Groendyke Transport, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1974

211 N.L.R.B. 921 (N.L.R.B. 1974)

GROENDYKE TRANSPORT, INC. 921
Groendyke Transport , Inc. and Jack Arnold Kelly and
Eddie Bynum. Cases 23-CA-4510 and
23-CA-4511
June 24, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 16, 1973, Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding and on September 26, 1973, he issued the
attached Supplemental Decision. The General Coun-
sel filed exceptions to the Decision and to the
Supplemental Decision and supporting briefs, and
the Respondent filed briefs in support of the
Decision and the Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decisions in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
Contrary to the conclusion of the Administrative
Law Judge, we find that the Respondent's no-
distribution rule violates Section 8(a)(1) of the Act
and that the discharge of Eddie Bynum violates
Section 8(a)(3) and (1) of the Act. We agree that the
interrogations by Dempsey L. Stinson, the Respon-
dent's terminal manager, violate Section 8(a)(1), but,
contrary to the Administrative Law Judge, we
conclude that they do not warrant dismissal of the
complaint. However, we agree that the alleged
"discharge" of Kelly and the alleged refusal to allow
employees to work because they declined to cross a
picket line at another employer's plant do not
constitute violations of-the Act.
Bynum was a truckdriver for the Respondent for
15 months until his discharge on September 5, 1972.
He began to be active for the Union in April 1972.
He signed an authorization card and obtained 30
signed cards from fellow employees. The Respondent
unlawfully interrogated him on two different occa-
sions.
Saturday, September 2, was a regular semimonthly
payday for the employees, and also a nonworkday
for Bynum. He arrived at the Respondent's Channel-
view terminal to collect his pay, but learned that his
paycheck would not be available until noon.
Bynum entered the lobby area of the terminal,
where he happened to meet Robert Hendrickson, a
driver from Respondent's Beaumont terminal. Hen-
drickson was apparently just standing in the lobby or
reception room waiting for the Beaumont terminal's
paychecks from Payroll Clerk Felps. Bynum asked
Hendrickson whether he was interested in joining the
Union. When Hendrickson responded affirmatively,
Bynum offered him some union literature and an
authorization card. Stinson observed this, and
immediately called Bynum into the office and asked
whether he was aware of the Respondent's no-
distribution rule. Bynum replied negatively. Stinson
escorted him to the drivers' room, where a no-
distribution rule was posted, and read it to Bynum.
The rule reads: "EMPLOYEES ARE PROHIBITED FROM
DISTRIBUTING, POSTING OR OTHERWISE CIRCULATING
HANDBILLS OR LITERATURE OF ANY TYPE ON COMPANY
PROPERTY DURING WORKING HOURS. EMPLOYEES
VIOLATING THIS RULE WILL BE DISCHARGED."' By-
num engaged in no further distribution of literature,
went to his car, and drove away.
On the afternoon of September 2, according to
Stinson's testimony, Stinson reported the Bynum
incident to the appropriate home office authority and
was informed that he was at liberty to terminate
Bynum. Stinson attempted to reach Bynum that
same afternoon to convey the discharge decision but
was unable to reach him.
Bynum telephoned the dispatcher on September 4
concerning his work assignment for September 5.
The dispatcher said the assigned load was canceled,
but told Bynum to report to the terminal on the
morning of September 5. However, when Bynum
reported on September 5, Stinson discharged Bynum
"for passing out union literature," as the Administra-
tive Law Judge found.
As for the no-distribution rule and any possible
effect it may have on Bynum's discharge, we find
that it is unlawful because it is overly broad on its
face. It is well established that absent special
circumstances an employer may not prohibit distri-
bution of union literature during nonworking time
and in nonworking areas of its premises. Stoddard-
Quirk Manufacturing Co., 138 NLRB 615; Republic
Aviation Corporation v. N.L.R.B., 324 U.S. 793 (1945).
For the reasons fully set forth in Essex International,
Inc., 211 NLRB No. 112, Respondent's proscription
of distribution during "working hours" has an
overbroad sweep and therefore violates Section
The working hours of the Channelview terminal are virtually around building also houses a lobby and some adjacent offices (Payroll Clerk Felps,
the calendar ; the terminal operates 7 days a week and 365 days a year on a another clerk, a secretary, a dispatcher, and Terminal Manager Stinson).
round-the-clock multishift basis, with the exception that it does not operate When drivers report for their pay, they enter the lobby and approach the
between the hours of 5 p.m. Saturday and 7 a.m. Sunday. The terminal open office of the payroll clerk.
211 NLRB No. 139
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1) of the Act. Also, the rule proscribes distribu-
tion on "company property" and is unlawful for that
reason as well, since it is not limited to the working
areas of Respondent's property. General Industries
Electronics Company, 138 NLRB 1371.
We also find that the discharge of Bynum violated
the Act. When Terminal Manager Stinson discovered
that Bynum was distributing union literature, he
immediately informed Bynum that he was violating
the no-distribution rule, showed the posted rule to
Bynum, and told him to remove his literature to his
car. Thus, even though the other employee involved
may have been on his working time, and the
distribution arguably occurred in a working area,
Bynum was shown the unlawfully broad rule
proscribing all distribution during working hours on
company property. Respondent never explained to
Bynum that he could distribute union literature
during nonworking time and in nonworking areas of
the Company's premises.
While Bynum had previously engaged in distribut-
ing union materials on the terminal parking lot
without incident, there is no evidence that the
Respondent had knowledge of this distribution, and
therefore acquiesced in it, or condoned this depar-
ture from the literal meaning of its no-distribution
rule. As far as the record shows, the first time that
the Respondent knew of any union distribution on
its property was the Bynum incident and the
Respondent immediately stopped that distribution
without hesitation. We cannot infer that the earlier
distribution of union literature by Bynum, without
any evidence of company knowledge of such
distribution, demonstrates that the Respondent
knowingly permitted the distribution of union
literature in nonworking areas, contrary to its own
specific posted rule.
