K & B Mounting, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1980

248 N.L.R.B. 570 (N.L.R.B. 1980)

570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K & B Mounting, Inc. and Judy P. Chlebek; Vickie
Tilton; Chauffeurs, Teamsters and Helpers
Local Union No. 364, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America; Jerry Fyffe;
Daniel Horak; Richard Stanton; Karen Stanton,
and Randy Whitmer. Cases 25-CA-9510-1, -2,
-3, -4, -5, -6, -7, and -8
March 19, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On March 29, 1979, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions 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
and to adopt his recommended Order.
The Administrative Law Judge found that Re-
spondent did not violate Section 8(a)(3) of the Act
by discharging Vickie Tilton.
The relevant facts, set forth more fully by the
Administrative Law Judge, are as follows:
1. Respondent is a local and interstate carrier,
providing transportation of vans and other small
vehicles to its customers from its South Bend, Indi-
ana, facility. At this facility there are two divisions
of employees, over-the-road drivers (represented
by Teamsters Local 299) who deliver army trucks
and postal service vehicles, and the metro division
whose drivers deliver vans and cutaways to recre-
ational vehicle manufacturers within a 50-mile
radius of the plant. Only the metro drivers are in-
volved herein.
In November 1977,2 Respondent laid off em-
ployees Richard and Karen Stanton because one of
I The General Counsel 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 re-
spect 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 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
The General Counsel has also excepted to the Administrative Law
Judge's recommended remedy insofar as it recommends that interest on
backpay should be computed at a rate other than the 9 percent requested
by the General Counsel. We find no merit in that exception. See Florida
Steel Corporation. 231 NLRB 651 (1977).
2 All dates are 1977 unless otherwise stated
248 NLRB No. 71
its shuttle vans, used to follow crew members to
their delivery destinations and transport them back
to the main facility, was in need of repair.3 During
their layoff the Stantons began taking action to or-
ganize the metro drivers by contacting Orville
Stahl, vice president of the Union, securing au-
thorization cards, and talking to employees about
the Union.
Upon their return to work sometime at the end
of November, the Stantons scheduled a union
meeting for December 2. This meeting was later
rescheduled and subsequently held on December 5.
Tilton and nine other employees attended the meet-
ing and signed union authorization cards. Prior to
this time Tilton had discussed the Union with her
coworkers and had on December 1 informed
others of the schedule but postponed the December
2 union meeting.
On December 5, Tilton had an accident with a
van she was driving for Respondent. According to
her, the van skidded on the icy road, hit a fence,
and ended in the ditch. There is no evidence as to
the extent of the damage. This was her fourth acci-
dent since being hired on July 7.
On the morning of December 6, Tilton met with
Union Representative Stahl and others. At the
close of the meeting she and another employee
took some union cards for distribution. Upon her
arrival at work, she started to get in a van when
Foreman Jim Case told her she could not make a
run until she talked to Respondent's manager, Ed
Hicks. Hicks arived about an hour later and told
her, "Well, I think you can't handle this kind of
driving in the winter and . . . I won't need you for
the rest of the winter, come back in the spring
The Administrative Law Judge found the evi-
dence insufficient to warrant a finding that Respon-
dent was aware of Tilton's union activities at the
time of her discharge. While noting that the
number of employees in the metro division num-
bered about 20 and that considering the overall
facts the inference could be drawn that Respondent
knew that some of its employees were engaged in
union activities in late November, he found that
there was no direct evidence that Respondent
knew the specific identity of the employees who
engaged in the union activity.
Our dissenting colleague does not contend that
there is any direct evidence that Respondent knew
of Tilton's union activities but asserts that knowl-
edge of Tilton's union activities should be inferred
on the basis of the "small plant doctrine." Here,
however, Tilton's union activities were conducted
in such a way that an inference based on that doc-
I There is no contention that this layoff was unlawful.
K & B MOUNTING, INC. 571
trine is not warranted. According to Karen Stan-
ton, the employees involved in the organizing cam-
paign attempted to keep their union activities secret
even to the point of not talking to other employees
whose loyalties were questionable. There is no evi-
dence that Tilton did otherwise. Although she
signed a union authorization card, and attended
two union meetings, these activities were conduct-
ed off Respondent's premises. With respect to her
union activities on Respondent's premises, such
consisted of notifying employees of the first union
meeting and conversing with employees about the
Union in the office trailer.4 While that facility was
sometimes frequented by supervisors, there is no in-
dication that supervisory personnel were present
during any of these events. 5 In view of the effort
to keep union activity secret it is reasonable to
infer that supervisors were not present, or at least
that the conversations were conducted in such a
way as to prevent supervisors from learning of the
nature of the conversations. Consequently, like the
Administrative Law Judge, we conclude that any
inference which otherwise might have been drawn
concerning Respondent's knowledge of Tilton's
union activities as the result of the size of Respon-
dent's operations is negated by the circumstances
under which those activities took place. Mantac
Corporation and Tacket & Manning Coal Corpora-
tion, 231 NLRB 858, fn. 2 (1977).
Furthermore, the General Counsel has failed to
establish that the asserted reason for Tilton's dis-
charge was pretextual. She was the only employee
involved in an accident that day. She was told at
the time of the layoff that Respondent was taking
this action because she could not handle winter
driving. Tilton herself apparently also had some
doubts concerning her ability to drive under these
conditions, since prior to the December 5 accident
she had requested that Respondent's manager not
send her out on the icy roads. Therefore, Tilton's
own preaccident statements support the action
taken by Respondent.
Our dissenting colleague nevertheless urges that
Tilton was disparately treated in that, with one ex-
ception, employees had never been discharged for
accidents. However, there is no showing here that
employees had been retained after having accidents
under similar circumstances.
In view of the foregoing, we conclude in agree-
ment with the Administrative Law Judge that the
General Counsel has failed to establish that Re-
spondent discharged Tilton because of her union
4 This trailer contained an office used by Respondent's supervisors.
s Tilton was not asked during her testimony whether supervisors were
present during the conversations in the trailer
activities. Accordingly, we adopt his recommenda-
tion to dismiss this allegation of the complaint.
2. The Administrative Law Judge found that Re-
spondent's decision to layoff six employees on De-
cember 19 was economically motivated, albeit em-
ployees Richard Stanton, Karen Stanton, and Jerry
Fyffe were discriminatorily selected by Respondent
in determining which employees should be laid
off.6 We agree with these findings.
On Saturday, December 17, a number of em-
ployees scheduled to report for work failed to do
so. There is no question but that Hicks was upset
by this. Further, the facts establish that Hicks an-
ticipated that customers might be shutting down
and had informed his secretary, Kalmer, even prior
to the events of December 17, that as a result Re-
spondent might have to "be down" during the holi-
day period.
On December 19, Hicks appeared at work short-
ly after the starting time in a highly agitated state
and informed the employees just before they start-
ed to work that he was going to run one crew and
that those employees whose names were not on the
crew list should turn in their license plates. Six em-
ployees, Richard and Karen Stanton, Jerry Fyffe,
Jackie Schuppert, Daniel Horak, and Randy
Whitmer, were not called. Afterwards, Karen Stan-
ton approached Hicks and asked him, inter alia,
"[a]m I going to come back in a couple of days, do
you know how long it's going to be?" Hicks re-
plied, "I don't want to talk about it" and walked
away. 7
In concluding that Respondent's decision to op-
erate only one of the two crews was economically
motivated, the Administrative Law Judge relied on
Hicks' concern that he frequently did not have
enough employees on hand for two full crews and
that the year-end period would mean the need for
fewer crews. Contrary to our dissenting colleague's
opinion, the record provides support for these find-
ings.
It is clear that Hicks was concerened about the
failure of employees to show up for work and, as
acknowledged by even the General Counsel's wit-
nesses, was upset by the failure of some employees
No exception has been taken to the Administrative Law Judge's find-
ing that these three employees were unlawfully chosen for the layoff.
Our dissenting colleague joins us in adopting this finding.
7 The dissent asserts that after notifying the employees of the layoff,
Hicks refused to speak with any of them. The facts, however, do not es-
tablish that Hicks refused to talk to all the employees about their being
laid off. As the above testimony of Karen Stanton shows, his refusal was
addressed to her in response to her inquiry as to when she would be in
layoff status. Since she was one of the three employees whose selection
for layoff was unlawfully motivated, it is understandable why Hicks did
not wish to speak to her. It does not follow from that refusal that Hicks
would not have spoken to the three laid-off employees who have not
been found to have been discriminatorily selected, had they asked him for
more specifics about the layoff
K & B MOUNTING, INC. 71
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to show up the previous Saturday. As a result,
Hicks was not sure that he could always man two
full crews. Further, prior to the day of the layoff,
Hicks had voiced concern over the likelihood that
some of the recreation vehicle centers were going
to be closed for the holidays and the adverse effect
that would have on Respondent's workload. That
this concern had some basis is established by the
fact that two customers had telephoned to inform
Respondent that they were going to close down
over the holidays.8 Finally, we deem its significant
that two of the three laid-off employees who were
not discriminatorily selected were reinstated when
openings occurred on December 22, 1977, thereby
belying the contention that the reason for the
layoff itself was the union activities of those in-
volved. In these circumstances, therefore, we find,
like the Administrative Law Judge, that the Gener-
al Counsel has not established that Respondent
gave a false reason for its layoff of employees. Ac-
cordingly, we adopt the Administrative Law
Judge's dismissal of that portion of the complaint
alleging that the decision to lay off employees was
discriminatorily motivated.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby order that the Respondent, K & B Mount-
ing, Inc., South Bend, Indiana, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
IT IS FURTHER ORDERED that the allegations of
unlawful conduct not specifically found to be vio-
lative herein be dismissed.
