Great Dane Trailers, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1970

186 N.L.R.B. 267 (N.L.R.B. 1970)

GREAT DANE TRAILERS, INC. 267
Great Dane Trailers , Inc. and Truck Drivers and
Helpers Local Union No. 728, International Broth-
erhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America . Case 10-CA-8095
October 31, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On July 1, 1970, Trial Examiner Paul E. Weil issued
his Decision in the above-entitled proceeding, finding
that the Respondent had engaged in certain unfair
labor practices within the meaning of the National
Labor Relations Act, as amended, and recommend-
ing that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint, and
recommended that such allegations of the complaint
be dismissed. Thereafter, the Respondent, the Gener-
al Counsel, and the Charging Party, filed exceptions
to the Trial Examiner's Decision, and supporting
briefs, and the Respondent also filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions,I and recommendations2 of the
Trial Examiner.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Great Dane Trailers, Inc., Savannah,
Georgia, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
violations not specifically found.
i In the absence of exceptions , we adopt pro forma the Trial Examiner's
recommended dismissal of a Section 8(a)(I) allegation to the effect that
Respondent 's supervisor Young unlawfully interrogated employee Daniel
Vangiller
2 An inadvertent error appears in the fourteenth line of "The Remedy"
in the Trial Examiner's Decision Said line is corrected by deleting the word
"plus," and substituting therefor the word "less"
3 In sustaining the Trial Examiner dismissal of the 8 (a)(3) allegation
based upon the discharge of Pinckney , we place no reliance upon the Trial
Examiner's statement that "It is not seriously contended that he [Pinckney]
was not responsible for the damage to the trailer occasioned by his moving
an adjacent trailer with a flat tire " Assuming this incident was the subject
of a dispute, the record amply supports Respondent 's justification for
accusing Pinckney of damaging the trailer In any event , the record
supports the Trial Examiner 's further finding that Pinckney 's misconduct
in other respects was sufficient to establish that the discharge was based
upon his generally poor work performance , rather than his support of the
Union
In its brief to the Board, the Respondent refers to certain evidence as
precluding the reinstatement of Ester Hodge, with backpay As we are not
satisfied that this issue was fully and fairly litigated at the hearing , further
consideration of Respondent 's contention in this regard will be left to the
compliance stage of this proceeding
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On December 18, 1969,
Truck Drivers and Helpers Local Union No. 728, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , hereinafter called
the Charging Party, filed a charge against the Great Dane
Trailers, Inc., hereinafter called Respondent , alleging
violations of Section 8(a)(3) and (1) by discrimination
against certain named employees . The Charging Party
thereafter amended its charge on February 17, 1970. On
February 26, 1970, the Regional Director for Region 17
(Atlanta, Georgia), issued a complaint based on the charge
alleging that Respondent had violated Section 8(a)(3) and
(1) of the Act by discharging five employees, and by a
reprimand given to one of them prior to his discharge. The
General Counsel also alleged that Respondent independ-
ently violated Section 8(a)(1) by the action of a department
head who allegedly threatened employees with loss of
insurance and hospitalization benefits if the Union won a
Board election then scheduled. By its duly filed answer
Respondent admitted the jurisdictional facts and certain
other matters , admitted issuing the reprimand but denied
the discharges and the conclusions which the General
Counsel would draw therefrom, as well as denying the
commission of any unfair labor practices.
On the issues thus joined a hearing was held at Savannah,
Georgia, before me on April 14, 15, and 16, 1970. All parties
were represented by counsel, had an opportunity to be
heard , to examine and cross-examine witnesses and to
introduce relevant and material evidence . At the close of
the hearing all parties waived oral argument . Briefs have
been received from all parties. Upon the entire record
herein and in consideration of the briefs, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
It is alleged and admitted that Respondent is a Georgia
corporation which manufactures and sells freight hauling
trailers at its Savannah , Georgia, plant. Respondent
annually sells and ships its products valued in excess of
186 NLRB No. 43
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$50,000 directly to customers located outside the State of
Georgia and is accordingly engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
BACKGROUND
Commencing in the summer of 1969, District Lodge No.
96, International Association of Machinists and Aerospace
Workers, AFL-CIO, and the Charging Party both engaged
in organizing campaigns among Respondent's employees.
The campaigns culminated in the filing of a petition by the
IAM in which the Charging Party intervened. The parties
stipulated for a consent election on December 1, 1969, and
an election was conducted on December 19, 1969. No
majority of the votes were cast for any of the three choices
on the ballots whereupon a runoff election by secret ballot
was conducted on January 9, 1970, with the choices
narrowed to "no union" and the Charging Party, the
intervenor therein. The runoff election resulted in a tie with
346 votes cast for and 346 against representation by the
intervenor with 7 challenged ballots. In the Regional
Director's report on challenged ballots the Acting Regional
Director found that two employees were ineligible to vote
in the election and the remaining five individuals who cast
challenged ballots were discharged employees, the same
five who appeared in the instant proceeding as alleged
discriminatees. They are Ester Hodge, Melvin Pinckney,
Dan J. Vangiller, Frank Allen, and Herman Leachman.
General Counsel contends that each of the five
employees named above was discharged because of his
union adherence and in order to restrain and coerce the
employees of Respondent. Respondent on the other hand
contends that each of the five was discharged for cause. The
discharges all took place in the year 1969, the earliest being
that of Hodge on October 24, 1969, and the last that of
Leachman on December 18, 1969. There is no apparent
interconnection among the five discharges; the additional
discrimination alleged with regard to employee Allen's
reprimand on November 25 which preceded his discharge
on December 8 will be considered below in the discussion
of his discharge.
Ester Hodge
Ester Hodge was hired on September 2, 1969, as a B
assemblyman in the subassembly of flooring of trailers. His
supervisor was Vincent Meeks. His specific work was to
drill holes in the material being affixed to the flooring of the
trailers on an assembly line. On the day of his discharge a
leaderman in his department, Wendell Bragg, brought him
a drill motor and told him not to leave it laying around
because employees on the other shift would pick it up and
they would lose it. It appears that there was at this time a
shortage of the power tools supplied by the Employer due
to the fact that a number of them were broken down.
Hodge testified that he went to his supervisor, Meeks, and
asked his permission to keep the drill motor in his toolbox
where his personal tools were kept . Meeks asked Hodge
where he got the drill. Hodge told him he got it from Bragg
who had said that he got it off the line . Meeks gave Hodge
his permission to put the drill in his toolbox. Later the same
day another employee, Boone, came to Hodge and told him
that the drill motor he was using was Boone 's. Hodge
answered that was not Boone 's drill motor, that he got it
from Bragg who told him that he had got it off the line.'
Boone then went to Meeks and complained whereupon
Meeks called Hodge over to his desk. At his desk Meeks
asked Hodge where he got the drill and Hodge told him
that he got it from Bragg . Meeks called Bragg to his desk
and asked him whether he gave Hodge the motor. Bragg
answered that he had done so and Meeks asked Bragg what
he had told Hodge about where he had got the motor.
Bragg answered that he had got it off the rail. Meeks then
accused Hodge of having told him that Bragg had to get it
off the line and Hodge said that that was what Bragg told
him. Bragg then admitted that he might have told Hodge
that he got it off the line but he meant that he got it off the
rail. Meeks then took Hodge into his office and accused
him of lying and told him that this could cost him his job.
