Norbar, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1983

267 N.L.R.B. 916 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Norbar, Inc. and Charlie Burge and Lloyd Tucker
and Robert Crutchfield and Jeffrey Snodgrass
and Phillip K. Seitz. Cases 9-CA-15518, 9-
CA-15587, 9-CA-15737, 9-CA-16716, and 9-
CA- 16875
26 August 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On 29 September 1981 Administrative Law
Judge Elbert D. Gadsden issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions, a supporting brief, a motion to
remand, and a memorandum in support of its
motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, brief,
motion to remand, and memorandum in support of
motion, and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
Respondent is engaged in over-the-road transpor-
tation of the U.S. mail between its facility in Shar-
onville, Ohio, a suburb of Cincinnati (hereinafter
referred to as the Cincinnati facility), and Greens-
boro, North Carolina, and Dallas, Texas; Respond-
ent's sole customer is the United States Postal
Service. Respondent is owned by Hartco, an
"open" company which owns a number of compa-
nies like Respondent, each operating out of a dif-
ferent major city. Hartco is owned by David A.
Hartman, who also is president and chief executive
of Respondent.
On I February 19802 as a result of operating
losses at three of four companies, including Re-
I Both in its exceptions and in its motion to remand. Respondent as-
serts that the Administrative Law Judge's resolutions of credibility, find-
ings of fact, and conclusions of law are the result of bias. After a careful
examination of the entire record, we are satisfied that this allegation is
without merit. Although, as set forth infra, we find that the attached De-
cision contains a number of significant errors, there is nothing in the
record to suggest that these errors are attributable to bias. As the Su-
preme Court stated in NLRB v. Pittsburgh Steamship Co., 337 U.S 656,
659 (1949), "ITlotal rejection of an opposed view cannot of itself impugn
the integrity or competence of a trier of fact." Accordingly, we deny Re-
spondent's motion to remand. Furthermore, it is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponaerance of all the relevant evi-
dence convinces us that the resolutions are incorrect Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We
have carefully examined the record and, with the exception of the errors
discussed infra, we find no basis for reversing his findings.
2 Unless otherwise specifically indicated, all further dates herein shall
refer to the calendar year 1980
267 NLRB No. 148
spondent, Hartman became directly involved in the
day-to-day operations of these companies. Soon
thereafter, Hartman held a meeting with the termi-
nal managers from the Cincinnati, Kansas City, and
Dallas facilities, during which he explained the
companies' precarious financial position and his
conclusions as to its cause. Hartman told them that
he expected major improvements in four areas and
that if they "did not stop and correct this situation,
weed out the people who could not be brought
into line or sympathy with our objectives, that they
[the terminal managers] would be terminated"; and
that the four areas in which Hartman expected im-
provements were (1) care of equipment, (2) selec-
tion, training, and disciplining of drivers, (3) on-
time service,3 and (4) fuel mileage. Thereafter,
Hartman sent a memo to the employees explaining
the companies' financial position and describing the
improvements which were expected from each of
them. Furthermore, at Respondent's Cincinnati fa-
cility, Hartman held an employee meeting during
which he further explained Respondent's financial
position and answered questions regarding compa-
ny policies.
In March, Respondent's employees began to
meet and discuss their need for union representa-
tion. As a result of these discussions, an undis-
closed number of employees signed union authori-
zation cards and, in April, a petition for an election
was filed with the Board on behalf of Truck Driv-
ers, Chauffeurs and Helpers Local Union No. 100,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. An election was held on 19 and 21 May;
the employees voted 26 to 9 in favor of the Union.
Although the Board issued a Certification of Rep-
resentative on 30 May, for reasons not disclosed in
the record, contract negotiations did not occur
until October; and a contract was executed on 30
October.
This matter arises out of Respondent's actions
during the Union's organizational campaign at its
Cincinnati facility and, within 1 year of the Union's
certification, its discharge of six of its employees
who were union supporters. Upon a series of
charges filed between 30 June 1980 and 22 May
1981 the General Counsel issued the complaints
herein alleging that Respondent violated Section
8(a)(l) and (3) of the Act in various respects.
In his Decision, the Administrative Law Judge
found that Respondent violated Section 8(a)(1) of
3 Under the terms of its contract with Respondent, the United States
L'ostal Service can terminate the contract if Respondent does not meet its
service standards. With regard to the timeliness of deliveries, the Postal
Service "insists" that at least 95 percent of the deliveries be made within
15 minutes of their scheduled time.
916
NORBAR, INC.
the Act by interrogating its employees about their
union interest or sympathies, by giving its employ-
ees the impression that their union activities were
under surveillance, by threatening to close its facili-
ty if its employees selected union representation, by
threatening employee Howard Baumer with bodily
harm for telephoning employees about union activi-
ties, by asking Baumer to drop charges he had filed
with the Board, by telling employee Larry Walton
not to file for unemployment compensation and im-
plying that he should withdraw such claim, and by
threatening to discharge employee Michael Green
for accepting the position of union steward and for
performing the duties of union steward. The Ad-
ministrative Law Judge also found that Respondent
violated Section 8(a)(3) and (1) of the Act by sus-
pending and/or discharging employees Charlie
Burge, Howard Baumer, Lloyd Tucker, and Jef-
frey Snodgrass because they engaged in union ac-
tivity, by discharging employee Michael Green be-
cause of his actions as union steward, and by dis-
charging employee Phillip Seitz because of his
union activity, including his attempts to become
union steward.
In its brief Respondent asserts that the Adminis-
trative Law Judge's findings that it violated the
Act are based upon both his erroneous credibility
resolutions 4 and his failure to consider record evi-
dence regarding the nature of its business and its
precarious financial position. Respondent further
argues that the Administrative Law Judge improp-
erly drew adverse inferences from the failure of
Carol Schafer, its former terminal manager, to tes-
tify at the hearing in this matter.
We have carefully examined the record and the
attached Decision, and we find that the Adminis-
trative Law Judge has committed a number of sig-
nificant errors; accordingly, we shall discuss each
of his findings below.
The 8(a)(1) Findings
With the exception of his finding that Respond-
ent threatened to discharge Michael Green for ac-
cepting the position of union steward, each of the
Administrative Law Judge's findings that Respond-
ent violated Section 8(a)(l) of the Act is supported
by uncontradicted testimony, much of which is
mutually corroborative. With regard to Respond-
ent's threat to discharge Green for accepting the
position of union steward, the Administrative Law
Judge credited Green's specific testimony regard-
ing a telephone conversation with Lloyd Harmon,
Respondent's vice president and general manager,
I See fn. 1. supra.
over Harmon's general denial that the conversation
occurred.5
Respondent has excepted to each of the Admin-
istrative Law Judge's findings that it violated Sec-
tion 8(a)(l) of the Act. In its brief, however, Re-
spondent does not address each of the violations
found; rather, Respondent primarily relies upon its
general assertion that the Administrative Law
Judge's credibility resolutions must be rejected and,
therefore, there is no evidence to support any of
his findings.
We find no merit in Respondent's exceptions in
this regard. As set forth above, with one exception,
each of the Administrative Law Judge's findings is
supported by uncontradicted testimony; we find no
basis in the record for rejecting such testimony.
Furthermore, we find no basis for questioning the
Administrative Law Judge's reliance upon Green's
specific testimony regarding his telephone conver-
sation with Harmon; in this regard, we note that
Vaughn did not corroborate Harmon's denial that
this conversation occurred. Accordingly, we adopt
the Administrative Law Judge's findings that Re-
spondent violated Section 8(a)(1) of the Act as set
forth above.
The 8(a)(3) Findings
1. The discharges of Charlie Burge and
Howard Baumer
In late June 1980, Burge and Baumer were ap-
proximately 27 hours late on the Cincinnati-
Greensboro run as a result of two mechanical
breakdowns, one near Corbin, Kentucky, and the
other near Knoxville, Tennessee. Upon their return
to Cincinnati, both Burge and Baumer were dis-
charged by then Terminal Manager Carol Schafer
allegedly because they waited too long before they
sought assistance following their breakdown near
Knoxville.
In finding that these discharges were discrimina-
torily motivated, the Administrative Law Judge re-
jected President Hartman's testimony that he in-
structed then Terminal Manager Schafer to dis-
charge Burge and Baumer after she informed him
that they did not seek assistance until after a
lengthy period of time following their breakdown
near Knoxville; the Administrative Law Judge re-
jected Hartman's testimony in this regard because
Schafer did not testify in this matter, Hartman did
s In this regard, Green testified that, on the day he was elected union
steward. Plant Manager Ronald Vaughn called him to the telephone to
speak with Harmon. According to Green. Harmon stated. "Congratula-
tions or condolences, which is it? . . . Are you sure you want to take the
job as union steward? You know it could cost you your job?" Harmon
denied that this telephone conversation occurred. Vaughn did not testify
regarding this incident.
917
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not talk to the employees personally, and he made
the decision without having issued any warning to
them. The Administrative Law Judge further
found that following the breakdown in question
Baumer promptly left the truck, in accordance
with Respondent's undisputed policy, and attempt-
ed to "hitch" a ride into Knoxville for help. Thus,
the Administrative Law Judge found that Burge
and Baumer were delayed for reasons beyond their
control and that Respondent seized upon this inci-
dent to rid itself of two union adherents. We do
not agree.
At the outset we note that the Administrative
Law Judge improperly relied upon Schafer's fail-
ure to testify in rejecting Respondent's asserted
reason for discharging Burge and Baumer. In this
regard, the record clearly shows that Schafer was
no longer employed by Respondent at the time of
the hearing herein; Schafer's availability being un-
known, her failure to testify does not warrant the
adverse inferences drawn by the Administrative
Law Judge. 6 Similarly, inasmuch as the record
shows that Hartman consistently made disciplinary
decisions based solely upon reports from the vari-
ous terminal managers, his failure to talk to or
warn the employees personally is of no signifi-
cance.
Furthermore, the record clearly shows that
Burge and Baumer engaged in this misconduct for
which Respondent asserts they were discharged. In
this regard, Baumer unequivocally testified that,
following their breakdown near Knoxville, neither
he nor Burge left the truck to seek assistance for
over 3 hours; both Burge and Baumer testified that
they were aware of Respondent's policy that fol-
lowing a breakdown one of the drivers must leave
the truck to seek assistance. Under these circum-
stances, and in view of the fact that "on-time serv-
ice" was one of the four areas upon which Hart-
man focused when he took over in February, we
find that Respondent would have discharged Burge
and Baumer for their apathetic efforts to obtain as-
sistance following their breakdown near Knoxville
even absent their support for the Union. Accord-
ingly, we shall dismiss this aspect of the consolidat-
ed complaint.
