Great Dane Trailers, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1973

204 N.L.R.B. 536 (N.L.R.B. 1973)

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Great Dane Trailers , Inc. and Truck Drivers and Help-
ers Local Union No. 728 . Case 10-CA-9702
June 26, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On December 21, 1972, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
1. The Administrative Law Judge found, and we
agree, that the Respondent violated Section 8(a)(1) of
the Act by unlawfully interrogating employee Henry
Newman in early June 1972.
2. The Administrative Law Judge further found
that the Respondent violated Section 8(a)(3) of the
Act by discriminatorily discharging Henry Newman
on July 24, 1972. We disagree.
On November 16, 1970, the Charging Party was
certified as the exclusive bargaining representative of
the Respondent's production and maintenance em-
ployees? Currently the parties are in the process of
attempting to negotiate a collective-bargaining agree-
ment.
Henry Newman, an employee in Respondent's
maintenance department who had acted as a union
observer at an election held in 1969, was discharged
on July 24, 1972, immediately after he had called his
foreman, Eugene Turner, a "liar" in the presence of
Department Head James Todd. As found by the Ad-
ministrative Law Judge, the events leading up to his
discharge are as follows:
Respondent's plant, except for the maintenance de-
partment, has in the past shut down the first 2 weeks
in July for summer vacations. The maintenance de-
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd. 188 F.2d 362 (C A. 3) We have carefully examined the record and find
no basis for reversing his findings.
2 Great Dane Trailers, Inc, 191 NLRB 6
partment employees, who are required to work during
the shutdown, take their vacations at other times. Ap-
proximately 2 weeks prior to the shutdown, Newman
posted his vacation schedule on Respondent's bulletin
board for the first week after the shutdown; namely,
from July 17 to July 24. Two other employees, Bridges
and Crawford, had previously posted for the same
period. When Newman told Foreman Turner of the
dates he wanted for his vacation, Turner advised
Newman that he didn't know if Todd wanted three
maintenance employees to be on vacation the same
week. Turner said he would talk to Todd, and, if there
were a problem, he would get back in touch with
Newman. Nothing further was said about the matter,
and Newman took his vacation the week after the
shutdown, as did Bridges and Crawford.
On July 24, Newman returned to work and was
instructed to see Todd. In the presence of Turner,
Todd accused Newman of taking an unauthorized
vacation. Newman denied it, saying he had discussed
it with Turner who in turn denied that he had given
Newman permission to take his vacation during the
stated period. Newman accused Turner of lying.
Todd and Turner then left the room and, after a dis-
cussion of the incident, decided to discharge Newman
for having called Turner a "liar." Newman was then
discharged without being told the reason for his termi-
nation until Employee Relations Manager Delorne so
advised him at a later time.
Although the credible evidence shows that Respon-
dent knew of Newman's advocacy of unionization,
that Respondent was opposed to the organization of
its employees,' and that it had been found on other
occasions to have resorted to discriminatory action in
pursuit of its objective of remaining nonunion, we are
not persuaded that a true preponderance of the evi-
dence supports the conclusion that the Respondent
was motivated by any unlawful considerations in ef-
fecting Newman's discharge. The intervening fact
that impairs the establishment of a nexus between the
Respondent's union animus and Newman's termina-
tion is the incident wherein Newman admittedly
called his supervisor, Turner, a liar in the presence of
department head, Todd. There is record testimony by
other employees that Supervisor Turner was a sort of
"no-nonsense" supervisor, who was not the kind of
person to be fooled around with. Thus, there is good
and substantial reason to conclude that the discharge,
which immediately followed this incident, was moti-
vated by Supervisor Turner's insistence that he need
3 In reaching this conclusion , we do not rely on the Administrative Law
Judge's finding that certain statements in the Respondent's employee hand-
book evidence union animus . The record shows that the offensive statements
in the employee handbook were deleted in the fall of 1971 in response to the
Board 's criticism of those statements in a prior case and thus have no bearing
on the incidents which precipitated Newman's discharge
204 NLRB No. 91
GREAT DANE TRAILERS
not put up with this kind of verbal abuse by an em-
ployee under his supervision. We think that an em-
ployer may effect such discipline even though it
knows the employee is a union advocate, for the right
of an employer to maintain order and insist on a
respectful attitude by his employees towards their su-
periors is an important one. Verbal abuse directed at
an employee's supervisor, especially when, as here, it
is uttered in the presence of the department head,
would, if left undisciplined, tend to diminish the re-
spect of other employees for their employer and en-
courage insubordinate conduct by them.
