadequate investigation of a garbled report of their
drinking on the job follows the pattern of the Company's
past conduct , and I conclude that these discharges , like the
earlier discharges in this and the prior case , were designed
to frighten employees into abandoning all union activity.
The discharges of Landrum and Word, therefore , violated
Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. The Company, by questioning employees about
occurrences at employee meetings to consider union
affiliation and about other concerted or union activities, by
warning employees to cease engaging in all concerted or
union activities , by keeping an employee meeting to
consider concerted action under surveillance, and by
making a coercive statement to a prospective witness at a
Board hearing which tended to inhibit him from testifying
freely at the hearing, has interfered with, restrained, and
coerced employees in violation of Section 8(ax 1) of the Act.
2. The Company, by discharging Mitchell Lewis,
Plymouth Eaton, Tommie Jones, Billy Landrum, and Billy
Word, had interfered with, restrained , and coerced its
employees in the exercise of their right to self-organization
and to engage in concerted activities for their mutual aid or
protection , in violation of Section 8(a)(1) of the Act, and
has engaged in discrimination in regard to tenure of
I I The reason the investigation took so long was that there was a delay
in reaching Pett) by telephone
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment and terms and conditions of employment
which discouraged membership in labor organizations, in
violation of Section 8(a)(3) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that the Company has engaged in unfair
labor practices, my recommended order will direct that the
Company cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
I have found that the Company discharged Lewis
Mitchell, Plymouth Eaton, Tommie Jones, Billy Landrum,
and Billy Word in violation of Section 8(a)(1) and (3) of the
Act. To remedy this unlawful conduct my recommended
order will provide that the Company offer to each of the
above-named employees immediate and full reinstatement
to his former job, or if this job no longer exists, to a
substantially equivalent job, without prejudice to his
seniority and other rights and privileges. My recommended
order will further direct that the Company make each of the
above-named employees whole for his losses resulting from
the Company's discrimination against him by payment of
him of the sum of money he would have earned from the
date of his discharge until the date on which the Company
offers him reinstatement, less his net interim earnings.
Backpay shall be computed on a quarterly basis and shall
include interest at 6 percent per annum, as provided F W
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the foregoing findings and conclusions of law and
pursuant to Section 10(c) of the Act I hereby issue the
following recommended
ORDER 14
The Company, Dollar General Corporation, its officers,
agents, successors and assigns, shall:
1. Cease and desist from:
(a) Questioning employees about occurrences at employ-
ee meetings at which concerted or union activities are under
consideration.
(b) Warning employees to cease engaging in all concerted
or union activities.
(c) Engaging in surveillance over employee meetings at
which concerted or union activities are under considera-
tion
(d) Coercing prospective witnesses from testifying freely
at Board hearings.
(e) Discharging or otherwise discriminating against
employees for engaging in concerted or union activities
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act
2. Take the following affirmative action designed to
effectuate the policies of the Act-
(a) Offer Mitchell Lewis, Plymouth Eaton, Tommie
Jones, Billy Landrum, and Billy Word immediate and full
reinstatement to their formerjobs, or if thesejobs no longer
exist, to substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges, and make them
whole for any loss of pay suffered by reason of their
discharge in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Notify the above-named employees, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
(c) Preserve, and upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, as well as all other records
necessary to analyze and compute the amount of backpay
due under the terms of this recommended order.
(d) Post at its facilities at Scottsville, Kentucky, copies of
the attached notice marked "Appendix " 15 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by the Company's
representative, shall be posted by the Company immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Direction for Region 9, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.16
14 In the event no exceptions are filed as provided by Section 10246 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and recommended Order herein
shall, as provided in Section 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
i5 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals , the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
16 In the event that this recommended order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify said Regional Director, in writing. within 20 days from the date of
this Order what steps the Company has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law and we have been ordered to post this notice. We
intend to carry out the order of the Board and abide by the
following:
WE WILL NOT discharge or otherwise discriminate
against any employee because of his concerted or union
activities.
WE WILL NOT question employees about occurrences
DOLLAR GENERAL CORPORATION
at employee meetings at which concerted or union
activities are under consideration.
WE WILL NOT warn employees to cease engaging in
all concerted or union activities.
WE WILL NOT spy on employee meetings at which
concerted or union activities are under consideration.
WE WILL NOT coerce employees with respect to the
testimony they are to give at a Board hearing.
WE WILL offer immediate reinstatement with back-
pay to Mitchell Lewis , Plymouth Eaton , Tommie Jones,
Billy Landrum, and Billy Word.
Our employees are free to join or assist any union
and to engage in concerted activities for their mutual
aid or protection.
WE WILL NOT in any manner interfere with, restrain
or coerce employees in the exercise of these rights.
Dated By
313
DOLLAR GENERAL
CORPORATION
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board 's Office, Room
2407, Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.