2. The discharge of Lloyd Tucker
On 28 June 1980 Tucker had an accident during
a rainstorm on the Greensboro-Cincinnati run
while driving through a road construction area;
while passing another car, Tucker struck a tempo-
" Conversely, there is no basis for inferring that Schafer was not equal-
ly available to both Respondent and the General Counsel. Accordingly,
no adverse inference can be drawn against Respondent with respect to its
failure to call Schafer to corroborate Hartman's testimony. Wayne Con-
struction, 259 NLRB 571 (1981).
rary road sign which had blown into his lane.
Upon his arrival at the Cincinnati terminal, Tucker
filed an accident report and explained the circum-
stances of his accident to then Terminal Manager
Schafer, who placed him on "temporary non-driv-
ing" pending an investigation. On 13 July, Tucker
was discharged allegedly because the circum-
stances of his accident indicated that he was not
driving with due care for the road conditions.
In finding Tucker's discharge to be unlawful, the
Administrative Law Judge relied upon his findings
that this was Tucker's first accident, that the
damage was minor, and that Respondent had not
discharged other employees who had been in-
volved in far more serious accidents; additionally,
the Administrative Law Judge drew adverse infer-
ences from Schafer's failure to testify in this matter
and from "terminal manager" Ronald Vaughn's
failure to talk with Tucker about the circumstances
of the accident prior to his discharge. Accordingly,
the Administrative Law Judge found that Tucker's
discharge was motivated solely by his union activi-
ty. We do not agree.
For the reasons set forth above, Schafer's failure
to testify does not support the adverse inferences
drawn by the Administrative Law Judge. Further-
more, inasmuch as the undisputed evidence shows
that Vaughn did not become terminal manager
until 2-1/2 months after Tucker was discharged, his
failure to talk with Tucker before his discharge is
not significant. The record further shows that the
damage caused by Tucker's accident was not
minor, but rather, in addition to the damage found
by the Administrative Law Judge, there was
damage to the left front fender, left front bumper,
and the left front upper cab portion of the truck.
Moreover, with regard to Respondent's failure to
discharge other employees who had been involved
in more serious accidents, the record discloses only
one such incident and that occurred well before
Hartman took over in February. Finally, the
record shows that, during the period prior to
Tucker's discharge, Respondent discharged at least
four other drivers for accidents. In view of the
foregoing, we find that Respondent would have
discharged Tucker for his 28 June accident even
absent his support for the Union. Accordingly, we
shall dismiss this aspect of the consolidated com-
plaint.
3. The discharge of Jeffrey Snodgrass
In September 1980, Snodgrass applied for and
was promoted to the position of driving instructor.
Thereafter, during the course of contract negotia-
tions in October, the position of driving instructor
was excluded from the bargaining unit as being
918
NORBAR, INC.
part of management. On 3 November then Termi-
nal Manager Ronald Vaughn issued a written repri-
mand to Snodgrass for an unacceptably low fuel
mileage average. On 10 November Vaughn called
Snodgrass into his office and told him that the
Dallas office had received a report indicating that
he had been clocked at 63 mph by an insurance
spotter. Following a discussion, Vaughn suspended
Snodgrass pending receipt of the insurance report
from Dallas. On 17 November Snodgrass was dis-
charged allegedly for speeding and for low fuel
mileage.
In finding Snodgrass' discharge to be unlawful,
the Administrative Law Judge again drew an ad-
verse inference from Schafer's failure to testify and
found that Respondent devised an elaborate plan
whereby it would promote Snodgrass to the posi-
tion of driving instructor, which it considered to be
part of management, so that it could thereafter dis-
charge him at will. The Administrative Law Judge
further found that Snodgrass' fuel mileage average
was "better than the truck was recorded capable of
doing," and that, at the time he was clocked at 63
mph, he was driving a truck with an inoperative
speedometer and, thus, he did not know how fast
he was going. Accordingly, the Administrative
Law Judge found that Respondent seized upon the
speeding and fuel mileage incidents as a pretext to
conceal its unlawful motives. We do not agree.
For the reasons set forth above, Schafer's failure
to testify does not support the adverse inferences
drawn by the Administrative Law Judge to find
that Respondent maintained a secret "plan" to pro-
mote Snodgrass into management. Indeed, the ex-
istence of such a "plan" is refuted by the fact
Snodgrass voluntarily applied for the position of
driving instructor. With regard to Snodgrass' fuel
mileage average, the record clearly establishes that
his average was among the lowest of all of Re-
spondent's employees; this fact is of particular sig-
nificance since, as the driving instructor, one of
Snodgrass' functions was to instruct all employees
on proper fuel conservation techniques. Finally,
contrary to the Administrative Law Judge's find-
ing, the record contains documentary evidence in-
dicating that, at the time he was clocked at 63
mph, Snodgrass was driving a truck with a working
speedometer and that he had exceeded 60 mph for
a substantial portion of his trip. Accordingly, in
view of the emphasis that Respondent had placed
on fuel mileage and obeying the 55-mph speed limit
since Hartman took over in February, we find that
Respondent would have discharged Snodgrass for
speeding and for low fuel mileage even absent his
support of the Union.
4. The discharge of Michael Green
In August 1980, Green was hired by Respondent
as a serviceman. Thereafter, he served on the
Union's negotiating committee and, in late October,
he was elected union steward. As set forth above,
in late October and early November Respondent
threatened to discharge Green both for accepting
the position of union steward and for performing
the duties of union steward. On 7 November Green
was suspended for 7 days allegedly for sending out
a truck without servicing it. Following his suspen-
sion Green worked for 2 days and then was off
sick. While on sick leave, Green received a phone
call from a fellow employee who asked why he
had been fired; Green responded that he did not
know. Thereafter, Green called then Manager
Vaughn and asked whether he had been fired;
Vaughn told him that he had not been fired. When
Green went to work the following day, Vaughn
told him that he was being terminated for "10 rea-
sons"; Vaughn did not tell Green what the "10 rea-
sons" were. Green immediately filed a grievance
with the Union. Thereafter, Respondent told Green
that he was discharged for failure to put oil in a
truck. In settlement of the grievance, Respondent
ultimately agreed to hire Green back as a proba-
tionary truckdriver with the understanding that he
could not be union steward.
In finding Green's discharge to be unlawfully
motivated, the Administrative Law Judge relied
upon his findings that Respondent had threatened
to discharge Green both for accepting the position
of union steward and for performing the duties of
union steward. Furthermore, the Administrative
Law Judge found that, since Respondent failed to
give Green a reason for his discharge at the time of
his separation, its late assertion that he was dis-
charged for failing to put oil in a truck was an
afterthought and a pretext.
In its brief, Respondent argues that the Adminis-
trative Law Judge erred in discrediting Vaughn's
testimony that he told Green that he was being dis-
charged for failing to put oil in a truck. In this
regard, Respondent argues that it has established
that it would have discharged Green even absent
his actions as union steward. We find no merit in
this argument. Assuming arguendo that Vaughn
told Green that he was being discharged for failing
to put oil in a truck, the fact remains that, when
Respondent agreed to rehire Green, it was with the
understanding that he could not be union steward.
Such a condition clearly establishes Respondent's
true reason for its discharge of Green-his actions
as union steward. Accordingly, we adopt the Ad-
ministrative Law Judge's finding that Respondent
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violated Section 8(a)(3) and (1) of the Act by dis-
charging Michael Green.
5. The discharge of Phillip Seitz
On 5 December 1980, Seitz fell and injured his
back while at work. Thereafter, Seitz saw a doctor
who advised him that he might be able to return to
work on a limited basis in January 1981, but that
he could not return to work full time until at least
6 April 1981. Seitz conveyed this information to
Respondent and was told not to return until he
could run a full schedule; Respondent also request-
ed that Seitz give it 2 weeks' notice of his ability to
return. Thereafter, Seitz completed Respondent's
accident report form and filed for workmen's com-
pensation.
On 12 May 1981, Seitz went to Respondent's ter-
minal to deliver a notice for the Union which
stated: "Those wishing to run for Steward sign
here"; Seitz had signed his name on the list. On 16
May 1981 Seitz received an envelope containing
three letters by certified mail; two of the letters
were dated 14 May and one was dated 15 April. In
essence, these letters stated that, since Seitz did not
return to work on 8 April, Respondent considered
him to have resigned on 15 April. Immediately
upon receipt of these letters, Seitz called Respond-
ent and spoke with Vaughn, who indicated that
Respondent would adhere to its position that he
had resigned and that it was contesting his work-
men's compensation claim.
On 22 May Seitz went to Respondent's terminal
to talk with Vaughn. At that time Seitz showed
Vaughn a copy of a supplemental report signed by
his doctor indicating his continued disability. Al-
though Seitz requested that his name be returned
to the bulletin board as an employee, Vaughn
maintained his position that Seitz was no longer an
employee.
In finding that Respondent unlawfully dis-
charged Seitz, the Administrative Law Judge noted
that Respondent did not have any reasonable infor-
mation upon which to conclude that Seitz had re-
signed or obtained work elsewhere. The Adminis-
trative Law Judge compared the date Respondent
mailed Seitz the package of three letters, 14 May,
with the date that Seitz posted his name as a candi-
date for union steward, 12 May, and, in light of
Respondent's established union animus, he inferred
that Seitz' candidacy for union steward provoked
Respondent to terminate his employment. We
agree. In this regard, we note that, in its letters to
Seitz, Respondent purports to rely upon informa-
tion obtained from the Bureau of Workmen's Com-
pensation to support its conclusion that Seitz had
been authorized by his doctor to return to work;7
however, the record clearly shows that the dates
listed in Seitz' workmen's compensation file were
merely estimated release dates. Indeed, if Respond-
ent's action in terminating Seitz was taken on the
good-faith belief that Seitz had recovered, we see
no justification for Respondent's refusal to rescind
its action upon Seitz presentation of a copy of his
doctor's supplemental report indicating his contin-
ued disability. Accordingly, we adopt the Adminis-
trative Law Judge's finding that Respondent violat-
ed Section 8(a)(3) and (1) of the Act by discharg-
ing Phillip Seitz.
In accord with our findings above and upon con-
sideration of the entire record, we make the fol-
lowing:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Truck Drivers, Chauffeurs and Helpers Local
Union No. 100, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is, and has been at all
times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
3. By engaging in the following conduct, Re-
spondent committed unfair labor practices in viola-
tion of Section 8(a)(l) of the Act:
(a) Interrogating its employees about their union
interest or sympathies.
(b) Giving its employees the impression that
their union activities were under surveillance.
(c) Threatening to close its facility if its employ-
ees selected union representation.
(d) Threatening an employee with bodily harm
for telephoning employees about union activities.
(e) Asking an employee to drop charges he had
filed with the Board.
(f) Telling an employee not to file for unemploy-
ment compensation and implying that he should
withdraw such claim.
