GE's Trucking, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 947 (N.L.R.B. 1980)

(;E'S TRUCKING, INC.
GE's Trucking, Inc. and Teamsters Local 525, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case 14-CA-13442
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AN) MEMBEIRS
JENKINS AND PIEN.I 1.0
On June 30, 1980, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order,
except as modified herein.
We agree with the Administrative Law Judge's
finding that Respondent engaged in several viola-
tions of Section 8(a)(l) of the Act. However, we
do not agree with his failure to find that Respond-
ent discriminatorily discharged employee Thomas
Heimann in violation of Section 8(a)(3).
The Administrative Law Judge noted that Re-
spondent clearly had knowledge of Heimann's ac-
tivity on behalf of the Union and that Respondent
had demonstrated its animus toward the Union by
making statements violative of Section 8(a)(l) on
January 25, 1980, during a conversation in which
Heimann expressed his support for the Union. He
further found that there was a valid economic
reason for terminating one employee and that,
therefore, the timing (only 8 days after the January
25 conversation) carried little weight toward prov-
ing unlawful motivation. He then concluded that
the General Counsel did not sustain his burden of
proving that the choice of Heimann as the employ-
ee selected for termination was discriminatorily
motivated. In this connection the Administrative
Law Judge found that Heimann was selected be-
cause of his recent failures to follow Respondent's
procedures in the areas of delivery exceptions, re-
cording of seal numbers, return and reporting of
pallets, and washing of the trucks.
We cannot agree with the Administrative Law
Judge's analysis. Inherent in Respondent President
and Manager Glaze's January 25 statement to Hei-
mann that if a union comes in "we will all have to
follow rules" is an acknowledgment that there was
laxity about enforcing such procedures. With re-
spect to delivery exceptions, the Administrative
Law Judge found that, during the 6-week period
prior to his termination, Heimann's record as com-
pared to that of other employees was one of the
best. Furthermore, the record reveals that Glaze at
no time threatened Heimann with any discipline
and admitted that his work deterioration was only
very recent. In view of the admitted laxity in en-
forcing rules, the lapses by other employees, and
Respondent's established animus, the selection for
termination of an employee who had voiced his
concern for fellow workers and whose union sym-
pathies were known by Glaze can only be ex-
plained as motivated by Respondent's concern that
Heimann's influence among the men as the leading
union advocate would lead to unionization.
On February 4, 1980, when Glaze telephoned
Heimann to advise him of his termination, it is un-
disputed that Glaze referred to the discussion they
had on January 25 wherein Heimann expressed dis-
satisfaction with his employment and his belief in
the need for a union. The Administrative Law
Judge noted this, but ignored the fact that Glaze
had made a number of antiunion statements during
the course of the January 25 conversation. Accord-
ingly, we find Glaze's reference to that earlier con-
versation a clear indication of Respondent's true
motivation for selection of Heimann as the employ-
ee to be terminated. In light of the foregoing, we
reject the Administrative Law Judge's conclusion
that the timing of the termination was not signifi-
cant.
We conclude that deterioration of Heimann's
work was but a pretext, and that the real reason for
his selection as the employee to be terminated was
because of his role as the leading union advocate.
Accordingly, we find that Respondent's termina-
tion of Heimann constituted a violation of Section
8(a)(3) and (1) of the Act.
AMENDED CONCLUSIONS OF LAW
Insert the following as the Administrative Law
Judge's Conclusion of Law 2 and renumber the
subsequent paragraphs accordingly:
"2. Respondent has violated Section 8(a)(3) and
(I) of the Act by discharging Thomas Heimann be-
cause of his union activity."
AMENDED REMEDY
Add the following to the Administrative Law
Judge's remedy:
"Among other things, the Order shall require
Respondent to reinstate Thomas Heimann to his
former position or if that position no longer exists,
252 NLRB No. 131
947
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges
previously enjoyed, and to make him whole for
any loss of pay as a result of the discrimination
against him in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB (1977). See, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962)."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
GE's Trucking, Inc., Mascoutah, Illinois, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
I. Insert the following as paragraph l(d) and re-
letter the present paragraph l(d) as l(e):
"(d) Discharging employees in order to discour-
age them from supporting the Union or from being
or becoming union members."
