General Trailers, Inc.

National Labor Relations Board - Board Decisions

Mar 28, 2000

330 N.L.R.B. 1088 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1088
General Trailer, Inc. and International Association of
Machinists and Aerospace Workers, Machinists
Automotive Trades District Lodge 190, Local
Lodge 2182, AFL–CIO

General Trailer, Inc. and International Association of
Machinists and Aerospace Workers, Machinists
Automotive Trades District Lodge 190, Local
Lodge 2182, AFL–CIO, Petitioner. Cases 32–
CA–16935 and 32–RC–4486
March 28, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
On June 17, 1999, Administrative Law Judge Michael
D. Stevenson issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the Charg-
ing Party filed cross-exceptions and a supporting brief,
and the General Counsel filed limited cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions and briefs and
has decided to affirm the judge’s rulings, findings,1 and
conclusions2 and to adopt the recommended Order3 as

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We agree with the judge that the Respondent laid off and dis-
charged Richard Marshall because he engaged in union activity. How-
ever, we find it unnecessary to rely on the small plant doctrine, as did
the judge, to establish that the Respondent knew of Marshall’s union
activity before the layoff and discharge. We note that the judge cred-
ited employee Terry Thomas’ testimony that the Respondent’s agent,
Philip Gollihar, said Marshall had been laid off because he was a ring-
leader of the union organizing drive. Accordingly, there is direct evi-
dence of the Respondent’s knowledge of Marshall’s union activity.
As the judge found, Donald Piper was treated differently regarding
the poor work done repairing a trailer in that he was the only employee
who worked on the project or supervised the work who was punished.
Our dissenting colleague points to the Respondent’s alleged reliance on
the poor work done by Piper on an earlier job to support its decision to
terminate Piper. He states that absent a credibility resolution favorable
to the General Counsel he would find for the Respondent. The judge,
however, fully discusses the earlier incident and the fact that Piper
received a 2-day suspension without pay for his unsatisfactory work.
While the earlier deficiency might have explained why Piper could
have received a more severe level of punishment, if punishment is to be
awarded, it does not explain why Piper was disparately treated in that
only he was punished.
3 In his recommended Order, the judge recommended that the Charg-
ing Party Union’s objections to the election in Case 32–RC–4486 be
sustained and the election be set aside. There are no exceptions to this
portion of the judge’s Order. We accordingly adopt the judge’s Order
in this respect.
modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge as
modified below and orders that the Respondent, General
Trailer, Inc., Stockton, California, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Discharging, laying off, closely monitoring, stat-
ing that overtime was being denied, denying overtime, or
otherwise discriminating against any employee for sup-
porting International Association of Machinists and
Aerospace Workers, Machinists Automotive Trades Dis-
trict Lodge 190, Local Lodge 2182, AFL–CIO, or any
other union, or for complaining to the local Air Pollution
Control Board.”
2. Substitute the following for paragraph 1(b).
“(b) Stationing armed guards at the facility in front of
a locked front gate on election day, thereby preventing
unit members from voting.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HURTGEN, dissenting in part.
I do not necessarily agree that the discharge of Piper
was unlawful.
My colleagues find the violation because, they say,
Donald Piper was treated differently from others who
committed the same offense. In response, I recognize
that Piper and others were responsible for poor work on a
certain job. However, Piper was also responsible for
poor work on another job a few weeks previously. There
is a conflict in the evidence as to whether Respondent
4 The General Counsel’s limited cross-exceptions noted certain in-
advertent errors where the judge’s Order and notice failed to conform
to the judge’s findings. We correct these minor inadvertent omissions.
The Charging Party has requested that the Board grant extraordinary
remedies in addition to a Gissel bargaining order. We find that no other
extraordinary remedies are warranted in the circumstances of this case.
Member Brame agrees that a bargaining order is appropriate in the
particular circumstances of this case. In Member Brame’s view, any
bargaining order must be closely reviewed because it necessarily denies
employees the opportunity to vote in a secret-ballot election after hear-
ing the positions of the employer and the union concerning representa-
tion. In adopting the judge’s recommendation that a bargaining order is
warranted in this case, Member Brame relies particularly on the Re-
spondent’s stationing of armed guards and locking its gate on election
day, and thereafter preventing the discharged employees whose termi-
nations are the subject of this case from voting challenged ballots. In
his view, this conduct seriously compromised and communicated to the
voters the Respondent’s disdain for the Board’s election process. Cf.
U.S.A. Polymer Corp., 328 NLRB 1242 (1999) (bargaining order based
in part on the employer’s asking employees if they had received sub-
poenas to testify in the unfair labor practice hearing and advising them
to ignore the subpoenas), and New Life Bakery, 301 NLRB 421 (1991),
enfd. 980 F.2d 738 (9th Cir. 1992) (bargaining order based in part on
the employer’s threatening employees if they complied with Board
subpoenas). Member Brame additionally notes the Respondent’s lim-
ited exceptions to the recommended bargaining order.
330 NLRB No. 150
GENERAL TRAILER, INC. 1089
relied on both incidents when it fired Piper. Piper testi-
fied the Respondent’s agent (Fernandes) made reference
only to the one work deficiency. Fernandes testified that
he made reference to both work deficiencies. Although
the judge discussed the earlier incident, he failed to re-
solve this critical conflict. That is, if Fernandez is cred-
ited, Piper was cited for two deficiencies. Since Piper
was unlike the others in this respect, there would be no
disparity of treatment. Accordingly, absent a credibility
resolution favorable to the General Counsel, I would not
find this violation.
Notwithstanding the above, I agree with my colleagues
that a Gissel order is warranted, based on the other viola-
tions.

APPENDIX
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 or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discharge, lay off, closely monitor, state
that overtime was being denied, deny overtime, or oth-
erwise discriminate against any of you for supporting
International Association of Machinists and Aerospace
Workers, Machinists Automotive Trades District Lodge
190, Local Lodge 2182, AFL–CIO, or any other union,
or for complaining to the local Air Pollution Control
Board.
WE WILL NOT state that certain employees had been
laid off because they were ringleaders of the Union; that
a foreman had been instructed to get rid of an employee
because he was a leader of the Union; and thereafter that
we would close our facility rather than let the Union
come in.
WE WILL NOT blame the Union for refusing to give an
employee a pay raise.
WE WILL NOT closely monitor our employees nor tell
them they are being denied overtime opportunities in
retaliation for supporting the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargaining with the Union and
put in writing and sign any agreement reached on terms
and conditions of employment for our employees in the
bargaining unit:

All full-time and regular part-time trailer mechanics,
repair persons, welders, painters, parts employees and
delivery drivers employed by the Employer at its
Stockton, California facility, excluding all office cleri-
cal employees, guards and supervisors as defined in the
Act.

WE WILL, within 14 days from the date of the Board’s
Order, offer Richard Marshall and Donald Piper full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Richard Marshall, Donald Piper, Don-
ald Jessee, and Terry Thomas whole for any loss of earn-
ings and other benefits resulting from their discharges or
other discrimination as applicable, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Richard Marshall, Donald Piper, the
unlawful layoff of Donald Jessee and the apparent
unlawful denial of overtime opportunities of Terry Tho-
mas, and WE WILL, within 3 days thereafter, notify them
in writing that this has been done and that the discharges
and layoffs will not be used against them in any way.

GENERAL TRAILER, INC.

Jeffrey L. Henze, Esq., for the General Counsel.
N. Paul Shanley, Esq., of Sacramento, California, for the Re-
spondent.
David A. Rosenfeld, Esq., of Oakland, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Stockton, California, on February 8,
9 and 10, 1999,1 pursuant to a third amended complaint issued
by the Regional Director for the National Labor Relations
Board for Region 32 on December 21. In addition, on Novem-
ber 12, the Regional Director ordered consolidated certain is-
sues arising from a representation election in Case 32–RC–
4486. The third amended complaint, based on charges filed on
August 13 and on January 5, 1999 (first amended charge), by
International Association of Machinists and Aerospace Work-
ers, Machinists Automotive Trades District Lodge 190, Local
Lodge 2182, AFL–CIO (the Union), alleged that General Trail-
ers, Inc. (Respondent), has engaged in certain violations of
Section 8(a)(1) and (3) of the National Labor Relations Act (the
Act).