(g) Threatening to discharge an employee for ac-
cepting the position of union steward.
(h) Threatening to discharge an employee for
performing the duties of union steward.
4. By discharging employees Michael Green and
Phillip Seitz because they engaged in protected
concerted or union activities, Respondent has en-
7 In its brief, Respondent argues that it considers Seitz to have volun-
tarily quit his job because of his failure to follow the terms of its contract
with the Union requiring employees on a medical leave of absence to
provide a physician's statement regarding the continuance of their disabil-
ity. We find no merit in this argument. Inasmuch as Respondent did not
rely upon this contract provision at the time it terminated Seitz, it cannot
raise it now. Indeed, this argument clearly is a pretextual afterthought.
920
NORBAR, INC.
gaged in unfair labor practices in violation of Sec-
tion 8(a)(3) and (1) of the Act.
5. The above-described unfair labor practices
affect commerce within the meaning of Section
2(6) and (7) of the Act.
6. Respondent did not engage in any unfair labor
practices other that those found herein.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Specifically, we shall order Respondent to offer
Michael Green and Phillip Seitz immediate and full
reinstatement to their former positions or, if such
positions no longer exist, to substantially equivalent
positions without prejudice to their seniority or
other rights previously enjoyed, and to make them
whole for any loss of pay suffered by them by
reason of its discrimination against them. Such
backpay is to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest thereon to be computed in ac-
cordance with Florida Steel Corp., 231 NLRB 651
(1977).8 Furthermore, we shall order Respondent
to expunge from its records and files any references
to its unlawful discipline of Michael Green and
Phillip Seitz, and notify them in writing that this
has been done and that evidence of this unlawful
discipline will not be used as a basis for future per-
sonnel action against them. Sterling Sugars, 261
NLRB 472 (1982).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Norbar, Inc., Sharonville, Ohio, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees about their union
interest or sympathies.
(b) Giving its employees the impression that
their union activities are under surveillance.
(c) Threatening to close its facility if its employ-
ees select union representation.
(d) Threatening its employees with bodily harm
for telephoning employees about union activities.
(e) Asking its employees to drop charges filed
with the Board.
(f) Telling its employees not to file for unem-
ployment compensation and implying that they
should withdraw such claims.
' See, generally. Isis Plumbing Co., 138 NLRB 716 (1962).
(g) Threatening to discharge its employees for
accepting the position of union steward.
(h) Threatening to discharge its employees for
performing the duties of union steward.
(i) Discharging its employees because they en-
gaged in protected concerted -or union activities.
(j) In any like or related manner interfering with,
restraining, or coercing its employees in the exer-
cise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Michael Green and Phillip Seitz imme-
diate and full reinstatement to their former posi-
tions or, if such positions no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights previously enjoyed,
and make them whole for any loss of pay suffered
by them by reason of its discrimination against
them, with interest, in the manner set forth above
in the section entitled "The Remedy."
(b) Expunge from its records and files any refer-
ences to its unlawful discipline of Michael Green
and Phillip Seitz, and notify them in writing that
this has been done and that evidence of this unlaw-
ful discipline will not be used as a basis for future
personnel action against them.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at Respondent's plant and place of busi-
ness located in Sharonville, Ohio, copies of the at-
tached notice marked "Appendix."9 Copies of said
notice, on forms provided by the Regional Direc-
tor for Region 9, after being duly signed by Re-
spondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
921
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not found herein.
MEMBER HUNTER, dissenting:
Contrary to my colleagues, I would grant Re-
spondent's motion to remand this proceeding to an-
other adminstrative law judge for the purpose of
receiving the record de nova and the preparation of
a new and complete written decision. The majority
concedes that the Administrative Law Judge has
made numerous substantive errors as to the record
in this case, which prevent the majority from
adopting a substantial number if not a majority of
the Administrative Law Judge's credibility resolu-
tions and other findings on the record. According-
ly, I find the situation in this case so aggravated
that it is unwise to rely on any part of the Decision
here and I would remand it to another administra-
tive law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT interrogate our employees
about their union interest or sympathies.
WE WILL NOT give our employees the im-
pression that their union activities are under
surveillance.
WE WILL NOT threaten to close our facility
if our employees select union representation.
WE WILL NOT threaten our employees with
bodily harm for telephoning employees about
union activities.
WE WILL NOT ask our employees to drop
charges filed with the Board.
WE WILL NOT tell our employees not to file
for unemployment compensation and imply
that they should withdraw such claims.
WE WILL NOT threaten to discharge our em-
ployees for accepting the position of union
steward.
WE WILL NOT threaten to discharge our em-
ployees for performing the duties of union
steward.
WE WILL NOT discharge our employees be-
cause they engage in protected concerted or
union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL offer Michael Green and Phillip
Seitz immediate and full reinstatement to their
former positions or, if such positions no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or other
rights previously enjoyed, and WE WILL make
them whole for any loss of pay suffered by
them by reason of our discrimination against
them, with interest.
WE WILL expunge from our records and
files any references to our unlawful discipline
of Michael Green and Phillip Seitz, and WE
WILL notify them in writing that this has been
done and that evidence of this unlawful disci-
pline will not be used as a basis for future per-
sonnel action against them.
NORBAR, INC.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge:
Upon unfair labor practice charges filed in Cases 9-CA-
15518, 9-CA-15587, 9-CA-15737, 9-CA-16716, and 9-
CA-16875 on various dates between June 30, 1980, and
May 22, 1981, by Charlie Burge, Lloyd Tucker, Robert
Crutchfield, Jeffrey Snodgrass, and Phillip K. Seitz, re-
spectively, herein referred to by their individual names,
against Norbar, Inc., herein called Respondent, the Re-
gional Director for Region 9, on behalf of the General
Counsel, issued complaints on October 3 and 8, 1980,
and on May 26, 1981. The motion of counsel for the
General Counsel to reopen the record and consolidate
Cases 9-CA-15737, 9-CA-16716, and 9-CA-16875 with
the initially filed cases was granted by the Administra-
tive Law Judge on May 29 and July 2, 1981, respective-
ly.
The complaints in substance allege that Respondent
threatened and interrogated its employees on several oc-
casions in violation of Section 8(a)(1) of the Act, and
that Respondent unlawfully suspended employees and
subsequently unlawfully discharged them because of
their sympathy for, activities on behalf of, and member-
ship in the Union in violation of Section 8(a)(3) of the
Act.
Respondent filed answers on October 3 and 8, 1980, on
March 11, 1981, and at subsequent times thereto denying
that it has engaged in any unfair labor practices as al-
leged in the complaints.
A hearing in the above matter was held before me in
Cincinnati, Ohio, on April 15 and 16 and July 22 and 23,
1981. Briefs have been received from counsel for the
General Counsel and counsel for Respondent, respective-
ly, which have been carefully considered.
922
NORBAR, INC.
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent Norbar, Inc., is, and has been at all times
material herein, a Texas corporation engaged in hauling
bulk mail for the United States Postal Service with a
depot at Sharonville, Ohio, the only facility involved in
this proceeding. During the last 12 months, a representa-
tive period, Respondent, in the course and conduct of its
business operations, performed services valued in excess
of $50,000 in States other than the State of Texas.
The complaint alleges, the answer admits, and I find
that Respondent is, 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. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Truck Drivers, Chauffeurs and Helpers Local Union
100, an affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, is now, and has been
at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act. I'
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Respondent is engaged in the business of hauling bulk
mail for the United States Postal Service. It has a depot
in Sharonville, Ohio, the facility involved in this dispute.
In order to carry out its business, Respondent must bid
for and successfully receive a contract with the United
States Postal Service. The contract requires Respondent
to make delivery of the bulk mail within a specified
number of hours or the Postal Service would issue what
is called a "5500-Contract Route Irregularity," stating
the driver's name and the time of the late arrival. The
more 5500's received by Respondent from the Postal
Service tend to jeopardize its receipt and retention of the
contract. Hence, prompt delivery is essential for Re-
spondent to live up to its obligation under the contract.
In its answer, Respondent admits that Lloyd Harmon,
general manager, and Ronald Vaughn, terminal manager,
are supervisors within the meaning of the Act. Respond-
ent further admits that Scott Wright, Gary Hardin, Jack
Flora, and Carol Schafer were, at certain periods of their
employment by Respondent, supervisors within the
meaning of the Act, but are no longer employed by Re-
spondent.
B. Organizing Activities of Employees and
Respondent's Reaction Thereto
A composite of the undisputed and therefore credited
testimony of Charlie Burge, Lloyd Tucker, Howard
Baumer, Robert Crutchfield, Jeffrey Snodgrass, and Phil-
' The facts set forth above are undisputed and are not in conflict in the
record.
lip Seitz established that during the months of February,
March, and April 1980 they and other employees con-
gregated on the Company's parking lot or in the driver's
lounge and discussed faulty or defective equipment, how
to receive the correct amount of pay or other benefits,
and the advantages of being represented by a union.
They attended several union meetings and at least Burge,
Tucker, Baumer, Snodgrass, and Seitz signed and/or so-
licited union authorization cards from fellow employees.
Charlie Burge further testified that around April 1980
he returned to work from vacation, and Jack Flora, as-
sistant terminal manager, and Bill Lambert, the Dallas
terminal manager, walked into the shop in an intoxicated
state. Manager Flora shook his finger at him and called
him a son-of-a-bitch, saying. "The next time you refuse a
run, I can take you off it and let somebody else run it."
The union election was scheduled for May 19 or 21,
1980. Around May 17, 1980, Burge said, he returned
from a 3:30 run to Greensboro, North Carolina, and
Manager Flora asked if he would come into the office.
He went into the office and Flora asked him, in the pres-
ence of then secretary Carol Schafer, how he felt about
the Union. Flora also asked him how did he like things
around Norbar and this business about the Union. Burge
said he stated that he was 100 percent for the Union be-
cause if the drivers did not get a union they were going to be
fired anyway. Flora said, "Nonsense." Burge said, "The
way the management is here, you would rather fire
people than deal with them." As he was leaving the
office he saw Howard Baumer and told Baumer Flora
was calling people into the office to get their opinions of
the Union.
Burge filed charges with the National Labor Relations
Board about the conversation which took place with
Flora on May 17. Both he and Baumer voted in the
union election on May 21, 1980. Immediately thereafter,
on May 21, he withdrew the charges filed with the
Board because the Union had won the election and he
saw no need to pursue the matter further.2
Truckdriver Howard Baumer testified that just a
couple of days before the union election on May 19 and
21, 1980, the following occurred:
A.... I reported for work and Charlie Burge,
my partner, he was already in the truck asleep. I
stowed my gear in the truck and I said, "Hi, Char-
lie, how are you doing?" to try to wake him up
when I climbed up in the cab.