MEMBER JENKINS, dissenting:
I agree with my colleagues and the Administra-
tive Law Judge that Respondent violated Section
8(a)(3) of the Act by discharging employee Judy
Chlebek and laying off employees Richard Stanton,
Karen Stanton, and Jerry Fyffe because of their ac-
tivities on behalf of the Union,9 and Section 8(a)(l)
8 Our dissenting colleague attempts to minimize this fact by noting that
Kalmer, who testified to it, stated that she had heard this from only 2 of
Respondent's 30 customers. The point is, however, that Kalmer's testimo-
ny in this regard is uncontradicted and credited, and hence it supports
our findings that Hicks' concern about anticipated closures was justified.
Moreover, the fact that Kalmer did not pass this information on to Hicks
before the layoff does not detract from such finding, since we rely on it
only to show that his belief that there would be holiday closings of Re-
spondent's customers was borne out by events.
9 With regard to the General Counsel's request that interest on back-
pay be computed at 9 percent, I would note that the issue is currently
under consideration by the Board. In the meantime, I agree with the Ad-
ministrative Law Judge's reliance on Florida Steel Corporation, 231
NLRB 651 (1977). See also Hansen Cakes. Inc., 242 NLRB No. 74 (1979).
by promising and granting benefits in order to dis-
suade its employees from supporting the Union.
Contrary to my colleagues and the Administrative
Law Judge, however, I would find that Respon-
dent also violated Section 8(a)(3) by discharging
employee Vickie Tilton and by laying off employ-
ees Daniel Horak and Randy Whitmer.
The record shows that Tilton became involved
in union activity in late November 1977, when she
participated in conversations regarding the Union
with Richard and Karen Stanton, the leaders of the
organizing effort. On December 1, she spoke with
a number of her approximately 20 fellow employ-
ees, and informed them about a union meeting
scheduled for Friday, December 2. Among other
places, these conversations took place in Respon-
dent's trailer, which contained an office used by
Respondent's supervisors. The union meeting sub-
sequently was postponed until the evening of
Monday, December 5. Tilton attended the meeting
and signed an authorization card. The following
morning, she met with the Stantons and several
other employees at a local coffee shop located near
Respondent's facility. There, she asked several of
the employees to sign authorization cards which
she was carrying in her purse. Later that morning,
she was discharged, allegedly because of an acci-
dent she had been involved in the previous day.
In rejecting the General Counsel's contention
that Tilton's discharge on December 6 was in re-
taliation for her union activity, the Administrative
Law Judge relied essentially on his conclusion that
Respondent was at the time unaware of her union
activity. Although he noted that Respondent was
aware generally that its employees were engaging
in union activities before November 29, he declined
to apply the "small-plant doctrine" in order to infer
that Respondent had specific knowledge of Tilton's
activity. He observed that Tilton had engaged in
union activity on Respondent's premises, but found
that the credited testimony of Karen Stanton, to
the effect that prior to December 13 the employees
attempted to conceal their union activities from
Respondent, precluded an inference of knowledge
based on the relatively small employee complement
(20 employees).
Contrary to my colleagues, I believe the Admin-
istrative Law Judge erred in failing to infer knowl-
edge on the part of Respondent with respect to
Tilton's involvement with the Union. Tilton had
been active in the Union's campaign virtually from
its inception.' Thus, 4 days before her discharge,
she had discussed the Union with fellow employees
not only on Respondent's premises but in the trail-
er office, an area which was frequented by supervi-
sors. In these circumstances, and considering Re-
K & B MOUNTING, INC. 573
spondent's small employee complement, Respon-
dent's supervisors had ample opportunity to ob-
serve her union activity. See N.L.R.B. v. Joseph
Antell, Inc., 358 F.2d 880 (st Cir. 1966). Further,
the Administrative Law Judge's reliance on testi-
mony that the employees had tried to conceal their
activities from Respondent prior to December 12 is
misplaced. See C.S.C. Oil Company a Division of
Cook United, Inc., d/b/a Ontario Gasoline & Car
Wash, 228 NLRB 950 (1977). Thus, I believe the
record amply supports an inference that Respon-
dent had knowledge of Tilton's union activity
before it discharged her.
Further, I am not persuaded, as are my col-
leagues and the Administrative Law Judge, that
Tilton's December 5 accident was the true reason
for her discharge. As found by the Administrative
Law Judge, Respondent habored animus toward
the unionization of its employees long before the
advent of the current campaign in November 1977.
Thus, the record shows that Manager Hicks told
Richard Stanton on numerous occasions as far back
as 1976 that he (Hicks) opposed the unionization of
small operations such as Respondent's And an in-
ference that union animus motivated Respondent's
treatment of Tilton is clearly warranted by the cir-
cumstances. From July 7, 1977, the date she was
hired, until her discharge on December 6, Tilton
had been involved in three accidents while work-
ing for Respondent. The first and third concededly
were not her fault. And after none of these acci-
dents was she reprimanded or warned about her
driving. Indeed, Tilton received no written warn-
ings during her tenure with Respondent, although
at least one employee, a noncardsigner, was not
discharged and received only a written warning for
"flagrant disobedience of orders." Moreoever, the
record shows that except in one instance employ-
ees had never been discharged for accidents, and in
that one instance, a 3-day employee was discharged
for speeding in Respondent's yard. By way of com-
parison. Tilton's December 5 accident occurred be-
cause of hazardous weather conditions. After
making their first delivery runs the drivers had
pleaded with Manager Hicks, to no avail, that they
not be sent out on the icy roads again. It was on
the second run that Tilton's van slid into a ditch.
When she arrived at work the following morning,
she was told by Hicks that he did not feel she
could handle winter driving and he would not need
her for the remainder of the winter. He told her
she could come back in the spring, but Respondent
later refused to rehire her. In view of Respondent's
longstanding union animus, and its inconsistent and
disparate treatment of Tilton beginning 4 days after
she had engaged in union activity on Respondent's
premises, I fail to perceive how my colleagues can
adopt the Administrative Law Judge's finding that
the December 5 accident was not used as a pretext
by Respondent to rid its facility of a known union
activist, a scheme which Respondent continued
when, among other things, it discharged Chlebek
on December 16 and laid off still more union activ-
ists, including the leaders of the organizing effort
on December 19.
With regard to the December 19 layoff, the Ad-
ministrative Law Judge found that on the morning
of Monday, December 19, Manager Hicks notified
six employees that they were laid off. The Admin-
istrative Law Judge found that Hicks intended the
layoffs to be permanent, something he had never
done before. After notifying the employees of the
layoffs, Hicks refused to speak with any of them.
The Administrative Law Judge found that the lay-
offs of three of the six, Richard Stanton, Karen
Stanton, and Jerry Fyffe, all of whom had been
quite active in the Union's campaign, were unlaw-
ful because Hicks had not laid off another less
senior, but nonunion, employee and had recalled
less senior, but nonunion, employees ahead of
them. He declined to find, however, that the layoff
of all six employees was unlawfully motivated.
Thus he dismissed the complaint with respect to
employees Whitmer and Horak, whose union ac-
tivities, according to the Administrative Law
Judge, were "slight" and who had relatively little
seniority. The Administrative Law Judge based his
conclusion on his finding that the decision to lay
off six employees was economically motivated by
an anticipated decline in work on account of a
shutdown by Respondent's customers during the
Christmas holidays.
The record, however, does not support the Ad-
ministrative Law Judge's finding of economic justi-
fication for the December 19 layoff. There is no
record evidence regarding which, if any, of Re-
spondent's approximately 30 customers were closed
during the holidays. Further, the only testimony
even remotely tying the layoff to a holiday shut-
down is that of Kalmar, a secretary for Respon-
dent. She testified that several of Respondent's cus-
tomers notified her that they would "be down"
during the holidays. She admitted on cross-exami-
nation that she had heard this from only two of
Respondent's customers and, significantly, that she
did not pass this information along to Hicks. More-
over, Hicks was not called to testify as to his rea-
sons for the layoff, giving rise to an inference that
had he testified it would have been damaging to
Respondent's case. See Interstate Circuit, Inc. v.
United States, 306 U.S. 208 (1939). Thus, in view of
the false reason provided by Respondent in defense
of its decision to lay off the six employees, '0 its in-
o See Shattuck Denn Mining Corporation (Iron King Branch) v. VL. R.B.,
362 F.2d 466 (9th Cir. 1966).
K & B MOUNTING, NC.
..
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tense and longstanding union animus, exemplified
by, among other things, Hick's 1976 comments to
Richard Stanton, his discharge of Chlebek, and sin-
gling out of the Stantons and Fyffe for the layoff, I
would find Respondent's decision to lay off the six
employees to have been unlawfully motivated.
That the union activities of Whitmer and Horak
may have been slight and that they possessed little
seniority, therefore, are of no consequence. See,
e.g., Computed Time Corporation, 228 NLRB 1243,
1249, fn. 28 (1977). Accordingly, I would find that
the layoffs of Whitmer and Horak, in addition to
those of the Stantons and Fyffe, violated Section
8(a)(3) of the Act.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on July 10, 1978, at South Bend, Indiana.
The original charges in Cases 25-CA-9510-1, -2, -3
were filed on December 19, 1977. The original charges
in Cases 25-CA-9510-4, -5, -6, -7, and -8 were filed on
December 20, 1977. The consolidated complaint in this
matter was issued on February 24, 1978. The issues con-
cern (1) whether the Respondent violated Section 8(a)(3)
and (1) of the Act by the discharges of Vickie Tilton on
December 6, 1977, and Judy P. Chlebek on December
16, 1977, and (2) by laying off Richard Stanton, Karen
Stanton, Jerry Fyffe, Daniel Horak, and Randy Whitmer
on December 19, 1977, and not recalling such employees
until various dates on and after December 27, 1977, until
January 9, 1978.
