M.A.N. Truck & Bus Corp.

National Labor Relations Board - Board Decisions

Nov 27, 1984

272 N.L.R.B. 1279 (N.L.R.B. 1984)

M A.N TRUCK & BUS CORP. 1279
M.A.N. Truck & Bus Corporation and International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW.
Case 11-CA-10746
27 November 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 13 April 1984 Administrative Law Judge
Leonard N. Cohen issued the attached decision.
The General Counsel and the Company filed ex-
ceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, M.A.N.
Truck & Bus Corporation, Cleveland, North Caro-
lina, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
1 The General Counsel and the Company have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cu. 1951) We have carefully examined the record and
find no basis for reversing the findings
The General Counsel additionally suggests that the judge's interpreta-
tion of the evidence and his credibility determinations exhibit bias and
prejudice Having carefully examined the judge's decision and the record,
we are satisfied that any contentions in this regard are without merit
DECISION
STATEMENT OF CASE
LEONARD N. COHEN, Administrative Law Judge. This
matter was tried before me in Salisbury, North Carolina,
on July 18-21, 1983 On February 25, 1983, the Regional
Director for Region 11 issued a complaint and notice of
hearing based on unfair labor practice charges originally
filed on January 13, 1983. The complaint, as amended
both before and during hearing, alleges that Respondent
M.A.N. Truck & Bus Corporation discriminatorily issued
1 employee a written warning and discriminatorily dis-
charged 10 employees in violation of Section 8(a)(3) of
the Act. In addition, the amended complaint alleges that
Respondent engaged in numerous independent acts in
violation of Section 8(a)(1) of the Act. Respondent filed
a timely answer in which it denied the commission of
any unfair labor practice.
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Coun-
sel for all parties filed posthearing briefs, which have
been carefully considered.
On the entire record of this case' and from my obser-
vation of witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation licensed to do business in
North Carolina, with a facility located in Cleveland,
North Carolina, where it is engaged in the manufacture
of buses and trucks. Respondent annually sells and ships
products, goods, and materials valued in excess of
$50,000 directly to points located outside the State of
North Carolina. Respondent admits and I find and con-
clude that Respondent is now and has been at all times
material herein an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits and I find and conclude that Inter-
national Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW (herein
the Union or UAW), is a labor organization within the
meaning of Section 2(5) of the Act.
HI. UNFAIR LABOR PRACTICES
A. Background
In mid-1981 Respondent commenced its manufacturing
operations from temporary quarters in Statesville, North
Carolina, and in the late summer of that same year it
moved into its permanent facilities in Cleveland, North
Carolina, a small town some 20 miles distance from
Statesville. Although hiring of its work force was a
lengthy and an ongoing process, it appears that by at
least the early portion of 1982 Respondent had hired and
placed into position its full complement of approximately
750 employees. At all times material herein, Paul Remon-
dino occupied the position of plant manager and Gary
Kepley the positon of personnel manager. Between them
lay the responsibility for all the major actions and deci-
sions under scrutiny here.
From the inception of its North Carolina operation
Respondent made no secret of the fact that it desired and
intended to operate in a union-free environment. Thus,
its employee handbook contained the following.
1 Counsel for Respondent filed a motion to correct the transcript based
on his personal recollection of the testimony Although this motion was
not opposed, I do not share counsel's recollection of the testimony in
question and, therefore, I am compelled to deny It
272 NLRB No. 201
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNIONS
M A N Truck & Bus Corporation is union free and
as such an employee deals directly with manage
ment with the full right to think and speak for him
self It is not necessary nor will it ever be necessary
for you or anyone else to belong to a union in order
to work at this plant and be treated fairly
We are convinced that our employees prefer to deal
directly with us rather than through a union Our
employees have made progress because we have
been able to work together and work in harmony
Our philosophy is to do everything possible to con
ttnue and improve this excellent working relation
ship
In view of this we will oppose any attempt by a
union to break up the relationship that exists at
M A N Truck & Bus Corporation
It is quite possible that you may be approached by
union representatives in an effort to encourage you
to join them We ask that you take time to look at
the motives of the person interested in promoting a
union and make every effort to obtain the whole
truth Therefore if and when you are so ap
proached we would appreciate your seeking advice
and information from your Personnel Manager on
any questions you may have on this subject
In addition to disseminating this printed information
Respondent s officials during the interviewing and hiring
process personally informed applicants of Respondent s
sentiments on this subject
In February 1982 2 a very small group of production
employees met with a UAW representative at a local
motel to discuss the possibility of organizing Shortly
thereafter one of those employees present informed
Kepley of the meeting and of the identities of those em
ployees present Within a week or two of receiving this
information Respondent assembled all of its employees
into groups and showed them an antinunion film 3 The
showing of this film apparently had its intended effect
for the initial interest in unions petered out quickly there
after From that point in time until early October when
another small group of employees became active on
behalf of the Teamsters Union there was no union activ
ity of any note occurring among Respondent s employ
ees
In early October Danny Carlyle a former employee
and then current fiancee of production secretary Darlene
Dean contacted the Teamsters Union about starting an
organizing drive A meeting for employees was arranged
for October 13 at Carlyle and Dean s house About 20
employees attended and a second meeting was held a
week later At the second meeting 33 employees signed a
petition authorizing the Teamsters Union Local #71
(herein Local 71) to notify Respondent that they were
involved in the organizing campaign On October 21
2 Unless otherwise indicated all dates are 1982
3 The complaint does not allege any conduct by Respondent which oc
curred before September 1982 as unlawful The above recitation was of
fered and is recounted here merely as background
Local 71 sent Respondent a letter with the employees
petition attached
On October 22 Personel Manager Kepley informed
Darlene Dean that she was being replaced as production
secretary and had the choice of either transferring to the
Statesville warehouse at a higher paying job or being
placed on layoff Dean chose the latter alternative and
has not worked for Respondent since
Following receipt of Local 71 s October 21 letter Re
spondent through Remondino and Kepley again assem
bled the employees in groups and gave them antiunion
lectures or speeches which included the use of video
aids
In late October the UAW returned to the scene and
on October 28 their representative met with approxi
mately 15 employees and obtained their signatures on
union authorization cards 4 On November 9 the UAW
and its supporters handbilled at Respondent s plant with
leaflets or handbills announcing a second union meeting
for the following evening 5 This meeting was held as
scheduled Although the record is somewhat unclear it
does not appear that it was well attended This meeting
seems to have been the last overt organizing act by em
ployees on behalf of either Local 71 or the UAW
On November 19 Respondent discharged two produc
tion employees allegedly for the consumption of alcohol
during lunchtime and on December 3 Respondent dis
charged eight additonal employees allegedly for posses
sion and/or use of marijuana Of these latter eight six
were the direct result of reports to Kepley by an under
cover agent hired by Respondent in mid October to in
vestigate suspected widespread alcohol and drug use by
Respondent s employees
The General Counsel alleges that 9 of the 10 above
mentioned discharges were in violation of Section 8(a)(3)
of the Act Further the General Counsel alleges that Re
spondent s action in offering Dean the choice of either
transferring to a different work location or being laid off
in essence constituted a constructive discharge also in
violation of Section 8(a)(3) In support of these conten
tions the General Counsel alleges that Respondent
through various supervisors engaged in extensive inde
pendent violations of Section 8(a)(1) Many of these
8(a)(1) allegations are directly related to the alleged un
lawful discharges others bear no such direct relationship
other than in establishing a general and deep seated
union animus on Respondent s part For the sake of clar
ity and organization I shall include for discussion and
resolution those 8(a)(1) allegations bearing a direct rela
tionship on the discharges in those portions of this deci
sion dealing with particular 8(a)(3) allegations Those
8(a)(1) allegations not so related will be dealt with sepa
rately
Before discussing in detail the record evidence relating
to the complaint allegations a few preliminary words at
4 It appears that virtually all the employees attending the meetings and
otherwise engaging in activities on behalf of the UAW had also signed
the petition for Local 71
5 While the record is not entirely clear it appears that Local 71 s orga
riming campaign was aborted when the UAW came back Into the picture
in late October
M A N TRUCK & BUS CORP

1281
this time may be helpful with regard to the credibility
issue presented here. As Administrative Law Judge
Schlesinger so insightfully observed in Gas Walker's Cash
Stores, 249 NLRB 316, 321 (1980):
Resolution of credibility conflicts are often diffi-
cult, requiring the weighing of equally plausible
narrations of testimony of witnesses who appear to
be telling the truth and who are no more prejudiced
and biased than others who are telling a wholly dif-
ferent story. °fumes, there are no fatal inconsisten-
cies nor contradictions for the determiner of factual
issues to seize on to arrive at a firm conclusion. In
those instances, the trial judge or jury must rely on
a sixth sense and instinct, which makes the resolu-
tion of certain conflicts somewhat unsatisfactory,
leaving the chance, sometimes slight and many
times significant, that the final decision was errone-
ous. A reasonable doubt remains.
Fortunately for me, the situation referred to above is
not present here. With the notable exception of Darlene
Dean, the major witnesses presented by the General
Counsel proved to be generally unworthy of trust. Four
of those discharged on December 3 admitted under
cross-examination that they had lied when in giving their
initial sworn affidavits to the Board they denied ever
using marijuana during the workday, the offense for
which each was discharged. The testimony of others on
crucial points was for the most part either directly con-
troverted by the credible and often corroborated testimo-
ny of their fellow employees, or so absurd on its face as
to render it totally improbable. In contrast, the testimony
of Respondent's major witnesses was generally mutually
and internally consistent, complete, and not inherently
improbable Thus, even apart from demeanor consider-
ations which at times in the instant case were not insub-
stantial, I was generally unable to credit crucial portions
of much of the testimony of the Government's witnesses.
Particular reference to credibility matters will be dealt
with below when discussing the individual discharges in
question 6
B. The Independent 8(a)(I) Allegations
1. The no-solicitation rule
The employee handbook issued to all new employees
from the commencement of Respondent's North Carolina
operations until October 1982 contained some 30 sepa-
rate shop rules Section II of these shop rules provided
that certain acts or conducts were prohibited under
6 The facts found herein are based on the record as a whole and on my
observation of the witnesses The credibility resolutions herein have been
derived from a review of the enure testimonial record and exhibits with
due regard for the logic of probability, the demeanor of the witnesses,
and the teaching of NLRB v Walton Mfg Go, 369 U S 404, 408 (1962)
As to those testifying in contradiction of the findings herein, their testi-
mony has been discredited either as having been in conflict with the testi-
mony of credible witnesses or because it was in and of Itself incredible
and unworthy of belief All testimony and evidence, regardless of wheth-
er mentioned or alluded to herein, has been reviewed and weighed in
light of the entire record
threat of "correction action." Rule 7 of that section pro-
vided.
Unauthorized soliciting Absence from department on
personnel business without prior approval of supervisor.
On October 1982 Respondent adopted a new and more
comprehensive no solicitation/no-distribution rule
At hearing Respondent admitted that the rule as origi-
nally set forth in the employee handbook violated Sec-
tion 8(a)(I) of the Act. The General Counsel does not
contend that the new rule similarly violates the Act. It is
clear that under either the applicable Board standard at
the time of this rule's existence 7 or under the newly an-
nounced standard 8 rule 7 amounted to an unlawfully
broad no-solicitation rule and thereby violated employ-
ees' Section 7 rights. Accordingly, I find that this com-
plaint allegation has been sustained.
2. Production Manager Louis Smith's conversations
with Christina Benefield
At the opening of hearing the General Counsel moved
to amend the complaint by adding allegations that Pro-
duction Manager Louis Smith interrogated employees
concerning their union activities and solicited employees
to inform him about the union activities of other employ-
ees This motion was granted over Respondent's objec-
tion.
Current employee Christina Benefield testified that on
the day of the second Teamsters meeting in mid-October,
then Production Manager Louis Smith approached her at
her work station and inquired whether she was going to
the meeting that evening. When Benefield answered that
she was, Smith asked her to let him know who attended
and what occurred
The following day the two had a second conversation
in the production area. Smith asked Benefield who had
attended and what had been said. When Benefield re-
fused to give him the information, Smith stated that he
did not need her to tell him since somebody else already
had done so.