2. Insert the following as paragraphs 2(a) and
(b), relettering the present paragraphs accordingly:
"(a) Offer Thomas Heimann immediate and full
reinstatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent
one, without prejudice to his seniority or other
rights and privileges previously enjoyed, and make
him whole for any loss of pay that he may have
suffered by reason of the discrimination against him
in the manner set forth in the section of the
Board's Decision entitled 'Amended Remedy.'
"(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER PENELLO, dissenting in part:
Contrary to my colleagues, I would adopt the
Administrative Law Judge's finding that the dis-
charge of Thomas Heimann was lawful.
I agree with the Administrative Law Judge that
the deterioration of Heimann's work was the real
reason for his selection for termination and that it
was not, as found by my colleagues in the major-
ity, merely pretextual. Due to a decline in business,
Respondent had instituted in January 1980 a system
of rotating layoffs resulting in a savings of 8 man-
days per month. On February 1, Respondent Presi-
dent Glaze learned that Respondent had lost an ad-
ditional $1,500 in January and decided that he
would have to lay off one employee on a full-time
basis. It is undisputed that one employee had to go.
Therefore, in my opinion the timing of the dis-
charge is more likely related to this unfavorable
economic news than to the January 25 conversa-
tion in the tavern about union organization. Glaze
testified that he selected Heimann because of Hei-
mann's failure to follow procedures in the areas of
delivery exceptions, recording of seal numbers,
return and reporting of pallets, and washing of the
trucks. Heimann admitted to some failures in these
areas and admitted that Glaze spoke to him con-
cerning all of these matters approximately six times
during January.
My colleagues find evidence of unlawful motiva-
tion in the fact that Glaze, when he informed Hei-
mann of his layoff, referred to the January 25 con-
versation during which statements violative of Sec-
tion 8(a)(1) were made. However, it must be noted
that, during that conversation, when Glaze again
reminded him that he had not been following pro-
cedures, Heimann stated, "I know that you are not
too happy with me and I am not too happy either.
Maybe I will look for something else." It was
clearly to this part of the conversation that Glaze
made reference. This, in my view, is further sup-
port for the finding that the deterioration of Hei-
mann's work was in fact the real reason for his se-
lection as the employee to be laid off.
APPENDIX
NorICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were afforded
the opportunity to present evidence, it has been
found that we violated the National Labor Rela-
tions Act, as amended, in certain respects and we
have been ordered to post this notice and to carry
out its terms.
The National Labor Relations Act gives you,
as employees, certain rights, including the
right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
948
GE'S TRUCKING. INC.
Accordingly, we give you these assurances:
WE WILL NOT threaten our employees with
discharge or with stricter enforcement of rules
if they choose to join or be represented by
Teamsters Local 525, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or
any other union.
WE WILL NOT imply that representation by
a union would be futile.
WE WILL NOT create the impression that we
are engaging in surveillance of your union ac-
tivities.
WE WILL NOT discharge employees in order
to discourage them from being or becoming
union members.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL offer Thomas Heimann full rein-
statement to his former position or, if that po-
sition no longer exists, to a subtantially equiva-
lent one, without prejudice to his seniority or
other rights and privileges previously enjoyed,
and WE WILL make him whole for any losses
he suffered because of our discrimination, plus
interest.