Mr. Hardin-I started to climb down and Mr.
Hardin comes up to me and says, "Baumer, are you
using my name for union business?" Before I could
say anything he says, "If you are using my name, I'm
going to punch you in the nose." Again I tried to tell
a I credit Charlie Burge's testimony that a couple of days before the
union election Manager Jack Flora called him into the office and asked
him how he felt about the Union. I credit Burge's account because not
only was I persuaded by his demeanor that he was telling the truth, but
Jack Flora did not appear and testify and Respondent could not deny the
occurrence or substance of the conversation Moreover. I was further
persuaded by the fact that Burge's account is consistent with other testi-
mony herein of Flora's antiunion interrogation of other employees about
their union interests.
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him I wasn't using his name-our names sound simi-
lar.
Q. What?
A. Our names sound similar. My Howard and his
Hardin on the phone sound similar to the employ-
ees. ...
Q. Calling your attention, then, to a couple of
days later, did you have any further conversations
with Mr. Hardin?
A. Yes. I reported for work and I asked him,
"Gary, are you mad or am I going to get fired over
this, or are you still angry about it or what?"
He said, "No, I'm not mad about it. I don't care
about the union one way or the other. " I apologize for
hollering at you the other night."
Baumer's testimony in this regard was corroborated by
his codriver, Charlie Burge, who said that after the
above conversation he came out of the truck so that
Shop Manager Hardin would know that he overheard
the conversation with Baumer. Hardin did not appear
and testify in this proceeding and Respondent did not
deny the occurrence or the substance of the conversa-
tion. Consequently, I credit Baumer's corroborated ac-
count of the conversation. Thereupon, Baumer testified,
he filed a charge with the National Labor Relations
Board. However, after the election, he said, he went to
the office of Shop Manager Hardin, who said, "I heard
that you dropped charges against me. If you have, fine. If
you haven't, I wish you would because Mr. Hartman [presi-
dent of Respondent] is upset about all the charges against
me; but he is particularly upset about the one that you have
against him" (sic).
Respondent's president, David Hartman, testified that
he threatened to discharge Hardin about his threats to
Baumer and directed Hardin to apologize. Baumer did
not withdraw the charges filed with the Board.
Truckdriver Lloyd Tucker testified that about 1-1/2 to
2 weeks before the union election on May 19 or 21, 1980,
Manager Jack Flora called him into the office, and, in
the presence of Carol Schafer, then Flora's secretary,
asked him how he felt about the Union. He did not
answer. Flora then said that he (Flora) knew who some of
the leading organizers were and had their names. Flora
continued to question him and stated, "if you got union
representation and if the company did not want to nego-
tiate with the Union-"; he (Tucker) interrupted Flora
and said, "Well, the company would probably have to
break down and negotiate." Flora said, "The company
could just load up the tractor and the trailers on a train
and ship them back to Dallas and the truckdrivers would
be out of work." Tucker said Flora was angry and stated
that the next time he caught him (Tucker) doing a speed
of 60 miles an hour he would come personally from
Dallas, Texas, and terminate his employment. 3
3 I credit Tucker's testimony not only because I was persuaded by his
demeanor that he was testifying truthfully, but also because it was not
denied by Respondent and it is consistent with other credited testimony
of Flora's antiunion interrogation of employees.
Discussion
Based upon the foregoing credited testimonial evi-
dence of record, I conclude and find that Respondent
stipulated that Jack Flora and Gary Hardin were at times
supervisors within the meaning of the Act, and I further
find that at all times pertinent to the findings herein they
were in fact supervisors within the meaning of the Act;
that on or about May 18, or 1 or 2 days before the union
election, Respondent (Manager Jack Flora) called truck-
driver-employees Chalie Burge and Lloyd Tucker into
his office and interrogated them about their feelings or,
or interest in, the Union; that such interrogation was of a
coercive and restraining nature because it was carried
out by a high-ranking managerial official of Respondent,
the terminal manager, without giving said employees any
assurance against reprisal by management for expression
or not expressing such an interest; that Charlie Burge
told Manager Flora he was 100 percent for the Union,
and, as a result thereof, Respondent had actual knowl-
edge of his prounion interest and participation; that on or
about May 19, 1980, Respondent (Shop Foreman Gary
Hardin) threatened to do bodily harm to truckdriver
Howard Baumer for telephoning other employees about
union business; that a few days after the union election
on May 19 and 21 (about June 4) Manager Hardin asked
Howard Baumer to drop charges Baumer had filed with
the Board against Hardin and Respondent's president,
David Hartman; that about a week or two before the
union election Manager Flora gave employees the im-
pression their union activities were under surveillance by
Respondent by telling Tucker he knew who some of the
leading organizers were and had their names, and im-
plied that Respondent would not negotiate with the
Union, but would probably abolish the business and the
employees' jobs; and that each and all of said interroga-
tions, threats, impressions, and implications by Respond-
ent constituted union animus and/or had a coercive and
restraining effect upon the exercise of employees' pro-
tected Section 7 rights in violation of Section 8(a)(1) of
the Act.
C. Respondent's Discharge of Charlie Burge and
Howard Baumer
Burge also testified that on or about June 26 he made
a run through Corbin towards Knoxville, Tennessee, and
upon his return he and his codriver, Baumer, were as-
signed another run to Greensboro, North Carolina. They
left about 2 a.m. in the morning on June 27 and, after
driving about 21 miles in Kentucky, they pulled into a
truckstop and turned off the motor as they were directed
to do in the interest of conserving fuel. When they re-
turned from the coffeebreak the truck failed to start and
he called the Cincinnati terminal and spoke to Ed, the
serviceman on duty. He advised Ed that the truck failed
to start and Ed said, "Oh, Oh, Yeah. I forgot to tell you,
that truck has a bad starter in it. You are not suppose to
shut it down." Burge said he said, "Thanks a lot. I didn't
know that." Ed then advised them to see if someone
could give them a jump. They got a jump and got the
truck started, but there was oil leaking from somewhere
under the engine.
924
NORBAR, INC.
Burge placed another call to Ed in Cincinnati, advised
him of the leaking oil or fluid, and told him he thought
they would have to go into a garage and have a mechan-
ic look at it. Ed said, "Okay, but don't let them touch
anything, call me back and let me know what's going
on." Burge said he did just that at 76 Truckstop. Then
he called Ed and they got authorization to have the
truck repaired. After the truck was repaired they pro-
ceeded on their destination, but after driving about 15
miles east of Knoxville, Tennessee, the truck started to
overheat and broke down again. He and Baumer pulled
over to the side of the road and Baumer left the truck to
try to secure a ride into Knoxville for assistance. Re-
spondent's trucks are not provided with CB radios so
they got a local truck to flag down another truck which
had a CB radio and Burge was able to talk to a woman
on the CB radio who promised that she would telephone
Knoxville to a Mag dealership with whom Respondent
did business.
Baumer went to the westbound side of Highway 40 to
try to hitch a ride into Knoxville or to a telephone to
call for assistance. He was not successful in getting a ride
probably because most truckdrivers would not know that
he was a truckdriver and were reluctant to pick him up.
About 2 hours later, Baumer did get a ride, and after he
left one of their fellow drivers, Jene Gaskins, who was
driving on the westbound side of the highway, recog-
nized them, suspected they were having trouble, and
came over to them. Burge said he told her the truck had
overheated and Baumer had gone into Knoxville to try
to secure assistance. Gaskins said she would go into
Knoxville and call the Mag dealership and would also
place a call to Terminal Manager Carol Schafer in Cin-
cinnati.
About 2 hours later, a wrecker came and towed them
to Knoxville Truck Sales at or about the time they were
closing. The cab of the tractor was jacked up and
Baumer and Burge had nowhere to sleep. Burge called
the Cincinnati terminal to ask if they could check in a
motel to get some sleep and the office said, "No," they
should stay with the truck which was transporting mail.
They remained with the truck for 4 or 5 hours before it
was ready. Respondent wired money for the repairs and
did not wire enough, so they had to wait another hour
until Respondent wired the additional money. Baumer
denied that he told Manager Jack Flora if he (Flora) did
not get someone there in 10 minutes he was going to
take a plane out of there.
After the truck was repaired, Howard Baumer testified,
the remainder of their trip was as follows:
As soon as we got the money straightened out,
we took off. We had both been up all night, so we
went to the first rest area and we pulled over and
we both went to sleep, which isn't a common prac-
tice. It's supposed to be one guy sleeps while the
other guy drives.
Carol says, "Why are you both sleeping?" "Why
weren't you going on to Greensboro."
I said, "Well, we've both been up all night and
neither one of us was fit to drive. So we pulled off
and slept a couple of hours and logged it in our log
book as such. That's why when we took off, we got
into Greensboro late."
It's usually a six-hour drive from Knoxville to
Greensboro; but it took a little extra because we
both slept for a couple of hours rather than driving.
She said, "Why were you so late getting in
there?"
I said, "Well, we was both sleeping. The truck
wasn't moving at all for a while."
She says, "What else happened?"
I says, "Well, we came on back home-of the
truck and went home." The serviceman-I'm not
sure who it was. I think it was Crutchfield, but I'm
not real sure. He said that Carol wanted to talk to
us first thing in the morning. That's how I knew to
come back. My phone wasn't operating at that time.
Baumer testified when they arrived in Cincinnati the
serviceman told them Manager Schafer wanted to see
them in the morning.
Charlie Burge further testified that Terminal Manager
Carol Schafer called him at home and requested him to
come into the office, which he did. When they arrived at
the office, both Burge and Baumer testified, they were
given termination papers, respectively, by Terminal Man-
ager Carol Schafer. Baumer testified that Schafer told
him he was fired for waiting too long to get help and
threatening to leave the truck. He said he denied that he
threatened to leave the company truck and attempted to
explain to her, to no avail, why they were delayed in
getting assistance. Burge testified he was advised by
Schafer that he was fired because he failed to attempt to
call for assistance on his breakdown run on June 27 until
after a lengthy period of time, he had a tractor repaired
without authorization, and he did not have a logbook in
his possession. He said the logbook incident occurred
earlier, on June 11, 1980, for which he was suspended
for 8 hours. Although he explained the events and cir-
cumstances of the breakdown run and the cause for their
delay, Burge said he and Baumer were nevertheless
given termination slips (G.C. Exh. 3) anyway.
Burge thereupon filed charges with the National
Labor Relations Board on the following day (June 28 or
29).
