Matlock Truck Body and Trailer Corp.

National Labor Relations Board - Board Decisions

Jun 22, 1971

191 N.L.R.B. 407 (N.L.R.B. 1971)

MATLOCK TRUCK BODY AND TRAILER CORP.
Matlock Truck Body and Trailer Corp. and Richard
W. Cobb and Robert C. Merritt and Claude Thomas
Jackson
Matlock Truck Body and Trailer Corp . and District
#155 of the International Association of Machin-
ists and Aerospace Workers, AFL-CIO. Cases 26-
CA-3780, 26-CA-3785, 26-CA-3823, and 26-RC-
3758
June 22, 1971
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On March 4, 1971, Trial Examiner George J. Bott
issued his Decision in the above-entitled consolidated
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found that
Respondent did not engage in certain other unfair labor
practices and recommended that those allegations of
the complaint be dismissed. Thereafter, the Respond-
ent and the General Counsel filed exceptions to the
Trial Examiner's Decision and briefs in support of their
respective - positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in these cases,' and hereby adopts the
' The General Counsel filed a motion to strike Respondent's exceptions
or, in the alternative, to strike certain portions of the Respondent's excep-
tions and brief referring to the exhibit attached to Respondent's brief, and
the exhibit itself which was not part of the record evidence. We hereby deny
General Counsel's motion to strike Respondent's exceptions in their en-
tirety. However, we have taken notice that Respondent's exhibit was not
evidence offered at the hearing although available. Furthermore, it is settled
Board law that the Board will not admit an arrest record, as distinguished
from a record of convictions for felonies or misdemeanors amounting to
crFmen false. See Martel Mills Corporation, 118 NLRB 618, 632. For these
reasons, we grant the General Counsel's motion to strike Respondent's
Exhibit 1 attached to Respondent's brief, and references thereto, in Re-
spondent's exceptions and brief.
191 NLRB No. 91
407
findings,2 conclusions, and recommendations3 of the
Trial Examiner as modified below.4
We agree with the Trial Examiner that Respondent
violated Section 8(a)(1) of the Act by the following
conduct: Supervisor Bradley's interrogation of em-
ployee Walker; Supervisor Hall's interrogation of em-
ployees Banks and Jackson, the latter subsequently dis-
charged in violation of Section 8(a)(3); Supervisor
Bradley's statement to employees Jackson and Merritt
that they had "better vote no" in the forthcoming elec-
tion, a clear threat that they would suffer if they voted
for the Union; President Matlock's threat to employee
Lamberth that, regardless of who won the election, he
was "going to fire all the troublemakers"; and President
Matlock's order to employee Jackson to remove a
union sticker from his welding hood without valid busi-
ness justification.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner as modified below and hereby or-
ders that the Respondent, Matlock Truck Body and
Trailer Corp., Nashville, Tennessee, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order, as herein
modified.
IT IS FURTHER ORDERED that the election in Case
26-RC-3758 herein be, and it hereby is, set aside, and
that case is hereby remanded to the Regional Director
for Region 26 to conduct a new election.
[Direction of Second Elections omitted from publica-
tion.]
' The Respondent excepts to various findings of the Trial Examiner on
the ground that he erred in crediting the testimony of certain witnesses. It
is the established policy of the Board not to overrule a Trial Examiner's
credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that the resolutions were incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A, 3, 1951). We
find no sufficient basis for disturbing the credibility finding s in these cases.
We note that in his discussions on the objections to the election, the Trial
Examiner referred, in numerous places, to "Objection 1" when it was obvi-
ous he was referring to "Objection 2."
' We hereby conform the notice to the recommended Order by inserting
in the last indented paragraph of the notice the words "or prohibiting the
wearing of union insignia in the plant," just prior to the phrase "or in any
other manner.... ..
Chairman Miller would not adopt the independent 8(a)(1) findings, or
those portions of the Order relating thereto, since he finds that such inde-
pendent violations are not established by a preponderance of the evidence
on the record considered as a whole, but otherwise concurs with his col-
leagues.
' In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which maybe used to communicate with them. Excelsior Underwear
Inc., 156 NLRB 1236; N.LR.B. v. Wyman-Gordon Co, 394 U.S. 759.
Accordingly, it is hereby directed that an election eligibility list, containing
the names and addresses of all the eligible voters, must be filed by the
Employer with the Regional Director for Region 26 within 7 days after the
(Cont.)
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of issuance of the Notice of Second Election by the Regional Director.
The Regional Director shall make the list available to all parties to the
election. No extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances. Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed
TRIAL EXAMINER'S DECISION AND REPORT ON
OBJECTIONS TO ELECTION
STATEMENT OF THE CASE
GEORGE J. BoTr, Trial Examiner: On November 10, 1970,
the Regional Director for Region 26 consolidated these cases
for hearing and a hearing was held before me in Nashville,
Tennessee, on December 15, 16, and 17, 1970. The unfair
labor practice cases began with a charge filed by Cobb on
August 20, 1970, and Merritt on August 25, 1970, on which
the Regional Director issued a complaint against Matlock
Truck Body and Trailer Corp., herein the Respondent or
Employer, on October 5, 1970, alleging violations of Section
8(a)(1), (3), and (4) of the National Labor Relations Act, as
amended, herein called the Act. Jackson filed a charge against
Respondent on October 7, 1970, and the complaint alleging
violations of Section 8(a)(1), (3), and (4) of the Act issued on
November 10, 1970.
Case 26-RC-3758 began with a Petition for Certification
of Representatives filed by the Union on April 23, 1970, upon
which the Regional Director, after a hearing, issued a Deci-
sion and Direction of Election on June 9, 1970. The election
was held on July 9 among approximately 115 eligible em-
ployees of the Employer, but the results were inconclusive
because of challenged ballots. On July 16, the Petitioner filed
objections to conduct affecting the results of the election and,
on August 19, 1970, the Regional Director sustained part of
the objections, overruled others, found it unnecessary to re-
solve still others, and issued a Supplemental Decision, Orders
and Direction, in which he overruled the Union's challenges
to certain ballots and set the election aside on the basis of the
objections which he had sustained. On August 27, 1970, the
Employer petitioned the Board to review the Regional Direc-
tor's actions and, on September 29, the Board granted the
petition and remanded the case to the Regional Director for
a hearing on the sustained objection and on issues raised by
those portions of the objections which had not been resolved
by the Regional Director.
All parties were represented at the consolidated hearing.
Subsequent to the hearing, General Counsel filed a brief in the
unfair labor practice cases and Respondent filed a brief in
both the unfair labor practice and representation cases. The
briefs have been carefully considered.
Upon the entire record in the cases and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I RESPONDENT'S BUSINESS
Respondent is a corporation with a plant in Nashville,
Tennessee, where it is engaged in the manufacture and sale
of truck bodies and the selling and servicing of truck trailers.
During the 12-month period prior to the issuance of the
complaints in these cases, Respondent sold and shipped from
its Nashville plant products valued in excess of $50,000 to
points directly outside the State of Tennessee.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
District # 155 of the International Association of Machin-
ists and Aerospace Workers, AFL-CIO, herein the Union or
Petitioner, is a labor organization within the meaning of the
Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence as to Alleged Violations of Section 8(a)(1)
of the Act; Findings and Conclusions With Respect Thereto
1. Interrogation and threats
Employee Walker testified without contradiction that ap-
proximately 10 days before the Board election on July 9,
Supervisor Bradley asked him what he thought about "the
union coming in," and when he indicated that he had been
to union meetings and had "listened to both sides," but was
still undecided, Bradley commented that he did not think,
"we need a union ." A day or so before the election, Matlock,
principal officer and owner of Respondent, shook hands with
Walker and asked him for his vote, as the record shows he
did with all eligible voters.