All parties were afforded full opportunity to partici-
pate in the proceeding. Briefs have been filed by the
General Counsel and the Respondent and have been con-
sidered.
Upon the entire record in the case and from my obser-
vation of witnesses, I hereby make the following: t
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and stip-
ulations therein.
K & B Mounting, Inc., the Respondent, is, and has
been at all times material herein, a corporation duly or-
ganized under, and existing by virtue of, the laws of the
State of Michigan. At all times material herein, the Re-
spondent has maintained its principal office and place of
business at Warren, Michigan, and another facility locat-
ed at South Bend, Indiana, herein called the South Bend
facility, and is, and has been at all times material herein,
continuously engaged at said facilities in the business of a
The General Counsel's motion to correct the record, dated August 9,
1978, marked as ALJ Exh. i., is recieved into the record and is granted
Further, certain errors in the transcript have been noted and are hereby
corrected.
local and interstate carrier, providing and performing
transportation of vans and other small vehicles and relat-
ed services.
During a 1-year representative period, the Respondent,
in the course and conduct of its business operations, pur-
chased, transferred, and delivered to its South Bend fa-
cility, goods and materials valued in excess of $50,000,
which were transported to said facility directly from
States other than the State of Indiana. During a -year
representative period, the Respondent, in the course and
conduct of its business operations, purchased, transferred,
and delivered to its Warren, Michigan, facility, goods
and materials valued in excess of $50,000 which were
transported to said facility directly from States other
than the State of Michigan. During a 1-year representa-
tive period, the Respondent, in the course and conduct
of its business operations, performed services valued in
excess of $50,000 for customers located in States other
than Indiana or Michigan wherein Respondent's facilities
are located. During a -year representative period, the
Respondent, in the course and conduct of it business op-
erations, performed national defense work valued in
excess of $50,000 for the United States Government in
connection with the delivery of new military vehicles to
military bases in various States of the United States.
As conceded by Respondent and based upon the fore-
going, it is concluded and found that the Respondent is,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
2
Chauffeurs, Teamsters and Helpers Local Union No.
364, a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues.' Supervisory Status3
At all times material herein, the following named per-
sons occupied positions set opposite their respective
names, and have been and are now agents of the Respon-
dent at its South Bend facility, acting on its behalf, and
are supervisors within the meaning of Section 2(11) of
the Act: Frank McNamee, President; Edison Eugene
Hicks, Manager; and Jim Case, Yard Foremen.
B. Setting4
K & B Mounting, Inc., the Respondent, maintains its
principal office and place of business at Warren, Michi-
gan. It also maintains another facility at South Bend, In-
diana. The South Bend facility was formerly known as
the George Burnett Company and apparently changed
over to the K & B Mounting, Inc., sometime in the years
2 The facts are based upon the pleadings and stipulations.
3 The facts are based upon the pleadings and stipulations.
The facts are based upon the credited aspects of the testimony of the
witnesses and the exhibits in the record unless otherwise noted.
K & B MOUNTING, INC. 575
preceding the events of this case. 5 The Respondent is en-
gaged in business as a local and interstate carrier in the
transportation of vans and other small vehicles. President
McNamee apparently does not involve himself a great
deal with the day-to-day operations of the South Bend
facility which is managed by Ed Hicks.
The South Bend facility has two divisions of employ-
ees. One division is known as the drive-away division
and is composed of over-the-road drivers who deliver
army trucks and postal service vehicles. For a number of
years the Union, Local 364 of the Teamsters, has repre-
sented the above-mentioned over-the-road drivers. Hicks,
the manager of the South Bend facility, is a member of
Detroit Teamsters Local 299. The relationship of Local
364 and the Respondent as regards the over-the-road
drivers has been amicable and without significant prob-
lems. The other division at the South Bend facility is
known as the metro division. This division is composed
of employees who deliver vans and cutaways to recre-
ational vehicle manufacturers within a 50-mile radius of
South Bend, Indiana. At the time of the beginning events
involved in this proceeding, the metro division employ-
ees were unrepresented by a union and did not receive
holiday, vacation, insurance, or other fringe benefits. The
metro division employees are the ones involved in this
proceeding.
Employees for the metro division were initially hired
on a casual or part-time basis, initially did not completed
job applications, but apparently, with continued employ-
ment, ultimately completed necessary employment forms.
As to the vans and cutaways delivered by the metro di-
vision employees, the following is noted. The vans and
cutaways are delivered by rail to South Bend by the
Ford Motor Company from a facility in Ohio. Metro di-
vision employees are transported to the railway site by
shuttle bus and then drive the vans or cutaways to the
Respondent's South Bend facility. After certain process-
ing at the South Bend facility, metro division drivers
drive and deliver the vans and cutaways to recreational
vehicle manufacturers. Shuttle bus or buses accompany
the metro drivers to place of delivery and then the driv-
ers are returned to the South Bend facility via shuttle
bus.
At the time of the events material in this proceeding,
the Respondent had two crews in the metro division and
had approximately 20 employees who drove the vans
and cutaways for delivery, and the shuttle buses.
Richard and Karen Stanton were hired as metro divi-
sion employees in September 1977. Richard Stanton has,
however, worked off and on at the South Bend facility
since 1968. Thus, Richard Stanton had worked at the fa-
cility when known as the George Burnett Driveway and
later for K & B prior to his latest September 1977 hiring.
In his prior employment at George Burnett and for K &
B, Ed Hicks was a supervisor for the employer. Stanton
and Hicks were friends and had some discussions con-
cerning the Union and insurance and fringe benefits.
Stanton's employment in the past for George Burnett
and K & B, prior to September 1977, appears to have
' Although not presented into the record as evidence, the Respon-
dent's brief asserts that the former company was the George F. Burnett
Company and apparently was purchased in 1971
been of a casual or temporary nature. Stanton worked as
an over-the-road driver and at times as a metro driver.
Some of Stanton's discussions concerned whether Stan-
ton as an over-the-road driver should join the Union.
Stanton made it known that he was seeking hospitaliza-
tion and other benefits. On such occasions, Hicks indicat-
ed to Stanton that he should not join because it was not
expected that his employment with the Respondent as an
over-the-road driver would be for a lasting time. On
other occasions, the question of unionization of a small
operation was discussed, and Hicks indicated that he did
not believe that unionization of a small operation was
good. In 1976, while Stanton was working as a tempo-
rary or casual over-the-road driver, Stanton spoke to
Hicks about becoming a metro driver, joining the Union
and receiving hospitalization benefits. Hicks indicated
that the metro drivers were not unionized and did not re-
ceive fringe benefits. Hicks indicated that the basic
reason was the high turnover of drivers. Hicks, as set
forth, indicated that the metro drivers were not union-
ized and that as far as he was concerned would not
become unionized. In context with these conversations, it
should be noted that Hicks, although a supervisor, was a
member of Local 299 of the Teamsters, a Detroit local,
and that Stanton was aware of Hicks' union membership.
In November 1977, the Respondent had a shuttle van
which required repairs and could not be used. As a result
of the shuttle van repair problem, the Respondent laid
off Richard and Karen Stanton. During their layoffs, the
Stantons discussed the idea of unionization of the metro
employees. Karen Stanton then contacted a family
friend, Orville Stahl, who was vice president of the
Union. Stanton and Stahl discussed the way to get the
employees unionized, the need to get union cards signed
by at least 50 percent of the employees, protection that
would be afforded the employees by the NLRB and the
Union, and the employees' right to engage in organiza-
tional work. Stahl gave Stanton 24 to 30 union cards.
Thereafter, the Stantons engaged in discussions with
fellow employees about unionization, both while on
layoff and after their return to work. Following this, a
union meeting was scheduled for December 2, 1977, and
there was some conversation between employees con-
cerning the scheduled meeting. The December 2, 1977,
union meeting was postponed and later was actually held
on December 5, 1977. Vickie Tilton, who had spoken to
employees on December 1, 1977, about the December 2,
1977, meeting, had a vehicle accident on December 5,
1977, and was discharged on December 6, 1977.
On December 6, 1977, President Wardlow, for the
Union, telephoned Respondent's president, McNamee,
and discussed representation by the Union of Respon-
dent's metro employees. Wardlow suggested a meeting
to prove the Union's majority status among the metro
drivers and to begin contract negotiations. McNamee ex-
pressed surprise that a majority of the metro drivers had
signed cards and stated that he wanted to think about the
matter for a couple of days. On December 8 or 9, Ward-
low again telephoned McNamee about agreeing to a
meeting. McNamee indicated that he had not "sorted"
the matter out and was not ready to agree that the Union
had a majority of the metro drivers signed up. McNamee
K & 13 MOUNTING, I C 3
.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicated that the South Bend facility was not very prof-
itable and that it had a nonunion competitor in the area.
McNamee did not want to set a meeting date. Wardlow
told McNamee that a contract could be negotiated at less
than the rates of the national contract.
On December 13, 1977, McNamee, for the Respon-
dent, held a meeting with the metro drivers, discussed
problems with the Ford Motor Company, economic
problems, accidents, employee appearance and conduct
when delivering vehicles, employee handling of new ve-
hicles in transit, employee speeding and following other
vehicles too closely, the question of rail damage and em-
ployees being careful to inspect such damage. McNamee
told the employees that they were going to be covered
with hospitalization insurance, have paid holidays, have
paid vacation, and receive pay for transit of vehicles
from the railway to the Company. The employees had
not had such benefits prior to December 13, 1977.