In these circumstances, we are constrained to find
that the General Counsel has not sustained his burden
of proving that the Respondent discharged Henry
Newman because of his union activities. Accordingly,
we shall dismiss those allegations of the complaint
with respect thereto.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Great
Dane Trailers, Inc., Savannah, Georgia, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees con-
cerning their union membership, sympathies, or activ-
ities.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Post at its place of business in Savannah, Geor-
gia, copies of the attached notice marked "Appen-
dix." 4 Copies of said notice, on forms provided by the
Regional Director for Region 10, after being duly
signed by Respondent's representative, shall be post-
ed by it immediately upon receipt thereof, and be
maintained by Respondent for 60 consecutive days
thereafter, in conspicuous places, including 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.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
4 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board " shall read " Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
537
with.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is , dismissed insofar as it alleges that the dis-
charge of employee Henry Newman was in violation
of Section 8(a)(3) and (1) of the Act.
MEMBER FANNING, dissenting:
The record shows that Henry Newman was a satis-
factory employee of 4-1/2 years' standing in
Respondent's tool and die department. James Todd
was the department head and Foreman Turner was
Newman's immediate supervisor. In December 1969,
Newman had been a union observer in a Board-con-
ducted election. In June 1972, Newman asked Turner
for a raise. Turner wanted to know what Newman
would do about the Union if he got a raise . Newman
replied that he would not be able to push the Union
because he would be reclassified, but added if he did
not get the raise he would push the Union all the way.
Several weeks later Turner told Newman that New-
man would not get the raise and Newman then stated
and he intended to push the Union. Newman's testi-
mony is corroborated by employee Bridges , who was
present on both occasions. Their testimony has been
credited over the denial of Turner, who did not im-
press the Administrative Law Judge as a credible wit-
ness . Turner could not recall the date of the
conversation or whether anyone else was present.
In June, in accordance with plant practice, New-
man indicated on the posted vacation schedule the
dates he wanted to take his vacation. At that time
Turner questioned whether Todd wanted three main-
tenance employees on vacation at the same time and
said he would talk to Todd. Not hearing anything
further, Newman took his vacation as scheduled. His
testimony in this respect, corroborated by Bridges,
was credited by the Administrative Law Judge over
that of Turner. When Newman returned from vaca-
tion he was accused by Todd of taking an unauthor-
ized vacation. In the ensuing argument Newman
called Turner a liar because the latter insisted that he
had denied Newman permission to take a vacation on
the date selected by Newman. Todd and Turner left
the room, but returned to tell Newman that he was
discharged without giving him a reason. Plant Super-
intendent Cribbs testified that Turner told him New-
man had taken his tools with him when he left work
and the assumption was that Newman had quit. Plant
Engineer Mote was also under the impression that
Newman had quit his job. Employee Relations Man-
ager Delorne discussed Newman' s status with Turner
and Todd and apparently told them that the vacation
situation was not an offense warranting discharge.
Subsequently, Delorne told Newman that Turner and
Todd had discharged him because he had called
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turner a liar many times.
On these facts , more fully explicated in the Admin-
istrative Law Judge 's Decision , I find , as he did, and
for the reasons stated by him, that Newman was dis-
charged to prevent him from carrying out his ex-
pressed intention of pushing the Union and that the
several and inconsistent reasons advanced by Re-
spondent for his termination are pretexts to clothe its
actual motivation.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively question employees
about their union membership, sympathies, or
activities.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights under Section 7 of the
Act.
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 compli-
ance with its provisions may be directed to the
Board's Office, Peachtree Building, Room 701, 730
Peachtree Street, N.E., Atlanta, Georgia 30308, Tele-
phone 404-526-5760.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard at Savannah, Georgia, on October 11 and 12,
1972,1 pursuant to a charge filed on July 26, by Truck Driv-
ers and Helpers Local Union No. 728 (herein referred to as
the Union) and a complaint issued on September 12.