1 All dates refer to 1998 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1090
The Union’s representation petition was filed on July 14 and
sought a representation election among certain of Respondent’s
shop employees. An election was held pursuant to a Stipulated
Election Agreement on August 20. Objections to conduct af-
fecting the outcome of the election were filed by the Union on
August 25.
The tally of ballots served on the parties at the conclusion of
the election showed that of approximately 13 eligible voters, 6
cast ballots for, and 7 against the Petitioner. There were no
void or challenged ballots. Thereafter, Petitioner filed certain
timely objections to the election (GC Exh. 1(h)). The Union
having offered no evidence at the instant hearing in support of
the objections, they will be considered only to the extent they
track any unfair labor practices found.
Issues
1. Whether employee Philip Gollihar is an agent of Respon-
dent.
2. Whether Respondent terminated three bargaining unit em-
ployees Richard Marshall, Donald Piper, and Stacy Slaton be-
cause the employees joined or assisted the Union or engaged in
other protected concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection.
3. Whether at an employee safety meeting held prior to the
election, Respondent solicited employee grievances and impli-
edly promised to remedy them and did remedy them.
4. Whether Respondent used armed guards stationed at its
closed gate on election day to deter one or more unit employees
from voting, where said employees would otherwise have been
entitled to cast a ballot.
5. Whether Respondent, acting through its supervisors and/or
agents interfered with, restrained, and coerced unit employees
by making one or more statements placed in issue by the third
amended complaint.
6. If one or more violations of the Act are found, whether a
bargaining order is the appropriate remedy.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine, and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of the General
Counsel and Respondent.2
On the entire record of the case, and from my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
The Respondent admits that it is a California corporation en-
gaged in the manufacture, repair, and maintenance of trailers
and having a facility located in Stockton, California. It further
admits that during the past year, in the course and conduct of its
business, it has purchased and received goods valued in excess
of $50,000 directly form suppliers located outside the State of
California. Accordingly it admits, and I find, that it is an em-
ployer engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.

2 On April 1, 1999, the Union filed a document styled, “Joinder” by
which it joined in the arguments made by counsel for the General
Counsel.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that International Association
of Machinists and Aerospace Workers, Machinists Automotive
Trades District Lodge 190, Local Lodge 2182, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
On or about May 10, 1997, Al Fernandes, Respondent’s
owner and president, took over a preexisting business which
had engaged in the same work as Respondent now performs.
Fernandes assumed control with the assistance of two investors,
his father-in-law and his wife’s uncle. Neither investor has to
date earned a return on his investment and neither played any
role in this case. Some employees were retained by Fernandes
when he took over.
Both Fernandes and his Service Manager Terrance Mellin-
ger, testified for Respondent. They are assisted in managing
the business by Philip Gollihar, shop foreman, and another
Respondent witness. Gollihar worked for a time under the prior
owner and was retained by Fernandes. Under normal condi-
tions, Gollihar assigns and supervises work, including assign-
ment of overtime, explains how the work is to be performed
and answers questions about the work. When an assignment is
finished, employees report back to Gollihar. Gollihar’s posi-
tion description “Shop Foreman” was admitted into evidence
(GC Exh. 2). In addition, Gollihar takes calls from employees
who cannot report to work for illness or other reasons and per-
forms a limited disciplinary function. For monthly safety meet-
ings, Gollihar sets the agenda, conducts the meetings, and
keeps minutes of the meetings. He has a minimal degree of
interaction with customers. About 20–25 percent of his time is
spent “working with the tools” performing the same work as
other mechanics. Gollihar is the highest paid employee who
works with the tools, making $1 per hour more than the next
highest paid employee.
The General Counsel does not contend that Gollihar is a
statutory supervisor; instead, the General Counsel contends he
is an agent of Respondent’s, an issue to be decided below. For
now, it suffices to say that during the union campaign which is
yet to be described, Gollihar attended at least one union meet-
ing and actively participated in the meeting without objection
by anyone. On election day, August 20, he voted without chal-
lenge.
2. Union campaign
A few days before one or more employees contacted the Un-
ion, a group led by alleged discriminatee Richard Marshall
asked Gollihar to intercede with Fernandes to obtain pay raises.
While there is conflict about the exact way Fernandes re-
sponded, all agree that the raise was turned down. This refusal
to increase pay, a general perception that employees had fewer
benefits under Fernandes than before, and an apparent increase
in paint work in the shop without adequate ventilation, or other
protection, convinced some employees that a union would help
to resolve various grievances. Marshall, an employee since
August 1996 and Donald Gary Jessee, a foreman under prior
management between 1980–1983, and Respondent employee
GENERAL TRAILER, INC. 1091
since September 1997 took the lead in contacting the Union and
arranging the first meeting with union representation.
On July 10, the General Counsel witness and union organizer
Joe Coy hosted the first union meeting at 5 p.m. at the union
hall. Eight employees showed up and after discussion, signed a
petition which contains the heading,

Yes, We Want the IAM

We believe that only through collective bargaining can we
have a voice in our work, achieve fair treatment for all, estab-
lish seniority and better benefits, wages and working condi-
tions. Therefore this will authorize the [IAM] to represent me
in collective bargaining with my employer. This will also au-
thorize said union to use my name for the purpose of organiz-
ing. General Tire Service of Stockton.

The signers were Jessee, John Camara, Marshall, Terry Tho-
mas, Joseph Munoz, Stacey Slaton, Carlos Montes, and Guy
Harris [GC Exh. 14]. Jesse, Marshall, Thomas, and Slaton
testified for the General Counsel. The meeting concluded be-
fore all interested employees could attend due to their having to
work overtime. Accordingly, a second page of the same peti-
tion described above was left outside the locked union hall.
About 6 or 6:30 p.m., three additional Respondent employees,
Donald Piper, Brett Fields, and Michael Frank arrived and also
signed [GC Exh. 15]. Of this group, only Piper, an alleged
discriminatee, testified for the General Counsel. Piper then
slipped this petition under the door of the union hall. Without
objection, an agreed-on list of employees contained in the bar-
gaining unit described at par. 9 of the complaint was admitted
into evidence [GC Exh. 16]. The total of the bargaining unit
employees is 16 which indicates that the 11 petition signers
referred to above constitutes a majority of the bargaining unit
desired the Union as of July10.
On July 14, Coy and his superior, James Beno, the Union’s
area director, personally delivered a letter to Respondent in the
afternoon. This letter reads as follows:

July 14, 1998

Mr. Al Fernandes
GENERAL TRAILER SERVICE OF STOCKTON
3931 N. Wilson Way
Stockton, CA 95202

Dear Mr. Fernandes:

Please be advised that I.A.M. & A.W. Machinists and
Mechanics Lodge No. 2182, District Lodge No. 190 of
Northern California, represents the majority of your em-
ployees who perform work as mechanics, welders, fabrica-
tors, painters and delivery drivers.
If necessary, we are prepared to agree to an independ-
ent impartial third party check of the authorization petition
from your employees to prove our majority status. We are
requesting immediate negotiations to consummate a col-
lective bargaining agreement for and on behalf of the em-
ployees we represent covering wages, benefits, hours and
working conditions.
In accordance with Federal law, we are requesting that
you maintain a “status quo” environment within the af-
fected employees. Absolutely no reprisals may be taken
against them, nor may you or any representatives of your
company threaten, coerce or interrogate any employees or
interfere with their Union activities.
Please respond immediately to this communication.

Sincerely,

/s/ James H. Beno

James H. Beno
Area Director, District Lodge
190/LL 2182/1528/801
[G.C. Exh. 10.]