David Hartman, president, chief executive, and owner
of Respondent, testified that he made the decision to ter-
minate Charlie Burge and Howard Baumer based on a
telephone report from Terminal Manager Carol Schafer
which stated that after their truck broke down Burge
and Baumer were asleep in the truck and did not go for
assistance for a long period of time. From the geograph-
ic description of the drivers' breakdown, the fact that
they had no business stopping in Corbin, Kentucky, be-
cause they were supposed to drive for 5 hours before
their first stop, and the fact that they were only 2 hours
out of Cincinnati, he concluded that they were within
walking distance for assistance. Thereupon, he directed
Terminal Manager Schafer to fire them.4
4 I do not credit President Hartman's stated reasons for his decision to
discharge Burge and Baumer because his testimony in this regard was not
Continued
925
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussion
It is clearly established by the foregoing credited evi-
dence that a few days before the Union's successful elec-
tion on May 21, 1980, driver Charlie Burge told Re-
spondent's Terminal Manager, Flora, in the presence of
codriver Howard Baumer, that he was 100 percent for
the Union. Burge further argued with Flora for justifica-
tion of unionization. Since Burge acknowledged his
union involvement while Respondent (Flora) was coer-
cively interrogating them (Burge and Baumer) about
their union interest, Respondent had actual knowledge of
Burge's involvement and in all probability knew or
strongly suspected Baumer was also an organizer for,
supporter of, or sympathizer for the Union.
Moreover, Flora's statements about the Union and the
options Respondent had for rendering the Union ineffec-
tive as the employees bargaining agent manifested union
animus which prevailed in the climate of the terminal
prior and subsequent to the election, as will be further
shown infra. Hence, when Burge and Baumer were sev-
eral hours late on a run on June 27, 1980, due to me-
chanical malfunction of their tractor, Respondent seized
on this irregular incident to serve as a basis to discharge
Burge and Baumer on or about June 27.
However, when the timing of the discharges is consid-
ered in conjunction with the antiunion climate at the ter-
minal, the Union's success in the election on May 21, the
charges filed by Burge and Baumer against Respondent,
as well as the 8(a)(l) conduct, subsequent threats, and ul-
timate wholesale discharge of union organizing employ-
ees (Lloyd Tucker, Jeffrey Snodgrass, Michael Green,
and Phillip Seitz), all between June 27 and November
1980, it is reasonably inferred from the General Coun-
sel's prima facie evidence that Respondent's discharge of
Burge and Baumer was motivated by their organizing ac-
tivity.
Additionally, although Respondent contends it was
weeding out employees who did not comply with its
policies, it failed to establish that Burge and Baumer vol-
untarily failed to comply with any company policy. Both
drivers have shown that they were delayed on June 27
by reasons beyond their control and Respondent's con-
tended reasons for their discharge were herein discredit-
ed. Thus, Respondent has also failed to establish that
Burge and Baumer would have been discharged even if
they were not involved in union activity. Consequently,
Respondent's discharge of Burge and Baumer was dis-
criminatory and in violation of Section 8(a)(3) and (1) of
the Act.
D. Company Policy Governing the Performance of
Truckdrivers
David Hartman, president and owner of Respondent,
testified that he took over Norbar on February 1, 1980,
and observed that some of the problems affecting
progress of the Company were improper service of
corroborated, because Carol Schafer, on whose telephonic report he con-
tends he relied, did not appear and testify herein, because the decision
was made without Hartman talking to the drivers personally about some
of the assumptions he made about their delay, and because of the precipi-
tous nature of his decision, not having issued any warning to the drivers
in question.
equipment, interior and exterior damage to equipment
which was only 1-1/2 years old but appeared 5 years
old, excessive speeding violations, and a high rate of ac-
cidents causing increased costs for insurance and Re-
spondent's being insured on a month-to-month basis. At
that time Jack Flora was manager of the Cincinnati ter-
minal and he met with Flora and the managers of the
Dallas (Bill Lambert) and the Kansas City (Lloyd
Harmon) terminals and directed them, to help eliminate
these problems by enforcing company policy governing
the preservation of equipment and the conservation of
fuel and operating costs. Subsequently, he (Hartman) dis-
tributed a memorandum (Resp. Exh. 7) to all managerial
and driver personnel outlining the rules to safeguard the
above objectives. He also posted a copy of changes in
policy (Resp. Exhs. 6 and 10) dated September 8, 1980,
on the bulletin board.
In March 1980, Hartman met with the drivers and ap-
prised them of the financial status of the Company and
his newly issued priority rules (Resp. Exh. 7) for drivers
to comply with in meeting company objectives. He said
he told the drivers those who did not cooperate and
comply with company policy would be terminated, as
others were terminated, which terminations have caused
quite a turnover in driver personnel. He emphasized
driver compliance with the 55-mile-per-hour speed limit,
and driver Lloyd Tucker said he drove at 60 miles per
hour and that was the way he was going to drive.
Hartman continued to testify as follows:
Finally I said, "Mr. Tucker, I'm not going to
argue with you any further. I'm telling you right
here and now this is my company, these are my
trucks and you work for me. If you intend to work
here you had better stop speeding for all time be-
cause you are going to be fired if you don't."
Although Hartman's testimony in this regard was cor-
roborated by that of Manager Ronald Vaughn and Re-
spondent's general manager, Lloyd Harmon, truckdriver
Lloyd Tucker emphatically denied that he made the
latter statement, but, instead, said he asked Hartman
could a driver exceed the 55-mile-per-hour speed limit by
a couple of miles to make up for loss time, or when de-
scending a hill, in an effort to make the trip on schedule.
He also testified that during the meeting with Harmon he
inquired about the feasibility of the lack of seatbelts in
the trucks as a safety matter and Harmon got angry and
started moving closer to him while rolling up his sleeves.
Harmon then started telling the employees they did not
need a union and that the employees could communicate
with him or with management.5
5 I credit Tucker's denial that he told management he would drive the
way he wanted to, in the face of President Hartman's explicit directive
about speed, because I was persuaded by the demeanor of Hartman, but
particularly the demeanor of Harmon, that they were not testifying truth-
fully. I received the distinct impression from the substance and tone of
their answers to questions that they were more interested in supporting
management's position in this regard than telling the truth. Moreover. I
am not persuaded as a matter of logic that the average employee would
tell his employer (president of the company) in advance that he was not
going to comply with such a directive. If such an employee did, manage-
Continued
926
NORBAR. INC.
President Hartman also met with the drivers again
about 1 week before the election and he testified that he
told the employees about the objectives of the Company,
and asked them to work with the Company to make it a
sound business, which would have no relation to wheth-
er or not they had a union. He denied that he told the
employees he would not bargain with the Union, that he
threatened employees about their union activities, that he
told employees he would not cooperate with the Union,
or that he told employees he knew any individual employee
was involved in any union organizational activity. 6
Finally, President Hartman testified that he also met
with management and told them that Respondent, as a
company, did not prefer a union; that Respondent did
not think a union was in the best interest of the Compa-
ny or the employees; but that it was a right of the em-
ployees to decide. He said he told them no one was to be
intimidated or discriminated against for their views on
the Union and that all supervisors must be careful not to
violate the labor laws. He acknowledged that, in the be-
ginning of his takeover of the Company and the onset of
this dispute, the Company did not have an attorney-at-
law but the Company was being represented by its gen-
eral manager, Lloyd Harmon, because the Company did
not take the dispute seriously.'
Respondent's drivers' manual is said to contain the fol-
lowing:
All drivers are required to maintain a minimi six-
mile per gallon average. This is part of your terms
of employment and will be enforced rigidly. If any
driver cannot maintain 6 m.p.g., it is his responsibil-
ity to seek help from his driver instructor. [Resp.
Exh. 10, p. 3.]
All company vehicles are equipped with tacho-
graphs, the purpose of this is to monitor speed and
engine RPM. Federal law and company policy re-
quire that no driver shall exceed the 55 m.p.h. speed
limit under any circumstances. Any driver that
abuses this policy is subject to immediate termina-
tion without warning. [Resp. Exh. 10, p. 23.]
Discussion
Although Respondent's manual might contain the
above provisions, it was not unequivocally established
that all truckdrivers, including Lloyd Tucker and Jeffrey
Snodgrass, infra, actually received a copy or had a
ment, in all probability, would ask for his resignation. Respondent cer-
tainly did not request a resignation. Meanwhile, I was persuaded by
Tucker's rather candid and spontaneous responses to the questions that he
was telling the truth, and Hartman and Harmon were not.
e While I credit President Hartman's affirmative testimony about what
he said in meetings with the drivers, I was persuaded that his denials of
essentially corroborated testimony of the employees herein was not truth-
ful. Not only was the testimony of the employee-witnesses partially cor-
roborated by one another, but their versions were consistent with other
corroborated evidence of the consistent antiunion climate which pre-
vailed at the Cincinnati terminal.
7 Although I credit the above testimony in part, it was not established
how early Hartman so instructed management personnel. Hence, if he in
fact so instructed them at all, I am persuaded by the evidence of record
that it was late in the day of the organizing campaign. This conclusion is
even more persuasive when it is observed that Respondent acknowledged
that it did not have legal counsel in the bargaining, but was represented
by its general manager, Harmon.
chance to read said manual. Since Respondent estab-
lished that it simply posted changes in said manual on
the bulletin board, it is not shown which changes or
whether the above provisions were changes which were
posted. Moreover, the credited evidence of record, infra,
clearly infers that Respondent did not consistently and
uniformly enforce said provisions or other policies re-
garding driver speed, number of accidents, or the 6 mpg
average rule.
E. Respondent's Discharge of Truckdriver Lloyd
Tucker
Lloyd E. Tucker testified that he signed a union au-
thorization card, and attended several union meetings at
the Union's local office with several other fellow em-
ployees; and that about a week and a half prior to the
union election on May 19 and 21, 1980, Respondent's
manager, Jack Flora, called him into the office, and, in
the presence of then secretary Carol Schafer, asked him
how he felt about the Union. When Tucker did not re-
spond, Flora said he (Flora) knew who some of the leading
organizers were and he had their names.
Tucker continued to testify about his conversation
with Flora as follows:
A. He was asking me questions about the union;
and then he turned around and he stated, well-you
know, "If you got union representation and if the
company did not want to negotiate with the union,"
then I told him that-you know, I just sat there for
a second, then I stated, "Well, the company would
probably have to break down and negotiate."
Then he said, "Well, if the company did not want
to negotiate with the union, that they could just load
up the tractors and the trailers on a train and ship
them back to Dallas and we would be out of work"
Q. Did he make any other conversation with you
about your working conditions there?
A. Correct. He stated then-He was kind of an-
gered, and he stated that the next time he caught me
doing a speed of 60 miles an hour, that he would come
personally from Dallas, Texas, and terminate my em-
ployment.
Discussion
Thus, based upon the above hereinbefore credited tes-
timony, I conclude and find that it may be reasonably in-
ferred from such evidence that, through its Manager
Flora, Respondent knew or strongly suspected that
Lloyd Tucker was one of the union organizers or sup-
porters.