1 All the dates referred to are in 1972 unless otherwise stated
The complaint alleged that Great Dane Trailers, Inc.
(herein referred to as the Respondent) violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended (herein referred to as the Act),by interrogating its
employees concerning their union membership, desires, and
activities and by discriminatorily discharging and refusing
to reinstate employee Henry Newman because of his union
membership and activities.
Respondent in its answer filed on September 21 denied
having violated the Act.
The issues involved are whether Respondent violated
Section 8(a)(1) and (3) of the Act by unlawfully interrogat-
ing its employees concerning the Union and whether Henry
Newman was discriminatorily discharged and denied rein-
statement because of his union membership or activities.
The parties at the hearing were afforded full opportunity
to introduce relevant evidence, to examine and cross-exam-
ine witnesses, to argue orally on the record, and to submit
briefs.
Upon the entire record in this case and from my observa-
tion of the witnesses, and after due consideration of the
briefs 3 filed by the General Counsel and the Respondent,'
I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, a Georgia corporation , with its principal
office and place of business located at Savannah , Georgia,
is engaged in the manufacture and sale of freight hauling
trailers . During 1971 , Respondent in the course of its opera-
tions sold and shipped finished products valued in excess of
$50,000 from its Savannah , Georgia , establishment directly
to customers located outside the State of Georgia.
Respondent admits , and I find , that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find , that Truck Drivers and
Helpers Local Union No. 728 is a labor organization within
the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background
General Counsel has requested and I have taken official
notice of the following Board and Court decisions in which
Respondent previously has been found to have violated
various sections, including Sections 8(a)(1), (3), and (5) of
2 While the complaint also alleged Newman was discharged for having
engaged in concerted activities , such activities following a ruling on a pretrial
motion for a Bill of Particulars were limited to union or union related activi-
ties
3 The Charging Party did not submit a brief.
Respondent subsequent to the filing of briefs also filed a reply brief Since
the Board 's Rules and Regulations do not provide for the filing of reply briefs
to the Administrative Law Judges and no provisions were made for the filing
of such briefs in the instant case, the document has not been considered and
is hereby rejected
GREAT DANE TRAILERS
the Act: N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26;
Great Dane Trailers, Inc., 191 NLRB 6; Great Dane Trailers,
Inc., 186 NLRB 267, enfd. (C.A. 4, 1971), 66 LC ¶ 12,040;
78 LRRM 2384 cert . denied 405 U.S. 1041 (1972); and Great
Dane Trailers, Inc., 159 NLRB 537, enfd. as modified 396
F.2d 769 (C.A. 5, 1968). The Board' s decision in Great Dane
Trailers, Inc., 191 NLRB 6, which refers to Case 10-
RC-8028 established that on November 16, 1970, the Union
was certified as the exclusive bargaining representative of a
production and maintenance unit of Respondent 's employ-
ees following a runoff election conducted on January 9,
1970,5 in which 348 votes were cast for and 346 votes cast
against the Union with 5 challenged ballots sustained. The
record indicates at the time of the hearing the Respondent
and the Union were in the process of negotiating a collec-
tive-bargaining agreement.
These decisions were cited for the purpose of establishing
Respondent 's union animus . Additional evidence offered
for similar purposes occurring prior to the events in issue
here was the following provision previously contained, in
Respondent's handbook but since deleted:
COMPANY STATEMENT ON LABOR UNIONS
THIS IS A NON UNION Company. The non-union
policy is really a pro-employee policy. For many years
this Company operated under a union contract . During
this time we had tension, unrest and generally condi-
tions were not in the best interest of the Company or
the employees.
We found from bitter experience the unions were not
interested in our employees except to get their dues.
The Company and the employees went through two
long strikes called by the unions . These strikes caused
our employees untold hardships and even loss of their
long time jobs . We hated to see our old employees
suffer, but it was something that we could not control.
We therefore will use every means at our command to
keep another union out of our plant.
To their sorrow, our employees found that unions
can promise but cannot deliver . Only the Company
pays wages , and raises come from efficient operation in
the form of profits . By working together and not paying
a portion of your wages to a union , you, in turn, bene-
fit.