Employee Banks testified that before the election in June,
Supervisor Hall asked him at his work station how he felt
about the coming vote and who he thought would win. Hall
did not deny this testimony and stated that he may have
asked other employees to vote for the Company in the Board
election.
In June, Hall asked employee Jackson, the one who had
initiated the union activity at the plant and was later dis-
charged, how he felt about the approaching election and "if
there was anything we could improve on." Hall conceded
going that far, adding that "perhaps" he may have asked
other employees the same kind of questions that he asked
Jackson . I also find, in accord with Jackson's credited tes-
timony, that when Hall asked him why he thought the em-
ployees "needed" a union and he responded that he had been
treated unfairly in the Company's handling of employee pro-
motion tests, Hall inquired if he would feel the same if he
passed the next examination. Jackson replied that he would.
Supervisor Bradley also spoke with more than one em-
ployee about the election. Employee Merritt testified that
during a conversation with Bradley in the plant in which the
subject of the union arose, Bradley told him that he "had
better vote no." Employee Jackson said he heard this state-
ment and asked Bradley to repeat it, which he did. Bradley
testified that union activity could have been mentioned as
Merritt testified, but he denied making the "better vote no"
remark. Vice President Parrish was later teased by Merritt
and Jackson about Bradley's alleged statement and I find on
the basis of the credited testimony of Jackson and Merritt
that the statement was made.
On June 8, 1970, Matlock, Repondent's president, asked
employee Lamberth to step a few feet outside the plant and
then questioned him about his "opposition" to the Company.
Lamberth, employed by Respondent for 10 years, testified
that during the conversation Matlock argued that the Union
was "using" Lamberth and would abandon him if they did
not win the election. He asked the employee what the Com-
pany had done to him to make him "fight it so hard," and
during their talk, which lasted some time , Matlock, according
to Lamberth, and this is the only part of his testimony which
is really contradicted, said that, regardless of who won the
election, he was "going to fire all the troublemakers." Lam-
berth asked Matlock when he was going to fire him and he
answered that he did not know. Lamberth stated that his only
"opposition" to the Company was his union activity. I was
impressed by Lamberth's account of his talk with Matlock
MATLOCK TRUCK BODY AND TRAILER CORP.
and, without relying on the testimony of employees Wilker-
son and Jones , who said they overheard the "troublemaker"
remark, but nothing else, I find that Matlock made the inqui-
ries and the threat Lamberth said he did.
Respondent argues that Hall would not have made the
statement about an employee test attributed to him by Jack-
son for a number of reasons, including the fact that super-
visors had been instructed by Matlock regarding what they
could and could not say to employees during an election
campaign . Matlock testified, however, that he did not expect
supervisors to ignore questions raised by employees during
the campaign , and Hall admittedly did question Jackson
about his grievances and Jackson answered in some detail,
according to Hall . It does not seem unlikely that Hall would
in these circumstances inquire if a different result on the next
test would change Jackson 's attitude toward the Company,
particularly when it is recalled that Hall, who admittedly had
asked others about their views, was interested in finding out
"if there was anything we could improve on." The interroga-
tion was neither casual , isolated , nor disinterested and it
served no legitimate purpose . I find and conclude that in the
circumstances Respondent violated Section 8(a)(1) of the Act
by Hall's interrogation of Jackson and Banks and by Brad-
ley's interrogation of Walker.
I also find that even if Merritt and Jackson took Bradley's
statement that they had "better vote no" lightly, since it is the
tendency of a statement to coerce and restrain employees that
is significant, I find and conclude that Bradley 's remark,
which contained the implication that employees would suffer
if they voted for the Union, violated Section 8(a)(1) of the
Act.
I also find and conclude that Respondent violated Section
8(a)(1) of the Act by Matlock 's threat to get rid of "trou-
blemakers" after the election.
2. Prohibiting the wearing of union stickers
Employee Jackson wore various union insignia during the
preelection campaign, as did other employees. On or about
June 9, he had pasted two bumper stickers with the legend
"Vote Machinists" on the front of his welding hood and was
leaving the plant in the company of other employees with the
hood in his hand when Matlock, who had been stationing
himself at the plant exit before the election in order to distrib-
ute antiunion literature to employees, noticed the stickers on
Jackson's hood and told him that he " wasn't going to have
those things in his plant." Jackson replied that the hood was
his and he would wear what he wanted on it, but Matlock
answered that he did not want "union trash around here."
Jackson continued to wear the union bumper stickers on his
hood during the rest of the campaign without interference
from Respondent.
Matlock conceded that he told Jackson that the Company
was not going to "have union signs in the plant," his reason
being that since he was "trying to run the campaign on a high
plane" and he had not displayed any company literature or
signs in the plant, he thought the Union should have none
either. He noted that he did not thereafter pass out literature
in the plant and that Jackson and other employees continued
to wear the union insignia on their helmets.'
Respondent had no valid business consideration for at-
tempting to prevent the use of union stickers in the plant and
even if Jackson and others did not comply with Matlock's
instructions and although the Respondent never imple-
mented his order, the prohibition was never clearly revoked
There is no evidence that employees were prohibited from wearing
union buttons, as the complaint alleges, and in fact they did.
409
and, as brief as it was, it interfered with employee rights
under Section 7 of the Act. I find that by this act Respondent
violated Section 8(a)(1) of the Act.'
3. Creating the impression of surveillance
The complaint alleges that Respondent, by Supervisor
Hall, on or about August 24, 1970, created the impression of
surveillance of its employees' union activities by informing
them that it knew which employees had given statements to
the Board. The evidence establishes that, shortly after the
Regional Director's Supplemental Decision and Order set-
ting the election aside issued, a group of employees were
talking about the report at lunchtime with Supervisor Hall.
Employee Merritt testified without contradiction that he in-
troduced the Regional Director's Decision into the conversa-
tion by commenting to Hall that he noted that he had been
named in the report and it appeared that he was in "trouble".
He said Hall grinned and said, "We can tell by reading it who
made the statements." Employee Jackson said that Hall
stated that by reading the report he "could pretty well tell
who was saying what." He then, according to the employee,
stared at him.
It was clearly apparent to anyone in management from
reading the Director's Decision that Merritt was the em-
ployee who had given a statement about receiving an extra
benefit before the election and it is equally apparent from the
Decision that Jackson told the Board about his conversation
with Hall in which employee tests were discussed. In this
context, Hall's statement that he or the Company could
"pretty well" tell from reading the Decision which employees
had made the statements referred to in it is, in my opinion,
legally insufficient to constitute "creating the impression of
surveillance of' employee union activity.
I also fail to see how Hall's statement to employee Arney,
after Arney had been interviewed in the plant by a Board
agent with company permission and had given the agent a
statement about the election, to the effect that he hoped the
statement had not put Arney in a "bind," created the impres-
sion of surveillance, as alleged in the complaint.
B. Alleged Violations of Section 8(a)(3) of the Act; the
Evidence and Some Basic Findings
1. Claude Jackson
Jackson began working for Respondent on August 4, 1969,
and at the time of his discharge on December 8, 1970, he was
employed as a B mechanic in the Company's rear end depart-
ment. Jackson started the union campaign in the spring of
1970 and he was active in distributing union cards, securing
employee signatures to union applications, handing out but-
tons, decals, and bumper stickers. He also attended the repre-
sentation hearing at the Board office in May 1970. I have
already found that Hall, Jackson's supervisor, interrogated
him about the Union in June 1970 and that Matlock advised
him that he would not permit the wearing of IAM insignia
in the plant. It also appears that the day before Hall interro-
gated Jackson and asked him if his attitude toward the Com-
pany might change if he passed the next employee test for A
mechanic, Matlock had shaken hands with him and asked
him to vote for the Company in the coming election. When
Jackson told Matlock that he could not lie to him and was
going to vote for the Union, Matlock advised him to think
about the matter "real hard," but Jackson replied that he was
not going to change his mind.