About 10:30 p.m. on June 28, 1980, while on his return
from Greensboro, North Carolina, Tucker encountered a
severe rainstorm when driving through a road construc-
tion area in Lexington, Kentucky. His truck was between
a wall and a car which he passed and by which he was
prevented from changing lanes. A temporary road sign
fell over into his lane and he could not avoid hitting it.
The truck struck the sign and damaged the rearview
mirror on the driver's side of the tractor. Tucker ob-
tained an estimated cost of damage as S15. When he ar-
927
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rived at the Cincinnati terminal he filed an accident
report (G.C. Exh. 4) and explained to Terminal Manager
Schafer the circumstances which gave rise to the acci-
dent. Schafer placed him on temporary nondriving status
and told him she would have an answer for him the next
day. This account of what happened is not disputed by
Respondent and Carol Schafer did not appear and testify
herein. No explanation was given for her nonappearance
even though she is still in Respondent's employ.
Tucker called Schafer on or about the first of July and
inquired about his driving status. Schafer informed him
that she had not heard from appropriate managerial offi-
cials and that she would have to get back to him. Tucker
called Schafer on or about July 11 or 12, and was ad-
vised by her that his employment with Respondent had
been terminated. He said he was not shown any pretrip
service reports (Resp. Exh. 3 or 4) at the time of termi-
nation. Respondent's president, David Hartman, testified
that he made the decision to terminate Lloyd Tucker
based on the investigative report which was submitted to
him by Manager Carol Schafer and/or Ronald Vaughn,
which indicated that Tucker was not driving at a safe
speed and with due care for the road circumstances. 8
Tucker further testified that he used to complete the
accident or damage report (Resp. Exh. 11) until he noted
repairs would not be made for months and he got tired
of writing down the same dents and bumps, etc., and
stopped completing it. He acknowledged it was company
policy for drivers to complete forms before and after
trips, but said some drivers would and some would not
do so. He further acknowledged that he did see and
learn company policy which was posted on the bulletin
board and that he did attend meetings where such poli-
cies were discussed.
Tucker denied the left front bumper and left front
fender were bent in when he returned the tractor, except
that the fender may have had tiny "pings" or scratches
which were there before he took the truck out.
Tucker also testified without dispute that driver Ed
Walker had an accident in which he was at fault in 1979.
Thereafter Walker had two additional accidents before
he was discharged by Respondent. Also, while he was
with codriver Terry Cutting, she had a serious accident
causing $30,000-$40,000 in damages as a result of hitting
debris and another car. Cutting was sent on a run with
him 2 hours later when she fell asleep at the wheel and
had another accident which totally destroyed a tractor-
trailer. She was not discharged for either accident.
Tucker said this was his first and only accident, and
Respondent did not deny any of his testimony in this
regard. Moreover, Manager Ronald Vaughn testified that
normally, after a driver's accident, he would talk to the
driver. However, he acknowledged he did not talk with
a It is particularly noted that Lloyd Tucker's testimony is undisputed
and is therefore credited. However, I do not credit President Hartman's
contended reasons for discharging Tucker not only because I was not
persuaded by his demeanor on the stand that he was testifying truthfully
in this regard, but because his contended reasons for the discharge are
essentially inconsistent with the credited circumstantial evidence of
record as a whole.
Tucker after his accident which is the subject of this dis-
pute.9
Discussion
It is therefore reasonably inferred from the foregoing
credited evidence of Terminal Manager Flora's statement
to Tucker that he knew and had names of the leading
union organizers, as well as from Tucker's enthusiastic
jumping and clapping after the Union won the election,
that Respondent knew or strongly suspected Tucker was
a union organizer and supporter. Tucker's union animus
prior and subsequent to the election on May 21 is clearly
manifested throughout the record herein. So intense was
Flora's animus that during his discussion of the Union
with Tucker just prior to the election he threatened to
come to Cincinnati from Dallas and personally discharge
Tucker the next time he caught him driving at a speed of
60 miles an hour.
When Tucker had what the record indicates was his
first and only minor ($15 damage) accident on June 28,
1980 (about 5 weeks after the Union won the election),
Respondent immediately suspended him and ultimately
discharged him on or about July 11 or 12, 1980. During
the interim of his suspension and discharge, Tucker con-
tacted Terminal Manager Carol Schafer to inquire about
his employment status. Schafer's union animus was dem-
onstrated when she replied the Union only wanted his
(Tucker's) money and would not support him, and the
Company was going to make things hard on all employ-
ees associated with the Union because "the company was
not going to be pushed by the Union and was going to
push back."
Although Terminal Manager Ronald Vaughn testified
he normally talked with a driver involved in an accident
before imposing any discipline, Respondent (Vaughn) ac-
knowledged he did not talk with Tucker before his dis-
charge. Nor does the record show that any other man-
agement official talked with Tucker before discharging
him. In fact, President David Hartman said he dis-
charged Tucker based on the investigative report submit-
ted to him by Vaughn and/or Schafer. The latter's union
animus has already been demonstrated herein. However,
in any event, it is particularly noted that Schafer, with
whom Tucker spoke and to whom he explained he was
not at fault for the accident, did not appear and testify
herein. Although she is still employed by Respondent, no
explanation was offered for her nonappearance.
While President Hartman contended he discharged
Tucker because he concluded based on the Company's
investigative report that Tucker was not driving with
due care for the road circumstances, he does not show
how he reached that conclusion when he was not
present at the time of the accident. No record was intro-
duced to show at what speed Tucker was driving and no
traffic accident report has been submitted by Respondent
" Again, it is particularly noted that Respondent did not emphatically
deny or refute with any probative and comparative evidence Tucker's
testimony regarding Respondent's failure to discharge some drivers for
accidents for which they were believed or found at fault Consequently, I
credit Tucker's account in this regard because he also appeared positive
and accurate about the examples which he cited.
928
NORBAR, INC.
to substantiate its conclusion. At least Tucker obtained a
city accident report which concluded he was not at fault.
Thus, Hartman's contended conclusion for discharging
Tucker is discredited. Additionally, the undisputed and
unrefuted evidence of record shows that Respondent did
not discharge some other employees who were at fault in
accidents (some multiple) considerably more serious and
costly than Tucker's accident. Consequently, it is further
established that, if Respondent had a policy for disciplin-
ing drivers at fault in accidents, it was obviously not uni-
formly enforced, since Tucker was singled out for sus-
pension and discharge.
Under the above uncontroverted circumstances, the
General Counsel's evidence has amply established that
Respondent's discharge of Tucker was solely motivated
by his union activity, and not for an accident for which
he was at fault. Since Respondent has not established any
reason for Tucker's suspension and discharge, it is clear he
was discriminatorily discharged for his union activity in
violation of Section 8(a)(3) and (1) of the Act.
F. Respondent's Discharge of Jeffrey Snodgrass
Jeffrey Snodgrass undisputedly testified that he was
employed by Norbar on September 2, 1978, and had
worked for Respondent continuously until his termina-
tion. In or about May 1980, he solicited union authoriza-
tion cards from fellow employees, including Terminal
Manager Ron Vaughn, who declined to sign a card.
During the same period, May 1980, while in the drivers'
lounge completing his logs, Respondent's shop foreman,
Gary Hardin, came in and stated he knew who "started
this goddamn union" and he was going to get rid of
them, and his name was Phil Seitz, and he was going to
get rid of everyone of those "goddamn troublemakers."
Snodgrass further testified that on or about May 17,
1980, a conversation with Terminal Manager Jack Flora
occurred as follows:
A. I was in the drivers' lounge and Jack Flora
motioned me into the office and Carol Schaeffer
[sic], the secretary, was sitting there. He asked me
did I think this union was going to do any good.
And I said, "It couldn't hurt." And he said, "You
know that if his union goes through that Harmon is
gonna close the door and take his tractors back to
Texas."
Snodgrass stated that at the time of the election noth-
ing was said about driving instructors being in or not in
the Union. All employees voted except office clericals,
profesional employees, and supervisors. He (Snodgrass)
was not a driving instructor at the time and he served as
an observer for the Union at the election of May 19 and
21, while Manager Ron Vaughn served as an observer
for the Company. During the election he challenged
Vaughn's vote because he was directed to do so by the
Union.
Subsequent to the election Snodgrass bidded on the
driving instructor job and, he testified, there was no con-
versation about whether or not driving instructors would be
in the unit. However, Respondent's vice president and
general manager, Lloyd Harmon, testified that he partici-
pated in the negotiations of the new contract, during
which the position of driving instructor was excluded for
the unit because such driving instructor teaches drivers
company policy, teaches drivers how to drive and how
to conserve fuel mileage, decides whether they are train-
able or nontrainable, and recommends that such trainees
be hired or not hired. The Company accepts his recom-
mendations.
Vice President Harmon further testified that, in re-
sponse to a notice for interested employees to become
driver instructors, Jeffrey Snodgrass was the only em-
ployee who applied and was hired as such by him. He
said that, during their interview in early September, Re-
spondent's president, David Hartman, and Carol Schafer
were present. They discussed the duties of the position
and told Snodgrass the job was a management position and
he would have to resign from the Union in order to accept
it. Snodgrass agreed to do that and he accepted. In fur-
ther support of his testimony that Snodgrass had the au-
thority to hire and fire, Harmon testified that Juan Flow-
ers was terminated on Snodgrass' recommendation. Io
Snodgrass further testified that he worked as a driving
instructor for 2 months and that in November 1980
Ronald Vaughn was terminal manager. When he (Snod-
grass) reported to work one day in November, Manager
Vaughn informed him that he had received a call from
Respondent's general manager, Harmon, in Texas, advis-
ing that he (Snodgrass) was caught by a postal inspector
and then clocked by an insurance spotter exceeding the
speed limit (63 miles per hour) down hill near Clover,
North Carolina. Snodgrass said he said no one stopped
him or even told him about speeding, and in fact his
speedometer and tachometer were not working and he
did not know how fast he was going. Manager Vaughn
told him he should have known better because he had
been driving long enough to know at what speed he was
driving. Snodgrass said that, when he brought the par-
ticular truck, No. 52, back from Kansas City, he filed a
report (C-2) that the speedometer did not work, and me-
chanic Mike Green wrote a worksheet on it but it could
not be processed for the trial herein. He said that, when
he took the truck out on another run, his speedometer
had not been repaired.