Fernandes was not in at the time of delivery and the union rep-
resentatives spoke to Mellinger who stated he would convey the
letter to Fernandes. Respondent declined to extend voluntary
recognition to the Union and at the subsequent election of Au-
gust 20, as noted above, the Union lost by a single vote.
Before the Union delivered its letter and after, a series of
events happened which constitutes the heart of this case. In
addition, it is alleged Gollihar made a series of statements in-
criminating to Respondent, and according to the General Coun-
sel, imputable to Respondent.
B. Analysis and Conclusions
1. A note on witness credibility
It is part of the judge’s job to ascertain the credibility of wit-
nesses. Seldom, if ever, do all witnesses agree with one an-
other on material points. However, seldom if ever, has a case
presented itself where so many witnesses mutilate the truth and
demonstrate little regard for the oath. As will be made clear
below, I will disbelieve much of the testimony provided by
Respondent’s witnesses. I will also discredit one of the General
Counsel’s alleged discriminatees. The volume of untruths in
this case must be noted for the record and deplored by all con-
cerned.
2. The three alleged discriminatees
a. Applicable legal principles
The General Counsel has the initial burden of establishing a
prima facie case sufficient to support an inference that union or
other activity which is protected by the Act was a motivating
factor in Respondent’s action alleged to constitute discrimina-
tion in violation of Section 8(a)(3). Once this is established, the
burden shifts to Respondent to demonstrate that the alleged
discriminatory conduct would have taken place even in the
absence of the protected activity. If Respondent goes forward
with such evidence, the General Counsel “is further required to
rebut the employer’s asserted defense by demonstrating that the
[alleged discrimination] would not have taken place in the ab-
sence of the employee[’s] protected activities.” Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983). See also
Fluor Daniel, Inc., 304 NLRB 970 (1991), and Manno Electric,
321 NLRB 278, 280 fn. 12 (1996). The test applies regardless
of whether the case involves pretextual reasons or dual motiva-
tion. Frank Black Mechanical Services, 271 NLRB 1302 fn. 2
(1984). “[A] finding of pretext necessarily means that the rea-
sons advanced by the employer either did not exist or were not
in fact relied upon, thereby leaving intact the inference of
wrongful motive established by the General Counsel.” Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1092
A prima facie case is made out where the General Counsel
establishes union activity, employer knowledge, animus, and
adverse action taken against those involved or suspected of
involvement which has the effect of encouraging or discourag-
ing union activity. Farmer Bros. Co., 303 NLRB 638, 649
(1991). Inferences of animus and discriminatory motivation
may be warranted under all the circumstances of a case; even
without direct evidence. Evidence of suspicious timing false
reasons given in defense, and the failure to adequately investi-
gate alleged misconduct all support such inferences. Adco
Electric, 307 NLRB 1113, 1128 (1992), enfd. 6 F.3d 1110 (5th
Cir. 1993); Electronic Data Systems Corp., 305 NLRB 219
(1991).
In this case, I find that the General Counsel has established a
strong prima facie case of discrimination against Richard Mar-
shall, Donald Jessee, and Donald Piper because of their union
or other protected activities.
b. Richard Marshall/Donald Jessee
Marshall, a primary union organizer who had worked for Re-
spondent and its predecessor for about 2 years as a mechanic,
welder, and fabricator was abruptly called into the front office
about 11:30 a.m. on July 15, the day after Coy and Beno had
delivered the demand letter. Fernandes told Marshall that it had
been slow the last couple of months so he was being laid off
and that he would be brought back as soon as work picked up.
Marshall was paid for the remainder of the day and shortly
thereafter left the building.
First, as to the timing, I find the layoff is stunningly obvious.
NLRB v. Long Island Airport Limousine Service Corp., 468
F.2d 292, 295 (2d Cir. 1972). See also NLRB v. Rain-Ware,
Inc., 732 F.2d 1349, 1354 (7th Cir. 1984), on timing factor and
on similar facts to instant case. It is undisputed that Fernandes
knew that someone had brought in the Union, witness the Un-
ion’s demand letter, but I also find that Fernandes had knowl-
edge of Marshall’s specific role as an in-house organizer.
The Board and courts have recognized the “small plant doc-
trine,” as a vehicle for finding from circumstantial evidence
that an employer knew about union activity and its participants
earlier than acknowledged. See American Chain Link Fence
Co., 255 NLRB 692, 693 (1981), and Avecor Inc., 931 F.2d
924, 929 (D.C. Cir. 1991). Thus, I note it was common for
Respondent’s small complement of shop employees to discuss
matters not directly related to their work and such matters fre-
quently became known to Fernandes. For example, after his
layoff, Marshall called the local Air Pollution Control Board
about Respondent’s paint fumes. I will cover this in more de-
tail below, but for now it is important that Respondent sus-
pected that Marshall had done so as he had said something to
one of the guys in the shop and it got back to Mellinger (Tr.
437). Also Fernandes had heard Marshall was painting motor-
cycles at home and his questioning of Marshall about this activ-
ity led to a confrontation at the shop on July 21, to be described
below. After Marshall’s subsequent termination, Fernandes
allegedly heard rumors that he was going to come to the facility
on August 20 and attempt to vote (Tr. 545).
I also credit Donald Piper, an alleged discriminatee, who tes-
tified for the General Counsel, that on the day of the July 10
union meeting, he asked Gollihar for permission to work
through lunch so he could leave early and do some personal
errands and attend a union meeting where he had to sign a pa-
per. I will find below that it is reasonable to assume that Golli-
har conveyed this information to Fernandes and Marshall.
The other person abruptly laid off on the same day as Mar-
shall was general witness Donald Jessee, a current Respondent
employee. Both men were considered the highest paid and
most skilled employees. Both men, along with current employ-
ees, Terry Thomas and alleged discriminatee Piper, testified
there was ample work to be done. It is undisputed that although
there are frequent slow periods such as Thanksgiving and
Christmas seasons and occasionally during the summer, Re-
spondent, at least during Fernandes’ ownership, has never ex-
perienced a layoff before. I decline Respondent’s invitation to
wade through documents created by Mellinger for this litigation
purporting to show Respondent’s decline in business (R. Exhs.
19–21). The evidence of pretext presented by the General
Counsel is so convincing, I am not reluctant to dismiss Respon-
dent’s claim of slow business as a motivator for the layoffs as
incredible and fantastic.
Consider, both men were paid for the entire day (Wednes-
day) though they were laid off before noon; both men were in
the middle of their work assignments, with additional work in
the yard waiting. I find that as a result of the unnecessary and
pretextual layoffs, Gollihar had to increase his time working
with the tools (whether he put on his coveralls or not is of little
moment). Jessee, in particular, got in a heated argument with
Mellinger on being told of his layoff and harsh and obscene
language was used by both men. But on the following Monday,
July 20, Respondent called Jessee back to work and offered to
reinstate him immediately. However, Jessee had already been
paid for an earned vacation when he was laid off and asked if
he could start back the following Monday, so he could take his
vacation. Mellinger agreed to this and Jessee lost only 2 days
of work. In his testimony, Mellinger explained that he called
Jessee back to work because he had received a commitment
“from a customer to build some racks for some trailers, some
stands” (Tr. 407). No details were provided and I don’t believe
Mellinger’s explanation. Jessee was brought back because
Respondent had made its point regarding what happens to peo-
ple who want the Union. Any confusion in the minds of em-
ployees would be resolved on learning the fate of Marshall on
July 21. The facts in the instant case thus far are strikingly
similar to those in American Chain Link Fence Co., supra, 255
NLRB at 692–693.
Like Jessee, Marshall too came to the facility on July 20, but
his experience was different. Before relating the events of that
day, I note that as a result of Marshall’s complaint to the Air
Pollution Control Board, an agent of that agency named Diane
Busalacchi visited Respondent’s facility on July 15, in late
afternoon. Busalacchi testified for the General Counsel that
although her visit was unannounced beforehand, upon explain-
ing her purpose to Fernandes and Mellinger, one of the two
responded, “We’ve been expecting you. We just let a person
go and we knew you’d be coming through.” The witness pre-
pared a complaint investigation report (GC Exh. 17) and upon a
tour of the facility found certain irregularities which are not
important here. She ultimately prepared a notice to comply
(GC Exh. 18) for Respondent to correct its deficiencies, but no
citation or penalty was ever issued.
To return to Monday, July 20, Marshall came to the facility
to pick up certain paychecks for money due and owing. Fer-
nandes asked Marshall if he was painting motorcycles at his
home, but Marshall refused to answer saying what he did on his
GENERAL TRAILER, INC. 1093
own time was his business. Fernandes repeated the question
another time, but received the same response. As to Marshall’s
paychecks, Fernandes withheld one of the three checks due
Marshall until Marshall turned in his uniforms.
The following day about 2:30 p.m., Marshall returned with
his uniforms and asked for his missing check and certain forms
relating to the type of paint used in the shop. Fernandes re-
turned with copies of the requested forms and with Marshall’s
remaining paycheck, but before Fernandes turned them over to
Marshall, a near violent confrontation ensued. The details of
this event are sharply disputed.
According to Marshall, Fernandes waved his paycheck in the
air and continued to query Marshall about painting motorcycles
at home. As Marshall refused to answer and demanded his
paycheck, Fernandes again waved his paycheck up in the air
and near the counter. In attempt to further provoke Marshall,
Fernandes demanded to go “man to man” with Marshall. Fi-
nally, Marshall forced Fernandes’ hand down on the counter
separating the two men and managed to grab his paycheck from
Fernandes’ hand. Before leaving, Marshall said to him, words
to the effect, “I could kick your ass.”
Marshall was supported in his version of events by Terry
Thomas, a current employee of Respondent’s who testified for
the General Counsel. Like Marshall, Thomas was a mechanic
and had worked at the facility for about 4 years. Thomas had
been summoned by Marshall to the front showroom area where
all agree the confrontation occurred to witness what Marshall
apparently suspected might be a hotly disputed meeting. Tho-
mas never heard Marshall threaten to kill Fernandes nor utter
an implied threat regarding, “watch your worker’s compensa-
tion costs go through the roof.”
Thomas claimed to be watching the incident from a doorway
into Respondent’s public showroom area. None of Respon-
dent’s witnesses confirmed that Thomas was present. I note
that Marshall and Thomas were members of the same motorcy-
cle club and were apparent close friends outside of work.
Needless to say, Respondent’s witnesses provide a substan-
tially different version of events. Fernandes testified that as he
was about to give Marshall his paycheck and the requested
documents, he did ask Marshall about painting motorcycles at
his house just as he had done the day before (Tr. 584). Fernan-
des admitted at hearing that he really didn’t care if Marshall
was painting motorcycles at his home; rather, Fernandes be-
lieved that Marshall had called the Air Pollution Control Board
and in part, Fernandes wished to send Marshall a sarcastic mes-
sage that Marshall could inhale paint fumes at his home, paint-
ing motorcycles, but then report Respondent for paint fumes at
work (Tr. 549). Fernandes denied knowing for sure that Mar-
shall had made the air pollution complaint, but allegedly sus-
pected that any adverse reaction to paint fumes occurred at
Marshall’s home. I don’t believe Fernandes on this point and,
based on the testimony of Busalacchi, I find that Fernandes had
a strong suspicion that it had been Marshall who called the Air
Pollution Control Board.
In any event, according to Fernandes, once he asked Mar-
shall about painting motorcycles at home, Marshall slammed
Fernandes’ hand down on the counter and threatened to kick his
ass, to kill him, and to somehow, increase Respondent’s work-
man’s compensation costs. To support Fernandes, Respondent
called Mellinger, Linda Welk, Respondent’s office manager,
and, two of Respondent’s current employees in counter sales,
Richard Good and John Nance. All corroborated Fernandes in
all or most important details of this incident.
After Marshall left with his paycheck and papers, Fernandes
called the local sheriff’s office and a deputy named Richard
Cordova responded. The General Counsel called him as a wit-
ness and like Busalacchi, he was very credible since neither of
these two witnesses were identified with a party nor had they
any reason to fabricate. Cordova was dispatched on a non-
emergency basis to Respondent’s facility on the day in ques-
tion. On arrival, Cordova was told by Fernandes that he had
been subject to verbal abuse including threats by Marshall to
beat Fernandes up. No threats to kill had been reported to Cor-
dova. Before Cordova left, Fernandes asked him not to arrest
or even to contact Marshall, because he hung out with an unde-
sirable crowd and Cordova did not do so.
Based on the alleged events of July 21, Marshall was fired
by Respondent. I credit the accounts of the two independent
witnesses, Busalacchi and Cordova, and Respondent’s current
employee, Thomas, who is entitled to enhanced credibility by
virtue of his status as a current employee. K-Mart Corp., 268
NLRB 246, 250 (1983). I find that Fernandes intended to fire
Marshall when he was laid off, just as he or Mellinger told
Busalacchi. This shifting account of when Marshall was fired
and on what grounds is strongly suggestive of pretextual rea-
sons for discharge. Cf. Atlantic Limousine, 316 NLRB 822,
823 (1995); U.S. Service Industries, 324 NLRB 834, 837
(1997).
I also find that Marshall’s complaint to the Air Pollution
Board was protected by the “mutual aid or protection” clause of
Section 7 of the Act. The evidence shows that several employ-
ees besides Marshall were concerned about the respiratory
problems cause by paint fumes in the shop, e.g., Slaton and
Jessee. See Squier Distributing Co. v. Teamsters Local 7, 801
F.2d 238 (6th Cir. 1986), and cases cited at 241. See also Mar-
tin Marietta Corp., 293 NLRB 719 (1989), and Systems with
Reliability, 322 NLRB 757, 760 (1996) (complaint to OSHA
over air pollution held protected). The mere fact that Marshall
did not make his complaint to the Air Pollution Control Board
until after he was laid off does not, in my judgment, remove his
complaint from the protection of Section 7 of the Act.3 While
he may have questioned if and when he would be reinstated–
not knowing that Respondent never intended to reinstate him–
find that he was still motivated to improve working conditions
for himself and other employees who were still working in the
fumes from the painting. It is clear to me that in this case
“mixed motive” means “dual motive”; that Marshall was termi-
nated both because he was perceived as a leader of those who
wanted the Union and because he complained to the Air Pollu-
tion Control Board. To the extent that Marshall may have acted
inappropriately in his behavior of July 21, I find he was inten-
tionally and deliberately provoked by Fernandes. See Indian
Hills Care Center, 321 NLRB 144, 151–152 (1996), and Wil-
son Trophy Co. v. NLRB, 989 F.2d 1502, 1509 (8th Cir. 1993).
In light of the above, I find that Respondent violated Section
8(a)(1) and (3) of the Act by laying off Marshall and Jessee and
by terminating Marshall. That is, Respondent has failed to
rebut the strong prima facie case established under Wright Line