GE's TRUCKING, INC.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILIER, Administrative Law Judge: This
case' was heard on April 16, 1980, in St. Louis, Missou-
ri, based upon a charge filed by Teamsters Local 525, af-
filiated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, on February 5, 1980, and a com-
plaint and notice of hearing issued on March 14, 1980, by
the Regional Director of Region 14 of the National
Labor Relations Board, herein called the Board. The
complaint alleges that GE's Trucking, Inc., herein called
Respondent, has violated Section 8(a)(1) and (3) of the
Act by conduct interfering with the employees' rights
under Section 7 of the National Labor Relations Act,
herein called the Act, and by discharging Thomas Hei-
The case caption originally included "Lanter Refrigerated Distribut-
ing Company. Jointly," and the complaint alleged both that Lanier Re-
frigerated Distributing Company was a Joint employer with GE's Truck-
ing, Inc. (Respondent), and that Lanter violated the National Labor Rela-
tions Act in various respects. Follo'ing the close of hearing, the General
Counsel moved that the Administralive Las Judge disniss the complaint
insofar as it alleged Lanter Refrigerated Distributing Company to be a
joint employer with Respondent or that Lanter had committed any viola-
tions of the National Labor Relations Act That motion as unopposed
and is hereby granted It uwould therefore serve no purpose to include the
name of Lanter Refrigerated Distribulting Company in the caption of this
case
mann because of his union activities. Respondent's timely
filed answer denied the commission of any unfair labor
practices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and to cross-
examine witnesses, and to argue orally. Briefs, which
have been carefully considered, were filed by the Gener-
al Counsel and Respondent.
Upon the entire record, including my careful observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
Respondent is engaged in the transportation of freight
in interstate commerce and maintains an office and place
of business in Mascoutah, Illinois. The jurisdictional facts
are not in dispute. The complaint alleges, and Respond-
ent admits, that in the past calendar year, a representa-
tive period, Respondent derived gross revenues in excess
of $50,000 from the transportation of freight from the
State of Illinois directly to points outside of that State. I
therefore find and conclude that Respondent is an em-
ployer, engaged in commerce, within the meaning of
Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background. Union Activity, and 8(a)(I) Violations
Respondent is a trucking concern, engaged in deliver-
ing meat produc:s to markets in and around St. Louis,
Missouri, solely for Lanter Refrigerated Distributing
Company (Lanter). It employed six drivers, including
Thomas Heimann, its most senior driver and the alleged
discriminatee herein. These employees were not union-
ized. Respondent's president and manager was John
Glaze.
Respondent's employees and its president frequented a
tavern near the plant, the White Way. On one occasion,
in October 1979, Heimann, John Goodall, a fellow em-
ployee, and Glaze, were at the White Way when Hei-
mann told Glaze that he wanted a raise and that, if there
was no raise, the employees would have to start a union.
Glaze replied, stating that if they started a union, they
would all get fired. 2 This statement is a clear threat of
2 Heimann's testimony was corroborated by Goodall; Goodall recalled
that Glaze said that the Union would not work because of the owner-
operator setup that they had (i.e.. Glaze being the owner-operator under
Lanter) and "that anybody who would try to start .it. would probably
lose their job " Glaze. in response to a question of whether he had ever
threatened lteimann with a layoff because of his alleged work failings.
stated that he had "never threatened him." He did not otherwise conlra-
dict the testimony of Heimann and Goodall Noting Glaze's failure to
specifically deny the threat attributed to him. and the corroboration. I
credit Iteimann and (Joodall
949
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reprisal against employees who exercise their Section 7
rights, and a violation of Section 8(a)(1) of the Act.
In early January 19803 Heimann called the Union and
set up a meeting for the employees, to be held on Janu-
ary 17. Between his call and the meeting, Heimann
talked to a number of employees about the Union. Thir-
teen employees (including some from other trucking con-
cerns which serviced Lanter) attended the January 17
meeting; union authorization cards were signed at that
time. Heimann also took cards for the employees who
did not attend and successfully solicited some of them to
sign. 4
On January 25, Heimann and Glaze had a lengthy con-
versation at the White Way Tavern. Their discussion
covered many subjects, some work related and some not.
When, according to Heimann, he raised again the subject
of more money for the drivers, Glaze told him that he
had heard a rumor that a union was starting and said that
it would be best not even to talk about it. Heimann in-
quired into the source of Glaze's knowledge; Glaze
would not tell him. Heimann further recalled (although
only after his recollection was refreshed by reference to
his pretrial affidavit) that Glaze told him that if they
started a union, Lanter would fire them all.