In this regard, Respondent's general manager, Lloyd
Harmon, further testified as follows:
io Snodgrass' testimony is in sharp conflict with that of Respondent's
vice president, Harmon, and its president, David Hartman, as to whether
the driver instructor position was discussed as being, or not being, a man-
agement position during Snodgrass' interview for the position. I never-
theless credit Snodgrass' version and discredit Respondent's version be-
cause his version is supported by Manager Vaughn's former secretary,
Deatra Hollars, who testified that former Terminal Manager Carol
Schafer told her Respondent promoted Snodgrass to driving instructor so
it could fire him for being one of the leaders of the drive which resulted
in unionizing Respondent's employees. Although Hollars resigned from
the Company in December 1980 because she was an intolerable witness
to Respondent's unlawful conduct towards its employees, she nonetheless
appeared and testified in this proceeding. Strangely, Carol Schafer, who,
according to Vice President Harmon, was present during Snodgrass'
interview for driving instructor, did not appear and corroborate or dis-
pute Harmon's testimony, just as she did not appear and testify about
other conversations in this proceeding to which she allegedly was a wit-
ness. Adverse inference is drawn from her absence, since no explanation
was offered for her nonappearance.
929
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. We had received an insurance observation
report from our insurer stating that a specific truck
was clocked by radar speeding. I called Mr.
Vaughn and told him that I wanted to know who
was driving that truck. He found out who was driv-
ing and called back and told me that Mr. Snodgrass
was driving it. We had had complaints from several
of the people that Mr. Snodgrass had instructed that
he was instructing contradictory to the d ivers'
manual and the policies of the company. With all
the information put together, plus the fact that his
fuel mileage was below company standards and he
was actually instructing at the time he was clocked
speeding, the decision was made to terminate him.
Snodgrass testified that on November 17, 1980, Termi-
nal Manager Ronald Vaughn gave him a copy of an ob-
servation report of his log, and said he had no other
choice but to fire him. Snodgrass said he replied,
"You've got to be kidding," Vaughn said, "No. I am
not," and he (Snodgrass) explained to him again that his
speedometer/tachometer were not operating and he did
not know how fast he was going. His explanation was to
no avail. Thereupon, Snodgrass said he went to the
Union (business agent Odelle Hinkle) and filed a griev-
ance. In February 1981, Hinkle (the Union) informed
him that the Company said he (Snodgrass) was a part of
management and his grievance would not be processed.
Thereafter, he filed a charge with the National Labor
Relations Board (NLRB). He also attended the NLRB
trial of Charlie Burge and Howard Baumer and was
present in the courtroom where he saw company offi-
cials present who presumably saw him.
The record shows that article 12 of the contract be-
tween Respondent and the Union provides that any
driver caught exceeding the 55-mile-per-hour speed limit
as established by tachometer, traffic violation, observa-
tion report, or clocking by management shall be subject
to discharge without resource to the grievance proce-
dure.
Harmon testified that, after his receipt of the observa-
tion report, he told Manager Vaughn that, considering
all of the problems and the fact that Snodgrass was a
driving instructor caught speeding, he could not tolerate
that and would have to let him go.
Deatra Hollars, who is no longer in the employ of Re-
spondent as secretary to Manager Vaughn, testified that,
about a day or two after Jeffrey Snodgrass became
driver instructor, Terminal Manager Carol Schafer told
her "that that was one down." When she asked Schafer
what she meant, Schafer said, "Jeff had been one of the
leaders in bringing the Union into Norbar, and that by
promoting him to driver instructor, that he would be ex-
cluded from the Union, and that his next step was out of
the door."
With respect to Respondent's contention that Snod-
grass was not teaching the driver trainees properly and
was a poor example for them because he told them he
would take them down Black Mountain in fifth gear,
Snodgrass testified that, while he did kid with the train-
ees, he told Vaughn, "You know I would not do that,"
because if he did go down Black Mountain in fifth gear
without breaking he would go 100 miles per hour. The
speed limit is 35 miles per hour. In support of Snodgrass'
contention that he was kidding, he testified that, while
secretary to Ronald Vaughn, Deatra Hollars was in the
office, he kiddingly stated that he would go down Black
Mountain in fifth gear. Vaughn laughed and said, "You'd
better not do it." Nothing further was said to him and no
warning was issued to him by management.
Deatra Hollars, who is no longer in the employ of Re-
spondent, corroborated Snodgrass' testimony to the
effect that in mid-October he jokingly said something
about taking new drivers down Black Mountain in fifth
gear. She said both Snodgrass and Manager Vaughn
laughed. Hollars also testified that, after Snodgrass left
the office, Manager Vaughn repeated his remark about
Black Mountain to General Manager Harmon on the
telephone, not as a joke, but as having been seriously
stated. When Vaughn got off the phone, Hollars said, he
told her Jeff Snodgrass had to go. She said she asked him
if he was finishing up what Carol Schafer had started
and she repeated the conversation about one down and
one more out of the door for being a union leader, and
Vaughn said, "You might say so."
Prior to his suspension and discharge in November,
Snodgrass testified, he had received a reprimand (Resp.
Exh. B) in October 1980 for excessive fuel mileage. In
the presence of then secretary Deatra Hollars, he told
Foreman Vaughn he was not going to sign the repri-
mand because he could prove he was getting better fuel
mileage than what the truck actually did (according to
the chart, the truck did 5.14 miles per gallon (mpg) and
Snodgrass averaged 5.40 (mpg). Vaughn nevertheless
gave Snodgrass the reprimand which itself showed 5.40
miles per gallon. Snodgrass further testified that the driv-
ers were supposed to get 6.06 mpg and that vaughn told
him when he gave him the reprimand that he was going
to give every driver a reprimand who did not get 8 miles
per gallon to teach them a lesson. However, he said he
has never heard of any driver receiving a reprimand for
not getting 8 miles per gallon.
Snodgrass said he has driven tractors with malfunc-
tioning speedometers and tachometers many times, that
such was not an unusual practice among drivers, and that
he first saw a copy of the contract in January 1981, in
which the driving instructor was excluded from the unit.
He first learned the position was excluded in February
1981. Snodgrass also testified that he was the primary
union organizer and that he was suspended on November
10, 1980, and terminated on November 17, 1980.
Thereafter, Snodgrass filed a charge with the National
Labor Relations Board. He also attended the trial of
Charlie Burge and Howard Baumer in this proceeding,
and was in the courtroom where he saw company offi-
cials present who presumably saw him also.
Michael Green, service and maintenance worker, cor-
roborated Snodgrass' testimony that on the day in ques-
tion he checked out the speedometer and tachometer on
Truck 52 and found that they were not operational. He
attempted to repair them but the housing on the side of
the motor where the speedometer cable hooks in was
busted and, therefore, the cable could not be replaced.
930
NORBAR, INC.
Truck 52 was the truck Jeffrey Snodgrass and Phillip
Seitz drove.
Discussion
In evaluating the credibility of Respondent with re-
spect to Jeffrey Snodgrass' discharge, any fair evaluation
thereof must, in context, take into consideration not only
the limited circumstances of his discharge, but, in the
broad context of the consolidated cases, the credibility
and unlawful conduct of Respondent in whole as herein
found. With this in mind, a careful review of the forego-
ing credited evidence readily reveals that Respondent's
reasons for discharging Snodgrass are complicated by its
unequivocal knowledge of his open union activity (ob-
server for the Union at the election), as well as by ad-
verse credited testimony that it contrived an ostensibly
legitimate plan to promote Snodgrass out of the unit for
the exclusive purpose of discharging him for his leader-
ship role in organizing the Union.
While it appears well established that the driving in-
structor position was excluded from the unit during con-
tract negotiations in late May or early June, I am per-
suaded by the evidence that Snodgrass did not know the
position was so excluded at the time he accepted it and
before his discharge. In fact, the credited evidence shows
that Respondent wanted Snodgrass to accept the posi-
tion. Thus, it is unlikely that it would have told him (a
leading organizer and observer) that he would have to
resign from the Union, and risk his declining to accept
the position for that reason. I therefore find that Re-
spondent did not apprise Snodgrass of the fact that the
position was excluded from the unit and the latter did
not know that it was excluded, and that Respondent se-
lected him for the position (which it considered supervi-
sory) for the exclusive purpose of thereafter discharging
him. Daniel Construction Co., 244 NLRB 704 (1979), and
Hospitality Motor Inn, 249 NLRB 1036 (1980).
Additionally, it was established that the driving in-
structor teaches prospective truckdrivers how to drive
the equipment, teaches them company policy, teaches
them how to conserve fuel mileage, and decides whether
or not a trainee is trainable or eligible for employment.
However, the evidence failed to show that the driving
instructor had authority, or in fact exercised authority, to
recommend that a person be hired or terminated, or that
he exercised any of the other indicia of supervisory au-
thority. Under these circumstances, I find that Respond-
ent failed to establish that the driving instructor position,
per se, was a supervisory position within the meaning of
the Act.
Respondent contends it discharged Snodgrass for ex-
ceeding the 55-mph limit by 8 miles in November 1980,
pursuant to an insurance observation report, for com-
plaints from persons Snodgrass trained that Snodgrass
drove them or told them he drives down Black Moun-
tain in fifth gear (which Respondent felt was a bad exam-
ple for an instructor), and because his fuel mileage was
below the Company's 6.06-mile-per-gallon (mpg) stand-
ard. Snodgrass was able to show by corroborated testi-
mony, which was not disputed by Respondent, that the
speedometer and tachometer on his tractor was not oper-
ational at the time, and he said he did know how fast he
was driving. In any event, he said he was not stopped by
any official or representative.
When Snodgrass was terminated by Respondent on
November 17, he explained the malfunction of his speed-
ometer to Manager Vaughn, who told him he should
have known how fast he was going. Although the con-
tract between Respondent and the Union provides that
exceeding the 55-mph limit will be grounds for discharge
without recourse to the grievance procedure, it is reason-
ably presumed that in all probability this contract provi-
sion presupposed the drivers would be guided by an op-
erating speedometer. Common experience would suggest
that, while the most experienced driver can estimate his
speed (within a few miles of accuracy) at some times, it
is doubtful anyone can estimate his speed within the
same few miles at all times. If this were so, speedometers
would hardly be necessary.
It therefore appears to me that Respondent's failure to
take into consideration the reasonable and practicable
factor of the lack of an operating speedometer at the
time of the speeding charge clearly demonstrates that
Respondent was not really concerned with proof of the
charge, but, rather, with any ground, ostensible or
actual, which it could use as a basis for discharging
Snodgrass. This position is further confirmed when the
evidence of the terminalwide union animus and Respond-
ent's concerted pattern of unlawfully discharging em-
ployees (actual union organizers), supra and infra, is
taken into consideration. It is therefore obvious that Re-
spondent's speeding charge was a pretext and not the
real reason for discharging Snodgrass.