3 I note that the motive of an employee who takes an action related
to working conditions is irrelevant in determining whether the action is
protected. NLRB v. Parr Lance Ambulance, 723 F.2d 575, 578 (7th
Cir. 1983). See also Mike Yurosek & Son, Inc., 310 NLRB 831, 832
(1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1094
to show that Marshall and Jessee would have been laid off and
Marshall subsequently terminated absent their protected activi-
ties. Louis A. Weiss Memorial Hospital, 324 NLRB 946, 957–
958 (1997).
c. Donald Piper
As already recited, Piper was a union supporter and known
by Respondent to be such. He was allegedly terminated for
poor work and attendance problems, but based on the evidence
presented, I find that the reasons given were pretextual. Piper
was hired in November 1997 as a helper, a classification he
retained up to his termination on July 13. The classification of
“helper” represented a lower degree of skill than “mechanic”
and Piper was paid accordingly ($10 per hour compared to $13
to $14 per hour). Based on his testimony, I found Piper to be
something of a “free spirit” given to dramatic flourishes and
overstatement. However, the conclusions flowing from the
facts and circumstances surrounding his case cannot be denied.
Sometime in June, Piper had been given an assignment to re-
pair a trailer owned by Gilley, a customer which Respondent
had long pursued. According to Fernandes, the work was un-
satisfactory and had to be redone, costing Respondent money.
In fact, as a result of the poor work and a subsequent argument
between Piper and Mellinger as to whether Piper was responsi-
ble for poor work, Piper was suspended without pay for 2 days.
Then about a week before his termination, Piper was assigned a
second Gilley trailer to repair, this one requiring much more
skill to do a good job as the entire floor of the trailer had to be
replaced. To assist Piper, Gollihar assigned his 16 year old son,
“P.J.,” a high school summer employee working as a “clean-up
boy,” who did not testify. Piper and P.J. worked on the trailer
over several days, during which time Gollihar either made peri-
odic inspections finding the work satisfactory, or contrary to his
job responsibilities, did not periodically inspect the work. In
any event, the work on the second trailer was completed on a
Friday evening. According to Piper, Gollihar was not present
when the trailer was released, but Mellinger looked the job over
and felt the job would pass muster. According to Gollihar, he
was present, inspected Piper’s work, knew it fell short, but
released the trailer anyway, hoping that Gilley wouldn’t notice
the deficiencies. Another predelivery inspection was supposed
to have been performed by Guy Harris, the driver of the tractor
hauling the trailer back to Gilley’s. Like P.J., Harris didn’t
testify.
Respondent presented several photographs of Piper’s and
P.J.’s work and even to the lay person, the deficiencies appear
obvious (R. Exhs. 18(a)–(i)). The problems include bolts not
fastened properly, floorboards not spaced properly allowing
gaps on the floor, and the floorboard not flush against each
other creating an uneven surface. Predictably, Gilley called
Respondent on receipt of his trailer and complained. The fol-
lowing Monday the trailer was returned to Respondent’s shop
for reworking at Respondent’s expenses. For this fiasco, only
union supporter Piper was punished, while Gollihar was “talked
to” about his failure to properly supervise the ongoing work
and his even more egregious decision to release the trailer
without an effective final inspection. As to P.J. and Harris,
nothing at all apparently happened to them.
On cross-examination of Piper, Respondent’s counsel re-
ferred to several documents allegedly showing Piper’s history
of questionable work and other maladjustments (R. Exhs. 5–
11). Some of these documents, such as warning letters, were
not signed by Piper and he denied ever seeing them before.
Other documents such as evaluations which Piper also denied
ever seeing before, showed that Piper’s shortcoming became
critical only when he expressed support for the Union. As to
whether Piper falsified any representations on his application
for employment––Gollihar checked the application out ini-
tially––I decline to express any opinion on that point, because
even if he did, it is clear that Respondent was not aware of
alleged misrepresentations until it was time to prepare for hear-
ing. Therefore, the alleged misrepresentations, constitute after–
discovered evidence and played no role in Piper’s termination.
See Fixtures Mfg. Corp., 251 NLRB 778 (1980). Piper’s stated
reason to the California Employment Development Department
(CEDD) in his application for unemployment benefits (July 15)
(R. Exh. 11) that he was “fired because they need to fire some-
body so people could get raises,” does not impeach the evi-
dence gathered and presented by the General Counsel, to show
Piper was fired because he supported the Union.
The essence of discrimination in violation of Section 8(a)(3)
of the Act is treating like cases different. Restaurant Corp. of
America, 827 F.2d 799, 807–808 (D.C. Cir. 1987). I find that
the General Counsel established a strong prima facie case under
Wright Line based on disparate treatment. That is neither Gol-
lihar, P.J. nor Harris were disciplined for the poor work on the
Gilley trailer. See American Wire Products, 313 NLRB 989,
994 (1994) (absent a reasonable explanation, disproportion
between the number of union and nonunion employees laid off
or discharged may be persuasive evidence of discrimination). I
find that Respondent has failed to rebut the prima facie case to
show that Piper would have been fired absent his union activi-
ties. Accordingly, Respondent violated Section 8(a)(1) and (3)
of the Act by terminating Piper.4
d. Stacey Slaton
Slaton worked for Respondent as a trailer mechanic between
May 1997 and March 1998 when he quit. He then returned to
Respondent in June and as I will find below, quit again on or
about August 10. I found Slaton, on the whole, to be a non-
credible witness and I stopped believing most of his testimony
shortly after he gave his name. For example, Slaton described a
lunch gathering on July 15, at work with several coworkers
including Thomas, Carlos Montes, Joe Munoz, and others. The
subject of discussion was the layoffs of Marshall and Jessee.
To protest the layoffs, Slaton proposed a “sick-out,” i.e., a con-
certed claim by employees that they could not work due to
illness, when they really were not ill. Other employees ex-
pressed little or no support for the idea so Slaton abandoned it.
Then after lunch, Slaton reported to Gollihar that he was too ill
to work so he proposed to go home sick. Before he left, Mel-
linger asked to see him. When Slaton reported his alleged
symptoms, upset stomach supposedly caused by something he
ate at lunch, Mellinger asked him if he knew what he was do-
ing. Mellinger added if he desired to return to work the next