2 Webb Furniture Corporation, 158 NLRB 1003; The Ammn Company,
Division of Worthington Corporation, 151 NLRB 1512, 1519.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After Hall interrogated Jackson, as found above, the two
returned to Jackson's work area where Hall advised the em-
ployee to remain at his station and not loaf. Jackson asked
him if his work was satisfactory and Hall said that he did
good work. On or about August 25, which was the day em-
ployee Merritt, another alleged discriminatee, was dis-
charged, Jackson and Hall had another conversation about
Jackson's work habits. Hall accused Jackson of going to the
restroom too often and warned him that he was going to
supervise him more closely. Jackson accused Hall of harass-
ment and warned that he would bring the issue to the Board.
He said, and I credit his testimony, that Hall replied, "That's
your trouble, you've done been there one time too many."
Jackson had "been to the Labor Board," because he had
attended the representation hearing with employee Lamberth
and others and had also given an affidavit to the Board in
support of the Union's objections to' the election. I have al-
ready found that when, on or about August 25, Foreman Hall
told a group of employees, which included Jackson, that one
could determine from reading the Regional Director's Deci-
sion setting aside the election which employees had given
statements to the Board, Jackson responded that he knew
Hall was aware that he had, but he had only told the truth.
On September 24, 1970, Jackson received the first of the
three written warnings on which Respondent based his dis-
charge. Supervisor Hall testified that he gave Jackson the
warning because he saw him "tack-welding" without wearing
a welding hood. Jackson admitted that he had done so. He
explained that tack-welding is an operation in which one
piece of metal is lightly attached to another at a number of
spots in order to hold them secure until the actual weld is
made. This operation is performed by holding the welder to
the parts, shutting your eyes, then turning the head and
pulling the trigger of the welder for a split, second. This
technique, I find, involves a personal risk, but it is frequently
used by employees because it is faster and more convenient
than is the case if the welder's hood is placed in position for
each tack. Jackson testified without contradiction that when
Hall said he was issuing the warning, he protested that all
employees tack-welded without hoods, that he did it every
day and Hall knew it, and that he had seen Hall tack-weld
without a hood 100 times, Hall replied that this was irrelevant
and that the warning would issue. I also find that Jackson and
other employees, including Hall when he was a welder, had
frequently tack-welded without hoods in the past in the pres-
ence of supervisors and that they had not been warned against
it or reprimanded in any way until Jackson received his warn-
ing on September 24.'
Jackson received his second warning on October 6, 1970,
from Supervisor Hall for "unsatisfactory work" in installing
a 30-inch platform on a rear end of a truck body. Hall testified
that he issued the reprimand because he had received a writ-
ten note which Superintendent Stone had received from
someone else regarding the platform. Hall did not personally
view the defective workmanship for he said it had been re-
worked when he went to inspect it after receiving the com-
munication from Stone. It appears from Matlock's testimony
that he happened 'to observe the 30-inch rear end platform
further along in the assembly line when it was being repaired
by other employees. Later he went to Vice President Parrish's
office and left a note for him stating that he had seen'the
incorrectly installed platform and thought that "the man that
put it on should have a warning slip for poor workmanship.
' Employees Merritt and Arney corroborated Jackson. Merritt said he
learned the method from watching Supervisor Worrell use it . Worrell did
not deny this. Hall did not deny that he followed the practice before he
became a supervisor.
You can check serial number and see who did it." The record
does not disclose what Parrish did in this connection or who
instructed the other employees to redo the work.
Jackson admitted that he attached a 30-inch rear end plat-
form to a rear end, but he did not concede that the platform
was out of line as charged by management, for he had never
seen it after he completed his work on it, and he testified that
he had worked carefully with the assistance of another em-
ployee in aligning the platform and the rear end before he
welded one to the other.' Jackson testified that he was the
only employee assigned to building rear ends at the time. He
also testified credibly and without basic contradiction that
this was-the first platform of this size that he had constructed
and that he received the reprimand in question a week after
he finished the work. He asked, the chief inspector what was
wrong with the work and was told that "nothing" was. The
chief inspector also admitted that he had not put a red tag on
the work, which would have meant that it had failed to pass
inspection, and indicated to Jackson that he knew nothing
about the situation. I also find that the work that Jackson was
supposed to and may have done improperly continued
through additional steps in the manufacturing process until
at least the mounting area, that it passed inspection, including
the eyes of supervision, and that no other employees were not
criticized for not catching the error that Jackson may have
been responsible for.
When Jackson produced some defective work on Decem-
ber 8, he was warned and fired. The facts are not in dispute.
A rear end of a, truck body is comparable to a steel door
frame. Jackson welded the frame together and discovered
that it turned out to be approximately one inch out of square.
He called Hall who instructed him to cut the rear end apart
where the parts were connected and square it again, but he
added that he would check his superiors for advice. Jackson
said the work was salvageable and he began to redo it which
would have taken less than 2 hours, but Hall returned and
advised him to put the defective rear end aside and commence
work on a new one. Jackson did and worked on the substitute
component until approximately 2 p.m., when he was dis-
charged. Present at his discharge in Stone's office was Direc-
tor of Personnel, Hartman Hall, and Stone. Stone explained
to Jackson that because this was his third "write-up," he was
"automatically discharged."
2. Robert Merritt
When Merritt was discharged on August 25, 1970, after 4
years of employment with Respondent, he was employed as
a working supervisor under Hall in the rear end department.
He was active in the union activity which preceded the Board
election and the Respondent knew it.
Merritt gave a statement to the Board in support of the
Union's objections to the July 9 election. In his Decision,
issued on August 19, setting aside the election the Regional
Director found on the basis of Merritt's statement that Re-
spondent announced a grant of an extra day's vacation for
perfect attendance to an employee shortly before the election.
The Regional Director found further, on the basis of his
investigation, that two other employees had been given an
extra day for perfect attendance and that this grant of ben-
efits, although first considered in March, was not effected
Employee Berry saw a 30-mch platform which he thought clearly tilted
to one side and should not have continued through the assembly line Since
it was near quitting time, his group did not complete the next operation, but
left the work for the next shift Employee Sosh did the repair work on the
platform, which he said was not properly squared, but he had mounted the
truck body the previous day and did not notice anything wrong with the
platform at that time.
MATLOCK TRUCK BODY AND TRAILER CORP. 411
until May. He concluded that, since the grant of benefits was
not effected until May and "as the announcement to the
witness was delayed until approximately one week before the
election," the grant and its announcement "at a time it could
be expected to have the greatest impact upon the outcome of
the election constituted improper interference with the elec-
tion ...." On this basis and also because he also found im-
proper interrogation of employees prior to the election, the
Regional Director, without resolving other issues raised by
the Union's objections, set aside the election and directed a
new one. Although Merritt was not named in the Decision,
it was admittedly apparent to Matlock that Merritt had given
the statement. It is also a fact that Merritt was in error when
he told the Board that he first learned about the new benefit
on or about July 1, for in fact he was aware of it when he made
application in writing for his vacation on May 28, 1970.
As already found, on or about the day the Regional Direc-
tor's Decision was received by Respondent, Merritt men-
tioned it to Supervisor Hall who then commented that the
company officials could tell from reading the Decision who
had made the statements to the Board.