Hodge denied telling a lie , stating that he said only what
Bragg told him and reminding Meeks that Bragg had
admitted that he might have told him that. Then according
to Hodge, Meeks accused him of pushing the Union which
Hodge denied, whereupon Meeks said that he could call
seven guys into the office right at that time they had been
solicited by Hodge. Hodge answered "You haven' t seen me
try to get anybody to sign any cards while I'm on the job
and what I do on my own time . . . its not any of your
business." Meeks then told Hodge and Bragg to go back to
work. Five or 10 minutes later Meeks called Hodge and
discharged him for lying. Hodge argued with him that he
had not lied to him but Meeks answered only that he should
take it up with the personnel office.
Hodge was an active union supporter and wore a union
button on the job. He testified credibly that he actively
solicited fellow employees on his lunch hour and after he
got off from work.
Supervisor V. J. Meeks testified that on the morning in
question Hodge asked his permission to use a drill which he
had borrowed off the line. He testified that he inquired
whether Hodge had the permission of the supervisor in the
other department to borrow the tool and Hodge said that he
did wherefore Meeks gave him permission to use the tool.
Thereafter Meeks saw Boone approach Hodge and an
argument ensued. He went over to find out what the
argument was about and Boone accused Hodge of taking
his drill motor. According to Meeks he took the drill motor
out of Hodge's rear pocket and checked the number on it
and found that it was a drill motor that he knew had been
assigned to Boone. He then took Hodge and Boone to his
office where he again asked Hodge where he had gotten the
motor and Hodge again claimed that he had gotten it off
I The term "off the line" apparently means from a part of the
production line other than the department in which the employees here
concerned were working . That part of the production line in which they
were working was referred to by them as "on the rail."
GREAT DANE TRAILERS, INC. 269
the line. He then told Hodge that he was dissatisfied with
him as an employee and discharged him for lying and for
the other matters with which he was dissatisfied. Asked if
Bragg had taken part in the conversation Meeks at first
testified that Bragg said that he had seen Hodge pick up the
tool and then that Bragg might have stated that he gave the
tool to Hodge.
Ronnie Lee Bell, Sr., an employee called by the General
Counsel, testified that he saw Bragg pick up the drill motor
from Boone and later give it to Hodge. He saw Boone
arguing with Hodge and taking the drill motor from his
pocket. Boone handed the drill motor to Meeks who
examined it.
Boone, called by Respondent, testified that Bragg
borrowed the motor from him. He later went to Bragg to get
it back and Bragg said that Hodge had it. He went to
Hodge and asked for his motor. Hodge denied having his
motor. Boone picked the motor out of Hodge's hip pocket
and Hodge said that he had gotten it off the assembly line.
Meeks came up and Boone gave him the motor and Meeks
examined it.
Eddie Lee Holmes, another employee called by the
General Counsel, testified only that he saw Bragg give
Hodge the motor. He did not hear any of the conversation.
Discussion and Conclusion
Respondent contends that Hodge's testimony should not
be credited and points out that Hodge admitted that some
10 years prior to his discharge he had been convicted on a
bad check charge. While it is true that the conviction, which
is freely admitted by Hodge, impairs his credibility to some
extent, I note that the incident is remote in time; the effect
as far as I am concerned is that it should cause me to view
his testimony with more than ordinary care. As far as his
receiving the machine from Bragg is concerned there is
ample corroboration for his testimony and I so find. I find
also that Bragg informed Meeks prior to the discharge that
he had given the machine to Hodge and I credit the
testimony of Hodge that Bragg informed Meeks that he
might have told Hodge that he had gotten the machine off
the line rather than on the rail. In view of the testimony of
Boone and Bell, to the extent that they corroborate Hodge,
it is difficult for me to see how Meeks could seriously have
reached a conclusion that Hodge was lying to him; if
anyone lied it would appear to have been Bragg and if
anyone were at fault in the matter it would appear to have
been Bragg. Hodge at no time did anything more than
repeat the claim of Bragg that Bragg had gotten the
machine from another department. I do not credit Meeks'
testimony. He was self-contradictory both with regard to
what Bragg had told him and with regard to his story that
he took the dull motor out of Hodge's pocket. All the other
evidence reveals that Hodge had already returned it to
Boone when Meeks approached him. Meeks admitted that
the other complaints he had about Hodge, which consisted
of spending too much time in the men's room, working too
slowly, and failing to wear safety glasses, were not of such a
nature that he had even given Hodge a reprimand.
Accordingly I find that the alleged reason for the discharge
of Hodge is completely pretextual. I have found above that
Hodge was seriously engaged in organizing activities and
that he wore a union button on the job which must have
come to the attention of Meeks although he testified that he
did not recall seeing Hodge wear such a button. Admittedly
Respondent is anxious to keep a union out of its plant.
Respondent publishes a handbook which is required
reading for all new employees. The handbook has a 1- 1/2
page statement on labor unions which starts out in capitals
"THIS IS A NON UNION COMPANY" and states "we
... will use every means at our command to keep another
union out of our plant." Hodge's discharge took place
during the height of the Unions' organizing campaigns. In
the absence of a valid reason for the discharge I am forced
to infer that the real reason, the only reason that I can infer
from the evidence, for Hodge's discharge is his union
activity. Accordingly I find that Hodge was discharged
because of his activities on behalf of the Charging Party
and in order to discourage employees in the exercise of their
rights protected under the Act.
Melvin Pinckney
Melvin Pinckney had been a truckdnver before he was
employed by Respondent and had been a member of a
local of the Teamsters Union in New Jersey. He was
employed on October 13, 1969, as a truckdnver. His duties
consisted of intraplant movement of trailers from depart-
ment to department. He worked under the supervision of
Malcolm Williams who apparently caused him to be hired
on the recommendation of Issac Goodman, another driver
who had been employed on the same task for the past 25
years.
For the first week of his employment Pinckney rode with
Goodman to become familiar with the layout of the plant,
how to find the trailers, and where to take them. The second
week of his employment he worked as the sole driver on the
evening shift from 4 p.m. until midnight daily. It does not
appear that anything unusual took place. At the end of his
second week of employment he was told to report the
following Monday morning at 7 a.m. to work on the day
shift.2
Pinckney's instructions with regard to the movement of
trailers, where to find them, which trailers to move, and
where to take them were given him by the watchman or
gateman by a two-way radio. Any department head or
supervisor who wanted a truck removed or brought to his
department would call the watchman who would apportion
the work among the three drivers at his disposal. During the
4th week of Pinckney's employment the radio became
defective.3
Also during the 4th week of his employment Pinckney
found that a trailer that he had been instructed to move had
a flat tire. He contacted Goodman who told him to move
the trailer out carefully so that he did not bump it against
an adjacent trailer and to take it to a certain place where the
2 It appears that the four drivers were rotated on a monthly basis so
that one driver always worked on the evening shift while the other three
worked days
3 Pinckney did not so testify He testified that he was informed by
Williams that he was not to use the radio and he was to drive back and
forth to the watchman's shed to get his instructions, he did not, however,
contradict the testimony of Williams that these instructions resulted from a
breakdown of the radio equipment
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
flat tire would be repaired . Pinckney moved the trailer out
and testified that he was careful that it did not bump into
an adjacent trailer . At a later time Goodman reported to
Williams that the adjacent trailer had been damaged and
attributed the damage to Pinckney . Williams sought out
Pinckney and admonished him for damaging the trailer and
advised him that anytime in the future he damaged a trailer
he was immediately to inform Williams so that appropriate
repairs could be made . He also warned him to be careful
not to damage trailers because repairing them was
expensive . Pinckney denied having damaged the trailer but
apparently Williams did not accept his denial.