Glaze, who testified both before and after Heimann
gave this testimony, while not admitting that he made
the foregoing statements, did not dispute them. He testi-
fied that, while discussing the meat business, Heimann
said that things would have to change, that if the drivers
had a union they wouldn't have to load their own trucks
and there would be other improvements. Heimann, he
said, also complained about the size of his loads and
about having to wait for them. Glaze told Heimann that
there had been improvements in the past year and he
was looking for further improvements in the future. Hei-
mann repeated that there would be changes "pretty
soon" and Glaze told him: "If you are talking about a
union, if you have a union you realize we will all have to
follow rules. All the rules are made for everybody ....
You know you haven't been following a lot of the rules
that I have as far as turning in your pallet sheets, seals
and just the general way we do business .... I am
sorry that you are not happy working for me." Heimann
replied, "I know that you are not too happy with me and
I am not too happy either. Maybe I will look for some-
thing else."
Heimann testified after Glaze had given his description
of the January 25 conversation. His less detailed descrip-
tion, set forth above, did not dispute Glaze's version.
There being no specific denials by either of the partici-
pants, both versions appearing to be less than complete,
the statements each had attributed to the other not being
inconsistent with the other's version, and there being no
substantial defects in the demeanor of either witness
which would warrant the disregarding of that witness'
testimony, I find that all of the foregoing statements
were made in the course of this lengthy conversation.
The General Counsel contended that, in various as-
pects, the foregoing conversation violated Section 8(a)(l)
' All dales hereinafter are 19g0 unless otherwise specified.
Himann's teslinIioii regarding his union actility as corroborated
by (ioodall
of the Act. I agree. Thus, when Glaze, in the context of
other unlawful statements, told Heimann that he had
heard rumors of the union activity, which activity was,
apparently, not a matter of common knowledge, he un-
lawfully created the impression of surveillance of that
activity. Engineered Apparel, Incorporated, 243 NLRB 66
(1979). See also Montgomery Ward & Co., Incorporated,
227 NLRB 1170, 1174 (1977), wherein the employer told
an employee that he had heard rumors of her involve-
ment in union activities. Glaze's statement, to the effect
that the presence of a union would require more strin-
gent application of rules presently enforced leniently,
also contravenes the provisions of Section 8(a)(l), as an
unlawful threat of reprisal.
Additionally, whether viewed as an unlawful threat of
discharge or a warning that selection of a collective-bar-
gaining representative would be futile, it is clear that
Glaze's statement to the effect that Lanter would fire
them all if they started a union, tends to impede employ-
ees in the exercise of their Section 7 rights. Lanter, being
Respondent's sole customer and its source of the authori-
ty to engage in interstate trucking, was in a position to
affect Respondent's business for better or worse. An em-
ployee might reasonably assume that Glaze would know,
better than he, what action their mutual source of liveli-
hood would take in the event of unionization.
B. The Discharge of Thomas Heimann
On Monday, February 4, Glaze called Heimann and
asked him whether he had thought anymore about the
last words of their January 25 conversation, wherein
Heimann had said that he might look around for another
job. Heimann said that he hadn't, that his remark had
been "a lot of beer talking" and that he had forgotten
about it. Glaze then told him, "Due to economic condi-
tions and the fact that I have to lay someone off and you
don't seem to want to follow my procedures, I have to
lay you off." Heimann recalled asking what Glaze meant
by layoff and being told, "full-time layoff, terminated
layoff." Glaze did not further explain why Heimann was
chosen for layoff.
The General Counsel does not dispute Respondent's
economic justification for laying someone off. The evi-
dence establishes that due to a decline in the quantity of
product Respondent was carrying, observed by Glaze in
December 1979, Glaze had to borrow funds to meet ex-
penses in that month. In response to that, he instituted a
rotating 2-day layoff among his drivers, giving each of
them a 4-day weekend once a month, through January.
Heimann volunteered for the initial layoff because, being
single, he could bear the loss of income better than the
married drivers. He was on such a layoff again when
Glaze called him on February 4. The rotating layoffs, re-
sulting in the savings of eight man-days per month, were
not sufficient to balance Respondent's income and ex-
penses; Respondent lost an additional $1500 in January.