McNamee told the employees that the benefits would be
effective immediately. Sometime in the near future after
December 13, 1977, McNamee posted a notice as to such
benefits indicating that they were effective on January 1,
1978.
On the same day, December 13, 1977, McNamee tele-
phoned Wardlow's office, was unable to reach Wardlow,
and left a message for Wardlow to call McNamee. Ap-
parently there was a communication gap or mixup. In
any event, Wardlow, on or about December 14, 1977,
transmitted a letter of McNamee at K & B Warren,
Michigan, address, indicating that the Union had not
heard from McNamee following a conversation over a
week before December 13, 1977, about a contract for the
people who haul vans from the railhead to the yard, a
clear reference to the metro drivers. Wardlow's letter in-
dicated that if he did not hear from McNamee by De-
cember 19, 1977, he would request that the (metro) driv-
ers be a part of the national contract for all wages and
fringes.
On December 15, 1977, the Union held another meet-
ing for employees. Thereafter, on December 16, 1977,
the Respondent discharged employee Judy P. Chlebek.
The Respondent received Wardlow's letter on Decem-
ber 19, 1977. On December 19, 1977, the Respondent
laid off employees Richard Stanton, Karen Stanton,
Jerry Fyffe, Daniel Horak, Jackie Shuppert, and Randy
Whitmer.
Unfair labor practice charges were filed by or on
behalf of Richard Stanton, Karen Stanton, Jerry Fyffe,
Daniel Horak, and Randy Whitmer on December 19 and
20, 1977. The Respondent recalled Shuppert and
Whitmer to work on December 22, 1977. Shuppert re-
turned to work on December 22, 1977, and Whitmer re-
turned to work on December 27, 1977.
On December 30, 1977, Bob Warnock for the Union
made arrangements with McNamee for a meeting.6 War-
nock told McNamee that Wardlow was upset, that the
Respondent was faced with the picket line and strike if
the Respondent did not agree to meet with the Union.
Warnock told McNamee that the Union had the signa-
The facts are based upon admissions in Respondent's answer and the
testimony of Wardlow, Warnock is referred to in briefs as Warnok.
Whether Warnock or Warnok, the reference is to the same person.
tures of the people that wanted Local 364 to represent
them. McNamee agreed to meet with the Union on Janu-
ary 4, 1978.
On January 4, 1978, Orville Stahl and the Stantons, for
the Union, met with McNamee and Hicks for the Re-
spondent. Hicks initially objected to the presence of the
Stantons. At this meeting the parties had an authoriza-
tion card check, and the Respondent agreed to recognize
the Union as bargaining agent for the metro drivers.
Thereafter, on January 5, 1978, Stahl and the Stantons
and Hicks and McNamee met for arrangements concern-
ing contract negotiations. At this meeting Hicks was
asked when the Stantons, Fyffe, and Horak would be re-
called to work. Hicks stated in effect that he would
never recall the Stantons to work. At the end of the
meeting Hicks agreed to recall the Stantons to work.
The Stantons returned to work on January 8, 1978, and
Fyffe and Horak returned to work a day or two later.
The actual contract negotiations between the Union and
the Respondent commenced on January 24, 1978, and re-
sulted in the finalization of a contract on February 14,
1978.
C. The Discharge of Vickie Tilton on December 6,
1977
The complaint alleges and the Respondent's answer
admits that Vickie Tilton was dicharged on December 6,
1977.
Vickie Tilton was hired by the Respondent on July 7,
1977, and worked thereafter as a metro driver until dis-
charged on December 6, 1977.
During Tilton's employment period, prior to an acci-
dent on December 5, 1977, Tilton had three other minor
type accidents. One accident occurred about 2 weeks
after Tilton commenced her employment. What occurred
is revealed by the following credited excerpts from Til-
ton's testimony.
Q. Now, prior to the December 5 accident, had
you had other accidents?
A. Yes.
Q. Tell us what happened.
A. Oh, about two weeks after I started there I
had one with a cutaway which were sitting in the
yard, and I was standing by a parked cutaway.
A. Yes, getting ready to get into it. And the guy
next to me like Jerry said it's blind back there, you
can't see if there's anybody, you know, next to you.
And he took off and my door was open and his
back wheel tire caught on my door and bent it.
Later that day, Tilton was told to go to the office to
see Manager Hicks. What occurred is revealed by the
following credited excerpts from Tilton's testimony.
Q. Okay. What if anything happened then that
day?
A. Arlene Hudson came up and told me that Ed
said he wanted to see us in the office, me and the
guy that took my door off in the morning, so we
K & B MOUNTING, INC. 577
went up to the office and he asked what happened
and Eugene told him.
Q. Eugene, that is the other-
A. Right. I don't know his last name. He asked
him what happened and he said it was his fault, he
wasn't watching where he was going.
A. Eugene told Ed Hicks it was his fault, he
wasn't watching where he was going. Ed told us
both, you know, that we had to be more careful.
That's all he said.
In September 1977, Tilton had another accident. What
occurred is revealed by the following credited excerpts
from Tilton's testimony.
Q. And what happened at that time?
A. Well, we were all to get into the van and ev-
erybody was, you know, getting in the van, all sit-
ting waiting to get out there. There was a cutaway
parked on one side and a van on the other side of
me, and a bunch of old semis that were just, you
know, sitting in front. And they were all parked
close together and I went and started to take off
and I turned to the right and there was mud. It just
rained that day or that night. There was mud there.
When I turned the corner it slid a little bit and
when I turned caught my right side of the van on
the left of the cutaway.
Q. And what was the result of the damage if
any?
A. The side and the sliding door on the van was
damaged and slight damage to the cutaway. The
bumper was pulled out on the cutaway. They
pushed it back in.
Manager Hicks spoke to Tilton concerning the Sep-
tember accident as is revealed by the following credited
excerpts from Tilton's testimony.
Q. Do you remember whether you had any con-
versation with Mr. Hicks after this happened?
A. Yes. Okay. He called me in the office. Arlene
Hudson went in there with me. And he asked me,
Ed Hicks asked me what happened. And I told him
they were parked too close together and it was
hard to get through there. Everybody was worried
about trying to turn the corner there. He said why
are you parking too close together? I said I didn't,
everybody parks there, you don't know which ones
parked them and which don't. He laughed. He
didn't say any more. He asked what he should do, if
he should write it up as grill damage, and Arlene
said yes.
Tilton had another accident in October 1977, as is re-
vealed by the following credited excerpts from her testi-
mony. '7
7 The record reveals that "Jenny" was Arlene Hudson. At the hearing
the witness was asked to identify "Fred" and identified Fred as Fred
Wadel, a fellow employee The transcribed record is silent as to the iden-
Q. What happened in this accident?
A. Well, let's see. I drove about 30 miles and we
were going to Middlebury hopefully.
Q. You were delivering a vehicle?
A. Right. And I was driving down the road and
my cutaway ran out of gas. I pulled to the side of
the road for Arlene Hudson, the shuttle driver, to
put gas in the cutaway. She pulled up behind me
and put gas in. We couldn't get it started. She said
we will have to tow it. So she went and got the
chain and hooked the chain and started. And we
were going around the curve and I ran into the
back end of the van, the shuttle, and put a dent in
the back end of that, but I didn't do any damage to
the cutaway.
Q. What happened after that?
A. Well, she pulled over to the side of the road
and she asked me what happened. I said what hap-
pened? I said I don't know, I had no brakes. It was
a new brake. She said I will have to get somebody.
She went over to where everybody else was wait-
ing, got Fred back there, brought him back. He
asked what happened. I told him no brakes. He said
well, I will see. And went down and pushed the
brake pedal down with his hand, and he said right.
He got in and he drove my cutaway to Coachman
and used the emergency brake on the way. I rode
to Coachman with Jenny and everybody parked
their vehicles over at Coachman.
Excepting for such comments as the Respondent may
have made to Tilton as referred to the above facts about
the three accidents, there is no evidence that the Respon-
dent reprimanded or talked to Tilton about her work
performance before the events of December 6, 1977.
Tilton's first involvement with the Union or union ac-
tivity occurred in late November 1977. At such time,
Tilton engaged in some union talk with fellow employ-
ees. On December 1, 1977, Tilton informed a number of
fellow employees about a union meeting scheduled for
December 2, 1977. Such meeting was postponed and
held on December 5, 1977. In the meantime, Tilton had
an accident on December 5, 1977, as set forth later
herein.
On the night of December 5, 1977, Tilton and nine
other employees attended a union meeting and signed
union authorization cards. Wardlow, for the Union, was
at the meeting and told the employees that there were
enough signed cards for the Union to represent the em-
ployees. Wardlow told the employees that he would call
the Respondent the next day and advise it that the Union
represented the employees.
On the morning of December 6, 1977, Tilton, Union
Representative Stahl, and other employees met at a cof-
feeshop, and discussed unionism. Union cards were given
to Tilton and another employee for distribution. Tilton
tity of Wadel. Based upon my recollection, this inadvertent omission in
the written transcript of the record is being corrected herewith to indi-
cate on page 124 at line 16 after the period after Coachman that there be
set off a parenthetical sentence to wit: (The witness in response to a ques-
tion indicated that reference to "Fred" was reference to Fred Wadel )
K & MOUNTING, C.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took 10 union cards for distribution to fellow employees
on her crew.
There is no direct evidence that the Respondent knew
of the union activity of its employees or the specific
identity of any employees who engaged in union activity.