At the end of the 4th week of Pinckney 's employment his
radio was still out of commission . He testified that he had
been seeking a trailer unsuccessfully and returned to the
watchman 's shed to report to him that he could not find the
trailer he was supposed to move . He told the watchman that
he proposed to drive to the department to which he was
supposed to remove the trailer and explain to the supervisor
there why he had not , delivered the trailer . The watchman
approved this action . As he left the watchman's shed
Pinckney saw another driver. They both stopped and a
conversation ensued concerning the trailer which Pinckney
was accused of damaging . They also talked about the other
driver's automobile and problems he was having with it and
the fact that he was going to take it somewhere to have
work done on it . According to Pinckney this conversation
could have taken no more than a few minutes.
Williams testified that during the 3rd and 4th weeks of
Pinckney's employment Williams had been getting an
increasingly large number of complaints that Pinckney was
not moving trailers fast enough and that he was having
trouble finding them . On the morning of the last day of
Pinckney's 4th week Williams received such a complaint
and sought out Pinckney . He called the watchman and was
told that Pinckney had been seen talking to another driver
around the corner from the watchman 's shed. He
proceeded there and watched Pinckney and the other driver
talk for a few minutes and then broke up the conversation,
advising Pinckney that he had work to do and that the
watchman was waiting for his return . Williams testified that
he went back to his office and during the course of that day
thought over the complaints he had been having about
Pinckney and determined that in view of the damage to the
trailer and the fact that Pinckney's work did not seem to be
improving he would discharge him. This he did at 4 that
afternoon.
Discussion and Conclusion
General Counsel contends that Pinckney was discharged
by Williams because of his union activities. It is clear that
after the second week of his employment Pinckney wore a
union button at all times. He also testified that he engaged
in other union activities, that he spent his lunch hours
eating with various employees talking to them about the
Union, and that he aided the union organization in other
ways. Williams admitted that the complaints that he got
about Pinckney commenced at about the same time as
Pinckney's wearing of the union badge. He also admitted
that he himself had taken part in the antiunion campaign
and had passed out handbills on a number of occasions. He
testified that he had done everything in his power to defeat
the Union but denied that the Union had anything to do
with the discharge of Pinckney.
I credit Williams' denial. The inference is clear from the
testimony of Pinckney that he was not a wholly satisfactory
employee , although he testified that on numerous occasions
he had been complimented on his work. When asked to
specify the occasions he could think of only two. One was at
the end of the first week when Williams had asked him how
he was doing. He answered that he felt that he was learning
the job well and Williams answered that he hoped so. The
second occasion amounted to no more than a leadman
saying, more or less admiringly, to Pinckney that he
certainly moved a certain trailer fast. James Cavanah, a
vice president and Williams' direct supervisor, testified that
he received a number of complaints that Pinckney was not
moving trailers rapidly enough. He testified that he took no
action as a result of this , leaving it to Williams and he did
not direct Williams to reprimand Pinckney in any way.
Pinckney admitted in his testimony that he had trouble on
occasion finding the trailers and that he had been criticized
by Williams for spending too much time looking for them.
Williams on this occasion advised him that if he could not
find the trailer promptly to let Williams know and Williams
would help him. With regard to the conversation that
culminated in Pinckney's discharge Pinckney testified that
he could not have taken more than a few minutes although
he was not watching his watch. However, from the
testimony he gave with regard to the content of the
conversation, it appears quite likely that it took more than a
few minutes.
I am not convinced that the discharge of Pinckney was in
any way related to his union adherence or activities.
Pinckney's testimony, substantially corroborating that of
Supervisor Williams, was that he had difficulty in finding
and moving trailers promptly and when he was unable to
find a trailer had a tendency to spend more time than was
warranted looking for them rather than seeking assistance
from his superior, Williams. It is not seriously contended
that he was not responsible for the damage to the trailer
occasioned by his moving an adjacent trailer with a flat tire.
However, in my opinion this merely adds weight to the
Employer's rationale for the discharge, it obviously was not
enough in itself to cause it. It does not appear from the
record that the attitude of Respondent toward its
employees' nonworking activities during the working day
was particularly permissive although the Charging Party
contends to the contrary. Its contention is based upon the
testimony of Pinckney that he was told, while he was on the
night force, by a fellow employee that it was permissible for
him to sleep while on duty as long as he kept his radio on so
that he could be reached. Nor do I find any great
persuasiveness in the fact recited by the Charging Party in
its brief that Supervisor Williams could not state with
certainty on cross-examination the number of trailer
movements accomplished by Pinckney as compared with
the number of trailer movements accomplished by the other
two day-force drivers during the same period of time.
Williams testified that Pinckney was slow in this regard and
that he had the precise information in a book at the plant
but he can scarcely be charged with not having brought the
GREAT DANE TRAILERS , INC. 271
book to the hearing ; nobody subpenaed it and it was not
until his cross-examination that its existence came to light.
Neither the General Counsel nor the Charging Party
suggested that he bring the book in or that any further steps
be made to accomplish such a comparison . I found nothing
inherently incredible in Williams ' testimony that Pinckney
was not as fast as the other employees with whom the
Charging Party would have us compare him. On the other
hand I would find it remarkable if he were as fast since both
of them had more practice in moving trailers than
Pinckney , one of them , Goodman , having been engaged for
25 years in this endeavor . While the case is not without
suspicion I cannot say that the evidence preponderates in
favor of a finding that the discharge of Pinckney was in any
way engendered by his union activities . Accordingly I shall
recommend that the complaint be dismissed insofar as it
alleges that the discharge of Pinckney violated Section
8(a)(3) and ( 1) of the Act.
Daniel J . Vangiller
Daniel J . Vangiller had been employed by Respondent
since August 1968. At the time of his discharge in
November 1969 he was an A assemblyman working under
the supervision of O. F . Young and David English.
On November 7 Vangiller asked permission of David
English to take off at 1:30 in the afternoon to go to an
adoption agency with his wife with regard to the adoption
of a child . When permission was granted English told
Vangiller , according to Vangiller 's testimony, that he would
have to work the following Saturday . Vangiller came in
Saturday morning and found only about seven men
working . He asked English why there were so few
employees and English said that nobody had to work that
Saturday except those that wanted to, whereupon Vangiller
asked permission to leave so that he could pay some bills
and get other personal matters straightened out. English
refused to let him leave , stating in essence that he was
scheduled to work and was needed on thejob and required
him to stay . The following Monday Vangiller asked English
and Young both if he could have the following Saturday off
and they both said that they would make the necessary
arrangements and work something out. Vangiller reminded
English and Young that he wanted to be off the following
Saturday throughout the following week . On Friday he
went to Young and asked if it was still worked out so that
he could be off the following day and Young said that it
was not worked out and that he would have to work.
Vangiller reminded Young that he and English had both
promised him the day off to which Young answered that if
he did not come in on Saturday he need not return other
than to pick up his paycheck.
An hour or two later Vangiller went back to Young and
told him that he was giving him a week 's notice, that he was
quitting . Young's response was to wait while he talked to
English . He went into English 's office , talked to him and
came back and told Vangiller that English required that he
be at work on the following day, Saturday.
In the middle of the afternoon Vangiller apparently
changed his mind, and told Young that he wanted to
withdraw his notice . Young said he would have to talk to
English and English said he would have to talk to the
personnel office but refused him percussion to go to the
personnel office on company time . After 3 : 30 in the
afternoon when he had finished his day 's work Vangiller
went to the personnel office where he spoke first to the
receptionist . He asked to see the personnel manager, she
checked with Thor Egede-Nissen , the personnel manager,
returned to Vangiller and said that Egede -Nissen would see
him in a few minutes . He waited approximately an hour
after which he was escorted into the presence of Egede-
Nissen . He told the personnel manager the problem both as
to working the following day and withdrawing his notice to
quit. Egede-Nissen told him to go ahead and work out his
notice, quit, and then reapply for his job and stated,
according to Vangiller , that if they were to accept his
withdrawal the Umon might have a complaint if they came
in. Egede-Nissen then asked Vangdler how he felt about the
Union . Vangiller said it did not matter either way with him
because if he no longer had a job it could not help or hurt
him. Egede-Nissen also stated that he understood Vangiller
had been participating in union activities , which Vangiller
acknowledged to be the fact . Egede-Nissen told him that
after he worked out his notice he should come back and see
Egede-Nissen's assistant, Price.