The Company, for its part , will continue to pay in
line with our industry in our area . A union cannot force
us to do more . In addition , we try to furnish you a
healthful, safe place to work.
We want you to share our pride in our product, plant
and our equipment . Together we can do even more,
since we do not have strangers in our plant who want
only your dues and are not interested in tomorrow .. .
as you and we must be if we are to progress.
Help us in our program of a PRO-EMPLOYEE
SHOP.
The handbook containing this provision was last distrib-
5 The original election was conducted on December 19, 1969.
539
uted to employees in February or March 1970 and the new
handbook since issued to all employees does not contain
such a provision. Although according to Director of Indus-
trial Relations Thor Egede-Nissen, Respondent's policy to-
wards unions was changed when the provision was deleted,
admittedly the plant supervisory personnel were not in-
formed of such change.
Respondent as part of its operations operated a mainte-
nance department which is divided into two divisions. One
division known as the tools, dies, digs, and fixtures depart-
ment (herein referred to as the department) is under the
supervision of James Todd who is the department head and
Eugene Turner who is a foreman under Todd.
Five employees including the alleged discriminatee Hen-
ry Newman were employed in this department. Newman
had been employed by Respondent for approximately 4-1/2
years and with the exception of 1 year had worked the entire
period in the maintenance department . His duties included
operating the lathe , metal , and surface grinder machines.
Respondent does not contend his work had been unsatisfac-
tory.
Newman who had served as an observer for District No.
96, International Union of Machinists and Aerospace
Workers, AFL-CIO (herein referred to as the IAM), in the
initial election held on December 19, 1969 , in which the
IAM had lost the election , testified that following the elec-
tion Plant Superintendent Dewey Cribbs had informed him
Respondent wouldn't mind having the IAM but not the
Teamsters and requested him to get his men to support the
Respondent in the runoff election. Cribbs denied having
made such statements . Inasmuch as such alleged statements
would have occurred about the latter part of 1969 and are
not essential to establishing union animus the purpose for
which they were offered I do not find it necessary to resolve
this conflict in their testimonies.
Although Newman testified at the hearing he was active
in the Union , neither the nature or extent of his union
activities was established.
B. Interrogation
Henry Newman testified in early June he asked Foreman
Turner 6 about getting the same rate of pay as Cooch Craw-
ford.' Turner asked Newman if he got the pay rate what he
was going to do about the Union. Newman informed him
if he got the pay rate he wouldn't be able to have anything
to do with the Union since he would be reclassified B but
added if he didn't get the raise he was going to push the
Union all the way. Turner replied he would discuss the
matter with Department Head Todd and let him know. Two
or three weeks later when Turner informed Newman he
wasn 't going to get the raise Newman reiterated his inten-
tions to Turner he was going to push the Union. Roy
Bridges another employee in the department who was pres-
ent on both occasions corroborated Newman 's testimony.
6 The pleadings admit Foreman Turner was a supervisor.
7 Crawford another employee who worked in the maintenance department
was carried on the office payroll rather than the payroll for the hourly paid
emsployees
The record indicates Cooch Crawford may not have been considered to
be in the bargaining unit
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman Turner acknowledged on one occasion New-
man had asked him about getting the same classification as
Crawford but denied any mention was made of the Union.
Turner, who was unable to recall either the date of the
conversation or whether anyone else was present, testified
he told Newman he didn't know whether Newman could get
a raise but at Newman's request stated he would talk to
Department Head Todd.
Newman testified the day after Foreman Turner had in-
formed him he wasn't going to get the raise, Department
Head Todd called him into his office and told him he wasn't
going to get the raise because as soon as Crawford left they
were going to abolish the rate and Newman was already
receiving a top rate journeyman's pay. Todd acknowledged
having informed Newman he wasn't going to get the raise
because when Crawford retired his classification would not
be refilled since the job for which he was classified no longer
existed. While Newman stated no one else was present when
he talked to Todd, both Todd and Turner contended Turner
was present.
I credit the testimonies of both Newman and Bridges 9
over the denials of Foreman Turner who did not impress me
as a credible witness and find that Turner questioned New-
man concerning his intentions with respect to the Union if
he got the pay rate and was informed of Newman' s inten-
tions. Since Turner reported his conversation with Newman
to Department Head Todd, I find Todd was also made
aware of Newman's intentions with respect to the Union.