4 Two final points as to Piper; first, in light of my analysis above, I
need not determine whether Piper was “set up” to fail by assigning him
work so clearly beyond his capabilities that the end result was pre-
ordained. Second, sometime in August, Piper was seen by his own
physician regarding a work injury of his arm. According to Piper, the
physician advised him he could not work for the Respondent at all (Tr.
294). I agree with the General Counsel that Piper’s physical condition
may present an issue at the compliance stage, but for now, I will rec-
ommend that Piper be made whole for the discrimination against him.
GENERAL TRAILER, INC. 1095
day, he should bring in a doctor’s note, an apparent change in
the prior practice of requiring a doctor’s note only after 3 days
off sick.
Slaton and Gollihar had worked together at a prior job before
Respondent. In fact, the two men lived close to each other on
the same street. Gollihar allowed somewhat inconsistently that
while Slaton wasn’t his friend, he liked the guy; Slaton was all
right (Tr. 629).
On Monday, August 10, Slaton was scheduled to work but
he testified at hearing that an upset stomach prevented him
from working. He testified that he called Gollihar to explain
the problem, but Gollihar denied receiving any such call and I
credit Gollihar on this point, as there is no record of any such
call being made. Moreover, subsequent events show beyond a
reasonable doubt that Slaton’s account was a complete fabrica-
tion.
Slaton claimed he was so ill he went to a local hospital
emergency room with a friend named Diane Butler, with whom
he has a current relationship. After allegedly waiting an hour,
he began to feel better so he left without seeing anyone. Nei-
ther Butler nor any hospital documents were presented as evi-
dence to corroborate Slaton. I don’t believe a work of this tes-
timony.
After leaving the hospital, Slaton and Butler went to a local
Home Depot store to buy some things and who should be there
making his own purchases, but Fernandes. Fernandes hap-
pened to encounter Slaton as Slaton was carrying some furnace
pipe out the store, and asked Slaton why he was not at work.
Slaton explained that he had been ill, but had called in sick to
Gollihar. Later back at the shop, Gollihar denied receiving any
such call from Slaton and I again find no such call was made.
Slaton testified that he worked on Tuesday, August 11, but
based on the testimony of Gollihar, Fernandes, and Office Man-
ager Welk, I find that Slaton didn’t work, nor even call in. The
same happened on Wednesday, August 12, and on Thursday,
August 13, Slaton showed up at the facility only to pick up his
tools and turn in his uniforms. Slaton admitted not being at
work on Wednesday, August 12, but said his absence was
based on a letter received at his home on the evening of August
11, saying he was terminated. Respondent’s witnesses denied
that such a letter existed and it was never produced. Similarly,
Slaton failed to produce any payroll evidence to show he
worked on and was paid for Tuesday, August 11.
Respondent presented substantial evidence relating to Sla-
ton’s attendance problems, but it is unnecessary to review this
evidence, since I find Slaton voluntarily quit his job. On
Wednesday, August 12, Gollihar went to Slaton’s home to find
out what was going on since he hadn’t been at work the last 2
days. Slaton told Gollihar it didn’t matter if he was fired, be-
cause he intended to work as a sheriff’s deputy, a job thank-
fully, Slaton never did get.
At pages 49–52, the General Counsel makes a heroic, but
nonetheless vain effort to salvage Slaton’s case. Again, I find
that Slaton quit his job and the evidence in support of this
conclusion is, in my opinion, clear and convincing. See Cox
Fire Protection, 308 NLRB 793 fn. 2 (1992). For the reasons
stated, I will most urgently recommend that the allegation in
question be dismissed.5