Smith was discharged by Respondent on October 21,
1982, and did not testify at hearing. On brief, Respondent
advances two reasons in support of its contention that
these complaint allegations must be dismissed. First, Re-
spondent argues that by permitting the amendment of the
complaint during the hearing Respondent was denied
"adequate notice or fair opportunity to prepare a defense
and Respondent was thus deprived of procedural due
process" I find this argument totally lacking in merit.
The complaint, as issued already, contained seven sepa-
rate subparagraphs alleging various and sundry Independ-
ent violations of Section 8(a)(1) Some of these allega-
tions related to alleged interrogations and threats that
employees would be discharged because of their union
activities. One of the allegations specifically accuses the
very same production manager, Louis Smith, as having
threatened employees in mid-September with "unspeci-
fied consequences" because of their union activities.
7 T R W Inc , 257 NLRB 422 (1981)
8 Our Way, Inc , 268 NLRB 394 (1983)
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus the allegations added at hearing were closely relat
ed to or identical with the existing complaint allegations
in time substance and identity of perpetrator Moreover
at no time during the hearing did Respondent ever re
quest adjournment of the hearing to secure Smith s pres
ence in the courtroom In these circumstances Respond
ent s reliance on the holding of the Seventh Circuit in
NLRB v Complas Industries 714 F 2d 279 (7th Cir
1983) is misplaced and does not substantiate Respond
ent s position that it was denied the process it was due
Respondent next argues that even though uncontro
verted Benefield s testimony should not be credited Ad
mittedly Benefield was not an impressive witness First
she had a tendency to greatly exaggerate the facts Thus
she opined that 75 percent of the people who worked at
Respondent s facility came to work drunk on occasion
As will be detailed below while Respondent suspected
that it had problems with alcohol and drug abuse no one
shared Benefield s overly zealous view of its extent
Second her demeanor on the witness stand did not instill
great confidence in the listener that she could be trusted
entirely I closely observed her while she testified She
appeared to take her oath somewhat lightly and seemed
generally more interested in testifying in a manner that
she perceived as benefiting the Union s case rather than
accurately and truthfully answering all the questions
posed Nothwithstanding such misgivings I am not per
suaded that her testimony on those occasions when not
controverted can be entirely ignored or rejected There
fore with little enthusiasm I credit Benefield s account
of her mid October conversations with Smith
Smith s remarks amount to an interrogation of Bene
field concerning her and her fellow employees union ac
tivities as well as an attempt on his part to solicit Bene
field to act as his informant at the union meeting Apply
ing the appropriate objective standard there can be little
doubt that these acts interfered with restrained and co
erced an employee in the exercise of her Section 7 rights
and thus violate Section 8(a)(1) as alleged
3 Paul Remondino s November 23 speech to
employees
On Tuesday November 23 Plant Manager Paul Re
mondino gave a speech to the production employees in
which he stressed the need that Respondent meet its pro
duction schedule for completing the buses ordered by
the Chicago Transit Authority (herein the CTA) Re
mondino then announced that as an inducement to in
crease their effort he was offering extra paid holidays if
certain specified production quotas were met before the
end of the year No mention of any union was made
during this meeting
Remondino explained at hearing that Respondent was
having severe problems in fulfilling in a timely fashion
the delivery requirements called for in their contract
with CTA and if the deliveries were not made on or
before December 31 Respondent faced substantial finan
cial penalties under a liquidated damage clause Remon
dino further explanied that since Respondent was a new
company its ability to attract new customers depended in
large measure on its reputation for satisfying customers
None of the p oduction quotas established and an
nounced by Remondmo at this meeting were met and
therefore none of the employees received any additonal
paid holidays
The General Counsel contends° that Remondino s an
nouncement of the bonus plan was merely part and
parcel of Respondent s overall antiunion campaign and
that the inference can and should be drawn that these re
marks were intended to discourage and undermine sup
port for the union This contention lacks any evidentia
ry underpinnings Remondino s uncontroverted and in
herently plausible testimony establishes that valid busi
ness considerations wholly apart from any concern about
an ongoing union campaign existed and in fact motivat
ed him in trying to increase production Accordingly
absent some more substantial evidence regarding the tile
gality of Remondino s motive I recommend that this
complaint allegation be dismissed
4 January incident with Brady Hatley
On the afternoon of Monday January 24 1983 Cap
tam Robert Ehlers supervisor of security at Respondent
and an employee of Wackenhut conducted a check of
the lunchboxes and other containers being carried out of
the plant by employees The purpose of the procedure
like the three or four that preceded it was to search for
company tools that were being removed from the plant
without authorization On this date Ehlers searched the
property of between 300 and 400 employees One of the
three employees from this group detained by Ehlers was
Brady Hatley a welder who had been active on behalf
of the UAW
According to Ehlers account after he opened or had
Hatley open the plastic shopping bag used by Hatley as a
lunchbox Ehlers placed his hand into the bag and felt
what he later described as a small wire tool While look
ing inside Ehlers also saw several cards which he recog
nized as UAW authorization cards At this point Ehlers
simply instructed Hatley to stand aside with two other
employees who he had earlier detained for suspicion of
having company tools in their lunchboxes The three em
ployees were then kept waiting for approximately 20
minutes until Ehlers completed his search At that time
Ehlers then took the three to Kepley s office
On direct examination Hatley testified that when
Ehlers looked into his bag and saw the union cards he
asked what the hell are these When Hatley responded
that they were union cards and his property Ehlers
commented that Kepley had to see them On cross ex
amination Hatley testified that upon inspecting his bag
Ehlers actually pulled the union cards out of the bag
while looking at them
Kepley and Ehlers both testified that when Hatley was
taken into Kepley s office Kepley asked for and was
given permission by Hatley to inspect Hatley s bag In so
doing Kepley first removed the union cards without
9 Counsel for the Charging Party took an active role in all phases of
this litigation At trial and in his own brief he joined the General Counsel
in arguing on behalf of all complaint allegations Thus when I make ref
erence to the General Counsel s arguments and contentions I mean to
indicate that these are also the arguments and contentions advanced by
the Charging Party
MAN TRUCK & BUS CORP
1283
comment and then asked Hatley what the wire tool was.
When Hatley explained that it was his own personal tool
used to unclog welding torches, Kepley instructed
Ehlers to allow Hatley to leave. In Hatley's version,
Kepley saw both the union cards and the wire tool
during his inspection of the bag, but said nothing other
than instructing Ehlers to let him go
The General Counsel contends that Ehlers' conduct in
first examining the union authorization cards in plain
view of the other employees and in then commenting
that Kepley "had to see them" constituted interference
with Hatley's Section 7 rights and had a restraining and
coercive effect on both Hatley and the other employees
present at the inspection table when this incident oc-
curred. Contrary to the General Counsel's position, I am
persuaded that Ehlers' account of the incident is more
reliable than is Hatley's and thus, I find there has been
no Interference with employees' Section 7 rights as al-
leged. In reaching this conclusion, I found it quite signifi-
cant that it was only in response to a question on cross-
examination that Hatley recalled the highly improbable
occurrence that Ehlers took the union authorization
cards out of the bag, held them in plain view, and then
commented that Kepley would "have to see them."
Moreover, it was only with the greatest reluctancy that
Hatley, while on the witness stand, would even concede
that the wire tip cleaners he had in his bag constituted a
tool which might attract Ehlers' attention while conduct-
ing a search for company property. I find that this lack
of candor on Hatley's part does not enhance his overall
credibility. Therefore, I find that Ehlers, whose general
reliability as a witness will be disscussed infra, had a le-
gitimate right to retain Hatley at the inspection table and
nothing in his conduct in doing so violated Hatley's stat-
utory rights. Accordingly, I recommend that this com-
plaint allegation be dismissed.
C. The Discharges
1. Richard Grant/Sam Holland
a. Respondent's eindencei°
At lunchtime on Wednesday, November 17, Welding
Supervisors Ron Curlee and Jerry Watson were finishing
their lunches in the plant cafeteria when they observed
Sam Holland and Richard Grant returning to the plant
from the parking lot. Shortly after lunch Curlee, while
assisting Holland with a repair job, smelled alcohol on
Holland's breath. A few minutes later Curlee went to his
fellow supervisor Watson and asked him to check on em-
ployee Richard Grant to see if Grant likewise smelled of
alcohol Curlee then reported the incident to his immedi-
ate supervisor James Sides, general supervisor over
welding and fabrication. Sides then instructed both
Curlee and Watson to bring Holland and Grant into his
office. During the brief walk to Sides' office Curlee
asked Holland if he had been drinking. Holland respond-
ed, "Yes we have." At the bottom of the step leading to
10 The following account is based on an amalgam or composite of the
mutually corroborative testimony of Ron Curlee, Jerry Watson, and
Gary Kepley
Sides' office, Curlee encountered Grant and smelled al-
cohol on his breath Sides then called the two employees
and their supervisors into his office and indicated that
the question had come up as to whether they had been
drinking. Sides explained that the Company prohibited
the use of alcohol and instructed the employees to return
to work while he investigated and/or reported the inci-
dent. After Holland and Grant left, Curlee reported to
Sides Holland's admission that they had been drinking al-
cohol and the fact that he (Curlee) smelled alcohol on
Grant's breath while on the way to the meeting. Watson
then added that he had smelled alcohol on Grant's
breath while in Sides' office
Sides excused the two supervisors and immediately
sought out Kepley and explained the situation to him.
Kepley in turn paged Curlee, Holland, Watson, and
Grant to his office. On the way to Kepley's office Hol-
land asked Curlee if he were going to be fired. When
Curlee stated that he did not know, Holland stated,
"Richard has asked me to lie about it so we won't lose
our jobs." Curlee answered that he would not advise it
and that in view of Holland's earlier admission to him,
the matter had gone too far already. When they arrived
at Kepley's office Curlee spoke privately with Kepley
and told him of his previous conversations with Holland.
Holland was then called into the room and they asked
him where and with whom he had had lunch. Holland
answered that he had lunch with Grant at the little com-
munity store down the road from the plant. Kepley then
asked if they had had anything to drink. Holland an-
swered that he would tell Kepley the same thing he had
already told Curlee, that they had a couple of beers.
Kepley told Holland that he appreciated Holland's hon-
esty but that he was being suspended until the investiga-
tion was complete.
Kepley next called Watson and Grant into his office.
Kepley asked Grant the same quetion he had posed earli-
er to Holland, with whom and where had he had lunch.
Grant answered that he had lunch with Holland at the
community store. Kepley then asked if they had been
drinking at lunch. When Grant denied that they had,
Kepley informed him that Holland had already admitted
that they had. Grant answered that Holland was a liar.
Grant then was suspended pending further investigation
Following this meeting Kepley took the pictures of
Holland and Grant from their personnel files and took
them to the community store located a few hundred feet
from the plant. Kepley showed the pictures to Daniel
Gabriel, who at that time worked at the store as a cash-
ier." Gabriel told Kepley that he did not recognize the
first picture shown him (Holland's) but that he did rec-
ognize the picture of Grant as a regular customer. Gabri-
el further indicated that while he could not say that
Grant had been in the store on the day in question, he
could identify Grant as having been in the store to buy
beer on previous occasions during lunchtime.