He learned of that loss on February I and decided that
he would have to layoff one employee on a full-time
basis.
Glaze testified that he selected Heimann for layoff,
notwithstanding his seniority, because of Heimann's fail-
950
GE'S TRUCKING, INC.
ure to follow Respondent's procedures in the areas of de-
livery exceptions, recording of seal numbers, return and
reporting of pallets, and washing of the trucks. He said
that he began noticing problems with him in these areas
in mid to late December and spoke of them to him a
couple of times a week, throughout January. Heimann,
he said, was the worst of his drivers in regard to these
problems.
Thus, drivers were supposed to record the numbers of
the locking seals placed upon their trucks in the evenings
after the Lanter employees had partially loaded them.
Heimann said that he recorded them "most of the time."
Similarly, the drivers were supposed to return all the pal-
lets or make a record of those not returned. Heimann
claimed that he seldom missed turning in his report. The
drivers were also supposed to have their trucks washed
out; Heimann admitted failing to do so on a couple of
occasions but claimed that he usually complied. Heimann
admitted that Glaze spoke to him, in regard to all of
these matters, approximately six times during January.
When a driver arrives at a delivery point missing re-
quested merchandise (a short) or returns to the plant
with undelivered merchandise (an average), the failure is
considered a delivery exception and that driver is expect-
ed to make a report of it. The exception, itself, may have
resulted from a mistake by any one of a number of
people, including Lanter's employees who load the
trucks, and carries no necessary implication of intentional
or negligent wrongdoing by the driver. Only when the
exception is the result of a driver's error is Respondent
obligated to pay for it. Glaze estimated that he was re-
quired to pay for only three or four each year; he could
remember none within the 6 months prior to hearing.
Among the reasons Glaze asserted for choosing Hei-
mann as the one to be laid off was the number of deliv-
ery exceptions Heimann had in the 6-week period prior
to his layoff and his alleged failure to report them or to
report them properly. The record reveals that in the
period of December 16, 1979, through the end of Janu-
ary, Respondent's employees had a total of 41 excep-
tions, 31 shorts, and 10 averages. Ten of the shorts were
Heimann's and he reported, in his own handwriting, all
but one of them. One other employee had a total of II
exceptions, 8 shorts, and 3 averages, in the same period.
In the 6-week period ending on December 15, 1979, Re-
spondent's employees (including Glaze and Elbe, a part
owner and officer) accounted for 62 shorts and 12 aver-
ages. One employee went undisciplined even though he
had 17 shorts. Heimann's record for that period, with
only three shorts, was one of the best.
It is, I believe, immaterial whether Heimann was laid
off, as Respondent contends, or discharged, as the Gen-
eral Counsel argues. The issue is whether his selection as
the one to be laid off (for whatever period) or dis-
charged was motivated by his union activities. If it was,
then the layoff/discharge was violative of Section 8(a)(3)
of the Act. In seeking to ascertain Respondent's motiva-
tion, the Board examines several factors, including
knowledge of the union activities. timing, animus, and
the validity of the reasons assigned for the actions taken.
See McCain Foods, Inc., 236 NRB 447. 452-453 (1978),
and cases cited therein.
Respondent clearly had knowledge of Heimann's inter-
est in, if not the extent of his activity on behalf of, the
Union. Heimann had broached the subject with Glaze as
early as October 1979 and had reasserted his interest in
January, only 8 days before his layoff/discharge. That
timing, however, carries little weight in this case toward
proving unlawful motivation in view of the acknowl-
edged economic justification for the elimination of one
employee in early February. Moreover, while this record
is not rife with demonstrations of hostility, it is evident
that Glaze feared and opposed the unionization of his
employees. Violative threats or other interference oc-
curred on both occasions when Heimann alluded to
unionization. Finally, one must analyze Respondent's
claimed reasons. "For, where the reasons advanced are
false or unpersuasive, it may be reasonably inferred that
the real reason 'is one that the employer desires to con-
ceal-an unlawful motive-at least where . . . the sur-
rounding facts tend to support that inference."' Service
Garage, Inc., 247 NLRB No. 115 (1980), quoting Shat-
tuck Denn Mining Corporation (Iron King Branch) v.