The evidence reveals that the Respondent's-operations
and number of employees involved in the metro division
are small. Thus, the facts reveal that the number of em-
ployees in the metro division numbered around 20 at the
time of the union activities of employees in November
and December 1977. Considering the overall facts, I am
persuaded that an inference can be and should be drawn
that the Respondent knew that some of its employees
were engaged in union activity in late November and
before November 29, 1977. However, Karen Stanton's
testimony was to the effect that the employees attempted
to hide their union activity from the Employer until after
the December 13, 1977, company meeting. Considering
the timing of Tilton's accident on December 5, 1977,
with her discharge on December 6, 1977, and the forego-
ing, the nature of Tilton's accident and the asserted
reason for Tilton's discharge, I am not persuaded that it
is proper to draw an inference and do not draw an infer-
ence that Respondent was aware of Tilton's union activi-
ties at the time of Tilton's discharge.
On December 5, 1977, Tilton had an accident as is re-
vealed by the following credited excerpts from her testi-
mony.
Q. What happened if anything on December 5?
A. I had an accident that morning or that after-
noon. It was snowing and it was icy and I was driv-
ing Curran Road to go to Midas, and my van slid
on the road and into the opposite lane and I tried to
pull it back over and force it around and it hit a
fence and it ended up in a ditch. And Jenny came
up and I told her. She asked me what happened.
Arlene Hudson.
Q. She followed in the shuttle behind you?
A. Yes. And she said we had better take it back
to the yard. I said okay. I got in the van. It was still
drivable. And we drove back and I followed her
and she told me to park it and get another one and
go on to Midas so I got in another van and took it
to Midas.
As indicated previously, Tilton attended a union meet-
ing on the night of December 5, 1977, and signed a
union card. As also indicated previously, Tilton and
other employees met with a union agent on December 6,
1977, before work. Stahl and Tilton received at that time
10 union cards for distribution to fellow employees.
On December 6, 1977, Tilton was discharged by the
Respondent as is revealed by the following credited ex-
cerpts from Tilton's testimony.
Q. Then what happened on December 6?
A. I went, it was about 8:00 o'clock and every-
body was going out to get in the vans and I started
to go out and follow them out to the vans and Jim
Case came up to me and told me I couldn't make
any runs until I talked to Ed.
Q. Ed Hicks.?
A. Yes.
* * * t S
Q. And then what happened?
A. Well, I waited for about an hour and he came
in about 9:00 o'clock, and he asked me what hap-
pened, and I told him, and he said, well, I think you
can't handle this kind of driving in the winter. I said
why. He said I just don't think you can. He said I
won't need you for the rest of the winter, come
back in the spring, and he walked out.
Thus, Tilton was discharged on December 6, 1977,
and had not been recalled to work by the time of the
hearing in this matter on July 10 and 11, 1978. Tilton,
however, had talked to Hicks and McNamee about
coming back to work in the spring of 1978 as is revealed
by the following credited excerpts from her testimony.
Q. Did you go back in the spring?
A. Yes. I went and talked to Ed Hicks and he
told me he didn't know if I could come back, he
told me I would have to call Frank McNamee. I
called Frank McNamee. He told me as far as he
was concerned I was not to come back.
As part of the General Counsel's case, evidence was
presented with respect to other accidents and Respon-
dent's actions as regards the employees involved in such
accidents. In the proceeding in this case, neither the Re-
spondent nor the General Counsel put in any evidence of
detail as regards the damage done by Tilton's December
5, 1977, accident.8 Thus, it would be difficult to consider
other accidents, damages, and treatment of employees on
a comparative basis. The evidence as to other accidents,
however, is also shallow as to details. I find no need to
detail the facts as presented with regard to such acci-
dents. It is sufficient to say that the evidence as to Re-
spondent's treatment of other employees as regards acci-
dents is not sufficient to show that Respondent treated
Tilton in a disparate manner by the discharge of Tilton
on December 6, 1977, for the accident on December 5,
1977.
Since the question of Respondent's animus toward
unionization is relevant to the question of motive, the
following is summarized. The Respondent has a history
of amicable relationship with the Union as regards a bar-
gaining relationship concerning Respondent's over-the-
road drivers. Respondent's supervisor, Hicks, is a
member of a union. This constitutes some evidence that
Respondent is not hostile toward unionization of employ-
ees. On the other hand, Hicks has made statements re-
vealing of opposition to the unionization of the metro
drivers or of a small operation. Further, as set forth
later, Respondent's actions on (1) December 13, 1977,
8 It is noted that Tilton testified to the effect that the van slid, hit a
fence, and ended up in a ditch, that it was still drivable but that Hudson
said they had better take it back to the yard, that she did so and then
picked up another van.
K B MOUNTING, INC. 579
with the granting of benefits, (2) on December 16, 1977,
in discharging Chlebek for discriminatory reasons, (3) on
December 19, 1977, in discriminatorily selecting for
layoff employees Richard Stanton, Karen Stanton, and
Jerry Fyffe, and (4) on January 4 and 5, 1978, by state-
ments of Hicks expressing opposition to the Stantons,
persuade that Respondent's conduct must be viewed as
guided by the practicalities of economic benefits weighed
with the effect of unionization. In sum, the evidence re-
veals that the Respondent is really opposed to unioniza-
tion because it considers it to create economic impedi-
ments but that the Respondent's actions are restrained at
times by recognition that opposition can invite undesired
results.
Contentions and conclusions
The General Counsel contends that the facts establish
that the Respondent discharged Tilton on December 6,
1977, because Tilton had engaged in union or protected
concerted activity or because the Respondent believed
that Tilton had engaged in union or protected concerted
activity. Thus, the General Counsel contends that the
Respondent engaged in conduct violative of Section
8(a)(3) and (1) of the Act by the discharge of Tilton. The
Respondent contends that it did not discharge Tilton be-
cause of her having engaged in union or protected con-
certed activity, or because of belief of such activity, but
that it discharged Tilton for the accident she had on De-
cember 5, 1977. Thus, the Respondent contends that it
has not engaged in conduct violative of Section 8(a)(3)
and (1) of the Act by the discharge of Tilton.
Considering all of the facts, I am persuaded that the
facts are insufficient to reveal that the Respondent dis-
charged Tilton because of her union or protected con-
certed activities, or belief thereof. Thus, I am persuaded
that the facts are insufficient to reveal that the Respon-
dent had knowledge of Tilton's having engaged in union
or protected concerted activities. Further, the facts relat-
ing to Tilton's accident on December 5, 1977, in the con-
text of all the facts, reveal an insufficiency of facts to es-
tablish that Tilton's discharge was because of her union
or protected concerted activity.
The General Counsel presented no direct evidence of
company knowledge of union activity prior to the
Union's telephone call to the Respondent on December
6, 1977. The evidence as to the exact time of day of such
telephone call is insufficient to reveal that the telephone
call was made prior to the discharge of Tilton on the
same day. The General Counsel argues that an inference
of company knowledge of union activity of Tilton
should be drawn. The facts reveal that the Stantons en-
gaged in union discussion with employees prior to
Thanksgiving (November 24), talked to the union agent,
Stahl, on or about November 24, to fellow employees
thereafter, that there was activity on December as to a
meeting to be held on December 2, and that a union
meeting was held on December 5, 1977. Tilton's part in
all such activity was some discussion with fellow em-
ployees about the Union, notifying fellow employees on
December 1 of the December 2, 1977, meeting, atten-
dance at the December 5, 1977, meeting, the signing of a
union card on December 5, 1977, and some discussion
with employees about the Union before work on the
morning of December 6, 1977. The General Counsel's
theory of why an inference of company knowledge
should be drawn is based upon a theory that where a
small number of employees work in a small operation,
that the so-called "small plant" doctrine of inference is
applicable. Essentially, such theory is grounded upon an
inference based upon circumstantial evidence. In this
case, little effort was expended to reveal assembly line
type work or the fact that union activity would inevita-
bly be noticed by supervisors or the Respondent. The
General Counsel elicited testimony to the effect that su-
pervisors and employees met in the trailer office, that ev-
eryone used the office. The facts indicate a small oper-
ation by the Respondent. The size of the over-the-road
division, however, was not revealed. From the nature of
the small operation of the Respondent, it does not appear
that a supervisor would constantly be in the trailer office
when employees were there. Further, the testimony of
Karen Stanton was to the effect that until December 13,
1977, employees attempted to keep their union activities
hid. Thus, as a matter of circumstantial evidence, ques-
tion of timing of events and other facts must be consid-
ered in determining proper inferences to be drawn. Con-
sidering the timing of events and the evidence relating to
plans for hospitalization, I am persuaded that circumstan-
tial evidence reveals that the Respondent knew that
there was union activity engaged in by its employees by
November 29, 1977. 9 This, however, does not warrant a
finding that the Respondent knew of specific employee
involvement in union activity. As to whether the Re-
spondent had knowledge of Tilton's union activities,
other facts must be considered. Thus, consideration of
Tilton's union activities, the admitted accident on De-
cember 5, 1977, the asserted reason for discharge on De-
cember 6, 1977, the Respondent's treatment of other em-
ployees who have had accidents must be considered, and
the timing of events. The timing of events as to Tilton's
discharge has little persuasive tilting value. Thus, the ac-
cident for which Tilton was discharged on December 6,
1977, occurred on December 5, 1977. Much of Tilton's
union activities occurred on December 5 and 6, 1977.