Moreover, record testimony indicates that the
Respondent, pursuant to its no-distribution rule,
never allowed anyone to engage in any distributing
or soliciting on company premises at any time. The
broad proscription was enforced uniformly against
everyone. There is no reason to believe that the
Respondent would allow an exception for distribu-
tion of union literature during nonworking time and
in nonworking areas.
As we have found that the no-distribution rule
itself is unlawful, for the reasons set forth above, the
unlawful rule is not a valid basis for the discharge of
Bynum. Accordingly, we find that Respondent's
discharge of Bynum "for passing out union litera-
ture" violated Section 8(a)(1) and (3) of the Act.
While we agree with the Administrative Law
Judge's conclusion that the Stinson interrogations of
Bynum and Foster violated Section 8(a)(1) of the
Act, we cannot agree that they are so isolated and
technical as to warrant dismissal. There were four
separate instances of interrogation occurring in the
months prior to Bynum's discharge. We shall,
therefore, not dismiss the complaint with respect to
these violations.
THE REMEDY
Having found that the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act, we
shall order that it cease and desist therefrom, and
take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discriminatorily
terminating employee Eddie Bynum, we shall order
that the Respondent offer him immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
'without prejudice to his seniority and other rights
and privileges, and make him whole for any loss of
earnings he may have suffered by reason of such
discrimination by payment of a sum of money equal
to that which he normally would have earned as
wages from the date of discharge to the date of said
offer of reinstatement, less his net earnings during
such period, computed on a quarterly basis in the
manner established by the Board in F. W Woolworth
Company, 90 NLRB 289, and with interest thereon as
prescribed by the Board in Isis Plumbing & Heating
Co., 138 NLRB 716.
As the unfair labor practices committed by the
Respondent are of a character which goes to the very
heart of the Act, we shall order the Respondent to
cease and desist from infringing in any other manner
upon the rights guaranteed to employees by Section 7
of the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Groendyke Transport, Inc., is, and at all times
material herein has been, an employer engaged in
commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed
in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
3. By discriminating in regard to hire and tenure
of employment, thereby discouraging membership in
or activities on behalf of a labor organization, the
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
GROENDYKE TRANSPORT, INC. 923
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Groendyke Transport, Inc., Channelview, Texas, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Maintaining, giving effect to, or enforcing any
rule which prohibits employees from distributing
union literature in nonworking areas on nonworking
time.
(b) Interrogating its employees concerning their
own and other employees' union membership,
activities , and desires.
(c) Discouraging membership in, or activities on
behalf of, Southern Conference of Teamsters &
Teamsters Freight, Tank Line & Automobile Indus-
try Employees Local Union 988, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other
labor organization, by discharging employees or
otherwise discriminating in regard to their hire or
tenure of employment, or any other terms or
conditions of employment.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Offer to employee Eddie Bynum immediate and
full reinstatement to his former job or, if that job no
longer exists , to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of
earnings he may have suffered by reason of the
discrimination against him, in the manner and to the
extent provided in "The Remedy" section above.
(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 Order.
(c) Post at its place of business in Channelview,
Texas, copies of the attached notice marked "Appen-
dix."2 Copies of said notice, on forms provided by
the Regional Director for Region 23, after being duly
signed by the Respondent's authorized representa-
tive, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the allegations that
Respondent discharged Jack Arnold Kelly, and
refused to refer or allow employees to work if they
declined to cross a picket line at another employer, in
violation of the Act, be dismissed.
MEMBER JENKINS, concurring:
I agree with my colleagues in finding the violations.
To the extent Essex International, supra, is pertinent,
I rely on the reasons set forth in my dissent there
rather than on the majority decision.
2 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."
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 the chance to
present evidence and arguments, the National Labor
Relations Board has found that we have violated the
National Labor Relations Act, and has ordered us to
post this notice and carry out its terms.
The National Labor Relations Act gives you, as
an employee, these rights:
To engage in self-organization
To form, join, help or be helped by
unions
To bargain collectively through a repre-
sentative of your own choice
To act together with other employees to
bargain collectively or for mutual aid or
protection; and
If you wish, not to do any of these things.
Accordingly, we hereby assure you:
WE WILL NOT maintain, give effect to, or
enforce any rule, which prohibits employees from
distributing literature in nonworking areas on
nonworking time on behalf of any labor organiza-
tion, relating to the exercise by employees of their
Section 7 rights.
WE WILL NOT interrogate employees concern-
ing their own and other employees' union
membership, activities, and desires.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in or
activities on behalf of Southern Conference of
Teamsters & Teamsters Freight, Tank Line &
Automobile Industry Employees Local Union
988, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, or any other labor organization,
by discharging employees or otherwise discrimi-
nating in regard to their hire or tenure of
employment, or any other terms or conditions of
employment.
WE WILL offer Eddie Bynum immediate and
full reinstatement (if such reinstatement has not
already been effected) to his former position or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges; and we
will also pay him backpay, with interest, for any
wages lost by him.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, to engage in concerted
activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization.
GROENDYKE TRANSPORT,
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, Fourth Floor, Dallas-Brazos Build-
ing, 1125 Brazos Street, Houston, Texas 77002,
Telephone 713-226-4296.
DECISION
STATEMENT OF THE CASE
MAX ROSENBERG , Administrative Law Judge: With all
parties represented, this proceeding was tried before me in
Houston, Texas, on November 16, 1972, on a complaint
filed by the General Counsel of the National Labor
Relations Board and an answer filed thereto by Groendyke
Transport, Inc., herein called the Respondent.' The issues
raised by the pleadings relate to whether Respondent
violated Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended, by certain conduct to be
detailed hereinafter. Briefs have been received from the
General Counsel and the Respondent which have been
duly considered.