Todd acknowledged someone had told him Newman had
made the statement that the people running the mill would
get a higher classification when the union came in.
Newman contended subsequent to his conversation with
Department Head Todd concerning the raise he was as-
signed more maintenance work inside the plant and less
work operating the machines in the department, which he
had been doing since about February when Todd had more
or less informed him he would work on the machines. Todd
while acknowledging having informed Newman he would
use him for more work in the department denied having
discriminated against him in assigning work claiming em-
ployees were assigned work where needed. Inasmuch as this
alleged change according to Newman's testimony would
have occurred shortly before the plant shutdown discussed,
infra, and since no evidence was offered to establish which
jobs Newman was assigned or the circumstances surround-
ing such assignments, I do not find the evidence sufficient
to establish nor does the complaint allege that Newman's
duties were discriminatorily changed.
Certain evidence was also offered to show during the
shutdown Department Head Todd on one occasion had
commented to Newman that he didn't seem to be having
anything but trouble and that another employee who had
started work an hour later that day had performed more
work than Newman. Since Newman's testimony established
he had difficulty with two torches which he had attempted
to operate that day thereby interfering with his work, I do
not find a sufficient basis was established for inferring the
9 In crediting Bridge 's testimony with respect to these and other conversa-
tions I have taken into consideration those matters contained in or omitted
from his original affidavit given to a Board agent as well as his explanations
remarks were discriminatorily motivated.
C. Newman's Termination
Respondent's plant, except for the maintenance depart-
ment, annually shuts down for a 2-week period during
which the employees take their vacations. The shutdown
this year occurred about the first 2 weeks of July. The main-
tenance department employees who are required to work
during the shutdown take their vacations at other times.
About April a list of names of the maintenance department
employees was posted on the bulletin board located by De-
partment Head Todd's office on which the employees were
requested to indicate by their names the dates they desired
to take their vacations. According to the employees prior to
going on vacation they discussed their proposed vacation
schedules with their supervisors.
Newman who had previously changed his proposed vaca-
tion dates testified a week or 2 weeks before the shutdown
he posted on the vacation schedule the dates he wanted for
his vacation which were for the first week after the shut-
down ended. Two other employees, namely, Roy Bridges
and Cooch Crawford, had already scheduled the same
dates. Newman stated he told Foreman Turner who was
present those were the dates he wanted. Turner's response
was he didn't know if Department Head Todd wanted three
employees to be on vacation the same week but said he
would talk to Todd and if there was any problem he would
get back in touch with him. When Newman commented he
could pull seniority on Roy Bridges who was also present,
Turner told him if he wanted to, it was alright but it was up
to Newman. Newman then replied he wouldn't pull seniori-
ty on Bridges stating he was only joking and further com-
mented that Bridges had already made vacation plans
whereas he was staying home. The conversation ended with
Turner advising Newman after he had talked with Todd if
it was alright with Todd it was alright with him. Bridges
substantially corroborated Newman's testimony with the
exception he did not mention Turner remarking if there was
any problem he would get back in touch with him.
Foreman Turner who couldn't recall whether anyone else
was present testified the first Monday of the shutdown,
Newman had informed him he wanted to take his vacation
the first week after shutdown whereupon he told Newman
he couldn't because two employees were already scheduled
for vacation. Turner advised Newman if he wanted to talk
to Department Head Todd and if it was alright with Todd
it was alright with him. Turner stated when he suggested to
Newman he might be able to pull seniority on Bridges,
Newman replied he would talk to Bridges. According to
Turner, on the following day, Bridges informed him New-
man wasn't going to pull seniority on him. I credit
Newman's version of his conversation with Turner which
was substantially corroborated by Bridges rather than the
version of Turner who I have previously discredited.