Thus, the timing of events has as much meaning relating
to a discharge not violative of the Act as to a discharge
violative of the Act. Although details as to the damages
actually incurred as a result of the accident were not
precisely presented, the burden in this case as to such de-
tails, if an inference of company knowledge of union ac-
tivities were to be drawn, is on the General Counsel. In
sum, the facts are insufficient to reveal that the Respon-
dent had knowledge of Tilton's union activities at the
time of the December 6, 1977, discharge of Tilton, and
the facts are insufficient to reveal that the discharge of
Tilton was because of her union or protected concerted
activity.
9 Thus, the Stantons were the active leaders of the attempt to organize
a union and were engaged in such activity prior to November 29, 1977.
Hicks knew of the Stantons' interest in hospitalization insurance. Thus. I
am persuaded that considering the Stantons' union activity and the small-
ness of the Respondent's operations, that the November 29. 1977. insur-
ance contact by the Respondent was initiated to create a blunt to their
reasons for unionization
K & B MOUNTING. C.
.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Promise of Benefits; Grant of Benefits
The General Counsel alleged and the Respondent
denied that:
1. The Respondent, by President McNamee, on De-
cember 13, 1977, at its South Bend facility, promised its
employees health insurance, paid holidays, vacation pay
and other benefits if they refrained from becoming or re-
maining members of the Union, or giving any assistance
or support to it, or in order to induce them to do so.
2. The Respondent, on or about December 26, 1977, at
its South Bend facility, granted to its employees holiday
pay and other benefits or improvements.
The facts
As has been indicated, the Respondent has two divi-
sions of employees at its South Bend facilities. One divi-
sion, over-the-road drivers, was represented by the
Union at all times in 1977. Employees of the other divi-
sion, metro drivers, were the ones involved in the union
organizing efforts in November and December and as to
which the Respondent recognized the Union as bargain-
ing agent in January 1978.
In August 1977, President McNamee credibly testified
that he and Hicks discussed the idea of covering the
metro drivers with Blue Cross insurance, paid hospital-
ization benefits, and vacation pay. McNamee's testimony
as to his August discussion with Hicks is silent other-
wise. Thus, the facts do not reveal that there was any
definite agreement to provide such benefits to employees
or that there was any agreed timetable for the institution
of such benefits.
The facts, as already indicated, reveal that the Stan-
tons had commenced union organizational efforts prior
to November 24, 1977. The overall facts, including the
timing of events relating to the Union's contact with
McNamee and McNamee's December 13, 1977, response
by the meeting with employees on December 13, 1977,
and announcements thereat, and the Respondent's further
December 19, 1977, response in discriminatorily selecting
certain employees for layoff, persuade that the Respon-
dent had knowledge of the Stantons' union activity and
of general union activitiy by employees by November
29, 1977.
On November 29, 1977, McNamee contacted Blue
Cross in Indianapolis and made an appointment with
Blue Cross for a mutually convenient date on December
13, 1977. The mutually convenient date, according to
McNamee's testimony, was one tied in with the date of a
regular drivers meeting at South Bend, Indiana.
On December 13, 1977, McNamee appeared at the
South Bend facility for a regularly scheduled metro driv-
ers meeting.x° At this meeting McNamee spoke to em-
ployees about work problems, and about certain new
benefits the Respondent was granting the employees im-
i' Whether McNamee made an unusual appearance or not is not estab-
lished by the record. Thus, the General Counsel's witnesses, who testified
to the effect' that this meeting was the first time they had seen McNamee,
were all reasonably new employees. McNamee's testimony did not allude
to whether he regularly attended such meetings. It is clear that McNa-
mee was not regularly at the South Bend facility. Whether or not he
made reasonably regular appearances at drivers meetings, however, is not
revealed.
mediately. McNamee did not mention the Union in any
way in his talk with employees.''
What occurred at the December 13, 1977, meeting is
revealed in more detail by the following credited ex-
cerpts from Karen Stanton's testimony.
(Questioning by Gray, counsel for the General
Counsel)
Q. What are you referring to? On December 13
what happened?
A. Mr. McNamee came from Detroit and called
a meeting in the office of all the drivers.
Q. Where was it held?
A. On Ireland Road.
Q. The yard office?
A. Yes. He offered us insurance, pay for the rail
which we had not been receiving.
Q. Will you explain that, please?
A. Well, we would drive our trucks from the rail
at Chippewa to Ireland Road for no pay. This work
sometimes took three hours out of a day, and I have
worked it as much as six hours a day and there was
no pay. And he offered us a dollar for each truck
we would bring from the rail to the yard. He of-
fered us insurance saying if we had six months em-
ployment we would be eligible for insurance, holi-
day pay. These are things we had nothing before.
Q. What do you recall Mr. McNamee saying at
this meeting?
A. He told us of a lot of problems he was having
with Ford, meetings he had had with Ford and was
still yet to have with Ford concerning the vans and
cutaways and the economic problems of the busi-
ness. And then he talked of some of the accidents
that had taken place and how this was hurting the
company because of the damage to the trucks and
the cost to the company. During, I do remember
those were discussed and then he offered all the
rest.
Q. Before this had you received any benefits of
the type listed on General Counsel's Exhibit 2?
A. None. None.
(Questioning by Mr. McNamee, for the
Respondent)
Q. When you answered Mr. Gray's questions
about our meeting you covered just about every-
thing I did cover in that meeting. That is correct.
Just one item. And that was-now correct me or
just answer yes or no. Did I at that time bring up
'' Respondent's' answer contains averments in the nature of admissions
to the effect that Respondent was aware on December 13, 1977, of a
demand by the Union that it meet in reference to negotiations as the the
metro drivers, in Washington, D.C., on December 19, 1977, and that on
December 13, 1977, while McNamee was in South Bend, Indiana, he at-
tempted to telephone Wardlow about the Union's request for bargaining.
K & B MOUNTING, INC. 581
anything about our employees' appearance and con-
duct when delivering these vehicles to given desti-
nations?
A. Yes.
Q. I believe-did I bring up the handling of new
vehicles in transit such as speed, following other
drivers too closely types of things like this?
I don't really remember. I do remember speaking
of rail damage and being careful to inspect.
The parties stipulated to the effect that shortly after
the December 13, 1977, meeting the Respondent posted a
notice as follows:
EFFECTIVE: JANUARY 1, 1978
I. INSURANCE
BLUE CROSS: TO BE COVERED YOU MUST HAVE
WORKED 26 WEEKS.
II. HOLIDAYS: SIX (6) PAID
MEMORIAL DAY
JULY 4TH
LABOR DAY
THANKSGIVING DAY
CHRISTMAS DAY
NEW YEARS DAY
WILL BE PAID AT RATE OF $5.00 PER HOUR BASED
ON AN 8 HOUR DAY.
TO QUALIFY YOU MUST HAVE WORKED 26 WEEKS
AND YOU MUST MAKE AT LEAST 18 TRIPS THE WEEK
THE HOLIDAY FALLS IN.
III. VACATION PAY:
AN ANNUAL VACATION OF ONE WEEK WITH PAY
SHALL BE GRANTED TO ALL EMPLOYEES, WHO HAVE
WORKED 12 MONTHS, FOR THE FIRST YEAR AND
EACH YEAR THEREAFTER UP TO THE THIRD YEAR.
A VACATION OF TWO WEEKS WITH PAY WILL BE
GRANTED TO ALL EMPLOYEES WHO HAVE WORKED
THREE YEARS.
VACATION PAY WILL BE COMPUTED @ $5.00 PER
HOUR AT 40 HOURS PER WEEK.
IV. VEHICLES FROM RAIL HEAD
YOU WILL BE PAID AT THE RATE OF $1.00 PER
VEHICLE FOR EVERY VEHICLE YOU BRING FROM THE
RAIL HEAD TO YARD.
IN THE EVENT OF ANY CHANGE IN RAIL UNLOAD-
ING WE WILL PASS THIS $1.00 ONTO THE LOCAL DE-
LIVERIES YOU MAKE.
Contentions and conclusions
The General Counsel alleges and contends in effect
that the Respondent, on December 13, 1977, promised
employees benefits if they refrained from union activities,
and shortly thereafter established such changed benefits.
The Respondent's trial questioning and evidentiary pre-
sentation and argument raise a question as to whether
there is a defense that the referred-to benefits had been
determined prior to the question of unionization and
whether the purpose of the promise, announcement, and
establishment of benefits was to discourage union activity
or was the accordance of treatment of benefits without
regard to unionization.
I have carefully considered all of the facts and am per-
suaded that the December 13, 1977, talk as to benefits
and the subsequent notice and establishment of benefits
were timed to interfere with, restrain, and coerce the em-
ployees into refraining from union activities. Thus, all of
the facts and the timing of events persuade that the Re-
spondent was aware on November 29 and December 13,
1977, that employees were engaged in union activities.
The facts do not reveal that prior to November 29, 1977,
the Respondent had decided to grant new benefits to em-
ployees. In this context, the Respondent approached
Blue Cross insurance representatives on November 29
and timed a meeting with Blue Cross so that benefits
could be announced at the time of a regular drivers
meeting. Further, there is no evidence of any consider-
ation prior to December 13, 1977, of the granting of a
benefit as to pay for movement of vehicles from the rail
head to the yard. The Respondent's answer includes
averments, having the effect of admissions, that the Re-
spondent was aware of a union demand made on Decem-
ber 6, 1977, that the Respondent met with the Union in
Washington, D.C., on December 19, 1977, and that
McNamee, on December 13, 1977, while in South Bend,
Indiana, attempted to call Wardlow for the Union about
a prior negotiation demand. While some questions as to
timing of events may be coincidental and only arouse a
suspicious interest in the area of probability of reasons,
the timing of events in this case, in the context of all of
the facts, results in persuasion that the promise of bene-
fits to employees on December 13, 1977, and the later es-
tablishment of the promised benefits, were for the pur-
pose of interfering with, restraining, and coercing em-
ployees in order to get them to refrain from engaging in
union activities. It is true that McNamee did not express-
ly couple the promise and establishment of benefits upon
the employees' refraining from union activities. In the
context of the facts, however, it is clear that the promise
of benefits and establishment of benefits were impliedly
made upon such premise. 2
In sum, I conclude and find, as alleged, that the Re-
spondent violated Section 8(a)(1) of the Act by promis-
ing new benefits to employees on December 13, 1977,
and by the establishment shortly thereafter of new bene-
fits for employees.