On Friday morning, November 19, Kepley called Hol-
land and Grant into his office and told each that they
" In February 1983, Gabriel was hired by Kepley as an assembly line
worker and was still employed there at the time of the hearing
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were being discharged for violation of company rule sec
tion I rule 2 which prohibits under penalty of discharge
possession consumption or being under the influence
of alcohol beverages narcotics or intoxicants on compa
fly property which includes all parking areas Kepley
informed Holland that because of his honesty in admit
ting the transgression he could reapply for work in sev
eral months
Richard Grant was active on behalf of both Local 71
and the UAW He attended meetings for both talked to
other employees about both signed the October 21 peti
bon sent to Respondent by Local 71 signed a union au
thorization card on behalf of the UAW and solicited the
signatures of between 10 and 15 employees on UAW au
thorization cards In this latter regard Grant kept blank
authorization cards on the clipboard he frequently used
at his work station and on at least one occasion prior to
his discharge Watson his immediate supervisor had an
opportunity to see these cards Kepley in his testimony
readily conceded that he was well aware of Grant s
union activities at the time of the incident in mid No
vember Unlike Grant Holland took no active part what
soever in any of the union campaigns and there is no evi
dence to indicate that management mistakenly believed
him to be a union supporter
b Evidence of Grant and Holland and other rank
and file employees
Holland testified that once or twice a week he rode
with Grant to lunch at the community store located
across the street from the bank in Cleveland Tennes
see 12 While Holland admitted drinking beer at lunch
both on the day in question as well as on many other oc
casions he denied ever seeing Grant similarly imbibe In
this vein Holland also denied ever telling Curlee that
they had been drinking or that Grant had asked him to
lie in order to save Grant s job Holland testified that on
all the occasions he went to lunch at a community store
with Grant Grant purchased and drank a soda to go
with his hot sausage This testimony regarding Grant s
nondrinking habit is directly contradicted by Holland s
affidavit given to the Board agent conducting the origi
nal unfair labor practice investigation on February 2
1983 There Holland stated On past occasions Grant
would buy and drink a can of beer during dinner
[lunch] When this rather glaring inconsistency was
pointed out on cross examination Holland explained that
he had never actually seen Grant drinking beer he was
merely repeating what had been told to him by unidenti
fled supervisors There is nothing in his February 2 affi
davit which indicates that Holland was not describing
what he actually saw
Grant s performance on the witness stand was if any
thing even less impressive than Holland s Several exam
pies will suffice First Grant testified that the first time
Kepley called him into the office Kepley stated that he
'z There were two community or convenience stores located in the vi
cinity of the plant The one at which Gabriel worked is located approxi
mately 300 yards from the plant while the farther one is located a few
minutes drive Into the town of Cleveland Both Holland and Grant testi
fled that they went to the farther one for lunch
was going to ask him two trick questions Despite
Grant s statement before me that he would recall these
two questions ten years from now it was only after
much prompting and probing by counsel for Respondent
that Grant eventually established the two questions as
Have you ever been drinking on the job and have you
been fired on the job for drinking before Notwithstand
ing his assurances regarding his ability to recall those
trick questions far into the future his initial affidavit
given to the Board in late January makes no reference to
Kepley saying anything about his having been previously
fired for drinking Second on several occasions during
his testimony he specifically and clearly denied ever
seeing Holland drink beer during lunchtime As will be
recalled this testimony is directly contradicted by Hol
land himself Third and most significantly Grant s testi
mony regarding what transpired at the state unemploy
ment compensation hearing was utterly confused and
clearly indicated a wilingness on his part to attempt
albeit unsuccessfully to tailor his testimony to what he
perceived as his advantage Thus the following questions
and answers took place on cross examination
Q (By Mr Stewart) Did you hear what he (Hol
land) had to say on that occasion?
A Yes
Q Did you hear him say that he drank beer on
that occasion?
A I don t remember if he did or not
Q You have no recollection of whether Sam
Holland said in that hearing that he drank beer on
that day?
A No
Q Mr Grant in fairness wasn t that a big issue in
that case whether you and Sam were drinking beer
and Sam admitted that he was but would not admit
that you were drinking beer?
A Repeat that question
Q Wasn t the big issue that was either going to
make you get your unemployment or keep you
from getting your unemployment whether you were
drinking beer on that occasion with Sam Holland
and he admitted that he was but didn t admit that
you were drinking beer?
A No
Q What was it?
A Whatever they could figure out to stop me
from drawing unemployment
Q What did you say?
A Well
Q What did Mr Keply say?
A Mr Kepley he said that he had heard that I
was drinking and he had Ron Curlee to get up and
Ron Curlee said he smelled beer on me There were
a lot of questions
Q Kepley said he had heard you were drinking
beer Curlee said that he smelled beer on your
breath and you don t remember what Holland said?
A Well he well Mr Holland answered some
questions but I didn t pay no attention I don t
know what he said I know that he talked to a tape
M A N TRUCK & BUS CORP 1285
Q It wasn't of an importance to you what Mr
Holland said ? You didn't listen to it?
A. Yes, I was taking notes and listening to what he
had to say.
Q Kepley said he had heard you were drinking
beer. Curlee said that he smelled beer on your
breath and you don't remember what Holland said?
A. Well, he well, Mr. Holland answered some ques-
tions but I wasn't I didn't pay no attention, I don't
know what he said. I know that he talked to a tape.
Q. It wasn't of any importance to you what Mr.
Holland said you didn't listen to it?
A. Yes, I was taking notes and listening to what he
had to say.
Q. Did you look at those notes before you testified
today?
A No.
Q. Now?
A. I didn't have no reason to look at the notes.
[Emphasis added.]
Finally, Dana Monday, a former employee called as a
witness by the General Counsel, testified that one day
she accompanied Holland and Grant to lunch to the
community store in Cleveland On that occasion, both
Grant and Holland purchased beer and drank it in her
presence before returning to work. Grant was not re-
called as a witness to deny this testimony.
c. Discussion
The record evidence clearly and convincingly estab-
lishes that Grant, in violation of published company
rules, did, as charged, drink been with Holland during
the lunchbreak at the community store staffed by Daniel
Gabriel. Holland's and Grant's denials of such miscon-
duct on Grant's part are, quite simply, not worthy of
belief.
The General Counsel contends that, in any event, Re-
spondent treated Grant more harshly than it did other
employees because of Grant's union activities. In support
of this disparate argument, the General Counsel solicited
testimony from several witnesses that several rank-and-
file employees on occasion reported to work smelling of
alcohol and generally appearing to be in an inebriated
state.
Despite these conditions, the affected employee was
permitted to work and no disciplinary action was taken
against him. In each such case cited by the General
Counsel, the supervisor of the suspected employee was
called by Respondent as a witness. The supervisors con-
vincingly explained that despite appearances they deter-
mined that the employee in question had not been drink-
ing prior to work and was not under the influence of al-
cohol.
The record does establish, however, that on one or
more occasions former Production Supervisor Louis
Smith was guilty of imbibing alcohol on the premises
during the evening welding school conducted by Re-
spondent for prospective applicants and current employ-
ees. While this misconduct was known at the time to
several supervisors under Smith's direct supervision, the
credible record testimony indicates that neither these su-
pervisors nor anyone else ever reported Smith's miscon-
duct to Kepley
While Grant and Holland were the first employees to
be disciplined in any fashion for consumption of alcohol,
Respondent subsequently did discharge three other em-
ployees who reported for work in a highly inebriated
state. Two of these three cases occurred prior to the
filing of any unfair labor practice charge.
The printed shop rules do not specifically and precise-
ly cover the situation of employees' off-company-prem-
ises-consumption of alcohol in such quantities as not to
render them technically "under the influence" However,
Kepley, Watson, Curlee, and Sides all indicated that they
considered Grant's drinking of a single beer at lunchtime
off the company premises to be a violation of the rules
No credible evidence was offered that Respondent either
before or after this incident ever considered the quantity
of alcohol consumed as a consideration in determining
whether there has been a violation of the rule. While
such a strict interpretation of the rule may, in certain cir-
cumstances, appear unduly harsh, it does not, however,
necessarily follow that the ascribed reason for the disci-
pline is pretextual. Here, I am convinced that Responent
discharged Grant for the reasons stated, and not because
of his known union activities Further, I find no evidence
that he was disparately treated because of such activi-
ties." "An employee cannot insulate himself or herself
from discharge for cause simply because he or she hap-
pens to engage in activity protected by the Act" City
Products Corp., 251 NLRB 1512 (1980) Accordingly, I
recommend that this allegation be dismissed.
2 The discharges of Don Wagoner and Ricky
Bennett
a. Respondent's evidence"
On the morning of December 3 known or suspected
union adherents Don Wagoner and Ricky Bennett were
discharged by Kepley for allegedly smoking marijuana
on Respondent's premises." The events leading up to
this action actually started on the evening of Wednesday,
December 1 About 6 p.m on December 1, security
guard Reese Weiss was making his rounds securing all
doors when he encountered two men standing outside a
partially opened small door located next to a large rolled
up overhead bay door on the southeast side of the assem-
bly building. Weiss smelled a strong order of marijuana
and asked the two men what they were doing. When
they answered they were waiting for a forklift driver,
Weiss instructed them to lock the door Later that same
evening Weiss watched these two men clock out and se-
cured their names from the timecard. Prior to leaving at
the end of the shift Weiss prepared an "irregularity
' 3 Ohio Concrete Products, 244 NLRB 1161, 1164 (1979)
i4 following account is based on an amalgam of the mutually cor-
roborative accounts of Kepler, Ehlers, Supervisor Henry Sherrill, forklift
driver Raymond Ellis, and security guard Reese Weiss
i5 extent of their union activity and Respondent's knowledge
thereof, as well as certain alleged Independent 8(a)(1) allegations relating
to their discharges, will be discussed in detail below
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report describing the events and naming the two em
ployees as Don Wagoner and Ricky Bennett
On the following afternoon December 2 Captain
Ehlers after first reviewing the report with Weiss dis
cussed the matter with Kepley Ehlers told Kepley that
he intended to engage in surveillance of the same door
that evening in case there was a reoccurrence of the sus
pected drug use Kepley responded that Ehlers could do
as he wished but that he Kepley thought it would be a
waste of time
About 6 p m Ehlers took a position in an empty bus
parked approximately 50 to 75 feet from the rolled up
overhead door located on the southeast side of the as
sembly building Ehlers had to wait for only 15 to 20
minutes before he observed two men leave the building
through the small door and stand next to the opened
overhead door As soon as he saw one of the men light
up a cigarette and pass it to the other Ehlers left his ob
servation post in the bus and started making his way on
foot towards the building While still on his way a fork
lift was driven from around the corner and entered into
the building through the opened portal According to
Ehlers the forklift slowed but did not stop as it passed
the two men at the entrance of the building When
Ehlers got to within 10 or 15 feet of the door he ob
served Wagoner drop the cigarette on the concrete floor
and place his left foot over it Ehlers walked up to
where the two men were standing and smelled the strong
aroma of marijuana When Ehlers asked Wagoner what
they had been smoking Wagoner answered that they
had not been smoking anything Ehlers then directed
Wagoner to lift his left foot As Wagoner did so he
dragged his shoe across the concrete Ehlers then bent
down and picked up the marijuana cigarette that had
been rolled into a ball by Wagoner s dragging of his
foot Ehlers Instructed the two men who he recognized
by name and face to report to Kepley s office at 8 a m
the following day
After Wagoner and Bennett left the assembly building
Ehlers entered the building and found the closest super
visor so as to involve management in the incident He
encountered Supervisor Henry Sherrill and informed him
of what had transpired Ehlers then borrowed a plastic
bag from Sherril and placed the remains of the cigarette
into it
Early the following morning Ehlers retrieved the plas
tic bag that had been locked in the personnel office over
night and discussed the incident with Kepley A short
time later Kepley called Wagoner and Bennett into his
office individually and informed each that they were
being discharged for a serious infraction of the Compa
ny s rules During the discharge interview with Bennett
Bennett attempted to explain to Kepley that the forklift
driver could verify that they had not been smoking
Kepley answered that they had been caught redhanded
and were being discharged
It was not until sometime well after the discharges
were carried out that either Ehlers or Kepley talked to
Raymond Ellis the forklift driver Ellis testified at the
hearing that on the evening in question he observed Don
Wagoner and Ricky Bennett standing near the opened
overhead door As he drove his forklift up to enter the
building Wagoner walked directly up to him When Ellis
momentarily stopped the forklift Wagoner put out his
hand and offered Ellis a drag on a marijuana cigarette
Ellis declined stating that he did not mess with that stuff
on the job At this point Ellis heard Wagoner comment
Oh shit here comes the guard Ellis immediately pre
ceded into the building where he located and picked up
the heavy air conditioning crate for disposal According
to Ellis he was neither shown the whereabouts of the
crate nor given any assistance in loading it onto the fork
lift Ellis explained that he normally knew where to find
the crates and he was routinely able to maneuver the
crates which normally sat on pallets onto his lift without
any assistance
b Evidence of Wagoner and Bennett and other rank
and file employees
Both Don Wagoner and Ricky Bennett denied that