Vangiller failed to work the following day , Saturday,
returned Monday and worked through Thursday. Nothing
was said to him during the course of the week about his
failure to work Saturday or about his notice other than
conversations with English and Young , who wanted to
know what he had learned in the personnel office. These
took place on Monday . The following Friday, which would
have been the day his notice expired , Vangiller came to the
department entering through a gate through which he was
normally not permitted to enter . He spoke to several of the
men he worked with and then went into the office to
English. English asked him how he got in and told him he
was not suppose to come through the service department.
English instructed Young to go with Vangiller to get his
tools and check him out of the Company 's employ. As
Young took him to the toolroom to return the Company's
tools, Young asked him whether he thought the Union was
coming in, to which Vangiller answered in the affirmative.
Young responded that he did not think the Union would
come in and that they were going to do everything they
could to keep it out and he again asked Vangiller if he really
supported the Union. Vangiller answered that he did, he
supported it on the inside and that when he went out he
would ride it to the end, one way or the other, whichever
way it went.
The following Monday Vangiller returned to the plant
and asked for Price. He was told that Price was not in and
would not be in that day . The next day Vangiller called the
personnel office and asked if Price was in ; he was and
Vangiller was told to come and see him . Vangiller went to
the personnel office and filled out an application which he
handed to the receptionist . She took the application to
Price's desk. Price sent her to get some records at which he
looked, and then the receptionist came back and told
Vangiller that Price said he could not help him due to his
record . Vangiller never spoke personally to Price. Vangiller
has made no further attempts to gain reemployment at
Respondent 's plant.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
David English, the department head, testified that the
rule in his department was that overtime and especially
Saturday work is either mandatory or optional. Generally
speaking the employees were notified at the end of the shift
on Thursday whether it would be one or the other. In the
event that the situation changes so that it is not necessary
for all the employees to work on a Saturday, those who
have signed up to work are permitted to work even if they
have to be farmed out to another department, since the
Employer did schedule them to work. On the other hand,
once a man had volunteered to come into work the
Employer scheduled him to work and required his presence
just as though it were any other scheduled worktime.
Accordingly, on the day in question, because Vangiller left
at noon on Friday, and Saturday work was made optional
thereafter, Vangiller remained scheduled to work on
Saturday and Respondent scheduled work for him to do.
Thus on Saturday when Vangiller came in, Saturday work
was not optional as to him but was mandatory. English
denied that he had any conversation during the following
week with Vangiller with reference to Vangiller getting off
on the following Saturday. According to his testimony, the
next event occurring in connection with Vangiller was on
the Monday preceding Vangiller's cessation of employ-
ment , when English was told by Supervisor Young that
Vangiller had given him notice that he was going to quit the
following Friday. He approached Vangiller later Monday
morning and asked him if it was true that he had told
Young that he was going to quit. Vangiller answered in the
affirmative whereupon English said "well, it is up to you"
and broke off the discussion. English testified that Vangiller
never spoke to him about withdrawing his notice of
resignation nor did he have any conversation with Vangiller
on the following Friday when Vangiller came in to check
out. He testified that Vangiller was scheduled to work that
Friday morning. English testified that when Vangiller
served notice that he was going to quit the following Friday
he immediately ordered another man who started the
following Monday after Vangiller had quit.
Mrs. Simpson, the clerical employee in the personnel
office, testified that she had no recollection of Vangiller
ever coming into the personnel office to see Egede-Nissen.
The only time she recalled Vangiller coming to the
personnel office was to pick up a check. She testified with
regard to the incident that she pulled Vangiller's old
personnel file and gave it to Mr. Price but recalled nothing
else happening. She did not explain why she pulled the
personnel file and gave it to Mr. Price if Vangiller's errand
concerned picking up a check.
Personnel Manager Egede-Nissen testified that he did
not recall ever talking to Vangiller in the office but stated
that he had two recollections in connection with Vangiller.
One, at some time, Vangiller telephoned to see him about
getting his job back. Egede-Nissen told Vangiller to come in
and see him at a specified time but does not recall him
doing so. The other was that one of the girls came into his
office and said Vangiller was waiting and he could not see
him. He has no other recollection of the occurrence. Egede-
Nissen also testified that at the time of Vangiller's
termination he had an assistant, Everett Price, and he
himself was very busy. Accordingly employees seeking to
talk to him would generally have been referred to Price.
Everett Price was never called to the witness stand. The
record reveals that he is now employed in Savannah in
connection with the police department. The record does not
reveal whether the personnel folder for Vangiller contains
an application filled out as he testified.
O. F. Young, the intermediate supervisor between
English and Vangiller , testified that Vangiller informed him
the Monday before his termination that he was giving him a
week's notice. He asked Vangiller why and Vangiller said
he was working too much overtime and he had to have
some time for personal business . That was all that was said.
On Thursday Vangiller came to Young and asked if there
was any way he could withdraw his resignation. Young told
him there was nothing he could do about it, that he would
have to go back to personnel but declined to let him go to
personnel until after the close of business . The following
day, Friday, Vangiller came in at 10 a.m. in street clothes to
check out. While Young was checking him out, according
to Young, a conversation was held during the course of
which Vangiller told Young that one of the reasons he was
quitting was because of the union election coming up. He
wanted to get out while he could because he had trouble
before while he was working at Great Dane when they had
a strike but that he might come back later after the Union
was "settled out." According to Young's recollection
Vangiller had had some trouble with employees when he
crossed a picket line in 1963 and got into a fight. Young
testified that he was "sort of puzzled" that an employee
who was wearing a IAM union badge would quit before the
election because of his fear that the Union would come in
but he said nothing about it to Vangiller.
Other than this comment from Vangiller, Young testified
he never had any conversation with Vangiller concerning
the Union and he specifically denied making the remarks
attributed to him or questioning Vangiller.
Both English and Young denied that they have fired
employees for failing to work overtime in the past or that
they have reprimanded any employee in the recent past for
failure to work overtime.
Discussion
I was not satisfied with the testimony of Assistant
Superintendent English . I am convinced that he testified
with less than candor in various respects. His denial that he
was aware that the Employer had a "no union policy" or
was antiunion is incredible in view of the fact that this
company policy is written up at length in the employee
handbook and the handbills distributed by supervision on
behalf of the Company clearly disclosed the Company's
policy in this regard. English was identified not only by
other employees but by Supervisor Tuten as one of the
supervisors who passed out the company handbills. It is
clear and English admits that he knew exactly which
employees among those who worked under him wore union
buttons and which of them wore Teamsters buttons as
opposed to IAM buttons.
The Charging Party contends that in effect Vangiller was
discharged by the action of the Employer in refusing to
permit him to withdraw his resignation. He is alleged to
GREAT DANE TRAILERS, INC.
have been discharged by the General Counsel but there is
no question that he in fact resigned. I do not credit the
testimony of either English or Young that there had been
no incident on the Saturdays preceding his resignation.