L2 Some of the testimony of the General Counsel's witnesses indicated
that McNamee promised the benefits immediately. There is no evidence
that any benefits were received by employees prior to January 1978.
Since the written notice as to the establishment of benefits indicated that
the new benefits were effective on January 1, 1978, 1 am persuaded that
the General Counsel's witnesses' testimony of promise of benefits effec-
tive immediately constituted an intepretation that the establishment of
new benefits would be immediate and that the promise of benefits effec-
tive immediately meant that he policy for new benefits would be estab-
lished immediately
K &  MOUNTING, I C. 1
-
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The Discharge of Judy P. Chlebek on December
16, 1977
Judy Chlebek commenced her employment with the
Respondent on November 9, 1977, as a metro driver.
During her first days as an employee, Chlebek engaged
in some speeding and "tailgating" while driving. Fellow
employees warned her about such driving, and Chelbek
ceased such type driving. Manager Hicks also spoke to
her about her driving around the end of November 1977,
as is revealed by the following credited excerpts from
her testimony.
Q. And how did it come about? What was said?
A. He called me in his office and he said I have
heard that you have been speeding and tailgating
and revving engines over at the rail, and I said wait
a minute, I don't know about the others but I, you
know, I tailgated a couple of times but I won't
admit to the others. I don't understand this at all
you know. And he said well, he says I'm not out
there with you, I can't see what you are doing, I
am just going by what people told me. Again he
wouldn't say who told him. I don't know how he
could know.
Q. What did you say?
A. I told him, I said if you think so I will listen, I
will definitely watch, which I did. But I said no.
The facts are clear that Chlebek, from a point of time
in early or mid-November to the time of discharge (De-
cember 16, 1977) did not engage in speeding or tailgat-
ing. In the meantime Chlebek engaged in some union
talk in November 1977, attended the December 5, 1977,
union meeting, and signed a union authorization card at
such meeting. Chlebek also attended a union meeting on
December 15, 1977.
On December 16, 1977, the Respondent discharged
Chlebek as is revealed by the following credited excerpts
from Chlebek's testimony.
Q. What if anything happened on December 16?
A. That morning I went to work and he, you
know, did his usual morning stuff.
Q. Now, who is this?
A. Pardon?
Q. You say he?
A. Oh. Ed Hicks. And everybody went out,
started going out the door. And he called my name
and I went into his office and he said you have been
reported speeding, I can't use you any more, turn
your plates in. I said that's a lie, I haven't been
speeding, I can prove it, I want to know who said
it. He wouldn't give me any names. He said he was
just going by what people told him, but he couldn't
prove any of it, he wouldn't prove any of it to me.
Contentions and conclusions
The General Counsel contends in effect that the Re-
spondent discharged Chlebek on December 16, 1977, be-
cause it believed chlebeck had engaged in union activi-
ties, and that by such conduct the Respondent has violat-
ed Section 8(a)(3) and (1) of the Act. The Respondent
contends that it discharged Chlebek for cause and not
for reasons violative of the Act.
Considering all of the facts, I am persuaded that the
facts reveal that the Respondent discharged Chlebek on
December 16, 1977, because it believed she had engaged
in union activities. Thus, the facts clearly reveal that
Chlebek engaged in union activities of a significant
nature. As previously indicated, the facts warrant that an
inference be drawn, and I draw such inference, that the
Respondent knew before November 29, 1977, that em-
ployees were engaging in union activities. Such inference
of Respondent's general knowledge of union activities
does not necessarily include a specific inference of
knowledge as to an individual employee's union activities
or interests. Other surrounding facts bearing upon the
issues must be considered. As previously indicated, the
facts surrounding the discharge of Tilton are insufficient
to reveal that the Respondent had knowledge of Tilton's
union activities. The facts relating to Chlebek's dis-
charge, however, are different and warrant an inference
in consideration of all of the facts that the Respondent
had specific knowledge of Chlebek's involvement in
union activities. Thus, the reason asserted for Tilton's
discharge was not unreasonable under the circumstances.
The reason used by the Respondent for the discharge of
Chlebek, under all the circumstances, is clearly pretex-
tuous. Chlebek's faulty driving, speeding, and tailgating
occurred at an early point of employment and had been
corrected by her long prior to the time of her discharge.
The Respondent has spoken to her about such faults at a
point of time long before her discharge. Since there had
been no continuation by Chlebek of such faulty driving,
it is clear that the Respondent used such reason for dis-
charge in a pretextuous sense. This being so, such cir-
cumstances surrounding Chlebek's discharge is persua-
sive when considered with all of the facts that the Re-
spondent had knowledge of Chlebek's union activity at
the time it decided to discharge Chlebek.
As indicated previously, the facts are clear that the
Respondent had a bias against unionization of the metro
drivers.
Considering all of the foregoing, the pretextuous
nature of Chlebek's discharge under all the circum-
stances, the facts preponderate for a finding that the Re-
spondent discharged Chlebek on December 16, 1978, be-
cause of its belief that she had engaged in union activi-
ties. Such conduct is violative of Section 8(a)(3) and (1)
of the Act. It is so concluded and found.
F. The December 19, 1977, Layoffs
As has been indicated, the Respondent's metro division
consisted of approximately 20 employees who worked on
two crews in the delivery of recreational vehicles from
the railhead to the Company and from the Company to
the customer. Each crew had a shuttle bus for use in re-
turning drivers from the customer sites to the Company.
The exhibits in the record reveal that the total employee
complement during the period of time from December
12 to December 19, 1977, varied from 19 to 20, and that
the number of employees working daily varied from 16
to 19. One of the total employee complement, Motts, had
apparently broken an arm and did not work during such
K r B UNTING, INC. 583
period. It appears that on Saturday, December 17, 1977,
that in addition to Motts who was absent because of
injury, two other employees, Platz and Ferger, were
absent. The evidence is sketchy as to the details of what
occurred on December 17, 1977. Whether or not there
were some employees late in reporting to work to accen-
tuate the absenteeism of Motts, Ferger, and Platz is not
revealed. It is clear that Manager Hicks was angry with
the failure of some employees to show up for work on
Saturday.
It appears that as of Friday, December 16, 1977, Man-
ager Hicks had planned to commence vacation leave on
Monday, December 19, 1977. Despite this, and apparent-
ly partly as a result of his displeasure with employees'
not showing up for work on Saturday, December 17,
1977, Manager Hicks appeared at work on December 19,
1977, slightly after normal starting time, spoke to em-
ployees and told the employees in effect that he was
going to run only one shuttle crew and was going to lay
off or terminate some employees. What occurred is re-
vealed by the following credited excerpts from Karen
Stanton's testimony.
Q. Now, the respondent admits you were laid off
on December 19. Would you tell what you recall of
that layoff?
A. Yes. The morning of the 19th, Mr. Ed Hicks
was our terminal manager, he was late for work
that morning. We had been in the trailer waiting on
him. And it was just a few minutes after eight
which we normally start work at eight and so we,
everybody, all of the metro drivers headed for the
yard to get a van and hook up and leave on a run.
As we got just through the gate Mr. Hicks pulled in
and you could tell by the way he was driving he
was upset because he just screeched in and the dirt
was flying and his tires spun. When he got out he
looked really angry and he said everybody back in
the trailer, I want to talk to you. So we all went
back into the trailer, the office. When he came in he
just fumed for a few minutes. He had his hands in
his pockets and he paced the floor. He said it looks
to me like some of you around here don't want to
work half of the time so therefore we are only
going to run one shuttle, I am going to call some
names, if you don't hear your name I can't use you,
turn in your plates. And my name was not called. I
did ask him after the people had started clearing out
of the trailer, the drivers that their names were
called, they went on to the yard to get a van and to
work. There were six of us that weren't called.
Some of them started out the door to their cars and
my husband started to the door and I said wait a
minute, I want to ask Ed something. I walked over
to him and I said Ed, what does this mean, you said
turn in your plates. Am I going to come back in a
couple of days, do you know how long it's going to
be? He said I don't want to talk about it and walked
away. And at this time there was so much work in
the yard that I couldn't understand what was going
on. I knew the man had been upset Saturday be-
cause several people hadn't shown up for work but
I wasn't one of them. I don't believe any of the six
that were let go that day were absent the Saturday
he was really mad about.
Although Hicks did not use the words terminate or
layoff in his remarks to the employees, his actions re-
vealed that he was handling the matter as a permanent
layoff or termination. Thus, in past layoffs, employees
had retained the license plates or dealer tags that they
were using. In this "layoff," however, employees were
told to turn in such license plates or dealer tags. The em-
ployees who were permanently laid off by Hicks on De-
cember 19, 1977, were Jackie Shuppert, Richard Stanton,
Karen Stanton, Jerry Fyffe, Dan Horak, and Richard
Whitmar. 1 3
In addition to the above facts, the General Counsel's
witnesses testified in composite effect that on December
19 there was a large number of vehicles in the Respon-
dent's yard, approximately 1,500 in number, and that
such compared with what should normally be a normal
work requirement. Kalmar testified that she kept inven-
tory, that there were not 1,500 vehicles in the yard, that
at the most there were normally 700 or 750 vehicles in
the yard, that there were times when vehicles in the yard
had to be checked or repaired, that because of snow, ve-
hicles were parked in such a way that 1,500 vehicles
could not be parked in the yard. From either version of
facts, I find that the Respondent's yard was full of vehi-
cles, and insofar as availability of vehicles for delivery
was concerned, there existed no shortage of vehicles for
delivery.