Upon the basis of the entire record made in this
proceeding, as well as my observation of the witnesses who
testified, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Respondent, an Oklahoma corporation, with its general
offices at Enid, Oklahoma, operates some 29 terminals in
at least the States of Oklahoma, Colorado, and Texas,
where it is engaged in the business of transportation as a
transporter of commodities in bulk throughout the South
Central part of the United States. One such terminal is
located at Channelview, Texas, and is the only facility of
Respondent involved in this proceeding. During the annual
period material to this litigation, Respondent received
gross revenues in excess of $50,000, based on business
performed outside the State of Oklahoma. During the same
period, Respondent made sales and performed services for
customers situated outside the State of Oklahoma valued in
excess of $50,000. The complaint alleges, the answer
admits, and I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Southern Conference of Teamsters & Teamsters Freight,
Tank Line & Automobile Industry Employees Local
Union 988, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(1) of the Act when, commencing in May 19722 and on
several occasions thereafter , Respondent's terminal man-
ager, Dempsey Stinson, interrogated employees concerning
their union desires and sympathies and the collective
desires and sympathies of fellow employees. The complaint
also charges that Respondent violated Section 8(a)(1) on
September 11 by Stinson's refusal to refer or allow
employees to work who declined to cross union picket lines
established at a plant of a customer, Dow Chemical
Company in Freeport, Texas, and, again on September 2,
when Stinson informed employees that they were not
' The complaint , which issued on September 29, 1972, is based on
charges in Case 23-CA-45 10 which were filed and served on September 12,
1972, and charges in Case 23 -CA-4511 which were filed on September 13,
1972, and served on September 14, 1972.
2 Unless otherwise indicated, all dates herein fall in 1972.
GROENDYKE TRANSPORT, INC.
permitted to distribute union literature and materials
during their nonwork time. Finally, the complaint alleges
that Respondent violated Section 8(a)(1) and (3) by
discharging Eddie Bynum for distributing literature on
behalf of the Union during nonwork time, and by declining
to dispatch Jack Arnold Kelly for work because he refused
to cross a picket line maintained by a labor organization at
the premises of Respondent's customer, Dow Chemical
Company. Respondent denies the commission of any labor
practices forbidden by the statute.
In early April, the Union embarked upon an organiza-
tional campaign among Respondent's employees which
culminated in a Board-conducted election on August 31
and September 1. The Union succeeded in obtaining a
majority of the votes cast and, on October 20, was certified
as the exclusive representative of Respondent's work
complement.
Eddie Bynum, an alleged discriminatee, had been
employed as a truckdriver with Respondent for approxi-
mately 15 months until his discharge on September 5.
Bynum testified without contradiction and I find that,
sometime in April, he learned of the Union's organization-
al drive. Desirous of gaining collective representation,
Bynum visited the Union's office where he obtained blank
authorization cards. On April 20, Bynum executed a
designation and, about this time, he solicited other drivers
on behalf of the Union. As a result of his efforts, Bynum
obtained 30 signed cards from his fellow employees. In
addition to engaging in these activities, Bynum was also
tapped by the Union to serve as its observer in the election
held on August 31 and September 1.
Bynum's testimony is undenied and I find that, on the
evening of September 1, he telephoned his dispatcher,
Delford L. Taylor, to inquire whether he had been
scheduled for a load. In the course of their conversation,
Bynum asked Taylor what he thought about the outcome
of the election which was concluded that day. According to
Bynum, Taylor "slammed the receiver down." On Satur-
day, September 2, Respondent conducted its weekly
payday for the employees at its various installations in
Texas. At 10 a.m. that morning, which was a nonwork day
for him, Bynum arrived at the Channelview terminal to
collect his pay but was informed by a driver that the checks
would not be available until noon. During this interval,
Bynum spoke to several off-duty drivers in the drivers'
lounge and on the parking lot. During these discussions,
Bynum distributed union bumper stickers and sample
collective-bargaining agreements to the men . In addition,
he handed out union authorization cards. At this juncture,
Taylor emerged from the terminal and advised Bynum
"that from that time on any time I [Bynum] call him on the
telephone to speak to him only strictly concerning
company business and to keep my mouth shut about,
excuse the expression, our chicken-shit union ...."
Following his colloquy with Taylor, Bynum entered the
reception room or lobby where he noticed a driver from
the Beaumont terminal named Robert Hendricksen whom
Bynum had not met before. According to Bynum,
Hendricksen "was just standing in the reception room"
awaiting the receipt of the paychecks from payroll clerk
Douglas Phelps. In the presence of Dempsey L. Stinson,
925
Respondent's terminal manager, Bynum asked Hendrick-
sen whether he was interested in joining the Union. When
Hendricksen responded in the affirmative, Bynum prof-
fered the driver some union literature and an authorization
card. After observing this encounter, Stinson called to
Bynum and instructed the latter to report to Stinson's
office. When Bynum arrived, Stinson inquired whether
Bynum was aware of Respondent's no-distribution rule
which was posted in the drivers' room. Bynum answered in
the negative, whereupon Stinson escorted him to the room
and proceeded to read aloud to Bynum the contents of the
proscription. This rule, which is dated August 28, provides
in pertinent part:
EMPLOYEES ARE PROHIBITED FROM DISTRIBUTING,
POSTING OR OTHERWISE CIRCULATING HANDBILLS OR
LITERATURE OF ANY TYPE ON COMPANY PROPERTY
DURING WORKING HOURS. EMPLOYEES VIOLATING THIS
RULE WILL BE DISCHARGED.
After reading the rule to Bynum, Stinson asked the
employee whether he had ever noticed it on the bulletin
board and Bynum replied that he had not. Stinson then
remarked that "that was standing company policy, and
that as long as it was company policy I would not be
allowed to solicit or hand out any literature on company
property...: . Bynum thereupon complied with Stinson's
instructions to remove the literature to his personal vehicle,
and drove away from the premises.
At this point, it might be well to digress from the
narrative and briefly review the Company's operations and
the circumstances surrounding the locale of Bynum's
distribution. As indicated heretofore, Respondent delivers
petrochemicals and petroleum products throughout the
Southwest with its own drivers and trucks. The Channel-
view terminal, as well as the other terminals in Respon-
dent's chain, operates 7 days a week and 365 days a year
on a multishift basis. The only period during which the
Channelview installation is inoperative occurs between the
hours of 5 p.m. on Saturdays and 7 a.m. on Sundays. At all
other times, drivers are continuously dispatched from or
arrive at the terminal after their runs . The terminal
building proper houses a lobby, the offices of payroll clerk
Douglas Felps, clerk Peebles, secretary Virginia Small, the
dispatcher, and Stinson. When drivers from Channelview
and other terminals report for their pay, they enter the
lobby and approach the open office of the payroll clerk.