On August 25, Matlock made a speech to employees in
which he went into considerable detail about the Regional
Director's action in setting aside the election and the asserted
basis for it. He stated that the Union had "again filed false
charges" against the Company and, after reciting the history
of the added day's vacation for perfect attendance and the
facts surrounding Merritt's eligibility for and receipt of it,
stated that Merritt, who he did not call by name but described
as "this employee" had lied under oath and because of his lies
there might have to be a new election.
Merritt had received a warning slip on June 16 and another
on July 23. On August 25, less than an hour after Matlock
addressed the employees, Merritt received a third and was
discharged under the following circumstances: Superinten-
dent Stone testified that sometime in May 1970 the engineer-
ing department issued an order to make a structural change
in a portion of the truck body which would include a change
in vertical bumper guards. He said the change involved a four
or five step procedure which would be implemented progres-
sively in order to utilize materials on hand. He said that he
discussed the problem with Merritt at the time the order was
received.
Stone testified that on August 25 he observed two truck
bodies with the "wrong kind" of vertical bumper bars which
were 2 inches wide rather than the 3Y,-inch material contem-
plated by the engineering modification. He also said that the
new material had been delivered and a portion of it had been
cut into appropriate 18-inch lengths and placed at Merritt's
work station for use by him that day. Nevertheless, Merritt
was using the old material. This was Merritt's third warning
and he was discharged.
Merntt's testimony is more revealing than Stone's in re-
spect to other circumstances involved in the structural
change.SMerritt denied that he had been given any kind of
verbal or written instructions to substitute a 3Y,-inch bumper
for the 2-inch which he had customarily installed and he said
he told Stone so when-Stone called the work to his attention.
During their conversation, Stone told him that the new
material was nearby. Merritt credibly testified he knew that
the new material had arrived, for he had unloaded it and had
asked Supervisors Hall and Spaulding at the time what the
material was to be used for, but neither of them knew. Hall
thought it was to be used in making signs, which was another
operation Respondent was engaged in at the time. Spaul-
ding's memory of what actually occurred in this connection
was very uncertain and Hall admitted that he told Merritt
that he did not know what the new material was to be used
for when it arrived in the shop.
It also appears from Jackson's testimony that he cut
3Y,-inch material into appropriate lengths for bumper guards
on Hall's instructions after Merritt had been discharged. Hall
told him that Merritt had made a mistake in using the old
size, but this, Jackson said, was the first time he learned what
the new material was for. The new material was stocked near
the cutting saw and Jackson cut the first two pieces and then
instructed another employee how to do the rest. Jackson also
testified without contradiction that some time previously a
bundle of 2-inch and 33Z-inch pieces had arrived in the depart-
ment and Supervisor Bradley had him cut the 2-inch pieces
at a 45-degree angle for use as bumper guards. He then asked
Bradley what the larger pieces were for, but Bradley in-
structed him not to cut them because he thought they were
for use in the sign department.
Inspector McClanahan testified that he was not aware that
Merritt was supposed to change to 3Y2-inch material at that
time and since he did not know the new material was in the
plant, he would not have called the defect to Merritt's atten-
tion in any case. It also appears that the work was not redone
and the bodies were delivered to the customers as made.
On the basis of all the testimony set out and all of the
circumstances described, I credit Merritt and find that he had
no instructions to change to new job specifications, that
supervision generally was ignorant or at fault, if there was any
fault, and that Merritt was warned and discharged because of
something he was not responsible for.
On June 16, 1970, Stone issued a written warning to Mer-
ritt for having been in the plant on the previous Friday
evening under the influence of alcohol and for visiting em-
ployees in violation of company rules. Merritt admitted that
he had been drinking before he entered the plant and that be
did talk with an employee, but only in the parking lot after
the close of that person's shift.
On July 23, Stone gave Merritt a written warning for "kill-
ing time and visiting with other employees." Stone testified
that he had seen Merritt talking with Cobb, an alleged dis-
criminatee, and with others from time to time, and that after
Cobb left his office after receiving a reprimand for "killing
time," Merritt left his work and talked with Cobb for "some
few minutes." He told Foreman Hall to get Merritt and he
explained the warning to him. He added that the warning was
issued .not only on the basis of the incident he had just ob-
served, but because he had seen Merritt loitering around the
parts room and also because he had "visited among other
employees,, and talked to two other employees quite fre-
quently." Stone did not discuss Merritt's alleged propensity
to "kill time" with him before he gave him a warning for it,
but he said Hall did and that he and Hall had watched
Merritt. Hall did not refer to this incident in his testimony.
Merritt denied that he had been stopping work and killing
time and he credibly testified that he had never been warned
in that area. He also testified, and I find that, except for
speaking with Cobb after he received a warning , he had been
busy at his normal tasks before he was summoned to Stone's
office.
3. Richard Cobb
Cobb was hired in August 1966 and worked as an "A"
mechanic fabricating body sides under Foreman Hall. Cobb
was active in the Union, helping to get union cards signed,
and he also wore union insignia on his person in the plant
urging a vote for the Union. Cobb was discharged on August
17, 1970, assertedly for "poor workmanship." Since Cobb
had received two warnings prior to the error that he admit-
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tedly committed on August 17, his discharge was "auto-
matic" under Respondent's policy.
The first warning slip Cobb received was on July 23 for
"killing time." Superintendent Stone testified that since
Cobb's work station is just outside of Stone's office window,
he is able to observe him at work. On July 23, he noticed Cobb
working slowly and called it to Hall's attention. At starting
time, Cobb was not ready to begin work, and during the day
Cobb continued to move slowly from task to task, Stone said.
He also said he discussed Cobb's actions with Hall at some
length, and then issued the warning after he had Hall bring
Cobb to his office. Stone said Cobb admitted that he had been
working a "little slowly," but saw no reason to hurry. After
this warning, Stone continued to observe Cobb's work habits
and he said they improved "to some extent." Stone did not
discuss "killing time" with Cobb before he issued the warning
to him, and there is nothing in Hall's testimony about these
incidents.
Cobb testified without contradiction that the warning he
got for loafing in July was the first one he had received during
his entire employment with the Company. He also denied
that he had slowed down or killed time in any respect and he
maintained that production generally was slow at the time
because there had been a cutback in production company-
wide. His helper had been taken away from him, the work-
load had been cut, there had been layoffs, but production in
his department was being maintained, according to him.
Cobb's account of this incident is more plausible and believa-
ble than Stone's, and I credit it.
Stone gave Cobb a second warning slip on August 7, 1970,
because he had used a friction saw without wearing a face
shield. Although there customarily was a face shield at the
saw, it was not there when Cobb was ready to use the saw and
he was informed by another employee that none was available
in the parts department. Cobb used the machine by locking
the work in place, turning his head away from the saw, and
turning on the power. Other employees had also used this
method when no shield was at hand. Stone admitted that
Cobb told him that there was no shield available when he was
ready to use the saw, but he denied that he had ever seen any
other employee use the technique Cobb had used, and he said
that Cobb should have used either his goggles or his welding
shield which would have been some protection.
On August 14, 1970, Foreman Spaulding reported to Stone
that Cobb had erroneously built two extra truck body sides
from one work order and when questioned about it had told
him that he had done something similar some time ago and
had been allowed to purchase the spoiled material from the
Company. Stone testified that Hall, Spaulding, Personnel Di-
rector Hartman, and he discussed Cobb's error and Stone
decided to take disciplinary action and told Hall so. He said
he relied on the fact that this was the second time the em-
ployee had been involved in this type of mistake and "his
general attitude was that ... he didn't care." Nevertheless, he
decided to consult with Hartman again and did so on the
following Monday. After further discussion, it was decided to
terminate Cobb. The sides erroneously fabricated by Cobb
were partially salvaged.