5 I also find that Mellinger had good cause for telling Slaton he
needed a doctor’s note to return to work and that this allegation should
be dismissed.
3. The alleged 8(a)(1) violations
a. Gollihar as agent of Respondent
The General Counsel contends that Gollihar is an agent for
Respondent and cites Zimmerman Plumbing Co., 325 NLRB
106 (1997), in support of this claim:

[A]pparent authority results from a manifestation by the prin-
cipal to a third party that creates a reasonable basis for that
party to believe that the principal has authorized the alleged
agent to perform the acts in question. [Citations omitted].
Thus, in determining whether statements made by individuals
to employees are attributable to the employer, the test is
whether, under all the circumstances, the employees “would
reasonably believe that the employee in question [alleged
agent] was reflecting company policy and speaking and acting
for management.” [Citation omitted.]

In the instant case, as in Zimmerman, Gollihar was the sen-
ior, indeed the only foreman at Respondent’s shop. As part of
his daily responsibility, Gollihar acted as a conduit for relaying
and enforcing Respondent’s decisions, directions, policies, and
views. See also Cooper Hand Tools, 328 NLRB 145 (1999);
and Albertson’s Inc., 307 NLRB 787 (1992). An employee like
Gollihar can be a unit employee and permitted to vote without
challenge and yet be an agent of the Employer at the same time.
KAL Contracting Co., 284 NRLB 722, 726 fn. 17 (1987).
Under Section 2(13) of the Act, the question whether spe-
cific acts performed by an agent were actually authorized or
subsequently ratified is not controlling. Indeed, even if the
agent’s conduct is contrary to an employer’s express instruc-
tion, the employer will be held responsible for that conduct if
employees could reasonably believe that the acts was author-
ized. NLRB v. Crown Laundry & Dry Cleaners, 437 F.2d 290,
293 (5th Cir. 1971).
I find here that for all times material to this case, Gollihar
was an agent of Respondent’s in that he acted as a conduit for
Respondent’s decisions, directions, policies, and views and was
perceived by employees to be so acting. The assigning of work
to employees and the inspection of that work is a major factor
in this finding. Gollihar was perceived by employees to be
functioning as foreman, since he was “in charge” of Respon-
dent’s facility. In considering the alleged 8(a)(1) violation
supposedly committed by Gollihar, I must first determine
whether Gollihar’s conduct falls within the scope of his appar-
ent authority. See GM Electric, 323 NLRB 125, 125–126
(1997). The basis for attributing certain statements of Gollihar
to Respondent where appropriate is contained in Federal Rules
of Evidence 801(d)(2). (Statements of agents are admissions by
party-opponent.) Firefighters, 297 NLRB 865 fn. 4 (1990).
At page 26 of his brief, the General Counsel raises an issue
based on Montgomery Ward & Co., 115 NLRB 645 (1956).
The Respondent did not raise this issue at hearing and hasn’t
done so in his brief. Based on the case of Southern Bag Corp.,
315 NLRB 725 (1994). I find, in agreement with the General
Counsel, that Montgomery Ward does not apply here. Southern
Bag Corp., supra, 725 at fn. 4, the Board distinguished Mont-
gomery Ward from cases like the present case by noting that in
the former case the Board found that a supervisor who was
included in the voting unit had no actual or apparent authority
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1096
to act as the employer’s agent. Since Gollihar is not alleged to
be a supervisor, the case does not apply here.6
b. Armed guards and locked gate on election day
On election day, August 20, it is undisputed that Fernandes
arranged for two armed guards to be stationed outside Respon-
dent’s facility between 12 and 4 p.m. behind locked gates, con-
trary to the normal practice of open gates. Putting aside the
question of why Fernandes’ alleged fear for his personal safety
first manifested itself some 4 weeks after the alleged threat and
then only for about 4 hours during which time employees were
voting—I have found above that no such threat was made. I
have also found that both Marshall and Piper were unlawfully
terminated. In light of these facts, I find that Respondent vio-
lated Section 8(a)(1) of the Act by locking the gate to the facil-
ity and using the armed guards as indicated––all without good
cause.
It is undisputed that Marshall was turned away and not al-
lowed to vote and in light of my findings above, this also vio-
lated Section 8(a)(1) of the Act. Although the third amended
complaint does not allege that Piper was unlawfully turned
away and not allowed to vote, and noting Piper’s testimony that
he did attempt to vote, but was turned away by the guards, I
find as follows: Fernandes testified that if he had been aware
of Piper’s attempt to enter the facility to vote, he would have
instructed the guards to turn him away, based on his prior dis-
charge (Tr. 530). Mellinger testified he observed the front gate
most of the time on that afternoon and he kept in touch with the
guards via walkie-talkie and was never told that Piper at-
tempted to enter the facility. However, I find that Piper was
more credible on this point, and that he did appear and attempt
to cast a ballot but was prevented from doing so. Accordingly,
both Marshall and Piper were denied the right to cast ballots,
which could have been challenged. Scotch & Sirloin Restau-
rant, 269 NLRB 436, 448 (1984).
c. Employee safety meeting
It is alleged that on or about July 14, at a regularly scheduled
safety meeting, Fernandes solicited employee grievances and
impliedly promised to remedy them and promised to supply all
employees in attendance with new electrical cords, fans, and
hoses. The evidence shows that these items were discussed and
promised at the meeting and delivered to employees soon after.
I find that as of July 14 Fernandes was aware of union activity
afoot.
The grant of benefits during an election campaign is not per
se unlawful where an employer can show that its actions were
governed by factors other than the election, for example, past
practice. Similarly, the solicitation of grievances with an im-
plied promise to remedy same can be defended by showing a
past practice. See Vestal Nursing Center, 328 NLRB 87
(1999); Cooper Hand Tools, supra, 328 NLRB 145.

6 Even if Respondent somehow could make a case for the first time
in its exceptions that the case of Montgomery Ward & Co., supra, might
apply to the conduct of Gollihar, I would still find the violations on the
grounds that Fernandes encouraged, authorized, or ratified Gollihar’s
conduct. Food Mart Eureka, Inc., 323 NLRB 1288 fn. 1 (1997). On
the record established in this case, such an inference may be fairly
drawn. For example, Jessee credibly testified that after he returned
from layoff and his 1-week vacation he talked to Fernandes personally
at the shop. Fernandes told him that he wasn’t going to let this union
beat him, and he would close the doors and turn it into a tire shop be-
fore he’d let the shop go union (Tr. 311).
Both Fernandes and Gollihar testified that it was established
past practice to see what employees needed at the safety meet-
ings and provide it, if possible, depending on budget con-
straints. I have reviewed Gollihar’s minutes of certain meet-
ings (R. Exh. 27) and find from this evidence, a tendency to
support Respondent’s position. In addition, according to Gen-
eral Counsel witness and current employee Thomas, on cross-
examination:

Q. And it was not uncommon for the company to buy
things that were needed in the shop, is that correct?
A. Yes.
Q. Had they brought things in the past that were
needed in the shop?
A. We haven’t had anything really but too much for
the shop on the inside.
Q. But, they had brought cords and fans in the past,
haven’t they?
A. Yes.
Q. And as needed, correct?
A. Yeah, at the beginning, yes, definitely needed.
Q. When people would wear those out, they would get
new ones, isn’t that correct?
A. When the time is proper.

[Tr. 201.]