On September 2, office employees Felps and Peebles were
at work.
Continuing the narrative, on the afternoon of September
2, Stinson, who lacked the authority to discharge employ-
ees, telephoned Executive Vice President Barton at his
offices in Enid, Oklahoma, to report the Bynum incident.
Barton advised Stinson to fill out a "Request For
Separation" form setting forth the conduct in which
Bynum had engaged and transmit it to the Enid office.
Stinson did so immediately following this conversation. At
the bottom of the document, Stinson indicated that he
would not recommend Bynum for reemployment, but
allowed as how he would give Bynum a recommendation
for employment elsewhere. A few minutes later, Barton
returned Stinson's call and informed the latter that he was
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at liberty to terminate Bynum . Stinson attempted to
contact Bynum later that day to convey Respondent's
decision to discharge the driver , but Stinson was unable to
reach him.
On September 4, Bynum telephoned dispatcher Taylor
concerning his work assignment for the following day.
Taylor stated that Bynum's load had been canceled and
directed him to report at the terminal on the morning of
September 5. Bynum did so and was apprised by Stinson
that the Enid office had instructed Stinson to terminate
Bynum "for passing out union literature." According to
Stinson , this was the first time the rule had been utilized to
effect the discharge of an employee for violating the
stricture.
The General Counsel takes a multipronged thrust at the
no-distribution rule in his attempt to establish that
Bynum 's discharge was illegal . First, he apparently urges
that the rule was unlawful because it was first promulgated
immediately prior to the election of August 31 and
September 1 with a design to hinder union organization
and thus impede a union victory at the polls . He argues
from there that a tainted no-distribution rule cannot
legitimize a discharge for its violation . I am not convinced
that the record supports this thesis. Bynum testified that he
regularly scanned the bulletin boards at the terminal but
had never observed the posted rule prior to September 2
when Stinson brought it to his attention. However , without
objection by the General Counsel, Respondent 's counsel
introduced into evidence two rules of identical wording
which are dated April 10, 1967, and August 21, 1968, which
had been posted at the terminal . Moreover, Stinson
testified and I find that he checked the bulletin boards at
the premises on a weekly basis. On or about August 28, it
came to his attention that some unidentified individual or
individuals had littered the terminal with union stickers
and brochures and had pasted the stickers on the bumpers
of Respondent 's vehicles . He therefore proceeded to the
bulletin board and found that the rule was no longer
appended to it . Stinson then telephoned the main office in
Enid , Oklahoma , reported the matter to his superiors, and
received another copy of the rule dated August 28 which he
posted on the board on August 29 or 30. That Respondent
had maintained the no-distribution rule prior to September
2 is fortified by the testimony of Jack Kelly, another
alleged discriminatee herein, who testified that he had
observed the posted rule in the week preceding the
election . In view of the foregoing, I am convinced and find
that Respondent had posted and maintained its no-
distribution rule long before the election and, indeed, long
before the Union entered the picture in April. I therefore
conclude that Respondent did not precipitously promul-
gate the rule to thwart unionization of the Channelview
terminal and to effectuate Bynum's discharge.
The General Counsel next asserts that the no-distribu-
tion rule was invalidly applied to Bynum because his
handbilling did not occur in Respondent 's work areas on
working time . I find no merit in this contention. It is
undisputed and I find that , when Bynum accosted
Hendricksen in the reception room or lobby of the
terminal on September 2, Respondent's clerks were at work
there preparing the paychecks for employees. Moreover, so
far as it appears on this record , Hendricksen himself was
engaged in normal work duties in the terminal when he
appeared to pick up the paychecks for his fellow employees
and transport them to the Beaumont terminal. That
Respondent's rule was reasonably maintained and en-
forced is evidenced by the uncontroverted testimony of
Stinson that , on August 28, he noticed that the terminal
had been littered with union literature and stickers and by
Bynum's testimony that he freely engaged in both
distributing literature and authorization cards on the
terminal lot just a few feet away from the terminal offices
and garage . In short , I conclude and find that, on
September 2, Bynum engaged in the distribution of union
literature , not only on company time , but in work areas,
and that he could have been and was lawfully discharged
by Respondent for this reason.3
Finally, the General Counsel asserts that the no-distribu-
tion rule , even if valid on its face , was nevertheless
discriminatorily applied to Bynum in order to punish him
with discharge because he supported and embraced the
Union in its organizational endeavors .4 To support this
assertion , the General Counsel points to the circumstances
that Bynum served as an observer for the Union at the
election held on August 31 and September 1, just prior to
his discharge ; that, on the evening of September 1, Taylor
"slammed the receiver down" when Bynum inquired as to
what Taylor thought of the outcome of the election that
day; and, that Taylor advised Bynum on September 2 that
any telephonic conversation between the men should relate
strictly to company business and not "our chicken-shit
union ." I am not persuaded that these factors constitute
preponderant proof that Respondent rid itself of a known,
union adherent under the guise of a lawful, no-distribution
rule. As indicated hereinabove , Respondent enforced its
rule against all comers and Bynum was the only individual
who had offended the rule in all the years of its
maintenance. Accordingly, I find and conclude that
Respondent did not terminate Bynum , pursuant to a legal
no-distribution rule, discriminatorily .5 I therefore conclude
3 See Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 621: " . .
because distribution of literature is a different technique and poses different
problems both from the point of view of employees and from the point of
view of management , we believe organizational rights in that regard require
only that employees have access to nonworking areas of the plant
premises."
I It is clear on this record that the rule was not "disparately" applied to
Bynum , for the evidence discloses that Respondent tolerated no solicitation
or distribution at the terminal by any outside firm or individual.