Both English and Young admitted that the reason he gave
for resigning was that he needed time off to accomplish
some personal business. This is consistent with Vangiller's
testimony that he had not been able to get time off on the
preceding Saturdays for this purpose and is inconsistent
with what is at least the inference that must be drawn from
the testimony of Young and English that if he had wanted
to refrain from working on Saturday he would only have
had to say so. Egede-Nissen testified that when an
employee quits and attempts to come back to work he is
normally interviewed to determine why he had quit and
then the personnel manager confers with his ex-supervisor
to determine whether he is to be rehired. However, Egede-
Nissen distinguished between the situation where an
employee quit and where he walked off the job and
Respondent contends that Vangiller falls into the latter
category because he was to have worked on Friday and did
not do so. Vangiller was asked by the General Counsel why
he did not work on the last Friday and he testified "I got to
thinking, what's one more day, you don't have a job after
today no how, so what difference does that one day going
to make [sic]."
The General Counsel offers no controversion of Egede-
Nissen's testimony that Respondent made a distinction
which appears to me to be valid between a quit and an
employee who simply walks off thejob. It is equally valid in
my opinion to place Vangiller in the latter category in the
light of his testimony that he in fact had resigned effective
at the close of business on Friday but failed to work the last
day as he admitted. Under these circumstances I cannot
find that Respondent's refusal to consider him thereafter on
the following Tuesday, when he made application to Price
for employment, was violative of the Act in any regard.
This leaves only the question whether Respondent's refusal
to permit him to rescind his resignation amounted to a
discharge. I believe the testimony of English and Egede-
Nissen that upon being apprised of Vangiller's resignation
English promptly reported it to Egede-Nissen and asked for
a replacement. It would appear to follow therefore that the
matter had been taken out of English's hands and that
Vangiller would have to go to the personnel office to
rescind his resignation if possible. I credit Vangiller's
testimony, to the extent that he testified that he went to
Egede-Nissen's office and asked to rescind his resignation
and I credit his recollection that Egede-Nissen said that he
would not permit Vangiller to rescind his resignation but
suggested to him that he come back the following week and
reapply because of the situation then extant between two
unions competing for the vote of the employees.
I do not credit Vangiller's testimony with regard to
additional remarks he attributed to Egede-Nissen with
regard to Vangiller's union activities. They do not follow
from the rest of the discussion in Egede-Nissen's office and
I believe that it would be probable that Egede-Nissen,
under the circumstances of the union campaign then going
4 Apparently it was only after Vangiller had terminated his employment
that he espoused the cause of the Charging Party herein.
273
on and Respondent's avowed nonunion position, would
have been careful about questioning an employee such as
Vangiller, particularly one whose imminent departure from
Respondent's employ renders his answers somewhat less
valuable than they would otherwise have been. I note that
Egede-Nissen did not specifically deny that there had been
a conversation but testified that his recollection was very
hazy. However he did specifically deny discussing with
Vangiller his efforts on behalf of the Union. I credit his
denial in that regard. I note that Vangiller's testimony was
at some points at variance with that contained in his
affidavit given very shortly after his layoff. This does not in
my opinion enhance his credibility nor convince me that I
should credit him in the face of what I deem to be the
credible denial of Egede-Nissen.
The question remains whether the refusal by Egede-
Nissen to consider a withdrawal of the resignation was
discriminatory. I believe that it was. Respondent offers no
evidence on which I can find that it had an inviolable rule,
or a rule at all, that a resignation could not be withdrawn
but had to be effectuated. The only evidence with regard to
that is that of Vangiller, which I have credited, that Egede-
Nissen declined to permit it on the ground that one of the
Unions might predicate objections on whatever action he
took. Since it is clear that Respondent was aware of
Vangiller's adherence to the IAM 4 it would seem to follow
that Respondent in effect was refusing to permit the
recision of the resignation because of his union activities.
Accordingly I infer and I find that the refusal violated
Section 8(a)(3) of the Act since it would not have taken
place but for the union activity in the plant and Vangiller's
activities with regard thereto.
Frank Allen
Frank Allen was hired in January 1969 as a riveter in
department 58 under the supervision of Acey Burnett and
H. 0. Beasley. About 2 weeks later he was transferred to
another job sealing and undercoating trailers and a month
later he was again promoted to A assembly, each of which
promotions resulted in a pay raise.
In September 1969 Allen became interested in the
Teamsters organizing and joined the Union, commenced
wearing a pin bearing the legend "Vote Union," and talking
to other employees in an effort to organize the plant during
his lunch hours and breaks. The first day he wore his
button, he credibly testified, Supervisor Beasley came to
him and asked him where he got the pin and what it meant.
He also asked whether Allen was aware that Great Dane
was a nonunion plant. Beasley asked when they were going
to have an election and asked Allen if he thought it was
right to wear the pin in a nonunion plant. This took place
during the morning. After lunch on the same day
Supervisor Burnett sent Allen to the office to see Beasley.
Beasley informed Allen that he was giving him a reprimand
for not sealing a trailer correctly.5 Allen testified that the
trailer that he was accused of sealing incorrectly was not
resealed but went out to a customer. He also testified that
there was no difference in the job he did sealing that trailer
5 Sealing a trailer consists of applying a plastic substance on theJoints
where the back and sides of the trailer meet to make it waterproof
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the job he had done on any other trailer during the 11
months he had been employed.
Allen testified that on the Tuesday before Thanksgiving
he was late to work because he had visited his wife in the
hospital before coming in to the plant. The following
Tuesday he was again late, this time 15 minutes. He was
again sent to Beasley who told him he was going to give him
a reprimand because he was late 3 days in 1 week. Allen
signed the reprimand and Beasley put it in his desk drawer
and said that if Allen was ever late again he would turn it in.
The rule at Respondent's plant is that two reprimands
within a period of 6 months warrant a dismissal. On the
morning of December 8 Allen was 5 minutes late to work.
He had driven to South Carolina over the weekend and his
car had broken down whereupon he took a bus to get to
work and was late. He reported to Beasley who told him
that he would have to turn in the reprimand and gave him
no opportunity to explain the reason for his tardiness.
Allen testified that before he started wearing a union pin
he had been late on several occasions and had never been
reprimanded and that he knew of other employees who
were habitually late to work but had not received
reprimands or been discharged. H. O. Beasley, the head of
the department, testified that about half of the employees in
his department, numbering some 50 to 60, wore union
buttons and he testified that he never spoke to any
employee about the union buttons although a couple of
employees may have mentioned them to him. He testified
that he was aware that Allen commenced wearing a button
sometime in September and wore one frequently thereafter.
Beasley testified that in October his attention was called
to two trailers that had been improperly sealed by Allen.
The problem was brought to his attention by Burnett, the
direct supervisor, and by the inspector, Berry. He testified
that the job was deficient in that the sealer hung in "big
wads" under the top rail of the trailer. He called Allen into
the office and reprimanded him verbally and caused
Supervisor Burnett to fill out a reprimand slip, which was
received in evidence. The slip was dated October 7, 1969,
and was signed by Allen. It states "Not following instrution
[sic] sealing a trailer wrong after being instruted [sic] of the
proper way." Burnett and Berry both testified about the
incident. All three of these witnesses testified that there
were two trailers improperly sealed by Allen and that one of
them was resealed in the department while the other was
not .6 Other than the fact that the testimony indicates that
there were two trailers involved whereas Allen testified with
regard to only one and his testimony is corroborated by the
warning slip, there is no real issue with regard to this
occurrence other than whether reprimands were occasioned
by Allen's union activity rather than by his poor work.
Allen does not deny that the inspector refused to pass the
trailer after he had sealed it.