The evidence recited above, plus Fernandes’ obsessive con-
cerns for his workman’s compensation costs, which caused him
to inform himself of any safety-related issues in the shop and
correct them when possible, convinces me that what occurred
in the safety meeting in issue was consistent with past practice.
Accordingly, I will recommend this allegation be dismissed.
d. Respondent’s statement regarding retaliation if the Union
was chosen
According to current employee Terry Thomas, he and Golli-
har were working together in the shop on July 15, just after the
lunchbreak and just after Marshall and Jessee had been laid off.
Gollihar said that Marshall and Jessee had been laid off because
they were a personal threat to the shop and considered to be
ringleaders (of the union organizing drive). Gollihar went on to
say that Fernandes would close the shop down if necessary, and
open it up under a new name or turn it into a tire warehouse
(Tr. 186). I note that one of Fernandes’ investors owned a
number of tire shops in the Stockton area. Gollihar repeated
these same comments to Slaton the next day (i.e., that Fernan-
des would shut the facility down if the Union came in), quoting
Fernandes. Gollihar added that Fernandes told him this is “war
against the Union.” Finally at a union meeting on August 17,
the only one Gollihar attended, Gollihar again repeated the
substance of these comments: Fernandes said this was war
against the Union, that Gollihar had been instructed by Fernan-
des to get rid of Piper because he was one of the union leaders,
and that Marshall and Jessee had been laid off for the same
reason, and to intimidate the other workers. Finally, Gollihar
quoted Fernandes that he would rather close the place than let it
become union. I credit all of General Counsel’s witnesses who
testified to Gollihar’s remarks, Union Organizer Coy, Marshall,
and Thomas, a current employee. All these witnesses mutually
corroborated each other and present a credible group. As to
Gollihar’s and Fernandes’ denials, I have little difficulty in
discrediting this testimony.
GENERAL TRAILER, INC. 1097
Since Gollihar is a conduit for Fernandes’ messages to em-
ployees, I find that his statements to employees are binding on
Respondent as employees would reasonably consider they were
being made to them by Fernandes himself. I find that these
statements violate Section 8(a)(1) of the Act. Respondent’s
threats of shop closure have a particularly coercive threat on
employees, and these kinds of threats are more likely than other
types of unfair labor practices to affect the election conditions
negatively for an extended period of time. Wallace Interna-
tional de Puerto, 328 NLRB 29 (1999). In Wallace, the Board
decided that a long delay in the processing of respondent’s
exceptions made a bargaining order remedy unadvisable. See
also Weldum International, Inc., 321 NLRB 733 (1996), where
the Board issued a bargaining order pursuant to NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969) (category 2 type bargaining
order). In an unpublished order, the Court of Appeals sustained
all of the Board’s unfair labor practices, but ordered a new
election rather than a bargaining order (NLRB v. Weldum Inter-
national, Inc., 165 F.3d 28 (6th Cir. 1998).7
I find that Respondent has failed to present any credible ba-
sis for the making of such statements and that they are ex-
tremely coercive. I will consider, below, whether by them-
selves or when considered with other violations if they are suf-
ficient to establish a bargaining order.
e. Inability to grant Jessee a pay raise due to union campaign
About a month after the election was over, Jessee asked Mel-
linger in writing for a pay raise. Mellinger responded that Re-
spondent couldn’t give a pay raise because of the NLRB and
the Union. Jessee answered that he worked for Respondent, not
the NLRB or the Union.
In his testimony, Mellinger admitted the conversation (Tr.
444–445), and said it was based on a letter from the Union
saying Respondent could not change wages or benefits. On
cross-examination, Mellinger was shown the letter from the
Union demanding negotiation and dated July 15 (published
above) (GC Exh. 10). Mellinger replied that was not the letter,
“because the letter I read said you could not increase wages or
benefits, but I don’t see that in here” (Tr. 445). After the Gen-
eral Counsel expressed disbelief that there was a second union
letter, Respondent’s counsel took over Mellinger on re-direct,
and, as if by magic, the first letter became the one that Mellin-
ger had based his statement to Jessee on, and lo and behold, the
problem was a simple one of interpretation (Tr. 453). A second
letter was never produced and I find there was no second letter
to Respondent from the Union. I also find that blaming the
Union for refusing to give Jessee a pay raise violates Section
8(a)(1) of the Act. See Feldkamp Enterprises, 323 NLRB
1193, 1199 (1997). The idea that Respondent would base its
wage policy on what the union had written, when Respondent
was competently represented by counsel is ludicrous.
f. Increased monitoring of Thomas and denial of overtime op-
portunities in retaliation for union support
On or about August 21, the day after the election, Thomas
noticed that Fernandes seemed to be watching him closely, a

7 Many other bargaining orders are enforced by courts based on
threats of plant closure and job loss. See, e.g., Milgo Industrial, Inc.,
203 NLRB 1196, 1200–1201 (1973), enfd. mem. 497 F.2d 919 (2d Cir.
1974); Jim Baker Trucking Co., 241 NLRB 121, 122 (1979), enfd.
mem. 626 F.2d 866 (9th Cir. 1980); and Precision Graphics, 256
NLRB 381 (1981), enfd. mem. 681 F.2d 807 (3d Cir. 1982).
change from the past when Fernandes did not pay him any spe-
cial attention. Thomas mentioned this to Gollihar, but received
no response until the following day when Gollihar confirmed
Thomas’ suspicions. In fact Gollihar admitted that Fernandes
had instructed him to watch Thomas closely and if Gollihar
could get anything on Thomas, Gollihar should write him up, as
Thomas was a threat to Fernandes. Gollihar also confirmed
that Thomas was being punished as a “yes” vote for the Union
by having overtime opportunities restricted or eliminated. Fer-
nandes denied this and testified Thomas generally refused over-
time opportunities anyway. Gollihar admitted in his testimony
that Thomas had mentioned Fernandes close monitoring, but
said that he told Thomas to be careful and not give Fernandes
any reason to fire him. But Gollihar denied that Fernandes was
watching Thomas or that he had told Thomas he was. I credit
Thomas on this issue.
I find that by maintaining a close watch over Thomas for un-
ion related reasons and by restricting Thomas’ overtime oppor-
tunities, Respondent violated Section 8(a)(1) of the Act. Gra-
ham Windham Services, 312 NLRB 1199, 1205 (1993); Dilling
Mechanical Contractors, 318 NLRB 1140, 1145–1150 (1995).
As to Gollihar’s telling Thomas he was being denied overtime
opportunities. See Highland Yarn Mills, Inc., 313 NLRB 193,
211 (1993).8
4. The union’s objections
The Union filed timely Objections 1–9, but on November 3,
the Union withdrew Objections 1, 4, and 5. The violations of
the Act found above support Objection 2 (loss of employment
opportunities if employees supported the Union), Objections 6
and 8 (threats to close the facility and/or to take other retalia-
tory measures if the Union won the election), Objection 7 (acts
interfering with, restraining, and/or coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act), and
Objection 9 (interfered with the conduct of the election) (GC
Exh. 1(h)). Objection 3 (promise of benefits to vote against
Union and promise of benefits if Union lost election) is over-
ruled. The conduct occurred within the critical period between
July 14 and August 20 and I conclude that such conduct consti-
tutes objectionable conduct warranting that the election be set
aside. I will not recommend, however, that a second election
be conducted because I find that the possibility of erasing the
effects of Respondent’s unfair labor practices and of assuring a
fair rerun election is slight, and that employee majority senti-
ment once expressed through signing a petition would, on bal-
ance, be better protected by a bargaining order.
5. Bargaining order9
The General Counsel and, presumably, the Union contend
that a Gissel category (2) bargaining order should issue. This
category includes “less extraordinary cases, with less pervasive
misconduct which nevertheless has a ‘tendancy’ to undermine
[the Union’s] majority strength and impede the Board’s elec-
tion processes.” NLRB v. Gissel Packing Co., supra, 395 U.S.
8 Although there is no proof that Thomas did in fact lose overtime
opportunities for union-related reasons, it is Gollihar’s statement as
Respondent’s agent that constitutes the gist of the violation and not the
truth of the statement.
9 I note the resemblance of the instant case to Transportation Repair
& Service, Inc., 328 NLRB 107 (1999); same type of business, same
general facts, same general unfair labor practices, and same bargaining
order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1098
at 613–614. To support my recommendations, I rely on the
following factors:
(1) The Union has demonstrated majority support.
(2) The bargaining unit is small—16.10
(3) The Union lost the election by a single vote, and unlaw-
fully prevented two union supporters from voting.
(4) Respondent committed “hallmark” violations of the Act,
including repeated threats to close the facility. At footnote 7, I
have listed a number of cases from the Sixth and Ninth Circuits
where the threats standing alone were said to be sufficient to
support a bargaining order. To these cases, I add perhaps the
leading case from the Sixth Circuit, Indiana Cal-Pro v. NLRB,
863 F.2d 1292, 1301–1302 (6th Cir. 1988), where the court
stated,