3 In his complaint, the General Counsel also alleged that , in May, and
early June and July, Respondent violated Sec. 8(axl) by the activities of
Stinson in interrogating employees concerning their union activities and
those of their fellow employees . At the hearing, I foreclosed evidence by the
General Counsel on these issues on the ground that the alleged acts of
interrogation were too remote in time to the discharges of Bynum and
Kelly. The General Counsel then made an offer of proof to the effect that,
on one occasion in May , Stinson individually called Bynum and employee
J D. Foster into his office and asked them "How do you feel about this
Union? What do you think this Union is going to do for you? What are your
main gripes ." On this occasion , both employees stated that the Union would
be of some assistance . On a second occasion in June , Foster was asked how
he thought Bynum felt about the Union . On the last occasion, the same
question was addressed to the men and they replied, "As of right now we
don't know." I adhere to my previous ruling . However, even were Ito have
GROENDYKE TRANSPORT, INC. 927
that Respondent did not violate Section 8(a)(3) and (1) of
the Act by severing Bynum from its employment rolls on
September 5, and I shall dismiss this allegation of the
complaint. In light of the foregoing findings and conclu-
sions , I shall also dismiss the complaint insofar as it alleges
that Respondent independently violated Section 8(a)(1) on
September 2 by telling employees that they were not
allowed "to distribute union literature and material, even
though said employees were not working at the time nor
were they on `working time.' "
I turn next to a consideration of the alleged discrimina-
tion visited upon Jack Arnold Kelly by Respondent.
Kelly had been employed by Respondent for several
years as a transport truckdriver at the Channelview
terminal . For many months prior to July 3, and, for several
months thereafter, Dow Chemical Company, a customer of
Respondent, had been engaged in a labor dispute with a
union not a party to this proceeding. I find that, on July 3,
Kelly was sent to the Dow plant in Freeport, Texas, by
Respondent's dispatcher, Carl Roebacker, to pick up a
load of a liquid chemical. As Kelly approached the plant
gate , he was confronted by approximately six pickets who
shouted epithets at him for attempting to cross the picket
line. After a delay of 15 minutes, Kelly was able to take on
the chemical and drive off without molestation. About a
week later, Kelly returned to his terminal and informed
dispatcher Roebacker that the former did not henceforth
wish to be dispatched to the Dow Freeport plant because
he feared for his safety due to the strike. Roebacker did not
respond to this entreaty.
Kelly testified that, on the afternoon of September 11, he
telephoned the terminal and spoke to dispatcher Delford
Taylor concerning his duties for the following morning.
After checking the board, Taylor stated that Kelly was
scheduled to procure a load at the Dow Chemical plant at
Freeport at 8 a .m. the next morning. Kelly inquired
whether Dow was still on strike, and Taylor replied, "I
believe they are. I haven't heard anything about it." Upon
gaining this intelligence, Kelly remarked, "Uh-uh, I won't
go," and explained that "I would not cross the picket line."
Taylor then told Kelly to hold the phone and, after a short
lapse of time, notified the latter that "Dempsey [Stinson,
the terminal manager] says we will call you when they
settle the strike at Freeport or at Dow," after which the
conversation terminated.
At 8 a.m. on September 12, Kelly testified he received a
call from dispatcher Roebacker in which Roebacker
relayed Terminal Manager Stinson's instruction that Kelly
turn in the credit cards which Respondent afforded the
employee. According to Kelly, this was a traditional
requirement of Respondent when it has discharged an
employee. Prior to reporting to the terminal, and for some
undisclosed reason, Kelly visited the Union's offices. At
noon, he appeared at the terminal. After proffering the
credit cards to Stinson, Kelly asked Stinson for a letter
explaining his termination. According to Kelly, Stinson
replied that "to his knowledge I hadn't been terminated."
Kelly further testified that "I asked him if I wasn't
terminated why he couldn't give me another dispatch. He
could always switch the dispatches around." Stinson
responded that "he had other dispatches but I had refused
this particular load, that Groendyke had contracts for their
customers to move produce and because I had refused this
load that he would call me when the strike was settled at
Dow Chemical Company at Freeport." When the conver-
sation concluded, Kelly repaired to the offices of the Board
where, on the afternoon of September 12, he filed charges
against Respondent alleging that, on September 11,
Respondent violated Section 8(a)(3) of the Act by refusing
to allow Kelly to work "unless and/or until a strike at Dow
Chemical Company terminated, because said employee did
not wish to load at [Dow] while said strike was in
progress." 6
It is Kelly's further testimony that, on the evening of
September 13, he received a call from dispatcher Taylor
who "asked me if I was ready to go to work." Kelly
responded that Stinson "would have to speak to my
attorney before I could go back to work, that I wanted
authority from my attorney before I returned back to work
because. I had already filed charges against them at this
time." On the following evening, September 14, Taylor
once again telephoned Kelly and inquired whether the
latter desired to return to work. Kelly stated that he wished
to speak to Stinson. When Stinson took the phone, Kelly
asked, "Why do you want me to come back to work when I
have filed charges against you?" Stinson remarked that he
was aware of the charges "but it made no difference to him
if I came back to work or not . . . he was following his
orders from the home office that under the circumstances I
should not be terminated, I should be put back to work,
and he was doing what he was ordered from the home
office, returning me to work or offering me a load." Kelly
then requested to speak to Taylor, and Kelly, in his own
words, "told Taylor whatever he had hang it on me,
regardless what it was, that I would take it and go." Since
that time, Kelly has been continuously employed by
Respondent.?
Delton Riebschlager, a transport truckdriver for Respon-
dent, testified without contradiction and I find that, on the
morning of September 12, he was directed by dispatcher
Taylor to proceed to the Dow Oyster Creek plant and pick
up a delivery of acetone destined for Dallas, Texas, the
same load that had previously been assigned to Kelly.