4. Jerry Wilkerson
Wilkerson was employed by Respondent as a painter when
he was discharged by Stone on August 25, 1970, after Stone
found him smoking a cigarette in one of Respondent's paint
booths contrary to a company safety rule. All paint booths
contain some kind of flammable materials at times and there-
fore carry signs on their doors warning employees against
smoking. Wilkerson had participated in the union campaign
and had worn identifying union insignia in the plant.
Wilkerson had never received a warning for any violation
of Respondent's rules during his approximately 3% years of
employment before Stone discharged him. Wilkerson testified
that he had smoked in paint booths before and had not been
warned against it and neither had other employees whom he
named and who he said had engaged in the same practice.
Wilkerson also said that he saw Respondent Vice President
Parrish carry a cigar through a paint booth.
There is also other evidence that Respondent was lax in
enforcement of its rule against smoking, at least in some
areas, where painting is done. Lamberth, who I have found
to be a credible witness, testified that Wilkerson was his
helper on the day he was discharged and that they were
working with both flammable and inflammable materials.
There are no-smoking signs on the booth doors, he said, and
he was unaware that Wilkerson was carrying a lighted ciga-
rette, but if he had he would have cautioned him about it. He
stated that "everybody that works in the shop," including
himself and supervisors , smokes in the area. He named
Walker, a salesman, and Robinson, chief inspector, as per-
sons whom he had seen either smoking or carrying cigars or
cigarettes in restricted areas. It seems, however, that some of
this may have occurred in,an area which was allocated to sign
making and which Respondent claims it had made an "open"
plant area, not affected by its rule against smoking. Lamberth
also said that he had in the past smoked in the paint booth,
but had recently given up the practice. During his 11 years
of employment with Respondent, Lamberth had heard of no
one being fired for violation of the no-smoking rules, although
he said he was aware that they existed. According to him, and
I credit his testimony, the rules were not "really" enforced
until sometime during the "last four or five months" before
the hearing in this case in December 1970.
The testimony of employees Merritt and Cobb is also to the
effect that employees have in the past smoked in paint booths,
but there is some question whether or not they had reference
to the time when Respondent was building signs. In the case
of other employee witnesses it is more evident that this was
the time they had in mind. Employee Johnson said that re-
cently he had seen Walker, of sales, carry a cigar into the
paint booth, but this was the only occasion in the last 5 years
when he said he had seen such an infraction. According to
him, employees observe the signs now more than they used
to. Employee Arney said he had seen employees and Vice
President Parrish smoke in paint booths, but he was uncer-
tain exactly where they were at the time. On the other hand,
Stahl, a witness for General Counsel, testified that in 5 years
he has seen no company official smoke in a paint booth and
he also indicated that rules are being enforced more strictly
during recent times than they were before. Employee Jones
testified that he and others had smoked in paint booths
"before the signs were put up," but he did not fix this time
accurately. In addition, he had not seen supervisors violate
the rule.
There also is evidence that operations such as welding,
cutting, and grinding, which can cause sparks or fire, have
been performed in or around the area of paint booths. Re-
spondent readily admits that when it was producing signs in
the area set aside for that purpose there was no restriction on
smoking and all necessary assembly operations were per-
formed there. In addition, it appears from employees Jack-
son's and Lamberth's testimony that at' one time while a
trailer was being painted a body defect was discovered and
while Jackson was cutting the part off with a torch prepara-
toriy to replacing it, the paper used to protect certain parts of
the vehicle from paint caught fire. The small blaze was extin-
guished and the foreman permitted Jackson to proceed with
MATLOCK TRUCK BODY AND TRAILER CORP. 413
his work without removing the entire trailer from the paint
booth.
Supervisor Worrell testified that employee Wilkerson was
the only employee he had ever observed violating the no-
smoking rule. Stone called the incident to his attention and
he accompanied the employee to Stone's office where he was
discharged. Superintendent Stone testified that when he ap-
prehended Wilkerson, who was the only employee he had
seen smoking in restricted areas, in the booth with a lighted
cigarette, Wilkerson admitted that he knew that he was not
supposed to smoke in that area. Wilkerson admitted in his
testimony that he knew the booths were posted and that it
was against the rules to smoke in them. Oddly enough, how-
ever, Stone, conceded that Respondent has two rules covering
smoking, both in existence at the time of Wilkerson's offense.
Rule 14, of the Safety Rules and Regulations, provides for
discharge on the first offense. Rule 19, of General Plant Rules
and Regulations, provides for 1 week off for the first offense.
This was Wilkerson's first offense that Stone was aware of.
C. Analysis, Additional Findings, and Conclusions
Regarding the Discharges
It is clear from the facts found above that after the Union
was defeated in the election and filed objections to conduct
affecting it, management's personnel policies underwent a
change, at least so far as their impact on employees was
concerned, for it was at that time that the alleged dis-
criminatees first began to receive warnings of any kind and,
in most cases, for conduct that had been accepted before. It
also appears, for there is no evidence to the contrary, that the
employee complement generally was treated just as toler-
antly, as far as discipline was concerned, before July 1970, as
were the discriminatees. Foreman Hall conceded that al-
though he had given five warning slips since July, including
three to Jackson and one to Cobb, he had issued none prior
to that time.
Respondent recognizes, as it must from this record, that it
appeared to tighten work rules at some point in this case, but
it contends broadly that this is explained by "its growth,
desires, plans and actions to upgrade its personnel and
product, beginning in February 1970, when moving into its
new plant," particularly in the light of "its past history for
laxity, inefficiency, tardiness, absenteeism, poor quality
product, etc."5 More specifically, Respondent contends that
each person discharged was terminated for good cause, and
the evidence in this respect has, for the most part, been al-
ready set out and some findings made on it.
In regard to personnel and other policy changes, Matlock
testified in substance that he is the founder, owner, and presi-
dent of a company which grew rapidly over the last 25 years
until its best years were reached in 1969 and 1970, when it
employed approximately 125 production employees. A new
plant was begun in 1969 and occupied in February 1970, as
"an entirely different type of operation," that is, more of an
assembly line operation than previously. Matlock empha-
sized that in early years employees were not fully supervised
because not enough supervisors had been recruited as the
business grew. He said that he and Parrish, vice president in
charge of manufacturing, pretty well ran the entire operation.
At the time the new plant was being constructed, Matlock
decided to employ a full-time professionally trained person-
nel director and to upgrade the management staff in order to
achieve better communications between management and the
working force. The personnel director was hired in February
1970 and a new factory superintendent a little later. There
were the first two persons trained in labor management rela-
tions that Respondent had ever employed.
Personnel Director Hartman testified that after seeing the
need for better communications between supervisors and em-
ployees when he was hired in February 1970, he prepared a
foreman's handbook which discussed the need for and
method of disciplining employees. His aim here was not only
"cracking down," but how to elevate employee morale and
increase their productivity. He discussed the program with
supervisors and continued it when Stone was hired. He also
noted that in reviewing employee files he found no written
documentation of any reprimands or conversations between
supervisors and employees. There were he said "a few warn-
ings slips," but no records of verbal warnings. This was a
"shock" to him and the problem has been covered in the
supervisory training course where he has insisted that each
supervisor document instances "involving employee relation-
ships." He said he "generally" is involved in the conferences
at which formal warning slips are issued to employees and his
opinion is asked about the decision to discipline, because
"something as serious as a warning slip could lead to dis-
charge after three warning slips," and so consultation with
him would prevent "rash decisions."
Stone was hired in the middle of April 1970 as general
plant superintendent at the new plant. He had never seen the
old plant, but he said he understood that it was more or less
a job-shop type of operation, while the new plant is run more
on an assembly line basis. He testified that when he came to
work for Respondent he found a considerable lack of product
quality and began a program of quality control. In addition,
he discovered a substantial amount of absenteeism and tardi-
ness.' New supervisors were hired and trained and instructed
to emphasize quality. Stone said he found that Respondent
had plant and safety rules established long before he was
hired, but that very little action had been taken by the Com-
pany to enforce them with reprimands and verbal warnings.