they were smoking marijuana on this or any other occa
sion at the plant They both testified that on the evening
of December 2 they had already completed their work
and that they were merely awaiting the arrival of a fork
lift driver so that they could assist him in loading the air
conditioning crate onto the forklift Both further testified
that when Ehlers appeared to search the concrete under
Wagoner s left foot he found nothing and only pretend
ed to pick up the balled up remains of a marijuana ciga
rette After Ehlers left they went back inside the plant
and helped Ellis load the heavy and bulky crate onto
Ellis forklift
Bennett s credibility on the all important question of
whether he ever smoked marijuana at the plant was se
verely tested by the testimony of several of his former
coworkers16
Helen Moore an assembler testified that on one occa
sion she and several other employees including Bennett
had lunch together outside in the vicinity of the large
rollup door During this lunch she observed Bennett
take marijuana from a baggie and proceed to roll a joint
or a marijuana cigarette On several occasions she over
heard Bennett say he was going to roll a joint On one
occasion when she warned Bennett that he was going to
get fired for smoking marijuana he replied I don t give
a damn I m ready to leave here anyway
Employee David Sides testified that sometime in the
spring of 1982 Bennett asked Sides if he wanted to go
smoke a joint with him Sides declined and warned Ben
nett that he would get in trouble if he did not watch
himself Bennett answered I don t give a shit Al
though Sides was not asked where this conversation took
place it seems reasonable in view of Sides warning to
infer that it took place somewhere on company premises
Employee Larry Peacock testified that several months
prior to Wagoner s and Bennett s discharges he over
heard a conversation on the assembly line involving
Wagoner Bennett and a third employee named Coggins
Peacock testified that he heard one of the three state that
they had some very good pot (or marijuana) and heard
16 The following evidence was received under Fed R Evid 406 Habit
Routine Practice
M A N TRUCK & BUS CORP 1287
one of the remaining two comment Yes some of the
best that I ever had While Peacock refused to identify
the two speakers while on the witness stand he reluc
tantly admitted that several weeks prior to the trial he
had identified the two in a conversation with Respond
ent s counsel as Wagoner and Bennett Peacock further
testified that about this same time he personally observed
Wagoner and Bennett smoking marijuana at the plant
Peacock explained that one afternoon while he was
working on radiators in the back of the plant a fellow
employee came up to him and told him to go to the door
and look at what was happening When he did he saw
Wagoner and Bennett standing near the rollup doors
smoking what looked and smelled like marijuana ciga
rettes
Finally the forklift driver Ellis testified that on several
occasions he observed Bennett outside during lunchbreak
smoking marijuana While he placed Wagoner with Ben
nett on some of these occasions Ellis was not able to
state with certainty whether Wagoner also smoked
c The union activities of Don Wagoner and Ricky
Bennett and other alleged 8(a)(1) conduct
Ricky Bennett was employed as a air conditioning in
staller in February 1982 and he remained in that capac
ity until his December 3 discharge Bennett signed a
union authorization card solicited the signatures of sev
eral other employees and attended one UAW meeting
Unlike the situation with Don Wagoner Respondent
denies knowledge of any union activities on the part of
Ricky Bennett The General Counsel relies on three sep
arate incidents to establish such knowledge First Ben
nett testified that sometime shortly after he was first em
ployed Kepley approached him while on the assembly
line in the area of the cafeteria Kepley asked him if he
had signed a union card at his former place of employ
ment When Bennett answered that he had Kepley asked
if anyone had pushed him into doing it Bennett replied
no Kepley did not testify regarding this conversation
The second incident occurred on November 19 in the
work area On that occassion according to Bennett he
and Don Wagoner were speaking to employee Kathy
McKinney about the Union and were in the course of
answering some of her questions when their supervisor
Bill Wilson came up to them Wilson told them to knock
it off that that was not the time for a union meeting
Wilson recalled the incident described by Bennett In
his account Don Wagoner Kathy McKinney and per
haps Ricky Bennett were talking together some 10 min
utes after the buzzer had blown announcing the start of
the morning shift Wilson stated that he merely ap
proached the group and told them to disperse Wilson
denied that he heard them discussing the Union and fur
ther denied that he told them to break up the union
meeting
The third incident involved not Ricky Bennett but his
brother Harry Bennett who was also employed as a pro
duction employee in February 1982 Harry unlike Ricky
signed the October 21 petition When Kepley received a
copy in the mail from Local 71 he called their father
the personnel director at a nearby plant According to
Harry Bennett his father came over to his house that
evening and told him that Kepley had called him at
work Kepley allegedly told the father that he had been
nice enough to hire his sons as a personal favor and now
one of them Harry was trying to ruin the Company by
supporting the Union Kepley admitted calling Bennett s
father a personal friend about his son s support of the
Union According to Kepley he merely wanted to tell
the father of his son s involvement for the father s own
information
As noted above Kepley conceded at trial the he knew
that Don Wagoner had been active on behalf of the
Union when the decision to discharge him was made
Don Wagoner commenced his employment in the air
conditioning department in September 1982 some 7 or 8
months after his brother Ron Wagoner had commenced
his own employment in the aligning department During
Don Wagoner s employment interview with Kepley the
two discussed that while Don Wagoner s last employer
was organized Wagoner as an inspector was a salaried
employee and not part of the bargaining unit there
In late October when the UAW came back into the
picture Don Wagoner bacame active on its behalf
During late October and the first portion of November
Don Wagoner signed a union authorization card solicit
ed signatures of fellow employees attended all union
meetings and handed out pamplets in support of the
UAW at the guard shack In this latter activity Wagon
er s conduct was observed by various supervisors Unlike
his brother Ron Don was not active on behalf of the
Local 71 campaign during the early portion of October
and did not sign the October 21 petition
At some point in either late September or early Octo
ber Don Wagoner and Jeff Jablonski a supervisor over
quality control and a close personal friend of Wagoner s
from the time that they had both worked together in
Chicago had a conversation about the Union 17 While
the content of this conversation is in dispute no question
exists that in interrogating his friend Don Wagoner Jab
lonski was acting on instructions from Kepley
According to Don Wagoner s account Jablonski ap
proached him one day and told him that he had some
thing very important to talk to him about and the two
then went to a private place on the production floor
Jablonski then proceeded to tell Wagoner of the follow
ing conversation that he and Kepley had just had Ac
cording to this account Jablonski stated that Kepley had
just called him into his office and asked him if he knew
that his buddy Don Wagoner was talking union Jab
lonski answered that he was not aware of it Kepley then
asked Jablonski if Wagoner realized that he was still on
his 60 day probationary period Jablonski answered that
he was sure Wagoner did realize that Kepley then sug
gested that Jablonski have a talk with Wagoner and let
him know that he better think about what he was doing
because he could get fired Kepley then told Jablonski to
inform Wagoner that if this conversation ever came up
17 Jablonski placed this conversation as occurring in September before
any rumors were circulating about any renewed organizing campaign
while Wagoner places It as occurring sometime in October It appears
that even under his version it occurred before the advent of the UAW
campaign during the last week of October
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in court Kepley would simply deny it At some point
during Jablonski and Wagoner s discussion Wagoner
denied to Jablonski that he had anything to do with the
Union
Jablonski gave a substantially different version of his
conversation with Wagoner As background Jablonski
testified that Kepley called him into his office and stated
that he had heard rumors that Don Wagoner was dis
cussing union activity Kepley stated that he was curious
if Jablonski knew anything about it Jablonski answered
that he did not and further commented that he did not
think it was true since at Wagoner s last place of employ
ment he was a salaried employee and not associated with
the union Jablonski added that since both he and Don
Wagoner were from the north and had seen the way
unions operated he would be surprised that Wagoner
would want any part of it Jablonski then asked Kepley
if Kepley wanted him to find out if there was any truth
to the rumor Kepley answered that if Jablonski did do
so to do it as a friend and not to associate Kepley s
name with it Shortly after this conversation with
Kepley Jablonski saw Wagoner and had a conversation
with him In his account Jablonski told Wagoner that he
had heard rumors about Wagoner being associated with
the Union and commented that he could not believe that
there was any truth to it Wagoner answered that there
was absolutely no truth to the rumor According to Jab
lonski no threat was issued to Wagoner and no comment
was made about his still being in his 60 day probationary
period Further no mention was made during this brief
conversation that his inquiry was made at the behest of
Kepley Jablonski also denied that he ever told Wagoner
that Kepley would simply deny any involvement if the
matter ever came into court Jablonski stated that follow
ing this conversation with Wagoner he reported back to
Kepley that Wagoner had denied involvement with the
Union Kepley responded simply that he appreciated
hearing that Kepley in essence corroborated Jablonski s
account of their earlier conversations
In evaluating the two conflicting accounts of this con
versation I am persuaded based on demeanor consider
ations and the probabilities inherent in each version that
Jablonski went beyond merely inquiring of Wagoner
whether he was involved with the Union Thus I find
and conclude that Jablonski knowing Respondent s sen
timents about unions took it upon himself to warn his
good friend that he could be putting his job in jeopardy
if he decided to engage in union activity especially
during the probationary period 18 In reaching this con
clusion I particularly note that Wagoner knew that the
only reason Jablonski was even talking to him about the
Union was because Kepley had raised it with Jablonski
in the first place a fact which Jablonski denied mention
mg to Wagoner Quite simply stated how else could
Wagoner have correctly known of Kepley s involvement
unless Jablonski told him Accordingly I find that in
both interrogating Wagoner about his suspected union
18 In reaching this conclusion I am of course not unmindful that I ear
her found Wagoner s testimony with regard to smoking of marijuana as
incredible Nothing is more common than to believe some and not ill of
vdi it a witness says Fdwards. I ransportation Co 187 NLRB 3 4 (1970)
enfd 437 F 2d 502 (5th Cir 1971)
activities" and in issuing a warning of the possible dire
consequences if Wagoner chose to ignore his advice and
engaged in such Section 7 conduct Respondent through
its supervisor and agent Jablonski unlawfully threatened
Wagoner in violation of Section 8(a)(1) of the Act
Ron Wagoner testified that in September then Produc
tion Supervisor Louis Smith came up to him one day
and stated that he had heard through the grapevine that
Ron s brother Don had been talking about the Union
Ron answered that he found that hard to believe since
his brother had never belong to a union and had been a
salaried employee on his last job Smith stated that since
Don did not have his 60 day probationary period in yet
it could be dangerous for him Ron replied that he would
talk to Don about it but that he did not believe that Don
was having anything to do with any unions As noted
above Smith who was fired himself in October 1982
did not testify Thus Ron Wagoner s testimony stands
uncontradicted and I credit It in this instance in full
Smith s threats of unspecified disciplinary action clearly
interfere with restrain and coerce employees in the ex
ercise of their Section 7 rights in violation of Section
8(a)(1) of the Act
The final alleged independent 8(a)(1) conduct relating
directly to Don Wagoner Involves a conversation be
tween Plant Manager Paul Remondino and Wagoner s
mother Ruby Hitchcock an inspector emplOyee by
CTA Respondent s major customer
In January 1982 Ruby Hitchcock was sent as part of a
two person customer inspection team to Respondent s fa
cility to ensure that its contract with CTA was fulfilled
both as to quality and quantity In performing the inspec
lion duties Hitchcock and the chief inspector Mitch
Kitzman inspected the buses being built at all stages of
the production process Approximately 90 percent of all
rejections of particular work would involve judgment
calls by one of the two inspectors
Around mid October some unidentified individual in
formed Remondino that Hitchcock had two sons Don
and Ron Wagoner employed at its Cleveland facility
That same day Remondino was further informed that
Hitchcock had been staying at the house of Kiki Sum
mers another production employee Remondino consid
ered both situations as potential conflicts of interest and
immediately sought Summers at the plant to inquire con
cerning the nature of the housing arrangement Summers
explained that it had just been a case of her being a good
samaritan to someone from out of the area Later that
same afternoon Hitchcock was told by Kepley s secre
tary that Remondino had been made aware both of her
relationship with Don and Ron Wagoner and of her
staying with Summers Hitchcock then called Remon
dino s office and made an appointment to see him that
afternoon
The two met in private at 4 p m that day According
to Remondino s account Hitchcock opened the meeting
19 Although the complaint does not specifically allege this conversa
bon as an unlawful interrogation by Jablonski this interrogation involves
conduct closely related to unfair labor practices set fourth in the com
plaint and was fully litigated Alexander s Restaurant & Lounge 228
NLRB 165 (1977)
M A N TRUCK & BUS CORP 1289
by stating that her staying with Kiki Summers had been
a fellowship type of situation and that they did not dis
cuss company matters Remondino responded that he
had already talked to Summers and had determined that
while there was no real problem there the Company
should have been informed of the living arrangements
ahead of time Hitchcock then stated that she regretted
the way that her sons had been brought into M A N but
that she could do an unbiased job and that there would
be no conflict in her inspecting buses She added that she
could satisfy her responsibilities to CTA and to M A N
even though her sons were performing the work Hitch
cock observed that in fact she could be more critical of