N.:L.R.B., 362 F.2d 466, 470 (9th Cir. 1966). In this
regard, it is clear that Glaze was not pleased with Hei-
mann's performance during the month of January. He
had spoken to him (but not threatened him with disci-
pline), repeatedly, about his admitted failure to follow
company procedures. Yet his failings were of very recent
origin; he had been one of Respondent's best employees
only a short while earlier. And, others had engaged in
some of the same derelictions. They had also been
spoken to by Glaze, but none had been disciplined.
None, however, had been cautioned or spoken to with
the frequency that Glaze had spoken to Heimann. In
sum, while Respondent appears to have overemphasized
Heimann's responsibility for the delivery exceptions, in
light of the frequent admonitions given Heimann by
Glaze it cannot be said that Respondent's reasons for se-
lecting Heimann were so unpersuasive or patently false
as to warrant an inference that Respondent was conceal-
ing an unlawful motive.
The burden of establishing that Respondent's selection
of Heimann for layoff or termination was unlawfully mo-
tivated rests upon the General Counsel. Western Tug and
Barge Corporation, 207 NLRB 163 (1973). Consideration
of all of the previously described factors as applied to
this case convinces me that the General Counsel has
failed to sustain that burden. Thus, Respondent was justi-
fied in laying off one employee; the employee it chose
was one whose work performance had been observed to
be deteriorating for the month preceding the layoff. Fur-
ther, he was an employee who had admitted his dissatis-
faction with his employment and had expressed both a
willingness to accept layoffs while others, with greater
obligations, continued working and an interest in seeking
new employment. It was, therefore, logical for Respond-
ent to focus upon him as the one to go.
That Heimann was the most senior employee would
appear to be irrelevant. The record contains no evidence
establishing that seniority was a factor in any of the em-
ployer's personnel actions. It is similarly irrelevant, I be-
lieve, that Glaze never threatened tleimann with disci-
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pline when he spoke to him about his failings. The disci-
plining of employees did not appear to be part of Re-
spondent's managerial style. Moreover, the selection of
Heimann cannot be considered discipline in the usual
sense; his selection was brought about by his failings but
was motivated by Respondent's economic reversals
rather than by a desire to punish or correct a deviating
employee.
Accordingly, I shall recommend that the complaint, to
the extent that it alleges the termination of Thomas Hei-
mann to be violative of Section 8(a)(3) and (1) of the
Act, be dismissed.
CONCLUSIONS OF LAW
1. By threatening employees with discharge or with
the stricter enforcement of rules in the event that they
choose to join or be represented by a union, by implying
that representation by a union would be a futile gesture,
and by creating the impression that their union activities
were under surveillance by the employer, Respondent
has engaged in unfair labor practices in violation of Sec-
tion 8(a)(1) of the Act.
2. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
3. Respondent has not engaged in any unfair labor
practices not specifically found herein.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(l) of
the Act, it will be recommended that Respondent be re-
quired to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
Upon the basis of the entire record, the findings of
fact, and the conclusions of law, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 5
The Respondent, GE's Trucking, Inc., Mascoutah, Illi-
nois, its officers, agents, successors, and assigns, shall:
s In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
I. Cease and desist from:
(a) Threatening employees with discharge or with the
stricter enforcement of rules if they choose to join or be
represented by a union.
(b) Implying that representation by a union would be a
futile gesture.
(c) Creating the impression that the employer is engag-
ing in surveillance of their union activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its place of business in Mascoutah, Illinois,
copies of the attached notice marked "Appendix." 6
Copies of said notices, on forms provided by the Region-
al Director for Region 14, after being duly signed by Re-
spondent's representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
6 In the event that this Order is enforced by a Judgment of a United
Stales Court of Appeals, the words in the notice reading "Posted by
order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.'
952