No further conversations occurred between Newman and
Respondent's supervisors prior to Newman taking his vaca-
tion the first week after shutdown ended. Bridges and Craw-
ford also took their vacations the same time. When
Newman left the plant as was customary among some of the
employees, he took his tool box which the employees them-
GREAT DANE TRAILERS
selves are required to furnish. While Department Head
Todd and Foreman Turner testified although they had
checked the vacation schedule and did not see the vacation
dates which Newman had listed until July 17 when he didn't
report for work and contended they didn't know he was on
vacation two other employees in the department namely,
W. G. Smoak and Jack Moore, whom I credit, corroborat-
ed the testimonies of Newman and Bridges that Newman
had posted his proposed vacation dates earlier. Also on July
17, W. G. Smoak, pursuant to Turner's inquiry, informed
him Newman was on vacation whereupon Turner indicated
he wasn't suppose to be. Later when Jack Moore asked
Turner whether he had heard from Newman, Turner replied
he thought Newman was on vacation but added he wasn't
suppose to be and would hear from him when he returned.
Turner, whom I discredit, claimed that Moore had also told
him he had talked to Newman and he had told him he had
done wrong by leaving. Both Turner and Todd admittedly
made no effort to ascertain whether Newman was actually
on vacation,10 and while Turner asserted he could not take
the word of the employee who had told him about Newman
being on vacation, he offered no explanation why he had
then reported such information furnished by the employee
to Todd.
Newman upon reporting to work after his vacation ended
was instructed to see Department Head Todd. According to
Newman, Todd, in the Foreman Turner's presence, accused
him of having taken an unauthorized vacation. Newman
denied it stating he had discussed it with Turner. When
Turner denied having given him permission, Newman ac-
cused Turner of lying. Newman further recalled Turner
having stated he had told him to discuss with Bridges about
who was going on vacation to which he had replied since
Bridges wasn't his boss there was no reason to discuss it with
him. Todd's version of the conversation was when he had
asked Newman where he had been, Newman replied on
vacation. When asked who had given him permission,
Newman's response was he had put his name on the board
and no one had told him to go but no one had told him not
to go. Todd then asked Newman if he had discussed the
matter with Turner whereupon Newman explained the situ-
ation as he understood it.l Turner then asked Newman if
he remembered his telling him he couldn't go on vacation
and have three employees off work at the same time where-
upon Newman repeatedly called Turner a bold-faced liar.
Turner's version was when Todd asked Newman who had
given him permission to take his vacation, Newman first
replied Turner had but then changed his answer by stating
nobody gave him permission and nobody did. 12 Turner stat-
ed when he tried to explain, Newman repeatedly called him
a bold-faced liar.
Following this part of the conversation Todd and Turner
left the room whereupon according to them at Todd's sug-
10 Todd acknowledged on one occasion acting on orders of his supervisor
having called another employee in his department at his home to see why he
didn't report for work and learned the employee was still on vacation.
11 Todd did not testify specifically what explanation was given by New-
man
12 Turner acknowledged his statement about Newman having stated no
one had told him he could go was not contained in the affidavit given to a
Board agent , however, I do not attach any significance to the omission
541
gestion concurred in by Turner they decided to discharge
Newman because he had called Turner a liar whereby Turn-
er could not properly supervise Newman further.
They returned to the room and, without giving Newman
a reason, informed him he had been terminated. Newman's
response was he was going to talk to Respondent's other
supervisory personnel in addition to the Union and the
Labor Board.
Turner, by testifying Newman had initially claimed Turn-
er had given him permission to take his vacation, not only
contradicted Todd but to that extent corroborated the testi-
mony of Newman, whose version of the discharge conversa-
tion I credit.
Following his termination conversation with Department
Head Todd and Foreman Turner, Newman discussed the
matter with Plant Superintendent Cribbs. Newman testified
Cribbs informed him that Todd and Turner had reported to
him Newman had taken his tool box and quit which New-
man denied. Cribbs, who was not aware Newman had been
discharged, acknowledged having mentioned there had
been an assumption Newman had quit, stating Turner had
informed him Newman had carried his tool box with him
when he had left work. According to Cribbs, Newman ex-
plained he had put his name on the board about June 29 and
Turner had told him he would let him know but didn't.
While Cribbs further stated Newman had informed him he
knew he had done wrong by taking his vacation without
permission, I do not credit such statement which is not only
inconsistent with Newman's having accused Turner of lying
but with the other statements attributed to Newman by
Cribbs.