her children and that she would be the first one to point
out any errors made by them During the course of this
discussion Hitchcock brought up the rumor regarding
one or both of her sons activities on behalf of the Union
Hitchcock explained that they were not involved with
the Union that one son had lost a prior job when he was
a union employee and therefore hated unions and that
the other son was simply not involved Remondino re
sponded that he did not care about that that he was only
concerned about a conflict of interest and her ability to
do her job properly Hitchcock responded that if there
was any trouble with any conflict she would sooner
leave than her sons Remondino replied that he did not
believe that would be necessary so long as everyone did
their job properly
Remondino denied that there was any further discus
sion of the Union during this meeting Remondino testi
fled that this meeting took place before he received
Local 71 s petition but after he had already heard rumors
of some activities going on at the plant Remondino
added that he was aware at the time of his meeting with
Hitchcock of the rumors that Don Wagoner was actively
supporting Local 71 s initial campaign
Hitchcock s version differs substantially from Remon
dino s on the subject of her son s continued employment
On direct examination Hitchcock testified that during
this same conversation Remondino told her that despite
his concerns over the conflict of interest he had decided
to let her boys continue working there He noted that he
had checked with their supervisors and had been assured
that they were good workers with good attendance
records Remondino then added Why cut our own
throats or ask you to leave or ask them to leave but if
they are talking union that would be the reason they would
be fired When Hitchcock responded that it was not
against the law to talk union Remondino answered
Well I know we would find a way
For reasons set forth below I find Remondino s ac
count as the more reliable A key element of Hitchcock s
testimony on direct was that Remondino and not she
first broached the subject of the Union Yet on cross ex
ammation she indicated that she was then unable to state
with certainty how they began talking about the Union
in the first place Further and even more importantly
Hitchcock testified that their conversation took place
before the rumors about an organizing effort were even
circulating around the plant Thus under her version
Remondino brought up the entire subject of the Union at
a time when no such union activity was then underway
I find this proposition as highly implausible I find Re
mondino much too experienced and knowledgeable a
manager to have injected the very subject of a union in a
conversation in which he was attempting to ensure that
Hitchcock would continue to do her job in inspecting
the buses in a fair and unbiased manner If Remondino
was aware as he stated of Wagoner s union activities at
the time of this meeting he clearly would not have made
such a threat to Wagoner s own mother Had he wished
to discharge Wagoner because of the rumored union ac
tivity this was the time not a month or two later Final
ly in explaining why and how Hitchcock s testimony on
this pivotal point could be at such variance with Remon
dino s I think one needs only to look to the fact that
she as a caring mother was attempting to defend her
only two sons against charges that each had been dis
charged for drug use or possession In this highly
charged atmosphere it is not surprising that Hitchcock
would recall the facts in a light which would support her
sons claim of being unfairly discharged Therefore I
credit Remondino s account and I find and conclude that
Respondent did not violate the Act during this conversa
tion as charged 20
d Conclusions on Don Wagoner s and Ricky Bennett s
discharges
Having discussed both the factual circumstances sur
rounding the discharges of Don Wagoner and Ricky
Bennett as well as the evidence concerning their union
activities and Respondent s knowledge thereof and reac
tion thereto it is now time to pass on the complaint alle
gations in which Respondent is charged to have violated
Section 8(a)(3) by discharging each A thorough review
of the record persuades me that the General Counsel has
not met her burden of establishing by a preponderance of
the evidence that either Wagoner or Bennett was dis
charged for any reason other than that advanced at the
time by Respondent—smoking marijuana on company
premises on the evening of December 2 Ehlers fully
corroborated testimony that he personally observed them
smoking marijuana on the evening in question is credible
Wagoner s and Bennett s denials of such misconduct are
not Wagoner and Bennett in the most forceful of testi
mony denied ever smoking marijuana on company
premises The veracity of each was put to the test by the
contrary testimony of four of their colleagues who each
credibly testified that they observed Bennett and/or
Wagoner smoking marijuana on previous occasions at
the plant While each of these four are still currently em
20 Hitchcock also testified that in early 1982 she and fellow CTA in
Spector Mitch Kitzman were having coffee in the cafeteria one day when
Kepley approached and told Kitzman that he had been looking over the
applications of two individuals Ron Wagoner and Gary Jenkins that
Kitzman had recommended Kepley after first stating that he was going
to hire them added Just make sure they don t say anyting about the
union
In Kepley s version of this same conversation he merely asked Kitz
man if he thought there would by any problems with either Ron Wagon
er or Gary Jenkins Kitzman answered that he did not think so and then
added I can assure you there won t be any problems with them from
the standpoint of the union Kepley replied alright and then walked
off Kitzman did not testify I credit Kepley s account over Hitchcock s
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployed by Respondent I am not persuaded that each
would or did perjure themselves on so serious a matter
If Wagoner and Bennett would fail to tell the truth on
this question little weight can be given to their account
of events on the evening of December 2
As will be discussed in the subsection immediately fol
lowing Respondent during the fall of 1982 came to be
lieve that it had a serious problem at the plant with drug
use This belief or suspicion was subsequently confirmed
from several sources including the reports of an under
cover investigator hired specifically to investigate drug
and alcohol abuse Despite arguments advanced by the
General Counsel Respondent s concerns in this area
appear real and legitimate In the very midst of Kepley s
reviewing the undercover investigator s report in which
six other employees were identified as using marijuana
during the workday Ehlers informed him that he per
sonally caught two additional employees smoking mani
Juana at work
The record here indicates that Respondent was op
posed to unions and in fact had animus toward its em
ployees efforts to organize its work force However
these sentiments even when coupled with the discharges
of known union adherents do no more than give rise to
some suspicion that an employer may have been motivat
ed by unlawful considerations In the circumstances of
the case any such slight creation of suspicion is insuffi
cient on which to base a finding of an unfair labor prac
tice Being the recipient of unlawful threats of retaliation
does not give a known union adherent license to engage
in serious acts of misconduct Here the acts of miscon
duct were so open and flagrant as to constitute an inten
tional flaunting of authority Accordingly I recommend
that the complaint allegations relating to Don Wagoner
and Ricky Bennett s discharges be dismissed
3 The discharges of Jerry Barbour John Bost
Douglas McNair Randy Rabon Ben Ward and
Ron Wagoner
a Facts
In mid August an accident took place which helped
bring to higher management s attention the possibility
that a drug problem existed among its work force That
incident Involved welding employee Dana Monday
having her foot run over by a forklift Although her im
mediate supervisor Curlee as well as several other su
pervisors and management officials correctly believed
after talking to Monday that her suspected use of mani
Juana over the lunchbreak had contributed to the acci
dent no disciplinary action was taken against her since
she denied to all that she was under the influence of
drugs and no proof to the contrary existed 21
21 Several days after the accident Louis Smith called Monday and
several other employees on Curlee s crew Into his office for a brief meet
mg Smith stated that while he was not pointing his finger at anyone he
was not stupid and that the employees practice of going out for drives
during lunchtime should stop Smith added that the employees should
simply wait until after work before doing anything that would jeopardize
their jobs or their health
About this same time Kepley and Remondino received
reports both from their outside security staff and from
their own production supervisors regarding suspected
drug use in parking lots and away from the plant during
lunchbreaks These suspicions were the subject of several
meetings over the next 2 months with top managment
and the lawyers handling Respondent s labor relations
matters In mid October a management decision was
reached that Respondent would utilize an under cover
agent to pose as an employee to conduct an investigation
into this suspected problem and on October 19 Kepley
met with James Christopher president of Piedmont Se
curity and Investigations of Greenville South Carolina
During their meeting and in a confirming letter sent the
following day Kepley informed Christopher that Re
spondent was then experiencing some union activity and
stressed that the undercover agent should be instructed
to avoid as much as possible any involvement in the
union activity
Later that same week Christopher hired Danny
Carson a former Greenville City police officer and
holder of a B S degree from the University of South
Carolina in criminal justice to pose as the employee to
conduct the investigation In their discussions regarding
the method of undercover operation Christopher empha
sized to Carson that he was to avoid as much as possible
any contact with unions On October 27 Carson went to
Respondent s plant and applied for a job Carson went
through the normal hiring process including an interview
with Kepley Kepley as Christopher had before him
emphasized to Carson during this interview that his sole
purpose was to conduct an investigation into drug and
alcohol use of the employees Carson was then assigned
to the alignment section of the welding department 22
Over the next approximately 4 weeks Carson worked
as an unskilled laborer on the day shift Each day he pre
pared a written report reciting the results of his continu
ing investigation and each Sunday he drove to Green
ville South Carolina where he personally delivered that
week s reports to Christopher Although some progress
was made during the first 2 weeks of the investigation
Carson s reports indicated that in the final 2 weeks he
was experiencing a series of unproductive days 23 Chris
topher discussed this matter first with Carson and then
with Kepley and about November 24 Kepley and Chris
topher jointly decided to terminate the undercover inves
tigation At that time copies of Carson s daily reports
were turned over to Kepley for his review These re
ports copies of which were introduced into evidence
state that Carson personally observed the six employees
listed in the caption of this subheading violating section
22 Part of the duties on the alignment crew consisted of one employee
holding a block of wood against a metal frame while another employee
standing several feet away swung a long handled 12 pound sledge
hammer at the block of wood approximately 3 inches from the hands of
the first employee
" Although Carson had no proof he began to suspect during this
latter period that his fellow workers did not trust him These suspicions
which were based on subtle changes in the way he was treated ultimate
ly proved to be accurate In this regard both Barbour and Ron Wagoner
testified that after awhile they each reached the conclusion that Carson
who was always talking about drugs could not be trusted
M A N TRUCK & BUS CORP 1291
I rule 2 regarding the possession and/or consumption
of marijuana These reports do not indicate that Carson
observed any other employees engaged in similar mis
conduct involving drugs or alcohol
On December 2 Carson met with Kepley at a motel
located in a nearby town where they reviewed Carson s
reports During this meeting Kepley showed Carson em
plop/lent pictures of each of the six named employees to
ensure that each was properly identified in Carson s
report By the completion of this meeting Kepley was
satisfied that Carson s reports were entirely accurate
complete and reliable The following day Kepley Ind'
vidually called each of the six employees into his office
where they were notified that they were being terminat
ed for violation of the Company s rules regarding posses
sion and use of marijuana
Each of these six were like Carson employed in the
aligning section of the welding department Of the six
four Ron Wagoner Barbour Ward and Rabon signed
Local 71 s petition sent to Respondent after the under
cover agent was arranged for but before his assignment
to the aligning section 24 As will be noted below with
regard to the two exceptions McNair and Bost there is
no credible evidence to indicate that Respondent had
any knowledge of any union activities on their part prior
to Carson s arrival McNair testified that he did indeed
sign Local 71 s petition A careful review of the petition
indicates that a name possibly that of McNair s does
appear on the petition but that it was struck through
and in essence rendered illegible McNair was unable to
shed any light on how who why or when his name
was so crossed out
Bost testified that Respondent knew of his support for
the UAW because he mentioned it to Remondino himself
immediately after a mass meeting in which Remondino
gave an antiunion speech According to Bost he went up
to Remondino and after first announcing that he had
signed a union card and been to union meetings opined
that a lot of people should attend union meetings so that
if the matter ever came to a vote they would be able to
make a fair judgment Remondino denied that Bost ever
approached him and had the conversation recited above
It is unlikely that Remondino would have forgotten
having any conversation with Bost a large blond haired
young man standing 6 feet 4 inches or better Unlike Re
mondino whom I found to be a consistent and impres
sive witness I am unable to credit Bost an admitted pre
vancater on this particular point
In addition to the above cited activities on behalf of
Local 71 which preceded Carson s assignment to their
section each of the six testified that they signed union
cards on behalf of the UAW and attended its meetings
Particularly active were Barbour who arranged for the
meeting halls and handed out literature and Ron Wagon
er and Randy Rabon who handbilled the plant
Ron Wagoner Bost Rabon and Ben Ward each gave
sworn affidavits to the Board in January 1983 in which
each denied ever smoking marijuana during the lunch
24 While no statistical breakdown was made it appears that most of
the 33 names on Local 71 s petition were from employees employed in
the approximately 140 employee welding department
breaks On cross examination each admitted that in
making such denials they had lied 25 Bost Rabon and
Ward each further admitted in their testimony before me
that they had in fact engaged in the marijuana smoking
attributed to them by Carson While Ron Wagoner