All the witnesses agree that Allen commenced wearing
the union button in September. Allen testified that the
reprimand was given him on the day he commenced
wearing the union button, and also on that day he had a
conversation with Beasley in which Beasley commented on
his wearing the button, asking what he thought it would
gain him and if he thought it was proper to wear it at the
plant because the Company was nonunion . The record of
the reprimand however places the date of the reprimand
well after the date on which Allen commenced wearing the
union button. The argument thus loses a great deal of its
force that the reprimand was given by Beasley because of
Allen's union adherence. The Charging Party argues that
the imposition of this reprimand should be found to be an
unfair labor practice because of the known antiunion bias
of the Employer and the timing of the incident. But the
timing of the incident does not appear to be related to
anything. I do not find that the imposition of the first
reprimand was violative of the Act. There is no question
that at the time the reprimand was given half of the
employees in the department were wearing union buttons
and there is nothing in this record from which I can
determine that Allen was any more or less involved in the
Union's campaign than the remainder of the button-
wearing employees.
Beasley testified that Allen had a poor attendance record
and that on November 25 when he (Allen) showed up late
for the third time in a week he filled out a reprimand form
and told Allen that he would put it in his desk drawer rather
than turn it in. He warned Allen that if he did not cure his
propensity for tardiness and absenteeism that he would
turn in the reprimand. This would automatically result in
Allen's discharge since it appears to be an inviolable rule of
the Company that two reprimands within a 6-month period
result in the termination of the reprimanded employee.
Nevertheless, thereafter Allen failed to show up for work on
Monday, December 8, and the next morning came in late.
It is customary at Respondent's plant for employees who
come in late to be given their timecard by the watchmen to
take to the supervisor. The supervisor then approves the
timecard and has an opportunity to admonish the
employee. When Allen took his timecard to Beasley, on the
morning of the 9th, Beasley reminded him that he had been
warned on November 25 that if he were late again the
reprimand would be turned in and advised Allen that he
was terminated. Allen left the plant promptly.
Allen's testimony was quite different. He testified that the
morning of December 8 he came in 5 minutes late because
his car broke down and he had to catch a bus to go to work.
Asked when his car broke down, he answered:
That was the weekend. I went home to South Carolina,
my car breaks down on me and I leave it. I came back to
Savannah Monday morning and I caught the bus to
work and I got there about 5 minutes after 8.
In support of Beasley's testimony Respondent produced its
attendance record for Frank Allen which, according to the
testimony of Miss Simpson, the personnel clerk, was
improperly marked by a temporary employee who was
working in the office the month of December. The
attendance record has a legend showing the symbols to be
used for various markings. They are as follows:
A: Excused Absences
I: Unexcused Absence
L: Layoff
T: Tardy
6 Berry testified that the other trailer was taken to the paint department,
which is out of his jurisdiction, where it was resealed.
GREAT DANE TRAILERS, INC. 275
S: Sickleave
V: Vacation
Miss Simpson testified that she did not use this marking
code but used another one which was in general use by
Respondent. The code she used as she explained was S for
sick, U for unexcused, T for tardy, V for vacation, E for
excused. The card which is in evidence contains for the year
1969, 22 "T's", nine "U's", four "E's" and for August 22,
the number 4, for October 5, the number 2. These latter
figures are not explained anywhere on the record. For
December 8 there is an A and there is no marking
whatsoever for December 9. Mrs . Simpson testified that she
discovered during the investigation of this matter by the
General Counsel that the card had been improperly
marked. She took it up with Mr. Egede-Nissen who
consulted with counsel and determined that the card should
not be corrected. The latter is further complicated by two
additional factors. According to the legend on the card, the
letter A means excused whereas the testimony indicates
that December 8 was unexcused . The other complicating
factor is to be found in the testimony of Egede-Nissen who
stated that temporary help was used only in the months of
May and June, not in December. A final complication with
regard to the attendance record is to be found in the fact
that both Simpson and Egede-Nissen testified that on
discovering the improperly marked card they checked back
to the original records and found that the absence was
unexcused.
The most I can find with regard to the attendance record
is that it does not serve to corroborate .the testimony of
either Beasley or Allen. I cannot rely on the explanation of
Simpson that the card was erroneously marked by a
temporary employee in view of the testimony of Egede-
Nissen that there were no temporary employees employed
at that time . If her testimony is unreliable in that regard, I
am not inclined to rely on her further testimony that a
search of the "original" record revealed that there was an
unexcused absence on that day; Respondent made no
attempts to produce the original record which Simpson
testified was still in existence and which might have
corroborated her testimony in this regard. The result is that
as between Allen's testimony and Beasley 's testimony, the
only corroboration I have is that of Burnett. The Charging
Party contends that I should discredit Beasley, particularly
because he testified on direct examination that he did not
pass out literature for the "go team" whereas the testimony
of Supervisor Tuten revealed that Beasley passed out
handbills prepared by the Employer. The Charging Party
however is mistaken in this regard because the "go team," it
is clear on the record, consisted of a group of employees
organized to combat the Teamsters organization. The
handbills passed out by the "go team" were distinct from
the handbills prepared by the Respondent and passed out
by its supervisors. Accordingly, a denial by Beasley that he
passed out "go team" handbills cannot be read to be a
denial by Beasley that he passed out handbills for the
Employer and it appears from his testimony that he was
making that distinction.
I do not find it necessary to determine the issue of
whether Allen was absent on the 8th and tardy on the 9th.
He testified that he was tardy on the 8th and admittedly he
had been warned on the 25th of November that if he were
tardy again the reprimand would be filed and he would be
terminated. Further I cannot find that the giving of this
reprimand for tardiness was occasioned by his union
activities. Again as I pointed out above, he was only one of
half of the employees in his section who wore a union badge
and there is nothing to distinguish him from the rest as far
as his union advocacy is concerned. Further it would
appear that there was ample justification for the reprimand
on November 25 and Beasley appears to have been leaning
over backward in giving Allen one more chance before
sending the reprimand in. Unquestionably, Allen's record,
particularly with regard to tardiness, was very bad.
Whether it was the worst in the department, as Beasley and
Burnett testified, is not corroborated but I would hesitate to
find that the second reprimand was not occasioned by his
tardiness in the face of his poor attendance record.
While the issue is not without doubt, I am not convinced
that the General Counsel has presented a preponderance of
the evidence sufficient to find the discharge of Allen to be
violative under the terms of the Act. Accordingly, I shall
recommend that the complaint be dismissed with regard to
this discharge.
Herman Leachman
Herman Leachman went to work for Respondent in the
paint shop cleaning sides of trailers on August 5, 1969. He
had previously been employed in 1965 before he went into
the service. His immediate supervisor was Bernard Teller
and his department head was C. V. Tuten. Leachman
worked on the evening shift from 4 to 12:30. On December
17, 1969, as the employees entered the plant, a distribution
of handbills was made either by the "go team" (discussed
above) or the Employer in the form of a Christmas list of
things that the Employer had done for the employees
without benefit of union organization. One of the items on
the Christmas list was some statement relative to overtime
being optional with the employees and not compulsory. At
about 10:30 in the evening Leachman addressed himself to
Teller and asked him if a man didn't want to work overtime
if he'd be fired. Teller answered he would not. At about that
time Teller had announced that the shift would work two
hours overtime that night. Shortly before 12:30, the normal
quitting time, according to Leachman's testimony, he again
addressed himself to Teller asking which clock he would
punch out if he got off earlier than the rest of the crew.
Teller asked where he was going. Leachman answered that
he had no transportation home and it was raining at the
time; if he couldn't get a ride home he'd have to walk.
Teller answered that if he took off he would give him a
reprimand and Leachman answered that in that case he
would have to accept it because he had no other way home,
to which Teller answered, "no that's okay, go ahead, I'll
take it up with Charlie (Tuten) in the morning." The next
day when Leachman arrived his card had been pulled. He
went to Tuten's office, which was the normal course when
an employee's card is not in the rack, and Tuten discharged
him for walking off the job.