According to Riebschlager, the Oyster Creek plant was
located near the Dow Freeport plant.8 Riebschlager was
aware that "Dow Chemical was in a strike condition," and
taken testimony in this area , I am still convinced these remote, isolated
instances of interrogation , if proven, are not sufficient to establish by the
preponderance of the evidence that Bynum was discharged because of
Respondent 's antiunion animosity toward him.
6 Kelly also charged that he had been terminated by Respondent
because of his membership in and activities on behalf of the Union , and this
allegation is also encompassed in the complaint herein . Apart from his
visitation to the Union's offices on the morning of September 12 for some
undefined reason, there is absolutely no evidence that Kelly had ever joined
the Union or worked on its behalf. I shall therefore dismiss this allegation
from the complaint.
9 Significantly, the General Counsel acknowledges that Kelly lost only I
day's pay, ostensibly when he refused the Dow load on September 12.
8 In his brief , the General Counsel asserts that the picket line at the
Freeport plant was maintained "on a private road which apparently
serviced all of the Dow operations in Freeport, Texas." There is no record
evidence to support this assumption.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he informed Taylor "that I would not be involved in any
violence should I have to cross a picket line ." Whereupon,
Taylor stated that "should this be the case I was to turn
around and proceed and call him back ." Following this
colloquy, Riebschlager drove his truck down the highway
and passed the entrance to the Dow Freeport plant where
he noticed two pickets stationed at the gate . Riebschlager
continued on to the Oyster Creek installation , which was
devoid of picketeers , and accomplished his mission .9
Supervisor Delford Taylor testimonially recounted that,
on the afternoon of September 11, he telephoned Kelly to
relate that Kelly was scheduled to pick up a load at Dow
Chemical Company . According to Taylor, before he had
an opportunity to complete the dispatch and to inform
Kelly that the load was located at the Oyster Creek plant,lo
Kelly "cut me off. I got no further . And he said that Dow
Chemical was on strike , that he would not cross the picket
lines." After Kelly reiterated that "he wasn't going to load
at Dow Chemical," Taylor told Kelly to "to call us when
he got ready to come back to work , then." Following this
colloquy, Taylor relayed Kelly's responses to Terminal
Manager Stinson. Stinson advised Taylor to inform the
driver "that when he got ready to come back to work can
us."
The following evening , September 12, Taylor again
telephoned Kelly and offered to dispatch him the next
morning. I find that Kelly retorted that "he was not ready
to come to work" and added that "he had filed a grievance
against us [an apparent reference to the unfair labor
practice charges which he had lodged with the Board that
date ], that he was going to get Groendyke , he was going to
get Dempsey Stinson and all connected with Groendyke."
On the afternoon of September 13, Taylor once again
communicated with Kelly. Taylor "asked him if he was
ready to come back to work . He wanted to know why we
kept calling, that we had fired him, that he had been fired."
Taylor responded that "I didn't know anything about that,
that that was out of my line. He wanted to know why we
kept calling." Kelly then asked to speak with Stinson.
Following a discourse between Kelly and Stinson , Stinson
reported to Taylor that Kelly "was ready to come back to
work." Taylor thereupon advised Kelly that Respondent
"would dispatch him the first available load ," and this was
accomplished.
Rounding out the evidence regarding the Kelly incident,
Terminal Manager Stinson testified that he read in the
newspapers in 1972 that Dow Chemical Company was
engaged in a labor dispute with a labor organization which
had triggered a work stoppage . On the evening of
September 11, dispatcher Taylor told Stinson that Kelly
was on the phone and that Kelly "refused this load out to
Dow." Stinson stated that , "Well, he must be mad about
something. Just tell him when he is ready to work call
us."" The following morning , September 12, Kelly visited
Stinson 's office in search of "a letter stating why he had
been terminated ." Stinson assured Kelly that the latter had
not been discharged . Kelly persisted , repeating, "What do
you mean I haven 't been terminated? You refused to let me
work." Stinson cut short the argument by stating, "I am
not going to get involved in any arguments with you."
Before he turned around and departed, Kelly abruptly
turned in his credit cards . According to Stinson , this action
was not prompted by any request on his part.
On the evening of September 13, Stinson was standing
outside his office when Taylor approached and indicated
that Kelly wished to speak to Stinson on the phone. At the
outset of the conversation , Kelly again inquired, "Why do
you keep calling me for dispatch after you have terminated
me?" Stinson replied , "I told you yesterday I hadn't
terminated you and I am telling you again that I haven't
terminated you." Kelly asked, "Well, what would [you]
have me do?" Stinson rejoined, "That is up to you, Jack,
whatever you want to do." At this juncture , Kelly noted
that "I haven't looked for another job so I am ready to go
back to work." Stinson stated, "That is fine. I will turn you
back over to the dispatcher and if he had got a load he will
dispatch you out." Prior to the conclusion of the conversa-
tion, Kelly asked whether Stinson had received a copy of
the charges which he had filed with the Board . Stinson
responded , "Yes, I received it, and I don't mind telling you
that I was pretty shocked when you said that I terminated
you because you was affiliated with" the Union, "because I
never had any inkling of an idea which way you thought
about it."
The General Counsel contends that Respondent violated
Section 8(axl) and (3) of the Act by refusing to refer or
allow Kelly to work on and after September 11 "unless
and/or until a strike was settled at Dow Chemical,
Freeport, Texas." I find no merit in this contention.
On the afternoon of September 11, Kelly telephoned the
Channelview terminal to inquire as to his assignment for
the following morning. Dispatcher Taylor answered the
phone and indicated that a load would be ready for
delivery at the Dow premises. I credit Taylor's testimony
and find that, before he had an opportunity to detail the
point of delivery as being Oyster Creek, at which there
were no pickets, rather than Freeport, Kelly abruptly
proclaimed that "he wasn't going to load at Dow
Chemical" because he "would not cross the picket lines."