To correct the situation he met with supervision, much of
which was newly promoted from the ranks, and pointed out
areas for improvement. The first reprimands were given for
absenteeism and the rate was considerably lowered. At his
insistence, he said, other reprimands because of poor work-
manship and violation of safety rules were issued by foremen.
Stone explained, however, that he insisted that foremen be
more professional, that they communicate with employees to
try to change their thinking and not "just blanket the plant
with reprimands." He added that he believed that a repri-
mand should be given as a last resort because its issuance
means that you have "failed in your training and education,
in getting your point across ...." Stone said that the quality
of Respondent's product had been "considerably improved"
since he was hired.
I do not think it can be found on the basis of Matlock's,
Hartman's, and Stone's testimony, viewed in the context,
that, as Respondent contends, the Company was extremely
lax, inefficient, a manufacturer of low quality products, toler-
ant of lateness and absenteeism to a fault prior to February
1970, but "grew and prospered through the years in spite of
its unprofessional and unskilled management"' and that the
introduction of new ideas and blood fully explains the extent
of reprimands and discharges after the middle of July for
matters that had been handled more informally before. First
of all, Respondent overstates its case, for Matlock admittedly
' Respondent has no fault to find with the absentee or tardiness records
of the complainants.
Respondent's brief. Respondent's brief.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a successful manager, proud of the quality of his product,
and the Company had its best years financially in 1969 and
1970 after many years of operation under his direction,
manned with employees who had worked in both the old and
new plants . As noted, when supervision was enlarged , super-
visors were found among the rank -and-file employees. Sec-
ond, the timing is wrong. Hartman was hired in February and
Stone in April, but Hall issued his first reprimand in July and
there is little evidence that anyone was reprimanded before
then. Matlock said employees had been fired for poor quality
or violation of safety rules before July 1970, but he was unable
to remember who or when. Third, the warning slips issued to
discriminatees resulting in discharges were issued without
prior supervisory admonishment or discussions, contrary to
Stone's expressed policy described in his testimony and there-
fore illustrated a singular lack of communication between the
Company and employees which he and Hartman were deter-
mined to establish. Fourth, if any verbal warnings were given
before, around , or even after July to the discriminatees or
others, they were not documented in their files as Hartman
said he insisted they be. Fifth, no one adequately explained
why three warnings for three separate offenses means auto-
matic discharge or when this program was instituted or, con-
versely, why no deviations from it were permitted in this case
even though Hall testified that he believed that whether an
error was "honest negligence" was a factor to consider in
issuing reprimands. Sixth, the record fails to indicate exactly
what role Hartman played in the discharges and what advice
he gave in view of his philosophy that "consultation" can
prevent "rash" management decisions , as well as any evi-
dence that Matlock himself was consulted, advised, or even
kept informed in these cases, despite the fact that he admit-
tedly played a very active and dominant part in Respondent's
campaign to defeat- the Union in the election and had there-
after vigorously and publicly berated employees, such as Mer-
ritt and Jackson, who had given statements to the Board's
Regional Director in support of the Union's objections to the
election. I cannot believe that Hartman and Stone did not
know how Matlock felt about Merritt and Jackson and that
they did not seek his counsel in their cases at least.
Because of these considerations, it is with more than mere
scepticism that I view Respondent's asserted reasons for
tightening their employment practices as I approach the mer-
its of each individual discharge:
Jackson: This employee was the least likely to win a
popularity contest in which only management voted. He
started the union activity at the Company and firmly and, in
some cases somewhat abrasively perhaps, resisted manage-
ment's efforts to neutralize his activities. When Foreman Hall
interrogated him about the Union in June 1970 and di-
plomatically inquired if Jackson's attitude would change if he
passed the next tests given by the Company, Jackson replied
that he would still feel that the Company treated him un-
fairly. Previously, whennPersonnel Director Hartman told
Jackson that he had failed the examination,- Jackson attacked
the integrity of the process with profanity. At or about the
same time, Matlock asked Jackson to vote for the Company
in the election, but Jackson said he would not, and could not,
lie about it. It has also been found that Matlock; observing
IAM bumper stickers on Jackson's welder's hood, stated very
positively that he would not permit such material in his plant
and Jackson just as firmly replied that since the hood was his
property he would decorate it as he chose. It also appears that
just before the election Hartman questioned Jackson about
possible harassment of nonunion employees . There is no evi-
d 4r--l h+ k h dt d
man and, according to Hartman, "belligerently" threatened
to take the matter to the Labor Board. I have also found that
Foreman Bradley told employee Merritt that he "had better"
vote for the Company in the election. This occurred in Jack-
son's presence, who then asked Bradley to repeat his state-
ment. Vice President Parrish learned of this later when the
two employees teased him about Bradley's lapse. After the
election was lost by the Union, Jackson gave a statement to
the Board about election interference he had experienced and
the election was set aside on the basis of employer conduct
which he and Merritt had brought to the Board's attention.
On or about the day Respondent received the Regional Direc-
tor's Decision setting aside the election, Merritt, in Jackson's
presence, again teased a management representative (Hall)
about company conduct, and Hall clearly indicated that the
Company knew who had submitted the evidence on which
the Regional Director based his ruling. Jackson did not re-
ceive this information silently, but retorted that he had told
the Board only the truth. At or about this same time, Fore-
man Hall accused Jackson of loafing, which Jackson con-
cluded was harassment, and he threatened to report to the
Labor Board.
None of these encounters, conversations, or incidents
could have caused Respondent to be endeared with Jackson.
This is the only logical inference that can be drawn from the
record and is in consonance with Hall's retort to Jackson
when he said he would go to the Labor Board, that he had
been there once too often. Moreover, Matlock evidenced his
displeasure and unhappiness when, in his August 25 speech,
he accused the employees of lying to the Board in the state-
ments which they gave in support of the objections.
Jackson had no work problems until after the election was
set aside. Shortly thereafter, as found earlier, Hall told him
that he was going to supervise him more closely. I have found
that Jackson received his first written warning-on September
24 for engaging in a practice that was widespread and for
which no one else had been reprimanded-tacking without a
welder's hood. I have also found that Jackson installed a
30-inch platform incorrectly in October 1970, but I also find
here, on the basis of the facts set out earlier, including the
novelty of the assignment; the failure of inspection or super-
vision to catch the error; the fact that additional work was
done on the body through the assembly process before it was
caught by someone; Matlock's personal direction to issue the
reprimand; the failure to reprimand anyone else; and the
failure to show Jackson the work or ask for an explanation,
that Respondent was according Jackson special treatment
and wanted a second reprimand in his file rather than
remedial action. This is particularly evident in the light of
Stone's and Hartman's expressed philosophy about how to
improve quality, strengthen communications, raise morale,
and save employees from "rash" management actions.
I also find, for essentially the same reasons, that Jackson's
error in not aligning a rear, end properly on December 8 was
inflated into something more serious then it actually was and
used as a pretext for', his discharge.
I find that in issuing written reprimands to Jackson and
discharging him on December 8, purportedly on the basis of
these reprimands, Respondent was motivated, at least in sub-
stantial part, by the fact that Jackson joined and assisted the
Union and because he and others gave testimony to the Board
in support of the Union's objections.' In making this ultimate
finding, I have considered the credibility issue, raised particu-
larly with respect to Jackson very carefully. I have already
ence a ac son a committ an o se ane of er em- 8 Jackson had not been discharged when the complaint in Case 26-CA-
ployees possibly involved in the affair were not interviewed or 3823, involving warnings to him, issued The complaint was amended at the
warned, although Jackson offered to give their names to Hart- hearing to allege his subsequent discharge as an unfair labor practice.