Hicks was not presented as a witness by the Respon-
dent. President McNamee testified but not about the
reason for nor the basis for the selection of employees
for layoff. Kalmar, a secretary for the Respondent, was
presented as a witness by the General Counsel, was ques-
tioned as to certain records pertaining to reprimands un-
related to the December 19, 1977, layoffs, and was ques-
tioned as to when she first became aware of the Decem-
ber 19, 1977, layoffs. Kalmar's testimony as compared to
statements made in a pre-trial affidavit, and in relation-
ship to her other testimony as to the December 19, 1977,
layoffs, revealed her to be attempting to justify the Re-
spondent's actions by rationalized testimony. Thus,
Kalmar testified that she called Hicks on December 19 to
tell him that there were not enough employees to man
two crews. The exhibit record of the employees at work
on December 19 reveals that there were enough employ-
ees present on December 19 to man two crews. Her pre-
trial statement was to the effect that Hicks called her and
told her to hold the crews until he got there, that he was
going to lay some employees off. I note, however, that
none of the employees adverted to being told by Kalmar
to await the arrival of Hicks, and that Kalmar did not
testify that she told the employees to await the arrival of
Hicks. Kalmar testified, after confronted with the fact
that there were enough employees to man two crews on
December 19, that there was only one operable shuttle
van. I find the testimony of Richard Stanton more credi-
ble on such point and credit that there were two shuttle
I' Sliter, an employee with lower seniority than most of the employees
laid off, had not engaged in union activitiy and was not laid off
K & B 8OUNTING, C.
I
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vans operable on December 19. The overall facts and the
testimony of what Hicks told employees clearly support
a finding that the reason for the December 19 layoffs
was not the lack of sufficient operable vans or because
there were not enough employees to man two crews.
Kalmar's testimony was jumbled, confused, and re-
veals itself to be speculative as to the reason for the lay-
offs. Kalmar, however, credibly testified to the effect
that there had been several customers, recreational vehi-
cle customers, who had telephoned the Respondent that
they were going to be closed for the Christmas and New
Year holidays, and that Hicks had talked about the fact
that some of the recreational vehicle centers were going
to be closed for the holidays and that maybe the Respon-
dent would have to "be down" during the 2-week holi-
day period.
Following the December 19 layoffs, unfair labor prac-
tice charges were filed on December 19 and 20, 1977, re-
lating to the layoffs and to the earlier discharges.
On December 22, 1977, Louis O'Banion quit his em-
ployment with the Respondent. On the same date,
Kalmar called President McNamee,14 mentioned Shup-
pert by name and was told by McNamee to call Shup-
pert back to work. Shuppert returned to work on that
date. On December 22, 1977, an employee named Youn-
kin was injured. As a result, the Respondent, on Decem-
ber 22, 1977, called Randy Whitmer back to work.
Whitmer returned to work on December 27, 1977.
Contentions and conclusions
The General Counsel contends in effect that the De-
cember 19, 1977, layoff was discriminatorily motivated
and engineered to get rid of Richard and Karen Stanton.
The Respondent contends that the layoffs were because
its RV customers were closing and that the selection of
employees for layoff was based on seniority. 5
Considering all of the facts, I am not persuaded that
the general decision to have a layoff on December 19,
1977, was made as part of an overall pretextuous move
to rid the Respondent of the two Stantons. Thus, I am
persuaded that Hicks was concerned over the fact that
he frequently did not have enough employees for two
full crews and that the yearend vacation period would
mean the need for less crews. Thus, I am persuaded that
the decision to operate only one crew was economically
motivated. However, considering the facts relating to the
union activities of the Stantons and Fyffe, the lack of
union activity by Jackie Shuppert and Sliter, the selec-
tion of the Stantons and Fyffe for layoff despite their
greater seniority than Sliter, the selection of Shuppert
and Whitmer for return to work prior to the return to
work of the Stantons despite the lesser seniority of Shup-
pert as compared to Richard Stanton, the selection of
Whitmer for return to work prior to the return to work
of Fyffe despite Whiter's lesser seniority, the Respon-
14 Hicks was on vacation at the time.
15 The Respondent's brief makes argument based upon some alleged
facts not presented into the record. Thus, as an example, the Respondent
argues that all but 3 of 28 of its customers were closed down until after
New Year's. The record does not contain facts to support this argument.
The Respondent's brief included an attachment purporting to be a senior-
ity list. Such list differs from the stipulated seniority list in the record.
dent's animus toward unionization of the metro employ-
ees, the Respondent's clear animus toward the Stantons
because of their union activities, and the other unfair
labor practices of the Respondent, I am persuaded that a
preponderance of the facts reveals that the Respondent
discriminatorily selected Richard Stanton, Karen Stan-
ton, any Jerry Fyffe for layoff on December 19, 1977.
Considering all the facts, the low seniority of Whitmer
and Horak, the fact that Whitmer and Horak's union ac-
tivities were slight, and the fact that the overall Decem-
ber 19, 1977, layoff was economic in nature, I am per-
suaded that the preponderance of the facts fail to reveal
that the selection of Horak and Whitmer for layoff was
discriminatorily motivated.
In sum, I conclude and find that the evidence reveals
that the Respondent violated Section 8(a)(3) and (1) of
the Act by the discriminatory selection of Richard and
Karen Stanton and Jerry Fyffe for layoff on December
19, 1977. And I conclude and find that the evidence is
not sufficient to reveal that the Respondent has violated
Section 8(a)(3) and (1) of the Act by the selection of
Horak and Whitmer for layoff on December 19, 1977.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Respon-
dent's operations described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, it will be recommended that the
Respondent cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It having been found that the Respondent discharged
Judy Chlebek on December 16, 1977, and discriminatori-
ly selected for layoff employees Richard Stanton, Karen
Stanton, and Jerry Fyffe on December 19, 1977, in viola-
tion of Section 8(a)(3) and (1) of the Act, the recom-
mended Order will provide that the Respondent offer
Chelbek reinstatement to her job, and make Chlebek,
Richard Stanton, Karen Stanton, and Jerry Fyffe whole
for loss of earnings or other benefits within the meaning
and in accord with the Board's Decisions in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977),16 except as specifi-
cally modified by the wording of such recommended
Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
the Respondent cease and desist from in any other
manner interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed by Sec-
tion 7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
' See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
K & B MOUNTING, INC. 585
CONCLUSIONS OF LAW
I. K & B Mounting, Inc., the Respondent, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Chauffeurs, Teamsters and Helpers Local Union No.
364, a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
3. By the discharge or layoff of certain employees Re-
spondent has discouraged membership in a labor organi-
zation by discriminating in regard to tenure of employ-
ment, thereby engaging in unfair labor practices in viola-
tion of Section 8(a)(3) and (1) of the Act.
4. By the foregoing and by interfering with, restrain-
ing, and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent en-
gaged in unfair labor practices proscribed by Section
8(a)(l) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER' 7
The Respondent, K & B Mounting, Inc., South Bend,
Indiana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
against employees in regard to hire or tenure of employ-
ment, or any term of condition of employment because
of their union or protected concerted activities.
(b) Promising to grant employees benefits and granting
employees benefits to dissuade them from joining or sup-
porting a union or engaging in protected concerted ac-
tivities.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act except to the extent
that such rights may be affected by lawful agreements in
accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Judy Chlebek immediate and full reinstate-
ment to her former position or, if such position no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or other rights previously enjoyed,
and make Judy Chlebek, Richard Stanton, and Jerry
Fyffe whole for any loss of pay or other benefits suffered
by reason of the discrimination against each in the
manner described above in the section entitled "The
Remedy."
(b)Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
? 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.
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at the Respondent's facility at South Bend, In-
diana, copies of the attached notice marked "Appen-
dix."'8 Copies of said notice, on forms provided by the
Regional Director for Region 25, after being duly signed
by the Respondent's representatives, shall be posted by it
immediately upon receipt thereof, and be maintained by
the 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 the Respondent to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director for Region 25, 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 of unlaw-
ful conduct not specifically found to be violative herein
be dismissed.
1' 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 Pursu-
ant 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
WE WILL. NOT discharge, lay off, or otherwise
discriminate against employees in regard to hire or
tenure of employment, or any term or condition of
employment because of their union or protected
concerted activities.
WE WILL NOT promise benefits to employees or
grant benefits to employees to dissuade them from
joining or supporting a union or engaging in pro-
tected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act
except to the extent that such rights may be affect-
ed by lawful agreements in accordance with Section
8(a)(3) of the Act.
WE WILL offer to Judy Chlebek immediate and
full reinstatement to her former position or, if such
position no longer exists, to a substantially equiv-
alent position, without prejudice to her seniority or
other rights previously enjoyed, and make Judy
Chlebek, Richard Stanton, Karen Stanton, and
Jerry Fyffe whole for any loss of pay or other
benefits suffered by reason of the discrimination
against each.
All our employees are free to become or remain, or re-
frain from becoming or remaining, members of any labor
organization, except to the extent provided by Section
8(a)(3) of the Act.
K & B MOUNTING, INC.
K & B MOUNTING, I C.
.