In this connection, it should be noted that Taylor was not
the individual who dispatched Kelly to the Freeport plant
on July 3 and, so far as appears, was not aware of Kelly's
earlier objection to making deliveries from the premises of
Dow's Freeport facility. I do not credit Kelly's testimony
that Stinson relayed to Taylor the instruction on-Septem-
ber 11 that Respondent "will call [Kelly] when they settle
the strike at Freeport or Dow," or that Kelly was
terminated on the following morning by being ordered to
turn in his credit cards . By his own admission, Kelly visited
the terminal on the morning of September 12 in search of a
letter explaining the reason for his asserted discharge and
was pointedly assured by Stinson that he "hadn't been
terminated ." Despite Kelly's argumentative assertion that
Stinson had other dispatches which Stinson could "switch
s So far as this record stands , there is no probative evidence that the whom Kelly had complained about the picket line at the premises.
Oyster Creek plant was in any way involved in the Freeport labor dispute, 11 Stinson testified without contradiction and I find that he neither
or that any pickets had ever appeared at Oyster Creek . sought nor received instructions from his home office in Enid, Oklahoma,
10 It should be noted that it was dispatcher Roebacker , and not Taylor, regarding how to handle the Kelly episode.
who had dispatched Kelly to the Dow Freeport plant on July 3 and to
GROENDYKE TRANSPORT, INC.
... around," there is no probative evidence in this record
to establish that any other work was in fact available at the
time of this conversation,12 or on the preceding evening
when Kelly spoke with Taylor. Moreover, Kelly was again
offered a dispatch on the evenings of September 12, 13,
and 14 by Taylor. Finally, on the latter date, he told Taylor
"whatever he had hang it on me, regardless what it was,
that I would take it and go."
In sum , I find and conclude that Kelly was neither
debarred from going to work for Respondent on and after
September 11 because he refused to cross a picket line at
the Dow Freeport plant, nor was he discharged for failing
to do so. I therefore find and conclude that Respondent
did not violate Section 8(a)(1) or (3) of the Act by its
dealings with Kelly on September 11, and I shall dismiss
this allegation in the complaint. It follows, and I conclude,
that Respondent did not independently violate Section
8(a)(1) on that day by any statements of Stinson that
employees would be denied work if they declined to cross
the picket lines established at that plant. Accordingly, I
shall also dismiss this companion allegation in the
complaint.
Having found that the General Counsel has failed to
sustain the allegations in his complaint by a preponderance
of the evidence on the record as a whole, I shall therefore
dismiss the complaint in its entirety.
ORDER 13
It is hereby ordered that the complaint filed herein be,
and it hereby is, dismissed in its entirety.
12 It is undisputed and I find that the drivers commenced their runs at 8
a.m. and that Kelly called upon Stinson at noon.
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
SUPPLEMENTAL DECISION
MAX ROSENBERG, Administrative Law Judge: On Febru-
ary 16, 1973, 1 issued a Decision in this proceeding
dismissing the General Counsel's complaint in its entirety.
Specifically, I found as a fact, and concluded as a matter of
law, that the General Counsel failed by preponderant
proof to establish that Respondent, Groendyke Transport,
Inc., violated Section 8(a)(3) of the Act by discharging
employee Eddie Bynum on September 5, 1972,1 for
distributing union literature during nonwork time, and by
withholding assignments from Jack Arnold Kelly on
September 12 because he had refused to cross a picket line
maintained by a labor organization at the premises of one
of Respondent's customers. The complaint also alleged
that Respondent, through its terminal manager, Dempsey
Stinson, offended the provisions of Section 8(a)(1) when, in
late May, early June, and early July, Stinson interrogated
1 All dates herein fall in 1972, unless otherwise indicated.
2 Foster was not an alleged discriminatee.
3 Such evidence would have had no impact upon the legality of Kelly's
discharge because, as I have heretofore found, there was absolutely no
showing that Kelly had ever joined the Union or worked on its behalf, or
929
employees J. D. Foster and Eddie Bynum concerning their
union activities and those of their fellow employees? These
alleged acts of interrogation were limited to these two
employees and occurred on only two occasions during the
months in question.
At the original hearing, the General Counsel sought to
adduce evidence relating to the issue of interrogation. I
foreclosed this endeavor on the ground that the alleged
acts of interrogation were too remote in time to the
discharge of Bynum on September 5 and too isolated in
character to warrant remedial consideration.3 Thereupon,
the General Counsel made an offer of proof to the effect
that, on one occasion in May, Stinson individually called
Bynum and Foster into his office and asked them, "How
do you feel about this Union? What do you think this
Union is going to do for you? What are your main gripes?"
On this occasion, both employees stated that the Union
would be of some assistance . On a second occasion in
June, Foster was asked how he thought Bynum felt about
the Union. Finally, on the last occasion, the first question
was again addressed to the men and they replied, "As of
right now we don't know." In my original decision, I
reiterated my earlier ruling on the receipt of this proffered
evidence and noted that "even were I to have taken
testimony in this area , I am still convinced these remote,
isolated instances of interrogation, if proven, are not
sufficient to establish by the preponderance of the evidence
that Bynum was discharged because of Respondent's
antiunion animosity toward him."
Following issuance of my original Decision, the General
Counsel lodged exceptions with the Board claiming it was
an error for me to exclude the above-mentioned evidence.
On July 20, 1973, the Board issued an "Order Reopening
Record and Remanding Proceeding for Further Hearing."
In that Order, the Board stated that "to the extent that the
Administrative Law Judge excluded such evidence [relat-
ing to the alleged 8(a)(1) violations] offered by the General
Counsel in support of his case in chief and as independent
violations of the Act, the Administrative Law Judge
committed prejudicial error." The Board directed that the
record be reopened and that a further hearing be
conducted by me in order to receive the excluded evidence
and to afford Respondent an opportunity to present
evidence relevant thereto. It also directed that, upon
conclusion of such further hearing, a Supplemental
Decision be prepared and served on the parties containing
findings of fact upon all the evidence, and such conclu-
sions of law and recommendations that I may deem
appropriate.
Pursuant to due notice, a further hearing was conducted
before me on August 22, 1973, in Houston, Texas. All
parties were represented and afforded full opportunity to
elicit testimony and adduce evidence bearing on the issues
raised in the Board's Order. A brief has been received from
the Respondent which has been duly considered.4
Upon the basis of the entire record made in this
proceeding, including my observation of the witnesses who
that Respondent knew or had suspected that he had done so.