MATLOCK TRUCK BODY AND TRAILER CORP. 415
alluded at length to the manner in which Jackson responded
to Respondent's overtures in the union or related fields. Jack-
son is intelligent, articulate, and agressive, and implicitly I
have found that Respondent resented it. Nothing in his atti-
tude generally is ground for discrediting him. I have also not
overlooked the fact that while he was working for Respond-
ent he was picketing at night at another plant where he
formerly worked and was being paid for this service by the
Union. He has an interest in the proceeding and is close to
the Union, but his interest is really no greater than most of
the other witnesses on either side.
I find and conclude that by threatening, issuing warnings
to, and discharging Claude Jackson, Respondent violated
Section 8(a)(1), (3), and (4) of the Act.
Merritt: The pretextual nature of the reasons given for
Merritt's discharge is even, clearer in his case than in Jack-
son's, and Respondent's treatment of him generally lends
support to the conclusion that the Company's tightening of
its employment practices in July 1970 was based as much on
resentment because of employee union activity as it was on
any legitimate business considerations. In his 4 years of em-
ployment with the Company, he had never received a warn-
ing slip for any reason and had been promoted to working
foreman, but he was discharged on August 25, for something
which I have found he was not responsible for, immediately
after Matlock made a lengthy speech to employees, which he
had written himself, detailing Merritt's role in the alleged
improper grant and announcement of an extra day's vacation
for perfect attendance which, in part, led the Regional Direc-
tor to set aside the July 9 election. Passing without deciding
the genuineness of the given reason for his first reprimand,
although even here he was technically not in violation of the
rule about bringing liquor into the plant or drinking on the
premises, and one of the employees who accompanied him
was not reprimanded or even interviewed, his second discipli-
nary slip was given without a previous oral warning and
principally because he was seen talking with employee Cobb
who had just been reprimanded for allegedly killing time, a
charge which I have found to be unsupported. I have also
found that Merritt, except for speaking with Cobb, had not
neglected his work in any way before Stone, who admittedly
had been observing him for some time, but not warning him
about it in any way, summoned him to his office for discipline.
I am convinced, and I find, that Respondent was making a
record on Merritt to support a later discharge.
Matlock was extremely displeased about having the elec-
tion in which he personally campaigned almost daily against
the Union set aside and he resented Merritt's part in this. I
find that Respondent had no real business reason to discharge
Merritt and, based on this, Matlock's animus, the timing, the
lack of oral warnings or explanations, the severity of the
punishment, in any event, when,taken in connection with the
employee's previous good record and Respondent's employee
relations philosophy, I find and conclude that Respondent
was substantially motivated in its decision to fire Merritt by
antiunion considerations and because he had given testimony
to the Board in the investigation of the objections. By such
conduct, Respondent violated Section 8(a)(1), (3), and (4) of
the Act.
Cobb: Although Cobb's case is not as strong as Jackson's
and Merritt's, on balance I am convinced that General Coun-
sel has established by a preponderance of the evidence that
he was discharged in violation of the Act. I have found that
the reprimands that,Cobb and Merritt received from Stone on
July 21, allegedly for killing time, were baseless and, if Re-
spondent's policy of three reprimands equal discharge is as
automatic as it operated in the other cases, Cobb was then one
third of the way to being fired. Cobbs second warning slip
was received on August 7, after Stone saw him using a friction
saw to cut metal without wearing a protective face shield.
Although it is difficult to fault an employer for insisting that
employees obey safety rules, even this warning is questionable
for other employees had used the same technique for cutting
metal that Cobb had when safety equipment was not availa-
ble, and safety equipment was not available on this occasion
and Stone knew it. Here again no verbal warning was issued
and documented, if necessary, as Hartman would prefer, and
no consideration was given to admitted extenuating circum-
stances. Cobb was now two-thirds of the way out.
If Cobb's third warning were the only issue involved, it
would probably stand scrutiny, for he admittedly made the
error and it had happened before 2 years ago, but this third
written warning would mean discharge even though Cobb
had worked for Respondent for 3 years without -any repri-
mands, oral or written, and was apparently considered a good
worker. It also appears that although Cobb's error was clear,
neither supervision nor inspection caught it, although he
spent the entire day making the extra sections of the body. All
employees admittedly made mistakes and reprimands are not
automatically issued to them, because if they were, Respond-
ent would soon have no work force. I find that Respondent
was more interested in issuing a third reprimand to Cobb
which would "automatically" eliminate another active union-
ist from employment. By discharging Cobb in the circum-
stances described, Respondent violated Section 8(a)(1) and
(3) of the Act.
Wilkerson: As found earlier, Respondent's conduct in han-
dling Wilkerson's offense was somewhat bizarre. Stone tes-
tified that he did not learn until after he discharged the em-
ployee for smoking in a prohibited area that Respondent had
two rules on the subject, one of which provided for discharge
and the other for only a warning for the first offense. Al-
though I find this damages Stone's testimony that ,he read
Respondent's rules "almost daily" when first employed and
discovered that there had been very little enforcement of
them and indicates that the 10-year-old code was dusted off
at the time it was to facilitate and cover the ouster of union
activists, I find that General Counsel has not established by
a preponderance of the evidence that Wilkerson was dis-
criminated against.
Wilkerson deliberately and for his own pleasure, knowing
the danger involved and aware that all paint booths were
posted, smoked in a booth. Lamberth and others who said
they had smoked in paint booths at some time in the past
clearly indicated that the practice had stopped, indeed one
witness' suggested that this change occurred after the signs
were posted. The record is further confused by testimony that
does not define whether the custom of smoking in the past
was confined to the sign-making area-where painting was
also done-or actually existed in enclosed booths where truck
bodies were painted. I am not prepared to reject Respondent's
testimony that during the sign-making period the area de-
voted to this operation was considered "open" because it was
properly ventilated, and therefore smoking was not prohib-
ited. There is also testimony from other witnesses, some disin-
terested, that they themselves knew of the rules, had not
disregarded them and had not seen others do so. Although
the case is not free from doubt, I find that Respondent did not
violate Section 8(a)(1) and (3) of the Act when it discharged
Wilkerson after Stone saw him smoking in the paint booth.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Findings, Conclusions, and Recommendations
Regarding the Objections to the Election
The Board ordered a hearing on that part of the Union's
Objection 1 involving the Employer's grant before the elec-
tion of an extra day's vacation to employees for perfect at-
tendance and on incident 7 of Objection 2, which the Re-
gional Director resolved against the Employer, and also on
incidents 4, 5, 6, 8, 9, and 10 of the same objection, which had
not been resolved by the Regional Director.
With respect to Objection 2, incidents 6 and 7, I have found
in the unfair labor practice section, in accord with the allega-
tions of the complaint, that Foreman Hall coercively interro-
gated employee Jackson about his union views and that he
admitted questioning other employees prior to the election in
the same vein as he had questioned Jackson. Hall also interro-
gated employee Banks.
I have also found that, on June 8, 1970, President Matlock
questioned employee Lamberth about "fighting" the Com-
pany and threatened to discharge "troublemakers" after the
election in violation of the Act, which was the substance of
incident 4 of Objection 1.
Incident 5 involved Matlock's statement to employee Jack-
son, made in the presence of other employees, that he would
not permit the wearing of union bumper stickers in the plant
and this has been found to have occurred in violation of
Section 8(a)(1) of the Act.
There is no evidence to support the issue, if any, raised in
incident 8 of Objection 1.