denied ever smoking marijuana in Carson s presence he
did admit on the witness stand to possession of marijuana
in the parking lot and to his occasional use of it during
lunchtime prior to Carson s employment McNair testi
fled that while he could not recall smoking marijuana at
lunchtime in the presence of Carson he could not deny
it since during his 6 months employment with Respond
ent he smoked marijuana at lunchtime on occasion 26
Since Barbour denied any wrongdoing on October 28
the date of the alleged misconduct for which he was
fired it is necessary to discuss in some detail his particu
lar situation Sometime during the day on Thursday Oc
tober 28 Barbour who did not have his own transporta
non arranged to ride with Carson to the first UAW
meeting According to Barbour as they were leaving the
plant Carson asked him if he had any marijuana When
Barbour answered that he did not Carson asked if
Ronald Wagoner who was also walking across the park
ing lot at that time toward his own car had any Appar
ently Barbour answered in the positive for Carson then
asked Barbour if he would approach Wagoner and see if
Carson could buy some marijuana from him Barbour
then walked up to Ron Wagoner and asked if he had any
pot he would be willing to sell to Carson Wagoner an
swered that he would not sell Carson a joint but that he
could give him one Wagoner then handed Barbour a
marijuana cigarette which Barbour in turn handed to
Carson when seated in Carson s car The two then went
to a convenience store purchased beer and smoked the
marijuana cigarette on their way to the meeting Bar
bour s account is corroborated in part by Ron Wagoner
In Carson s version which is memorialized in his daily
status report for October 28 he met Barbour per an ear
her arrangement at Carson s car on the parking lot so
that they could ride together to the union meeting 27
When they got inside Barbour pulled out a package con
taming marijuana tobacco and asked if Carson had any
rolling paper Carson opened his glove compartment and
gave Barbour some paper Barbour then rolled the man
Juana cigarette which they preceded to smoke on the
way to the meeting
55 It appears likely that McNair also falsely denied in his original
Board affidavit ever smoking marijuana during lunchtime However I
cannot make this finding in view of the incomplete record in this regard
66 While the record is unclear it appears that these witnesses did not
inform any Board agent of the intentional and material misstatements in
their original affidavits until after the state unemployment hearing It was
during that hearing which was held less than 2 weeks prior to the Instant
trial that Respondent s use of an undercover agent was first disclosed
Thus it seems that their turnabout was less the result of a sudden ground
attack of conscience than a deliberate and collective attempt to avoid
committing prejury before me
" Carson explained that he believed he could gain the trust of his co
workers faster if he appeared to share their interest in organizing Thus
when the opportunity to socialize with employees away from work at a
union meeting presented itself he gratefully took it
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b Conclusions
Carson testified in a straightforward and convincing
manner Unlike those for whose discharges he was re
sponsible Carson had no stake in this litigation and no
reason to fabricate the details of his dealings with Bar
bour In crediting his account of his involvement with
I3arbour I specifically note that his subsequent testimony
regarding his involvement with the other five employees
discharged about the same time was subsequently and
eventually corroborated by those very employees
Barbour on the other hand was not an Impressive
witness His testimony at times reached such a level of
improbability so as to warrant the designation preposter
ous Thus Barbour testified that on being escorted out of
the plant by Ehlers on December 3 Ehlers told him that
it was because of the Union that he was being fired
Ehlers then allegedly added that Respondent had no
proof against him that he should not take his discharge
standing still and that he should fight it Not surprising
ly Ehlers who not only was not involved in the discus
sion leading up to Barbour s discharge but was also
unware that Respondent had even employed an under
cover agent prior to December 3 recalled the conversa
tion in a different light According to Ehlers credited
and logical account Barbour commented to him upon
being escorted out that he Barbour knew the real
reason for his discharge and that it had nothing to do
with the reasons read to him by Kepley Barbour then
added that he was being discharged because of his union
activities Ehlers responded simply that he had no idea
other than what was read to Barbour as to why Barbour
was discharged
Barbour further testified that on the evening of De
cember 9 he and a old friend named John Laws were in
the men s room of a local bar when he had a conversa
tion about his discharge with a company supervisor
Gary Livengood According to Barbour he and Liven
good had been friends and had talked about the Union
on previous occasions On this occasion Livengood told
him that the reason Barbour had been terminated was be
cause of the Union Livengood allegedly added that the
Company knew that Barbour had in the past been arrest
ed for cocaine possesion and therefore he did not have
a leg to stand on Laws a friend of Barbour s since high
school corroborated Barbour s account Although Laws
stated that Barbour had first asked him about being a
witness on his behalf in March 1983 he (Laws) was not
put in touch with anyone from the Board until the day
before the Instant trial opened
Livengood a welding supervisor since only November
1982 admited that he and Barbour did indeed discuss
Barbour s discharge at a local bar several weeks after the
event in question According to Livengood s account
Barbour came up to the table where he and his wife
were sitting joined them and preceded to ask Liven
good why he had been fired Livengood who neither su
pervised Barbour nor was in any way involved in the
discharge decision responded that all he knew about the
discharge was that it had been for a violation of a corn
pany policy 28 Barbour left the table but came back a
second time During the second visit Barbour said he
thought the reason he had gotten fired was because of
the Union Barbour added that all the guys that had
gotten fired were union officials Livengood commented
again that all he knew was that the discharge had been
for a violation of a company policy I credit Livengood s
account While Livengood had been a union supporter
prior to his promotion to supervision I find it highly un
likely that in the total absence of any direct knowledge
on his part about the circumstances of Barbour s dis
charge he would have made the remarks attributed to
him Barbour s version like his testimony about his con
versation with Ehlers appears to be nothing more than a
self serving and contrived account colored by a desire to
prevail in the instant litigation
Moreover even if I were to reach a contrary credibil
ity resolution I would nonetheless not find that any
such statements made by Livengood would establish that
Barbour was in fact discharged because of his union ac
tivities As noted Livengood neither played a role in the
decision to discharge Barbour nor was he specifically in
formed after the fact of Barbour s misconduct Thus
anything Livengood could have ventured on the subject
would have been mere personal speculation 29
The General Counsel at trial and on brief advanced
three major arguments in support of her contention that
despite the delayed admissions by each of the six em
ployees that they violated an established shop rule
against the use and/or possession of narcotics during the
workday 3 ° I should nonetheless conclude that their dis
charges violated Section 8(a)(3)
First the General Counsel argues that Respondent
waited approximately 2 months from the date of Dana
Monday s accident the event that first brought to man
agement s attention the existence of a drug problem
among its work force before it bothered to arrange for
the undercover investigation This delay she argues is
evidence that Respondent did not really have any serious
concern about a drug problem and it was only after Re
spondent s officials gained the knowledge that its em
ployees were beginning to discuss possible organizing
that it chose to take any action at all in this area 31 Fur
ther evidence of Respondent s true lack of concern about
the possible drug use by its employees is established this
argument continues by the fact that Respondent made
no effort to speak to the employees in groups and at
28 Kepley testified that after the December 3 discharges he called a
special meeting of supervisors where he instructed them that if they were
asked by employees about the discharges they were to simply say that
they were for violations of a company policy
" Woodys Truck Stops 258 NLRB 705 714 (1981)
3 ° Even if Barbour s account of October 28 were to be credited I
would view his conduct in physically securing a marijuana cigarette from
Ron Wagoner and handing it over to Carson while still in Respondent s
parking lot as a violation of the rule against possession of narcotics
Si The danger inherent in some of the duties of the production em
ployees belies the argument that Respondent has no real or legitimate
concerns about drug use McNair himself testified that he would only
smoke marijuana at lunch on those occasions when all they had to do
was sweep the floor McNair explained that there was no way they
would trust each other with sledge hammers if they had just smoked
marijuana
MAN TRUCK & BUS CORP 1293
tempt to educate them about the dangers inherent in
drug use Respondent was quick enough she observes in
making antiunion speeches and showing antiunion films
yet when the problem was drugs no similar campaign
propaganda was launched
In addressing himself to these arguments at trial
Kepley testified that the delay in implementing any plan
to diminish it employees drug use was occasioned not
by lack of concern but by an uncertainty in deciding on
the most appropriate method to proceed In view of the
extremely serious nature of the problem and the apparent
inexperience of Respondent s management in dealing
with it I do not find the delay in taking action as par
ticularly suspicious Further that Respondent chose to
utilize the services of an undercover agent rather than at
tempting to use some other method of controlling the
rampant drug use does not in my mind support any ar
gument questioning the legitimacy of the investigation
Management simply made a reasonable decision that the
use of an investigator posing as an employee would be
more effective than an educational propaganda cam
paign It is not the province of the Board to second
guess legitimate business judgments 32
The General Counsel next argues that Carson the un
dercover agent was deliberately placed in the alignment
section of the welding department because Respondent
knew by virtue of Local 71 s petition that the employees
in that section were union adherents Thus these em
ployees were targeted as a subject of a drug investigation
and as such the use by Respondent of the fruits of this
unlawfully motivated investigation should be prohibited
from being used This argument has three component
parts First the General Counsel points out that as of
mid October Welding Supervisor Curlee had strong sus
picions that employees on his crew were smoking mani
Juana during lunchtime and that these concerns made
their way up the supervisory hierarchy to at least Ke
pley s level At the same time no similar suspicions were
held by either aligning section Supervisor David Lane or
his predecessor Jim Sides Why then asks the General
Counsel should Carson have been assigned to a crew of
known union adherents who were not suspected of drug
use instead of to a crew of nonunion adherents who
were suspected of drug use The simple answer to this
rather complex question is that Carson an unskilled Ind'
vidual was placed in the only unskilled position then
available Since Carson was not a welder he could
hardly be placed in Curlee s department as a welder the
only classification under Curlee s supervision The Gen
eral Counsel avers that since the fall of 1982 was an ex
tremely busy time and given Respondent s large comple
ment of employees Respondent could have easily
placed one extra employee in almost any area of the
plant No evidence was offered to support this opinion
and the matter was not explored with Kepley in any
depth during his lengthy cross examination
As the second part of the targeting argument the
General Counsel contends that Respondent s failure to
move Carson at the conclusion of his investigation in the
alignment section to another location in the plant in
32 Howard Press Inc 265 NLRB 1389 (1982)
order that he might continue his investigation indicates
Respondent s unlawful intent in the first place In this
regard the General Counsel states that since Carson had
only identified six drug users Respondent could not
possibly have concluded that its drug problem had
ended Not only do I not find any support in the record
for this conclusion I find the suggestion that Respondent
could have successfully and safely moved an undercover
narcotics agent who already suspected that his true pur
pose may have been discovered by his fellow employees
to another department in the plant to be naive and unre
alistic
The third and final part of this targeting argument
concerns the alleged selective reporting of drug activity
by Carson In this regard the General Counsel offered
the testimony of employees McNair Bost and Rabon
who each testified that on one occasion during Novem
ber Carson while seated in employee Dean Poole s car
in Respondent s parking lot purchased from Poole a
large quantity of marijuana tobacco Further Barbour
testified that Carson on one occasion during that same
month specifically told him that he had bought marijua
na from Poole Additionally Ron Wagoner testified that
Poole had in the past given him marijuana and had
shown him other drugs in his possession while in the
plant The General Counsel argues that Carson s failure
to make any reference in his written reports concerning
any drug transaction with Poole an employee not en
gaged in union activities is an indication on Carson s
part that he knew he was to limit his investigation solely
to union adherents This argument fails on two grounds
First there is not a scintilla of evidence to indicate that
Carson was either told or somehow surmised on his own
that he was to report only the drug violations of union
adherents In fact everything in the record supports ex
actly the opposite conclusion Carson was instructed by
both Kepley and Christopher to not only avoid as much
as possible any contact with the nascent union campaign
but was further specifically instructed not to report to
anyone any of his observations regarding the union ac
tivities of his fellow employees Moreover and perhaps
more importantly I am unable and unwilling to credit
the testimony of McNair Bost Rabon Wagoner and
Barbour over the denials of Carson and Poole concern
ing any alleged drug transaction between them Carson
did not know Poole prior to his coming to Respondent
and had no apparent reason to ignore reporting to his
employer the single most important drug event that al
legedly occurred during his 4 weeks of employment at
Respondent As noted elsewhere in this decision
McNair Bost Rabon Ron Wagoner and Barbour each
has had a history of not always telling the truth This in
cident which smacks of collective creation does noth
ing in my opinion to improve each one s reputation for