Teller's story is somewhat different. He stated that
several times during the night after he had informed the
men that they would be working overtime, Leachman
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called out asking if he didn't work overtime he would be
fired. Teller's response was that he had the overtime posted
on the board and gave the employees enough notice that
they would be working overtime. Apparently, according to
his testimony he never did say that Leachman would or
would not be fired if he walked off the job. Immediately
before 12:30, Leachman came to Teller and asked him what
clock to punch. Teller answered that if he was leaving he
was walking off the job; that the employees were scheduled
to work until 2:30. Leachman left, and as he was leaving
Teller told him that they, apparently referring to Depart-
ment Head Tuten, would make a decision with regard to
him the next day. He testified that he said nothing about
giving him a reprimand and he denied that Leachman made
any mention of having to get a ride or having a ride
problem. The only remark he made was that he worked 8
hours and did not have to work overtime. Teller testified
that he had never personally discharged an employee or
recommended discharge for failure to work scheduled
overtime, nor did he know of any employee discharged by
anyone for failure to work scheduled overtime. The
testimony of both Leachman and Teller agrees with the
testimony of various other witnesses that another employee,
Williams,7 who asked Teller at 12:30 to get off because he
didn't have a ride, was given permission to get off and in
fact left at 12:30 and was not reprimanded or discharged.
Teller testified that he normally gave employees permission
to leave early if they had any good reason. In fact, he
testified that he let Leachman off not long before this
occurrence when he wanted to take off early to see his wife
in the hospital.
Charles V. Tuten testified that on the morning of
December 18 when he came into the office he found a
memorandum from Teller about the occurrence. He called
for Leachman's records from the personnel department.
In checking Leachman's personnel records he found that
he had terminated Leachman for having left the job early
on a previous employment and accordingly he had no
alternative but to go ahead and let him go again. He
testified that only he terminates employees in his depart-
ment and he even requires that reprimands be evaluated by
himself before they are issued.
The record left by Teller to Tuten is in evidence. In
pertinent part it states:
Charley Leachman went home at 12:30 after I told him
at 10 o'clock we were working over. He said he worked
his 8 hours and didn't want to work any overtime, I
talked to Pete and Pete said to let him know he is
leaving on his own that we would see about it
tomorrow. As you know Leachman is leaving us the last
week of this month.
Discussion
Respondent contends that the discharge was consummat-
ed solely because Leachman walked off the job without the
permission of his supervisor and that the supervisor would
have given him permission if Leachman had given him as
the reason for getting off early that he needed a ride home.
Thus the sole factual issue is whether, in the conversation
between Leachman and Teller, Leachman said why he
wanted to go home. The General Counsel produced a
number of corroborating witnesses and testified that they
had gotten permission to leave and had failed to work
overtime on various occasions without being discharged or
otherwise reprimanded. One testified that he had received
several reprimands for failing to work overtime. The only
organizing activity engaged in by Leachman, other than
wearing two union buttons, appears to have been that he
handbilled at the plant on four or five occasions prior to his
discharge. There is no evidence that there was any
communication between Teller and Tuten other than the
memorandum quoted above. It was Tuten that determined
what, if any, disciplinary act should be taken. This
determination, he credibly testified, he based in part on the
fact that he had in the past terminated Leachman for
walking off the job and felt that the instant situation raised
a disciplinary problem that could be met only with a
discharge. There is no indication in Teller's memorandum
that Leachman gave any reason for wanting to be off early
other than he did not want to work overtime. This would
seem to be consistent with the reaction that Leachman
obviously had to the handbill he had received the same
evening stating that overtime was not compulsory. I find it
difficult to believe that in an informal memorandum of this
nature Teller would have given less than the full facts to his
department head, Tuten. I note also that all of the
employees called by the General Counsel in support of
Leachman's story, Tommy Chester, Melvin Washington,
Jr., Nathaniel Jones, Dyrel Thomas, and Thomas Bentley,
were members of the Union's organizing committee. The
only employee called by the General Counsel on this issue
who was not a member of the Union's organizing
committee was Ronnie Butler and his testimony was as
follows: "All I know is that it was that night he (Leachman)
couldn't work over for some reason and he didn't and the
next day all I know he was fired or discharged." Thus the
only employee and indeed the only witness to the incident
who appears to be disinterested is Butler and he fails to
corroborate Leachman except to the extent that he testified
that Williams had taken off without working the overtime
and had not been discharged and that he himself on
another occasion under another supervisor had been
permitted to leave early because he needed a ride. I am not
convinced that Leachman told Teller the reason he wanted
to go home, I believe rather that he acted in reliance on the
statements made in the handbill that overtime was not
compulsory. It is clear that Teller refused to give him
permission to leave and told him in effect that he would be
considered to have walked off the job if he left. All the
evidence, both with regard to Leachman and with regard to
other employees, reveals that walking off the job is a
cardinal sin at Respondent's plant. Here under the
circumstances that the records disclosed that he had walked
off the job the last time he had been employed and had
been terminated for that reason plus the fact that Teller
told Tuten that he was leaving the Respondent's employ
within 2 weeks convinces me that Tuten discharged
7 Williams was also a union adherent, and a member of the union
organizing committee.
GREAT DANE TRAILERS, INC.
Leachman for walking off the job rather than because of his
union activities. Accordingly I shall recommend that the
complaint be dismissed insofar as it alleges discrimination
in the discharge of Herman Leachman.
The Independent 8(a)(1) Allegations
The General Counsel alleged that Respondent violated
8(a)(1) by interrogating employees on five separate
occasions concerning their union membership and activi-
ties, by action of Bernard Teller threatening employees with
discharge if they supported the Union and by the action of
Department Head Tuten threatening employees with loss
of insurance and hospitalization benefits if the Union were
successful.
First with regard to the interrogation alleged, the first
incident alleged by the General Counsel is to be found in
the testimony of employee Frank Allen who testified that
when he first wore his button Department Manager Beasley
came to him and asked him where he got the button, he told
him he got it from a friend and Beasley asked him if he did
not know that the Company was nonunion and did he think
it was right to wear a union button in a nonunion plant.
Beasley denied any conversation with any employee at any
time in which he said anything about the union button.
Beasley also denied that he knew that the Company had a
nonunion policy. I credit neither denial and I find that the
questions asked by Beasley of Allen concerning his union
button went beyond a mere desultory inquiry, such as
would be protected under 8(c), but had as their object at
least a reminder to Allen that management considered the
wearing of union buttons improper in view of Respondent's
status as a nonunion company. I find that the questions
constitute interference, restraint, and coercion of employ-
ees within the meaning of Section 8(a)(1) of the Act.
The second alleged incident of interrogation concerns
Department Head Tuten. Tuten testified that he observed
union buttons being worn by employees in his department
and decided that this was an indication of unrest in his
department. He "made a personal evaluation trying to find
out whereby he (I) might be slipping in his (my)
supervision." In making this evaluation he talked to several
employees asking them "where am I slipping if there is a
need of trying to seek a union in the plant." He denied
saying anything about the insurance program or telling
anyone to take off the union buttons or asking what the
Union meant or represented. Tuten also testified that he
asked only a few of his employees his questions and that
this included some nonunion employees. General Counsel
produced evidence of several employees, all members of the
Union's organizing committee, concerning interrogations
by Tuten. TOMMY LEE CHESTER testified that he was
called into Tuten's office where he was alone with Tuten
and Tuten asked what he had done and if it was on his
account that the employees were wearing union buttons; he
wanted to know if they were protesting something.
NATHANIEL JONES testified that one day Tuten called
Jones into his office and asked him why he was wearing a
button. Jones answered because he wanted to wear it.