Newman testified when he approached Plant Engineer
Fred Mote, Mote also inquired about his having quit his job
which Newman denied. Mote suggested he talk to Employ-
ee Relations Manager Cecil Delorne and when Newman
mentioned talking to the Union, Mote informed him the
Union couldn't help him since they didn't have a contract.
Mote did not testify and I credit Newman's undenied testi-
mony.
Newman stated Employee Relations Manager Delorne
informed him, a matter not specifically denied by Delorne,
while Newman was on vacation Todd and Turner had pre-
sented to him their version of his being off work, whereupon
he had advised them he would have to wait and hear
Newman's version. Delorne further advised Newman he
would have to talk to them again and later that day in-
formed Newman his taking an unauthorized vacation was
not a discharge offense but that Todd and Turner had ter-
minated Newman for having called Turner a bold-faced liar
numerous times. Although Newman denied it Delorne stat-
ed he would have to take the supervisors' word. Newman
further claimed Delorne expressed his opinion even if he
had made such statements there was nothing to it. Accord-
ing to Delorne, who testified he didn't have authority over
the supervisors' decision except for persuasion, when he
checked with Todd and Turner, they had agreed as far as
the vacation schedule was concerned they could give New-
man another chance but because Newman had called Turn-
er a liar they couldn't bring him back. Delorne, while
acknowledging having stated the vacation situation was not
an offense warranting discharge, denied having voiced an
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinion on the validity of the reasons given for Newman's
discharge.
Subsequent to Newman's discharge and as a result of
rumors in the department concerning why Newman was
discharged the other employees who had never been in-
formed on prior discharges were called in by Department
Head Todd and given Respondent's reasons for having dis-
charged Newman. Newman has not been reinstated.
D. Analysis and Conclusions
General Counsel contends, while Respondent denies, that
Respondent violated Section 8(a)(1) and (3) of the Act by
unlawfully interrogating its employees concerning the
Union and by discriminatorily discharging and denying re-
instatement to Henry Newman.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in the
exercise of their rights guaranteed in Section 7 of the Act.
Section 8(a)(3) of the Act provides in pertinent part "It shall
be an unfair labor practice for an employer. . . by discrimi-
nation in regard to hire or tenure of employment or any
term or condition of employment to encourage or discour-
age membership in any labor organization.....
Based upon my findings, supra, Foreman Turner, an ad-
mitted supervisor, interrogated Newman concerning his in-
tentions with respect to the Union should he be given an
increased pay rate. I hereby find such conduct interfered
with, restrained, and coerced Newman in the exercise of his
rights guaranteed in Section 7 of the Act and thereby violat-
ed Section 8(a)(l) of the Act.13 The fact the classification
change may have removed Newman from the bargaining
unit is immaterial inasmuch as the change would not have
precluded Newman from continuing to engage in union
activities.
The remaining issue is whether Newman's discharge and
denial of reinstatement were discriminatorily motivated
rather than for cause as Respondent contended.
It is the General Counsel's burden to prove an employee
has been discriminatorily discharged. If an employee's dis-
charge is motivated by antiunion design such discharge is
violative of the Act even though the employee has per-
formed misdeeds which would warrant his dismissal . Frosty
Morn Meats, Inc. v. N.L.R.B., 296 F.2d 617, 620 (C.A. 5,
1961).
An employer's union animus can be established by reli-
ance upon its prior unfair labor practices. Southwire Compa-
ny, 159 NLRB 394, enfd. as modified 383 F.2d 235 (C.A. 5,
1967). Respondent on previous occasions was found to have
violated the Act including those sections involved here. Fur-
ther the unlawful interrogation found herein not only estab-
lished union animus in the instant case but a continued
existence of that union animus exhibited by the prior viola-
tions found. Significantly noted in this respect was
Respondent's admission that its alleged professed change of
13 While a threat to pursue one's statutory rights in order to obtain a raise
may appear to constitute questionable conduct, here the subject of the Union
was broached by Foreman Turner rather than Newman thus precipitating his
response
policy towards the Union had never been conveyed to its
plant supervisor personnel including those involved here
who would normally be instrumental in enforcing
Respondent 's policies.
Having found antiunion bias and demonstrated unlawful
hostility on Respondent's part, such factors are proper and
highly significant in determining Respondent's motive for
its actions . See N.L.R.B. v. Dan River Mills, Inc., Alabama
Division, 274 F.2d 381, 384 (C.A. 5, 1960).