truthfullness In reaching this conclusion I do not ignore
the rebuttal testimony of employee Benefield that she has
smoked marijuana with Poole on several occasions away
from the plant Even if I were to credit her somewhat
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
implausible account 33 it would fall far short of establish
ing that Poole dealt drugs from his car on Respondent s
property
In sum I find that the General Counsel has not estab
lished that Carson was assigned to the alignment depart
ment solely in an effort to ensnare union adherents To
the contrary I am persuaded by the overwhelming
weight of the credible evidence that Respondent in a
good faith effort to weed out drug users from its work
force chose to employ an undercover agent and that in
pursuit of this plan Respondent assigned him to an area
in which it believed he could be effective without any
consideration to the union activities desires or senti
ments of the employees already employed in that depart
ment 34
Finally the General Counsel contends that Respond
ent applied enforcement of its shop rules regarding drug
use and possession in a disparate fashion only disciplin
ing those it knew supported the Union In support of this
evidence the General Counsel points to the failure to
discipline Monday following the forklift accident This
argument lacks merit Unlike the situations involving
Grant Holland Don Wagoner Ricky Bennett and these
six employees Respondent had no reliable proof that
Monday was under the influence of drugs at the plant
Accordingly in view of the above I recommend that
the complaint allegation regarding these six employees
should be dismissed
4 The reprimand of Jerry Barbour
a Facts
On a morning in late October 35 Jerry Barbour was
given a written reprimand by his then supervisor James
Sides for solicitation and being out of his work area 36
According to Sides account he observed Barbour
leave his own line station and walk across the fire line
into another supervisor s department Sides followed
Barbour but before he could catch up with him Barbour
had briefly stopped and began talking to employee Dana
Monday Sides testified that as he approached he heard
Monday state that she had already told Barbour once
that she did not want anything to do with the Union
When Sides tapped Barbour on the shoulder and asked
him what he was doing there Barbour answered that he
33 Like some of her colleagues Benefield also admitted on cross exam
ination that she lied when she gave information on another subject in her
initial affidavit to the Board
34 Anaconda Enccson Inc 261 NLRB 831 (1982)
35 The exact date of this incident is unclear Barbour testified that It
occurred on the morning of the day on which Local 71 held its second
union meeting This would make the date October 20 Barbour however
Incorrectly testified that the dates of the first two meetings were October
20 and 26 The matter of the dates could have been cleared up if any
counsel had Introduced the written reprimand document which presum
ably would show the date prepared or delivered Unfortunately this was
not done For the purposes of this discussion I treat the incident in the
light most favorable to the General Counsel and assume that It occurred
on October 26 well after Barbour s union activities on behalf of Local 71
became well known to Respondent
" At some unidentified date in late October Sides was promoted from
a line supervisor to general supervisor over welding and fabrication Al
though it is far from clear It appears that this incident with Barbour took
place before Sides promotion
was on his way to the water fountain to take some aspi
tins to relieve pain in his knees Barbour was instructed
to return to his work station which he did About 45
minutes later Sides handed Barbour a written reprimand
for solicitation and being out of his work area
Sides explained that the entire incident occurred
during working time for both Barbour and Monday and
that while employees were permitted to leave their work
stations without permission to get a drink of water there
was a water fountain much closer to Barbour s own
work station than the one in the opposite direction from
Monday s work area
In Barbour s somewhat confusing account he testified
that on his way to the water fountain Dana Monday in
an apparent continuation of an earlier conversation
asked him if he was really going to the union meeting
that evening On his return from the water fountain
where he had taken his aspirins he answered her that he
certainly was going At that point Sides came up to him
and ordered him to return to work Barbour s explana
non for why he used the water fountain in Monday s
area rather than the one located much closer to his own
work station is confused and unclear At least at one
point he seemed to indicate that he first stopped at the
nurse s station to obtain the aspirins and implied that it
was located in the area of Monday s work station This
explanation does not square however with either Sides
account or the General Counsel s theory set forth in her
posthearing brief that as soon as Barbour left his work
station on October 26 and headed for the water fountain
Sides made a bee line after him
In support of the allegation that in issuing the repri
mand Respondent was motivated soley by union consid
erations the General Counsel relies on two facts the in
ference that can be drawn from Sides overhearing Bar
bour discussing union matters with Monday and an al
leged disparate enforcement of Respondent s own no so
licitation rule The only evidence offered with regard to
the latter was the controverted testimony that earlier
that same morning Line Supervisor Watson approached
Barbour while he was working and unsuccessfully solic
ited Barbour to buy a stuffed animal made by his wife
While Watson denied that any solicitation took place
during his brief conversation with Barbour I will for the
purposes of this decision treat Barbour s account as cred
ited
b Conclusions
As noted above earlier that same month Respondent
on the advice of counsel replaced its old facially invalid
no solicitation rule with a new more explicit and de
tailed rule which the General Counsel concedes is valid
Barbour s conduct in leaving his work area and in dis
cussing a nonwork related matter with another working
employee in another area of the plant clearly violated
this new and valid rule I find totally unpersuasive the
arguments advanced in support of this allegation by the
General Counsel It is well settled that the no solicitation
rules do not apply with equal force to the conduct of a
M A N TRUCK & BUS CORP 1295
supervisor 3 7 Therefore we are left solely with the infer
ence that the reprimand must be unlawful since Sides
knew they were talking about the Union I think not
Accordingly I recommend that this complaint allegation
be dismissed
5 The discharge of Darlene Dean
a Facts
In March 1982 Darlene Dean was hired by Kepley as
a temporary employee to replace employee Delilah
Charleston who was then going on maternity leave
While Charleston performed the dual duties of produc
tion secretary and storeroom clerk Dean was assigned
only to the former with another temporary employee
specifically hired to act as storeroom clerk As produc
tion secretary Dean worked directly under Louis Smith
the general supervisor for welding and fabrication and
George Charles the general supervisor for piping and
carpentry Her duties included performing general office
work the keeping of employees time and attendance
cards and the keeping of various foremen s crew sheets
Although Dean was originally told that the job would
last only between 6 and 8 weeks Charleston developed
medical complications and her leave was extended indefi
nitely In July both Smith and George complimented her
work and indicated that they wanted her to stay on per
manently In expressing these opinions both Smith and
George told her that they had had problems with
Charleston s tardiness and her failure to do her assign
ments in a timely fashion In fact Smith stated to Dean
on one occasion during the summer that he had wanted
to fire Charleston but that her pregnancy had prevented
it Both Smith and George also informed Kepley of their
desires with regard to retaining Dean
In early to mid August Kepley acting on both the rec
ommendations of Smith and George and on the uncer
tainty that Charleston would ever return called in Dean
and informed her that she was being made the permanent
production secretary at a healthy raise in salary Figur
ing into his decision were Charleston s comments made
to him during her convalescence that if and when she re
turned to work she did not wish to work again under
Smith s supervision
In late August Charleston s medical condition im
proved and she informed Kepley that she was able to
return to work Kepley decided with Charleston s con
currence that he would place her back in the storeroom
as its clerk Kepley explained that during her absence
the production work force had grown substantially and
that he was under the impression at that time that the
storeroom clerk s job had evolved into a full time posi
lion
Kepley testified that approximately 3 weeks after
Charleston s return he determined that his earlier as
sumptions with regard to the full time nature of the
storeroom clerk s job had been wrong and that he was
then of the opinion that the positions of the production
secretary and storeroom clerk should be reconsolidated
into one Kepley further decided that this position should
" NLRB v Steelworkers 357 U S 357 (1958)
be offered to Charleston and not Dean While Kepley
readily conceded that he was aware that Dean had per
formed the duties of production secretary in a superior
manner than did Charleston he explained the reasoning
underlying his decision in the following terms (1)
Charleston had experience in both jobs and despite cer
tam criticisms had been a satisfactory employee prior to
going on leave (2) he felt that it would be unfair to pe
nalize Charleston for going on maternity leave (3) he
was advised by counsel of potential legal problems for
failing to reinstate an employee who had returned from
maternity leave and (4) Smith s own discharge on Octo
ber 21 eliminated the problem of Charleston s reluctance
to work again for Smith
Therefore early in the morning of Friday October 22
Kepley summoned Dean to his office and informed her
of his demon Kepley then offered her the choice of
either taking an immediate transfer to the Statesville
North Carolina warehouse as a clerk or being place on
layoff status which would permit her to collect unem
ployment compensation Kepley explained that if she ac
cepted the transfer to a location with approximately 20
employees she would receive a substantial raise in
monthly salary When Dean indicated some uncertainty
as to her decision Kepley told her to take the rest of the
day off with pay in order to decide Kepley then had his
own secretary Gail Goodman escort Dean first to Dean s
desk to remove her personal effects and then from the
plant 3 8
In a rather vague account Dean testified that both
Kepley in their private meeting on the morning of Octo
ber 22 and Gail Goodman as she was accompanying
Dean out of the plant indicated to her that if she accept
ed the job at the Statesville warehouse an additional
benefit to her would be that she would not have to work
around the people employed at the Cleveland plant any
more
On the following Monday Dean called Kepley and in
formed him that the additional salary she would receive
at Statesville would not sufficiently compensate her for
the additional 20 miles she would have to drive each
way to commute from her home Therefore she was
turning down the transfer and instead taking the layoff
The same day Kepley offered the clerk s position at the
Statesville warehouse to Peggy Shoaf one of the two
other secretaries who like Dean were being laid off from
the Cleveland plant as of October 22 Shoaf accepted
and was still employed at the Statesville warehouse at
the time of the hearing Both Shoaf and the other secre
tary laid off along with Dean were regular full time em
ployees and each had substantially greater seniority than
Dean
As set forth above as of the fall of 1982 Dean was
then sharing living accommodations with her fiancee re
cently discharged production employee Danny Carlyle
According to Dean on the morning of October 12 the
38 In explaining why he ordered her escorted in this manner Kepley
explained that no matter which choice Dean made she would not be re
turning to the Cleveland plant and that it was merely company policy
that an employee not returning to work should be accompanied when
cleaning out his desk
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day before the first Local 71 meeting was to be held at
the Dean/Carlyle house Piping Department Supervisor
Henry Sherrill had a conversation with her about the
Union in the production office Dean testified that Sher
n11 during the course of his daily morning visit to the
office to turn in his crew sheet asked her if she knew
anything about the union activity that was going on at
the plant She answered that she did and informed him
that there was going to be a meeting at her house the
following day Dean further testified that on the day fol
lowing the meeting Sherrill with whom she was quite
friendly asked her what had happened at the meeting
and how many employees had attended When Dean told
him that about 20 had attended Sherrill asked her for
their names She refused and in response to Sherrill s in
quiry as to what the people wanted she stated that they
wanted the Union to represent them Sherrill then corn
mented that he did not blame them because he did not
like the way things were run there himself Additionally
Dean testified that during the week and a half following
the first meeting Sherrill on at least two or three other
occasions asked her if she had heard anything new about
the Union Dean did not testify regarding what if any
thing she responded
Sherrill readily conceded that he had several conversa
tions with Dean during October in which the Union was
discussed Sherrill testified that the first such occassion
occurred one morning in early October when he casually
asked her during the course of a routine conversation
how Danny Carlyle was doing Dean responded by tell
ing him that things were going to happen Dean then
volunteered that Danny was going to meet with the
Labor Board because he felt that he had been unfairly
discharged Dean then added that Carlyle would also be
meeting with the Union sometime later that same week
Sherrill testified that approximately a week after the
above conversation Dean again brought up the subject of
a union On this occasion Dean volunteered that Car
lyle s meeting with the Union had been delayed and that
it would have to be rescheduled to Charlotte sometime
later on
Sherrill denied ever interrogating Dean about her
union activities or the activities of Carlyle In fact Sher
rill claimed that he had no knowledge that Dean herself
as apart from Danny Carlyle ever engaged in any union
activities In this regard Sherrill who admitted hearing
rumors about the Teamsters organizing campaign during
October stated that he was unware that any union meet
ing had ever been held at the Dean/Carlyle house Final
ly Sherrill denied g ever relaying any of this information
onto higher management Sherrill described what Dean
had told him about Carlyle s plans as trivial As Sher
rill explained
In past experience if a person leaves a company and
basically if they feel like they were unfairly treated
to any degree the first conversation they say is
either they are going to the Union or to the Labor
Board or to the NAACP in resentment or to get
back at the company because of their feelings So