Courts have repeatedly held that in view of an employee’s
natural interest in continued employment, threats of plant clo-
sure are ‘among the most flagrant” of unfair labor practices.
See Gissel, 395 U.S. at 611 n. 31, 89 S.Ct. at 1938 n. 31;
NLRB v. Naum Bros., Inc., 637 F.2d 589, 592 (6th Cir. 1981);
Donn Prods., 613 F.2d at 166 (“We recognize that a threat of
economic retaliation by closing a plant is one of the most co-
ercive actions which a company can take. . . .”); Piggly Wig-
gly, Tuscaloosa Div. Commodores Point Terminal Corp. v.
NLRB, 705 F.2d 1537, 1542 (11th Cir. 1983) (“[I]t is well es-
tablished that threats of plant closures by themselves, can jus-
tify a Gissel order.”); Electrical Prods. Div. of Midland-Ross
Corp. v. NLRB, 617 F.2d 977, 987 (3d Cir.) (“[A] closing is
the penultimate threat for an employee, and its psychological
effect is at least as likely not to dissipate as other unfair labor
practices we have held to justify a Gissel . . . order.”), cert.
denied, 449 U.S. 871, 101 S.Ct. 210, 66 L.Ed.2d 91 (1980);
Amalgamated Clothing Workers of America v. NLRB, 527
F.2d 803, 807 (D.C. Cir. 1975) (“[A] threat of plant closing is
one of the most serious obstacles to fair elections . . . [and] is
sufficient to support a bargaining order, as discussed in the
Gissel case.”), cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48
L.Ed.2d 832 (1976); Chemvet Labs., Inc. v. NLRB, 497 F.2d
445, 448 (8th Cir. 1974) (holding threats of plant closure are
“the most potent” instruments of employer inference).

(5) Besides the threats in question, Respondent also fired two
employees unlawfully and provoked one of the two into a near
violent confrontation and committed certain other unfair labor
practices which have the effect of eroding the Union’s power
and authority.
(6) The unlawful campaign against the Union was directed
by the highest company officials, Fernandes and Mellinger, an
assisted by Respondent’s agent and conduit, Gollihar.11
(7) Certain unfair labor practices were committed after the
election.12

10 In NLRB v. Bighorn Beverage, 614 F.2d 1238, 1243 (9th Cir.
1980), the court stated that the probable impact of unfair labor practices
is increased when a small bargaining unit . . . is involved and increases
the need for a bargaining order.
11 See NLRB v. Q-1 Motor Express, Inc., 25 F.3d 473, 481 (7th Cir.
1994); Garney Morris, Inc., 313 NLRB 101, 103 (1993); and NLRB v.
Anchorage Times Publishing Co., 637 F.2d 1359, 1370 (9th Cir. 1981),
cert. denied 454 U.S. 835 (1981).
12 Postelection violations reinforce the need for a bargaining order
because they demonstrate the Respondent’s intent to continue unlawful
practices. See Long-Airdox Co., 277 NLRB 1157, 1160 (1985), and
case cited therein.
(8) Respondent’s employees are subject to long-lasting in-
timidation because the market for their skills and services ap-
pears limited. The General Counsel called five current or for-
mer bargaining unit employees and Respondent called three,
including Gollihar. These men were not shrinking violets or
potted plants. They were good sized and conducted themselves
boldly. Consider that Slaton and Jessee worked for the com-
pany under current or prior management, but returned to Re-
spondent apparently due to the lack of job opportunities in the
area. Others who began working under prior management con-
tinued with Fernandes even though working conditions grew
worse under his stewardship.
For all the reasons stated above, I agree with the General
Counsel, brief at 55, traditional Board remedies are unlikely to
sufficiently restore “laboratory conditions” (if they ever existed
at Respondent). Because a fair rerun election does not appear
possible to me, I recommend that a bargaining order issue. See
Bonham Heating & Air Conditioning, Inc., 328 NLRB 432
(1999).
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 meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the Act by
terminating Richard Marshall and Donald Piper and by laying
off Donald Jessee.
4. For all times material to this case Respondent’s foreman,
Philip Gollihar, was and is an agent of Respondent.
5. Respondent violated Section 8(a)(1) of the Act by:
(a) Stationing armed guards in front of the locked front gates
on election day.
(b) Making certain statements to employees that adverse em-
ployment decisions had been made in retaliation for employee
support for the Union and threatening to close the facility if the
Union came in.
(c) Blaming the Union for refusing to give an employee a
pay raise.
(d) Closely monitoring an employee and telling the same
employee that he was being denied overtime opportunities in
retaliation for his support for the Union.
6. By the above conducts, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. Union’s timely Objections 2, 6, 7, 8, and 9 are sustained;
and Objection 3 is overruled.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent, having discriminatorily discharged Richard
Marshall and Donald Piper, and having discriminatorily laid off
Donald Jessee and apparently denied Terry Thomas overtime
opportunities, must offer Marshall and Piper reinstatement and
make them and Jessee and Thomas whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from
date of discharge to the date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
GENERAL TRAILER, INC. 1099
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
The Respondent, General Trailers, Inc., Stockton, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, laying off, denying overtime opportunities,
or otherwise discriminating against any employee for support-
ing International Association of Machinists and Aerospace
Workers, Machinists Automotive Trades, District Lodge 190,
Local Lodge 2182, AFL–CIO, or any other union.
(b) Stationing armed guards at the facility in front of a
locked front gate on election day.
(c) Stating that certain employees had been laid off because
they were ringleaders of the Union; that a foreman had been
instructed to get rid of an employee because he was a leader of
the Union, and threatening that Respondent would close its
facility rather than let the Union come in.
(d) Blaming the Union for refusing to give an employee a
pay raise.
(e) Closely monitoring an employee and telling the same
employee that he was being denied overtime opportunities in
retaliation for his support for the Union.
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
concerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:

All full-time and regular part-time trailer mechanics, repair
persons, welders, painters, parts employees and delivery driv-
ers employed by the Employer at its Stockton, California fa-
cility, excluding all office clerical employees, guards and su-
pervisors as defined in the Act.

(b) Within 14 days from the date of this Order, offer Richard
Marshall and Donald Piper full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objection to them shall be deemed waived
for all purposes.
(c) Make Richard Marshall, Donald Piper, Donald Jessee,
and Terry Thomas whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them
in the manner set forth in the remedy section of the this deci-
sion.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, layoffs and
denial of overtime opportunities, and within 3 days thereafter
notify Marshall, Piper, Jessee, and Thomas in writing that this
has been done and that the discharges, or other discrimination
as applicable, will not be used against them in any way.
(e) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records including an
electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the
terms of this Order.
(f) Within 14 days after service by the Region, post at its
Stockton, California facility, copies of the attached noticed
marked “Appendix.”14 Copies of the notice, on forms provided
by the Regional Director for Region 32, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since July 15,
1998.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violation of the Act not specifically found.
IT IS FURTHER ORDERED that the Union’s Objections 2, 6, 7, 8,
and 9 are sustained and the election held August 20, 1998 in
Case 32–RC–4486, is set aside, and the petition is dismissed.
14 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”