I have found that Foreman Bradley interrogated employee
Walker before the election (incident 9 of Objection 1) and this
interrogation, taken with Hall's interrogation of other em-
ployees, constituted a violation of Section 8(a)(1) of the Act.
Incident 10 of Objection 1 involves Foreman Bradley's
alleged statement to Merritt and Jackson that they had better
vote "no" in the election and this, it has been found, occurred
in violation of the Act.
Accordingly, I recommend that Union's Objection 2 be
sustained.
With regard to Objection 1, the award of an extra'-day's
vacation for perfect attendance, the record shows that the
Employer has some sort of an employee "advisory board"
which, according to Hartman's uncontradicted testimony,
meets bimonthly with management "to discuss different
things that could be improved in the plant or different benefits
they would like." The extra vacation day idea was first
broached by the employee advisors in their January meeting
with management. During the March meeting between the
advisory group and the Employer, the suggestion was given
further consideration and management having agreed that "it
was a good idea and would be possible," advised the em-
ployees that it would "come up with a proposal." According
to Hartman, the Company's plan and agreement was an-
nounced to the advisory board on May 21 and notices to this
effect were immediately posted on the bulletin board as had
notices of prior meetings and topics discussed with the advi-
sory board.
It also appears from Hartman's testimony that Merritt, the
employee who gave testimony to the Regional Director on
this issue and who I have found was discriminatorily dis-
charged because of it, actually was advised of his extra day
of vacation for perfect attendance on May 28 when he applied
for his vacation, rather than on July 1, as he told the Regional
Director in his first affidavit. I find the facts to be as testified
to by' Hartman.
The Regional Director sustained this objection, it seems
from my reading of his Decision, because the grant was made
effective in May, which was after the petition was filed, but
without prior announcement, even though it was proposed in
"March 1970," and because its announcement was delayed
until July "at a time it could be expected to have the greatest
impact on the outcome of the election" held only a week later.
But Hartman's testimony shows that the employees' proposal
was made in January and agreed to in principle by the Com-
pany in March, all before the petition was filed, and then
announced in May, after the petition but before the hearing
and so not delayed to a "time it could be expected to have the
greatest impact upon the outcome of the election ...." The
factual basis for the Regional Director's conclusion, there-
fore, is substantially different from what he thought it to be.
As a rule of thumb, and probably as imprecise as all such
rules, in granting or withholding benefits before an election
an employer is expected to act as he would have acted if no
union had entered the picture.' The Employer in this case had
considered and agreed in principle with an employee proposal
for an additional employee benefit before the petition was
filed and had announced it at the next scheduled meeting of
the advisory committee. In view of the Employer's commit-
ment, it had a valid business reason for acting as it did and
the inference raised by the timing of the announcement is
erased.10 I recommend that this objection be overruled.
Having found that, after the petition was filed and before
the election, Respondent coercively interrogated employees
about the Union, threatened to get rid of "troublemakers,"
forbade the wearing of union insignia, and told employees
that they had better vote against the Union, all in violation
of Section 8(a)(1) of the Act, I shall recommend that the
election be set aside."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
It is found that the activities of the Respondent set forth
above, in section III, occurring in connection with its opera-
tions described in section I, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (4) of the
Act, it will be recommended that the Board issue the Recom-
mended Order set forth below requiring Respondent to cease
and desist from said unfair labor practices and take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent violated the Act by dis-
charging Claude Jackson, Robert Merritt, and Richard Cobb,
I will recommend that Respondent offer them immediate and
full reinstatement to their former jobs or, if they are not
available, to substantially equivalent positions, without preju-
dice to their seniority or other rights or privileges and make
them whole for any loss of earnings they may have suffered
as a result of the discrimination against them, by payment to
them of a sum of money equal to that which each of them
would normally have earned as wages from the date of dis-
charge to the date of the Respondent's offer of reinstatement,
less net earnings during such period, with backpay and inter-
est thereon to be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co„ 138 NLRB 716.
The Gates Rubber Company, 182 NLRB No. 15.
10 Cf. N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409
Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786.
MATLOCK TRUCK BODY AND TRAILER CORP. 417
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of the
Act and is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. By issuing warnings to and thereafter discharging
Claude Jackson, Robert Merritt, and Richard Cobb because
they had engaged in union and other concerted activities and
because Jackson and Merritt had given testimony under the
Act, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1), (3), and
(4) of the Act.
4. By engaging in the conduct found to be violations of the
Act set forth in section III, A, the Respondent has engaged
in and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
6. Respondent did not violate the Act by discharging Jerry
Wilkerson or engage in any other unfair labor practices ex-
cept as found herein.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:12
(b) Notify the above-named employees, if presently serving
in the Armed Forces of the United States, of their right to full
reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act, as amended, after their discharges from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll,
social security and personnel records, and reports and all
other documents necessary and relevant to analyze and com-
pute the amounts of backpay due under this Recommended
Order.
(d) Post at its Nashville, Tennessee, place of business copies
of the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for Re-
gion 26, after being duly signed by the Respondent's repre-
sentative, shall be posted by it immediately upon receipt
thereof, and maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within 20
days from the date of this Decision, what steps Respondent
has taken to comply herewith."
IT IS FURTHER RECOMMENDED that the election held on
July 9, 1970, in Case 26-RC-3758, be set aside, and that said
case be remanded to the Regional Director for Region 26 to
conduct a new election at such time as he deems the circum-
stances permit the free choice of a bargaining representative.
ORDER
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their or
other employees' preferences, activities, or desires in regard
to the Union or any other labor organization.
(b) Threatening employees with reprisals if they vote in
favor of the Union in a Board election.
(c) Threatening to discharge employees because they had
exercised their rights under the Act.
(d) Prohibiting the wearing of union insignia in the plant.
(e) Discharging employees , issuing warnings to them, or
otherwise discriminating against them because they engage in
protected activities.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer Claude Jackson, Robert Merritt, and Richard
Cobb reinstatement to their former jobs or, if they are not
available, to substantially equivalent positions without preju-
dice to their seniority or other rights and privileges and make
them whole for any loss of earnings each of them may have
suffered by reason of the discrimination against him, in the
manner set forth in the section of this Decision entitled "The
Remedy."
11 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto shall
be deemed waived for all purposes.
13 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
14 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 26, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in District
# 155, International Association of Machinists & Aero-
space Workers, AFL-CIO, or any other labor organiza-
tion, by discharging or refusing to reinstate employees,
or by issuing warnings to them, or in any manner dis-
criminating in regard to their hire or tenure of employ-
ment, or any term or condition of employment.
WE WILL offer Claude Jackson, Robert Merritt, and
Richard Cobb immediate and full reinstatement to their
former jobs, or if they are not available, to substantially
equivalent positions, without prejudice to seniority or
other rights and privileges and make them whole for any
loss of pay suffered as a result of the discrimination
against them.
WE WILL NOT discriminate against employees because
they give evidence or statements to the National Labor
Relations Board.
WE WILL NOT interrogate employees about their
union activities and the activities of other employees and
threaten reprisals against employees because of their
union activities, or in any other manner interfere with,
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrain , or coerce our employees in the exercise of the
right to self-organization , to form labor organizations, to
join or assist the above-named or any other labor organi-
zation , to bargain collectively through representatives of
their own choosing , and to engage in other concerted
activities - for the purpose of collective bargaining or
other mutual , aid or protection , or to refrain from any
and all such activities.
MATLOCK TRUCK
BODY AND TRAILER
CORP.
(Employer)
Dated By
(Representative) (Title)
We will notify each of the above-named employees , if pres-
ently serving in the Armed Forces of the United States, of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge from
the Armed Forces.
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board 's Office, 1720
West End Building , Room 403, Nashville, Tennessee 37203,
Telephone 615-242-8321.