277
Tuten said he hoped Jones knew what he was doing and
suggested that he pull it off, Jones told him he knew what
he was doing and refused to take the button off. DYREL
THOMAS testified that Tuten called him into the office
and asked why he was wearing a button and what it
represented. He answered that the guys in the department
felt that they needed a union whereupon Tuten told him
that with all the opportunities the employees had they did
not need a union and it was foolish for them to even think
of it. Tuten then mentioned the fact that a union had been
in the plant before and caused trouble and predicted that as
soon as it got in there would be a strike. MELVIN
WASHINGTON, JR., testified that he had talked with
Tuten a number of times about the Union, what the Union
could do and could not do, and on one particular day Tuten
said that if the Union came in it could not promise what it
says it could promise and specifically that it could not
promise and deliver paid insurance and other benefits
which the employees were not then getting.8 I believe and I
find that Tuten interrogated a number of employees as to
their reasons for wearing union buttons. There is no
evidence that any of the safeguards enumerated in
Struksnes Construction Co., 165 NLRB 1062, were present .9
Accordingly I find that the interrogations constituted
violations of Section 8(a)(1) of the Act. I do not find that
the conversation with Washington, which obviously was
part of a "bull session" in which a number of employees
were participating, and which contained no threats but
merely arguments of Respondent that the Union in the past
caused a strike and violence and loss of jobs and that a
union per se did not give the employees anything, was
coercive. The statements attributed to Tuten were little
more than statements of Respondent's position protected
under the Act. To the extent that they are alleged as
violations of Section 8(a)(1) as threats, I shall recommend
the allegations be dismissed.
NATHANIEL JONES testified that a week or two after
his conversation with Tuten, Supervisor Teller saw him
with a button and asked him why he was wearing the
button. He answered that he was wearing it because he
wanted to. Teller then said that the Teamsters had tried to
get in there before and failed and said that he hoped Jones
knew what he was doing and warned Jones not to let the
button cause him to lose his job. Asked whether Teller had
explained what he meant by the last statement Jones
answered "he said the Teamsters had tried to get in there
before and they lost and it cost some other fellows their
job." Teller testified that he never discussed the Union with
any employee and no employee ever tried to discuss the
Union with him.
I credit Jones' testimony. I find that like the interroga-
tions conducted by Jones' superior, Tuten, questioning the
employee as to his reasons for wearing a button, violates
Section 8(a)(1) of the Act. With regard to the alleged threat,
while it might well be that what Teller meant was that Jones
could lose his job as a result of the Union taking strike
action if it got in and Jones being replaced, this is not what
he said. He merely indicated that union adherence could
8 At that time there was a hospitalization insurance plan for employees week for the insurance program
for which the employees paid, Washington testified that he paid $3 14 a 9 Tradmobde Division, Pullman Inc, 168 NLRB No 31
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cost Jones his job. This I find violative of Section 8(a)(1) of
the Act; it is as direct a threat as there could be.
The next alleged interrogation is to be found in the
testimony of Vangiller who alleged that he was interrogated
by Director of Industrial Relations Egede-Nissen on
November 14. I have previously found that Egede-Nissen
did not make the statement attributed to him, accordingly I
shall recommend that this allegation be dismissed.
Finally it is alleged that Supervisor Young interrogated
employee Vangiller as he checked him out after his
discharge. Young asked whether Vangiller thought the
Union was coming in and indicated his opinion that he did
not think the Union would. Young stated "we are going to
do everything we can to keep it out" and asked Vangiller if
he really felt that way. I find that the statements were made.
Although Young denied them, I was not impressed with his
credibility on the witness stand. However I do not find the
statements violative under the circumstances herein, I do
not think the statements were designed to get information
concerning Vangiller's attitude toward the Union and they
were certainly not designed to interfere with the rights of
any employee, inasmuch as they were made at the time of
Vangiller's discharge as he was literally on his way out. I
recommend that the complaint be dismissed with regard to
this allegation.1° I have already discussed the alleged threat
by Teller and found it violative of the Act. Finally General
Counsel contends that Tuten by his conversation concern-
ing loss of insurance benefits threatened employees; this
conversation is set forth above. I do not find that violative
as I stated in the discussion therein and I recommend that
the complaint be dismissed insofar as that issue is alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. It was found
that Respondent discharged Ester Hodge and Dan
Vangiller in violation of Section 8(a)(3) and (1) of the Act.
Accordingly it is recommended that Respondent offer to
those employees immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to seniority or other
rights and privileges and that they be made whole for any
resulting loss of pay from the date of their discharge to the
date on which they are offered reinstatement plus their net
earnings during that period. Backpay shall be computed on
a quarterly basis in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, with interest at 6
percent per annum as provided in Isis Plumbing & Heating
Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating and threatening employees with loss
of their employment, Respondent has interfered with,
restrained and coerced employees in the exercise of their
rights guaranteed in Section 7 of the Act in violation of
Section 8(a)(1) of the Act.
4. By discharging Ester Hodge and Dan Vangiller,
Respondent has discriminated in regard to hire or tenure of
employees for the purpose of encouraging or discouraging
membership in the Union in violation of Section 8(a)(3) of
the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER"
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case, it
is recommended that Respondent Great Dane Trailers,
Inc., its officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, support of, or activities
on behalf of Truck Drivers and Helpers Local Union No.
728, United Brotherhood of Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization,
by discharging employees or otherwise discriminating
against them in regard to their tenure, terms or conditions
of employment because of their union or other protected
concerted activity.
(b) Interrogating employees in a coercive manner
concerning their union activities or sympathies or threaten-
ing them with loss of employment if they continue to
engage in such protected activities.
(c) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of their
rights protected by Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act.
(a) Offer to Ester F. Hodge and Dan J. Vangiller
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions without prejudice to their seniority or other rights
and privileges and make them whole in the manner set forth
10 Rogers Bros. Co., 169 NLRB No. 124 . shall, as provided in Section 102.48 of the Rules and Regulations, be
11 In the event no exceptions are filed as provided by Section 102.46 of adopted by the Board and become its findings , conclusions , and order, and
the Rules and Regulations of the National Labor Relations Board , the all objections thereto shall be deemed waived for all purposes.
findings , conclusions, recommendations , and Recommended Order herein
GREAT DANE TRAILERS, INC. 279
in the section of this Decision entitled "The Remedy" for
the discrimination against them.
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Decision.
(c) Notify the above-named persons if presently serving
in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(d) Post at its plant in Savannah, Georgia, copies of the
attached notice marked "Appendix." 12 Copies of said
notice , on forms provided by the Regional Director for
Region 10 , after being duly signed by an authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith.13
I FURTHER RECOMMEND that the complaint be dismissed
insofar as it alleges violations not found above to have been
committed.
12 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
13 In the event that the Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 10, in writing , within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice. The Act gives all employees
these rights:
To engage in self-organization
To form, join or help unions
To bargain collectively through representatives
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all of these things
WE WILL NOT do anything that restrains or coerces
employees with respect to these rights.
WE WILL NOT interrogate employees coercively with
regard to their union activities nor threaten them with
loss of their jobs if the Union gets into the plant.
WE WILL NOT discourage membership in Truck
Drivers and Helpers Local 728, IBTCWHA, or any
other labor organization by discharging employees
because of their union activities.
WE WILL offer Ester Hodge and Dan Vangiller
immediate and full reinstatement to their former jobs or
if these jobs no longer exist to substantially equivalent
jobs and we will make them whole for any pay they lost
as a result of our discrimination against them.
WE WILL notify the above named persons if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
GREAT DANE TRAILERS,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Peachtree Bldg., Room 701, 730 Peachtree Street, N.E.,
Atlanta, Georgia 30308, Telephone (404) 526-5760.