Here Respondent had knowledge of Newman 's union
activities. Not only had he previously served as an observer
in the election, albeit for another union, but the unlawful
interrogation found herein was directed at him in response
to which he not only avowed his intentions to push the
Union but reiterated such intentions shortly before his dis-
charge.
A consideration of the circumstances surrounding
Newman's discharge based upon the findings, supra, estab-
lish Newman at least a week or 2 weeks prior to the shut-
down had posted his proposed vacation schedule and had
discussed such dates with Foreman Turner who was to let
him know if there was any problem after checking with
Department Head Todd. Newman, without any word to the
contrary, took his vacation as scheduled. For these reasons
further supported by an employee having informed Turner,
pursuant to his inquiry if Newman was on vacation, I find
implausible Respondent's contention it had no knowledge
Newman was on vacation. Any doubts, if such had existed,
could have easily been resolved by calling Newman at his
home. Rather the evidence established Respondent admit-
tedly made no effort to ascertain whether Newman was on
vacation but instead Foreman Turner without any valid
basis attempted to show Newman had quit his job, a view
also taken by Todd, by bringing the matter to the attention
of the Plant Superintendent and of which the plant engineer
also became aware . Not only did Respondent contend New-
man had quit his job, a matter disproved when he subse-
quently attempted to return to work after his vacation, but
contended contrary to my findings, supra that he had taken
an unauthorized vacation. Apparently unable to convince
even the employee relations manager who had investigated
the matter this was not a justifiable basis upon which to
discharge Newman, the reason actually given for the dis-
charge which had not previously been conveyed to Newman
was because he had called Foreman Turner a liar. While
Newman admitted having called Turner a liar such remarks
were precipitated by Turner having falsely accused him of
having taken an unauthorized vacation.
Based upon a consideration of all the evidence discussed
above, and for the reasons stated, including Respondent's
union animus, knowledge of Newman's union activities, the
unlawful interrogation directed against him prior to his dis-
charge, the establishment of a discriminatory motive for
discharging him, i.e., to prevent Newman from carrying out
his expressed threat of pushing the Union, the circumstanc-
es under which Newman was discharged, and the rejection
of Respondent' s defenses which were not only inconsistent
with but were refuted by credible evidence and which I find
were only a pretext to conceal its real motive, I am persuad-
ed and find that it has been proven by a preponderance of
the evidence that Newman was discriminatorily discharged
543 GREAT DANE TRAILERS
and not reinstated because of his union activities in viola-
tion of Section 8(a)(3) and (1) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with the operations of Respondent described
in section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Great Dane Trailers, Inc., is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. Truck Drivers and Helpers Local Union No. 728 is a
labor organization within the meaning of Section 2 (5) of the
Act.
3. By unlawfully interrogating an employee concerning
the Union , Respondent has engaged in unfair labor practic-
es in violation of Section 8(a)(1) of the Act.
4. By discriminatorily discharging and refusing to rein-
state Henry Newman , the Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(3) and (1) of
the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act I shall recommend that it cease and desist
therefrom and to take certain affirmative action to effectu-
ate the policies of the Act. Accordingly, the Respondent
shall be ordered to immediately reinstate Henry Newman to
his former job or, if that job no longer exists, to a substan-
tially equivalent job without prejudice to his seniority and
other rights and privileges and to make him whole for any
loss of earnings and compensation he may have suffered
because of the illegal discrimination against him in his em-
ployment. Backpay shall be computed in accordance with
the formula and methods prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, and payment of 6 per-
cent interest per annum shall be computed in the manner
prescribed by the Board in Isis Plumbing & Heating Co., 138
NLRB 716.
Further, in view of the Respondent's unfair labor practic-
es and past history which establishes a proclivity to violate
the Act, a Board Order is appropriate.' Therefore, the Re-
spondent will be further ordered to cease and desist from
"in any manner" infringing upon the rights guaranteed to
its employees by Section 7 of the Act.
[Recommended Order omitted from publication.]
14 See Brotherhood of Teamsters & Auto Truck Drivers, Local No 70, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America (Sea-Land of California, Inc), 197 NLRB 125