4 In lieu of filing another formal brief, I granted the General Counsel's
motion to insert into the reopened record as G.C. Exh. 2 the exceptions and
brief which he had tendered to the Board after my original Decision, with
the assurance and understanding that I would consider these documents as
(Continued)
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified in the original and reopened proceedings , I hereby
make the following:
SUPPLEMENTAL FINDINGS OF FACT, CONCLUSIONS,
AND RECOMMENDATIONS
As heretofore found, the Union embarked upon an
organizational campaign among Respondent 's employees
in early April which culminated in a Board-conducted
election on August 31 and September 1. The Union
obtained a majority of the votes cast and received a
certification on October 20. Eddie Bynum was hired by
Respondent in early 1971 and was discharged on Septem-
ber 5 . Sometime in April , Bynum became aware of the
Union 's organizational drive . Desirous of gaining collec-
tive representation , Bynum visited the union office and
obtained blank designation cards . On April 20, Bynum
signed a card and , about this time, he solicited other
drivers on behalf of the Union . In consequence of his
efforts , Bynum procured 30 signed cards from his fellow
employees . However , so far as this record stands, Respon-
dent was totally unaware that Bynum had engaged in these
activities on behalf of the Union.
At the reopened hearing, J. D. Foster testified that he
had a discussion with Terminal Manager Stinson on two
occasions following the advent of the Union . According to
Foster, in "Either the latter part of May or the first part of
June in '72," he returned from an over-the-road trip and,
while he was turning his papers and logs in to the
dispatcher, Stinson beckoned him to the former's office.
When Foster arrived , Stinson asked, "I'd like for you to tell
me what you think about the union , what you think it will
do for you-all." Foster replied, "I don't know exactly what
the union could do for Groendyke," but added that he
knew that the Union had been successful at two other
enterprises in the area in obtaining better wage profiles for
the workers. The men then launched into a dialogue
concerning the pros and cons of unionization, during which
Foster remarked to Stinson that "if Groendyke doesn't
want the union in here , all they have to do is just raise up
their rates and pay the men for their work, what they do."
Stinson inquired as to whether Foster knew of the feelings
of the other drivers concerning the Union, and the latter
answered, "I had talked to some of them about it and some
of them were for the union and there were some of them
out there that was against the union."
Foster further testified that, in the early part of July, he
became involved in another conversation with Stinson. On
this occasion , Stinson stated that he had obtained "some
union contracts on other trucking companies and that he
had read them all over real carefully and that he couldn't
see that where we would be benefiting by getting a union in
there." After a discussion about comparative wage rates,
Stinson asked Foster ."how I felt about the union and if I
had discussed it with Eddie Bynum ." Foster allowed as
how he had mentioned the Union to Bynum inasmuch as
they rode as a team for Respondent in making deliveries.
Upon receiving this information , Stinson thereupon asked
Foster "how Bynum felt about the union ," to which Foster
responded , "I imagine he felt about the same way that I
did about it." When Stinson inquired , "Well, how do you
feel about the Union?" Foster replied , "Well, the circum-
stances that are here now, I fell like a union would make
things a lot better for us here."
Eddie Bynum testified that, in approximately the first or
second week of June , he engaged in a conversation with
Terminal Manager Stinson in which the subject of
unionization was broached . Summoning Bynum into his
office, Stinson inquired as to what Bynum "thought the
union could do for us, if I had heard anything about union
discussions and so on and so forth ." Bynum replied that "I
thought the union would give us a higher wage and better
insurance and benefits ." In the latter part of July, Stinson
again called Bynum into his office and "asked what my
main bitches were about the way things were running and
if I had given any more thought to the union or anything
and I told him no, that I hadn't checked into it."
In his testimony, Stinson either denied or could not
recall whether he had questioned Foster and Bynum
regarding their union sympathies and those of the other
personnel . Foster and Bynum impressed me as trustworthy
and forthright witnesses , and I credit their testimony and
find the facts regarding the incidents of interrogation as
they testimonially reported them.
As I have previously found , Bynum served as a union
observer in the election which was conducted on August 31
and September 1, and which resulted in the Union's
certification on October 20. He was discharged , as I have
found, on September 5 for having violated Respondent's
lawful, no-distribution rule by distributing union literature
during working time.
Viewing the credited testimony of Foster and Bynum
regarding their interrogation by Stinson on two instances
between May and July against the backdrop of Bynum's
service as a union election observer , I am still not
convinced that the General Counsel has established by the
requisite , preponderant proof that Respondent singled out
Bynum for discharge on September 5 to punish him, under
the guise of a lawful , no-distribution rule, for espousing the
Union's cause at the terminal .5 In my opinion, these
isolated acts of interrogation , which occurred from almost
2 to 4 months before Bynum's discharge, are too remote in
time to color with illegality the termination of Bynum. I
therefore conclude that , by severing Bynum from its
employment rolls, Respondent did not violate Section
8(a)(3) of the Act . I also conclude that Stinson 's acts of
S 1 have heretofore found in the original decision that , following the
conduct of the election which the Union won , Bynum telephoned dispatcher
Delford L. Taylor and asked what the latter thought of the election results.
Taylor "slammed the receiver down ." On the following day, Taylor
instructed Bynum thereafter to restrict his telephonic conversations to
matters of business . So far as appears on this record , Taylor was not a
statutory supervisor and played no role in Bynum 's discharge.
GROENDYKE TRANSPORT, INC. 931
interrogation , occurring in"the time frame and context RECOMMENDED ORDER
involved herein , are too isolated and technical to warrant
remedial relief . I shall therefore, once again , recommend It is hereby recommended that the complaint herein be
that the complaint filed herein be dismissed in its entirety.6 dismissed in its entirety.
6 In the event no exceptions are filed as provided by Sec . 102.46 of the 102.48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings , conclusions, and Order, and all objections thereto shall be
conclusions, and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.