it s just common that it happens It s happened to
me quite a few times during my course of supervi
sion so it was trivial I just never thought nothing
about it
Unlike many of the Government witnesses appearing
before me in this trial Dean appeared more interested in
telling the truth than in giving testimony that might
prove beneficial to her particular case Unfortunately I
did not find her memory as contrasted with that of
Sherrill s to be on a par with her desire to testify in an
accurate fashion She had an all too common tendency of
giving her impression albeit an honest one of what was
said rather than in giving a verbatim account of matters
Her testimony regarding her conversations with Sherrill
appeared at times incomplete and unsure Thus she was
only able to recall Sherrill s specifically asking for the
names of those present at the union meeting when direct
ed to do so by a leading question of the General Coun
sel In giving her account of this same conversation both
before and after being so led Dean failed to mention this
particular question
Sherrill on the other hand impressed me as a totally
honest individual His testimony about his conversations
with Dean and his reasons for considering her news as
trivial and unimportant was logical coherent and had a
genuine tenor of truthfulness to it Moreover he ap
peared to possess a forthright demeanor Therefore I
credit his account of the conversations with Dean and I
find and conclude that they were entirely noncoecive 3 9
Accordingly I recommend that the 8(a)(1) allegations re
garding Sherrill s conversations with Dean be dismissed
b Conclusions
The General Counsel contends that in removing Dean
from her position as production secretary at the Cleve
land plant and in offering to transfer her to a clerk posi
tion at the distant Statesville warehouse Respondent was
motivated by a desire to separate Dean from the produc
tion employees among whom she was promoting on
behalf of Local 71 In support of the 8(a)(3) allegation
the General Counsel argues that all the elements neces
sary to sustain a finding of discriminatory motivation
knowledge of Dean s union activities union animus sus
picious timing and the invalidity of the reasons offered
by Respondent to support and explain its actions are
present here
Despite my conclusions with regard to Sherrill s testi
mony immediately above I am satisfied that the infer
ence can be fairly drawn from this record that Kepley at
the time he implemented the decision in question knew
or had reason to suspect that Dean s live in fiancee
Danny Carlyle was the moving force in the nascent
Teamsters campaign Several factors persuade me as to
the correctness of this conclusion First Kepley himself
readily conceded that he received information through
both employees and supervisors regarding any union ac
twines that were going on among his work force This
information included not only knowledge of union meet
ings but the number of employees attending such meet
ings as well In fact Kepley specifically instructed super
3 9 Thurston Motor Ltnes 255 NLRB 173 176 (1981)
M A N TRUCK & BUS CORP 1297
visors to report any such information or rumors they
heard directly to him With this extensive network it
would be rather surprising if Kepley had not by October
22 found out that the first union meeting of October 13
had in fact been held at the house shared by Dean and
Carlyle Dean made little if any attempt to hide her
support for Carlyle s activities Her own activities in tell
ing employees of the scheduled meeting and in giving
them written directions to her house were apparently
done in an open and notorious fashion Second and per
haps more importantly Kepley never denied at any time
during his lengthy testimony having specific knowledge
of Dean s activities at the time he took the action under
scrunity here As noted elsewhere Kepley was a careful
and candid witness I do not view this failure on his part
to be a mere oversight
With regard to the element of union animus this deci
sion is replete with examples of Respondent s strongly
held sentiment that it did not wish its work force to be
organized Mere expression and promulgation of this sen
timent by an employer is not of course unlawful It is
only when an employer acting pursuant to such senti
ment exceeds the permissible bounds of freedom of
speech as contemplated by Section 8(c) of the Act and
commits acts which interfere with coerce and restrain
employees in the exercise of their Section 7 rights that a
violation occurs As set forth elsewhere I have found
and concluded that Respondent did violate Section
8(a)(1) by promulgating and maintaining an unlawfully
broad no solicitation rule interrogating its employees
concerning their union activities soliciting it employees
to ascertain and divulge the union activities of other em
ployees and threatening its employees with reprisals for
engaging in union activities However in deciding the
weight to be given to such examples of union animus I
do take cognizance of the fact that Respondent on its
own rescinded its unlawful rule and that much of the in
terrogation and all of the threats emanated from a super
visor who was acting without higher management s
knowledge and who was himself discharged on the day
before Dean for misconduct with employees 40 While
expressions of union animus by a supervisor may be im
puted to inscribe unlawful motivation by his or her em
ployer a nexus between the expression and the unlawful
conduct must exist 41
As to the element of timing the record indicates that
Dean was informed of her transfer Just 9 days following
the first Teamsters meeting and Just 2 days following the
second Clearly the speed with which Respondent acted
following the start of Local 71 s campaign raises certain
40 I specifically reject here as unreliable the testimony of former weld
mg technician Larry Lucas Lucas testified that in either late September
or early October he conveniently overheard Production Supervisor
Smith Inform welding Supervisor Curlee that Darlene Dean was a leak
who was probably feeding information to Danny Carlyle and thus they
had to do something to get rid of her Lucas who did not tell anyone of
overhearing this conversation until the day before the opening of this
trial quit his employment with Respondent approximately 1 week prior
to the giving of his testimony in order to protest what he believed to be
recent examples of unfair treatment of employees I am persuaded based
on demeanor considerations that Lucas bias against Respondent so col
ored his highly suspect testimony as to render It useless
4i Magic Pan Inc 242 NLRB 840 (1979)
suspicions Were knowledge of Dean s union activities
union animus and suspicious timing the only elements to
be considered by me I would have little difficulty in
concluding that Respondent violated Section 8(a)(3) in
removing Dean from her position as production secre
tary However when the fourth element the validity of
the reasons advanced by Respondent to explain and Justi
fy its decisions is added to this equation I am compelled
to conclude that the General Counsel has not met her
burden of proving this violation by a preponderance of
the evidence ,
Kepley testified that the sole basis on which he decid
ed to reconsolidate the Jobs of production secretary and
storeroom clerk was his realization that despite the
recent growth in its work force the two Jobs could still
be handled by one secretary While Kepley offered little
or no detail with regard to exactly how and when he
came to this conclusion I note that he was not pressed
to do so by either the General Counsel or the Charging
Party on cross examination All we really know is that at
the same time that he decided to act on this information
he also decided that there was insufficient work for the
two other more senior clerks employed in the office of
the Cleveland plant While one can as does the General
Counsel question Kepley s selection of Charleston over
Dean one cannot at least based on this record success
fully question the ultimate wisdom of Kepley s Judgment
in reconsolidating the two Jobs In this regard the record
is clear that Charleston has at all times since October 22
1982 performed both functions apparently without diffi
culty Further Respondent has not replaced on a perma
nent basis either of the two data entry clerks who also
lost their Jobs at the Cleveland plant about October 22
The General Counsel argues that Respondent s reten
tion or selection of an inadequate employee (Charleston)
instead of a clearly superior employee (Dean) for the
newly combined position establishes that Respondent
was not motivated by legitimate business concerns I dis
agree both with the premise underlying this argument
and its ultimate conclusion While Dean was clearly su
perior to Charleston Charleston s prior difficulties in the
production secretary s Job did not at least in the eyes of
Kepley render her either unfit or incompetent Although
Smith may have indicated a desire to rid himself of
Charleston prior to her pregnancy Kepley did not share
this opinion In view of Smith s own well documented
problems one could hardly be expected to put too much
stock in his evaluation of another s employee s fitness
Kepley advanced three reasons for his selection of
Charleston over Dean First Kepley noted that Charles
ton had experience in both Jobs where Dean had only
experience as the production secretary It is difficult to
evaluate this proffered reason one way or the other since
no one bothered to inquire of Kepley or anyone else
how long it would have taken to train Dean as a store
room clerk Second Kepley stated that he personally
thought that it would be unfair in the circumstances here
to give Dean what had originally been Charleston s Job
Dean was only brought aboard as a temporary employee
in the first place because Charleston was going on ma
ternity leave Dean was initially hired for a very limited
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duration and she was kept on thereafter because of
Charleston s unexpected medical problems Further it
was only because Kepley incorrectly believed that
Charleston s medical complications might prevent her
from returning at all that Dean was eventually made a
permanent employee In these circumstances it seems to
me that one can easily make a compelling fairness argu
ment on Charleston s behalf Third Kepley testified that
his legal counsel informed him that Respondent faced
potential legal problems if it did not return Charleston to
her former job While no elaboration was sought or
given at hearing in view of extensive litigation in our so
ciety involving alleged sex discrimination it does not
appear that this advice can be disregarded as totally
worthless Thus in view of the above as well as the fact
that Smith Charleston s nemesis was himself discharged
on October 21 no reasonable impediment appears to
have precluded Respondent from retaining Charleston
over Dean
Finally I find no support for the General Counsel s
case from the alleged remark made to Dean on October
22 by either Kepley and/or his secretary to the effect
that if Dean took the clerk s position at the Statesville
warehouse she would not have to work with the people
at the Cleveland plant anymore This remark if made
was done so in the nature of an inducement to Dean in
order to convince her to take the job offered As such It
can hardly be considered as some type of admission by
Respondent or an agent of Respondent that Dean was
being transferred in order to separate her from the re
mainder of the production employees In view of the
entire circumstances of this case this remark could have
simply reflected the speaker s negative judgment regard
ing the type of production employee that Dean had to
deal with on a daily basis while employed at the Cleve
land plant Thus the reasons advanced by Respondent
for making the changes in question appear to be valid
business judgments unaffected by any union consider
ations Therefore while the matter is not entirely free of
doubt I do not find that there is sufficient evidence to
support this complaint allegation Accordingly I recom
mend that it be dismissed
IV THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it cease
and desist therefrom and that It take certain affirmative
actions designed to effectuate the policies of the Act
On the basis of the foregoing findings of fact and on
the entire record in this case I make the following
CONCLUSIONS OF LAW
1 M A N Truck & Bus Corporation is an employer
engaged in commerce within the meaning of Section
2(2) (6) and (7) of the Act
2 International Union United Automobile Aerospace
and Agricultural Implement Workers of America UAW
is a labor organization within the meaning of Section
2(5) of the Act
3 By interrogating employees concerning their union
activities sympathies and desires Respondent violated
Section 8(a)(1) of the Act
4 By soliciting employees to ascertain and divulge to
it the union activities sympathies and desires of other
employees Respondent violated Section 8(a)(1) of the
Act
5 By threatening employees with discharge because of
their union activities Respondent violated Section 8(a)(1)
of the Act
6 By promulgating and maintaining an overly broad
no solicitation rule Respondent violated Section 8(a)(1)
of the Act
7 Respondent did not violate the Act in any other
manner as charged
8 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
lion 2(6) and (7) of the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed42
ORDER
The Respondent M A N Truck & Bus Corporation
Cleveland North Carolina its officers agents succes
sors and assigns shall
1 Cease and Desist from
(a) Interrogating its employees concerning their union
activities sympathies and desires
(b) Soliciting employees to ascertain and divulge to it
the union activities sympathies and desires of other em
ployees
(c) Threatening its employees with discharge because
of their activities on behalf of the Union
(d) Promulgating and maintaining an overly broad no
solicitation rule
(e) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action designed to ef
fectuate the policies of the Act
(a) Post at its Cleveland North Carolina facility copies
of the attached notice marked Appendix Copies of the
notice on forms provided by the Regional Director for
Region 11 after being signed by the Respondent s au
thonzed representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicious places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by Respondent to ensure that
the notices are not altered defaced or covered by any
other material 4 3
2 If no exceptions ire filed as pros ided bx Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
4 3 If 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 Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
M A N TRUCK & BUS CORP 1299
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act other
than those found in this decision
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
the following rights
To organize
To iorm join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT do anything that interferes with re
strains or coerces employees with respect to these
rights More specifically WE WILL NOT interrogate our
employees concerning their union activities sympathies
and desires
WE WILL NOT solicit our employees to ascertain and
divulge to us the union activities sympathies and desires
of other employees
WE WILL NOT threaten our employees with discharge
because of their activities on behalf of the Union
WE WILL NOT promulgate and maintain an overly
broad no solicitation rule that prevents solicitation of any
kind in the working areas
WE WILL NOT in any like or related manner interfere
with restrain or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act
M A N TRUCK & Bus CORPORATION