With respect to Respondent's contention that it also
discharged Snodgrass for telling trainees he drove or
would drive down Black Mountain in fifth gear, the
credited evidence shows that this remark by Snodgrass
was said in jest, and that Respondent (Manager Vaughn)
interpreted it as having been said in jest by laughing with
others present. It was only in Snodgrass' absence that
Vaughn relayed the remark to higher management as
having been seriously made in order to further aggravate
Respondent's already existing union animus. In any
event, it is not shown that Snodgrass ever attempted to
carry out such act and the record shows he told manage-
ment he would not do that, he was just kidding.
With respect to Respondent's contention that it also
discharged Snodgrass for not maintaining its fuel mileage
standard, the credited evidence again demonstrates with-
out dispute that Snodgrass' fuel mileage was better than
what the truck was recorded capable of doing. No evi-
dence was submitted to show that Snodgrass' fuel mile-
age was any worse than that of other drivers. In fact, if
his fuel mileage was that poor, it is strange that Re-
spondent selected him for the position of driving istruc-
tor, who is supposed to teach how to conserve fuel. Fi-
nally, it is especially noted that the fuel mileage charge
occurred in October 1980, for which Snodgrass had al-
ready received a reprimand in spite of his having shown
management that his mileage was better than the truck's
record.
Under the above circumstances the credited evidence
has clearly revealed Respondent's reasons for Snodgrass'
931
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge for what they are, a contrived pretext to con-
ceal its unlawful discharge of him. Since the real and
only reason for Respondent's discharge of Snodgrass was
his union activity, of which it was well aware, his sus-
pension and discharge were discriminatory and, as such,
in violation of Section 8(a)(3) and (1) of the Act. Great
Atlantic & Pacific Tea Co. v. NLRB, 354 F.2d 707, 709
(5th Cir. 1966).
G. Respondent's Discharge of Serviceman Michael
(Mike) Green
Michael (Mike) Green was hired for the repair and
maintenance of trucks in August 1980. There were three
servicemen at the time, one of whom was Dwayne Hart-
man, son of President David Hartman. The Cincinnati
terminal could not buy parts at that time and the me-
chanics did the best they could to service the trucks, but
the terminal manager would dispatch trucks even though
they did not satisfy DOT regulations and he had been so
advised. Green said he told management on several occa-
sions to no avail that a certain truck or trucks were not
roadworthy.
Green further testified undisputedly that he served on
the Union's bargaining committee which negotiated the
current contract in I week, in which contract the driver
instructor position was excluded because it was felt such
position was a part of management. Four days later he
became a union steward. On that same day, Manager
Vaughn told him to pick up the telephone, that General
Manager Lloyd Harmon wanted to talk to him. He
picked up the phone and Harmon said, "[c]ongratulations
or condolences, which is it? Are you sure you want to take
the job of union steward?" He said, "It could cost you
your job." Green said he asked Harmon if he wanted to
put that statement in writing, and the latter said, "Put
Vaughn back on the line." Manager Harmon denied he
made the above remarks but I was not persuaded by his
denial because it is inconsistent with the tenor of the
entire pattern of antiunion conduct of Respondent.
About 2 weeeks later, employees Jene Gaskins and
Georgia Strump came in and told Green they were
pulled off their Greensboro, North Carolina, run by
Scott Wright, who was superintendent of maintenance,
because of an incident in the newspapers where a female
driver broken down on the road had been raped. Super-
intendent Wright was denying them the right to run a
single driving operation. He (Green) would be forced to
file a grievance on their behalf. Wright told him he did
not make policy, and he (Green) said that was find, he
would file a grievance. Wright then said, "Okay. I will
call the Equal Employment Opportunity Commission
(EEOC) and see if I can get a ruling from them." Forty-
five minutes later, Wright told the girls that the EEOC
said it would be a violation of their rights and he would
put them back on their run. Around the same time,
Green said, he had filed a grievance with the Union
about female and male drivers having to live in quarters
with no locks on the doors and unsanitary conditions in
a trailer in Statesville, North Carolina.
On or about November 7, Green said, he was accused
by Vaughn and Scott Wright of sending Tractor 58 out
the day before without sufficient fuel. He denied he sent
the tractor out. In fact, he said he told the driver to go
to the Cincinnati Bulk Mail Center at the Cincinnati Post
Office, and call back to see what Vaughn wanted to do
because the tractor had an exhaust and water pump leak
and he was working when they went out to get parts
that day. The driver's name was Beauford McCormick
and it was Manager Vaughn who sent the tractor out.
The next day Green was accused of informing Vaughn
that Tractor 58 had been serviced, which Green denied.
He had been off 7 days on sick leave. On that night an-
other driver, Carol Stevens, called him at home and told
him Vaughn said he needed a doctor's statement to
return, and she asked him why did he get fired. He told
her he did not know he had been fired. She informed
him that they had somebody else working in his place
down at the shop. When Green got off he called Ron
Vaughn and asked him if he had been fired. Vaughn said
that was a "bunch of bull," he had not been fired. How-
ever, Vaughn asked him when was he coming back, and
he told Vaughn the next day. Vaughn said, "Well, there
are some papers we have to straighten out." Green con-
tinued to testify as follows:
A. As a result of the phone call, I went in the
next day and as I got in my time card had been
pulled out of the rack. I stood around for about two
hours waiting for Mr. Vaughn to show up. He
come in. I asked him what happened to my time
card. He told me at that point that I had been ter-
minated. I asked him for what. He said, "Well,
there's ten reasons." "What ten reasons." He said,
"The papers are being wrote up now. You will get
a copy of it when I get it."
Q. And he didn't mention any of the ten reasons?
A. No.
Q. He said they were being written up?
A. He said they were being wrote up at that
point, and that I would get a copy of them when he
got them.
Q. Did you ever get the copy?
A. No, I did not.
About 6 days later there was a hearing at which Man-
ager Vaughn, Jeff Snodgrass, and union agent Odelle
Hinkle were present. Vaughn told the committee Green
was fired for not putting oil in a tractor, which was 2
gallons short, and fully servicing it. Hinkle said that
"was bull" and he would go to arbitration. About 3
months later, Green said, he got a call from Hinkle ad-
vising that he had worked out a deal with Respondent
and Hinkle told him to go to Vaughn. He went to
Vaughn the same day and the latter offered him an
extra-board driver position, not a shop position, on a
temporary basis to prove he was going to be a better em-
ployee if he gave up his position as union steward. Green
went back to the Union and declined the job because he
would be making less money and because he had done
nothing wrong and should not admit guilt. At that time,
fellow employee Hudson came in and apologized for
signing the statement against him about insufficient oil in
the tractor, which was parked on unlevel ground when
the oil was checked.
932
NORBAR, INC.
In March 1981, Green further testified, the drivers
called a meeting at the union hall to try to get Hinkle to
resolve some of the unsolved grievances. Hinkle told
Green that he had worked out a deal, and that he
(Green) had had his day in court and to get the "hell out
of the union hall." At that juncture, Green said, he and
Snodgrass went to the National Labor Relations Board
and filed a charge. When Green was shown the Compa-
ny's work order dated October 24, 1980, he explained
that it did not mention a complaint about a malfunction-
ing speedometer because he would not have so noted it
unless he had repaired it.
With respect to his own work performance, Green tes-
tified that he was sent home one day because the bath-
room sink fell off the wall and Manager Vaughn told
him to put it back. He said he told Vaughn he could not
put it back with a cutting torch and he was not the
plumber. Vaughn said, "Go home." Green also testified
that Deatra Hollars, secretary to Vaughn, told him that
she overheard Vaughn and Wright talking, and that
Wright said he (Green) had to go. " The latter statement
is essentially corroborated by Deatra Hollars who was
employed by Respondent as a secretary from July 17,
1980, until she resigned on December 13, 1980. She testi-
fied that in or around the last week in October 1980, she
heard Terminal Manager Vaughn, Superintendent of
Maintenance Scott Wright, and serviceman Mike Green
arguing about the female drivers (Strump and Gaskins).
She corroborated Green's testimony about his pointing
out the civil rights of the two females. However, after
that conversation, she testified, Vaughn and Wright
came into the office where Superintendent Wright said
Mike Green was a troublemaker and he was not going to
tolerate the grievances he was filing, and he pointed to-
wards the shop and said, "That son-on-a-bitch has to go."
Manager Vaughn said "You're right."
Seitz testified that on November 8, 1980, he heard
Mike Green tell Scott Wright he (Green) was going to
do his job as union steward whether management liked it
or not, he did not care. Wright said, "The matter had
ended as far as I am concerned. You can get your ass the
hell out of here." Flora pointed towards the door and
Green said, "This is not the last you are going to hear of
this. I am going to do my best as steward the way I am
supposed to do it, not the way you tell me to do it. And
as far as these unsafe tractors are concerned, I am calling
DOT [Department of Transportation] right now." Seitz
said he saw Green go to the pay telephone and pick up
the phone and insert money.
The next day while in the Company's truckstop, Seitz
testified, the following occurred:
1 A large portion of Michael Green's testimony is undisputed and is
therefore credited. Other portions of Green's testimony are either denied
or disputed by Terminal Manager Ronald Vaughn or General Manager
Lloyd Harmon. However, I credit Green's testimony in all respects, and
discredit that of Vaughn and Harmon, not only because I was persuaded
by their demeanor that he was telling the truth and they were not but,
more particularly, because Green's account is corroborated in part by
employee Phillip Seitz and former secretary to the terminal manager
Deatra Hollars and because Green's version is consistent with essentially
all of the credited testimony of record and the well-established antiunion
climate which prevailed at the terminal.
A. I asked, "By the way Scott, what was all the
hollering about with you and Mike the other day."
And Scott said, "Phil, that man is a complete idiot.
He's a real asshole. Do you know what he did? He
called DOT on us. Now, the company really needs
that, Phil."...
* * a e *
A. "Green thinks this union is going to set com-
pany policy, and there's no way in hell that's going
to happen, I'll tell you that right now." So, I said to
Scott, "Mike said that he was only trying to do his
job as steward." And he said, "Well, we're just not
going to have people like that around here." And I let
the matter drop.
Hollars also testified that, in or about November, Man-
ager Vaughn directed her to type two statements accus-
ing Green of failing to service the trucks for a trip. One
charge was low oil and the other charge was an exhaust
leak. Then Vaughn asked her to call Tom Hudson and
Beauford McCormick at home and ask them to come to
the office and sign the charges. When they reported to
the office, she said, Vaughn asked her to step out of the
office while they signed. After they signed she was
called back into the office and asked to make copies of
the statements.
Hollars further testified that Respondent had recorders
on all of the telephones and that she had told Vaughn
that she felt Respondent did not treat its employees
fairly. In December, she said, her mother called her at
the office and told her that Standard Textile had called
and wanted her to report to work the following
Monday. Thereafter, on December 13, she advised
Vaughn that she could not continue to work there any-
more and that she was resigning to accept another job.
Vaughn said her timing was good because Hartman was
not very happy with the way she had been handling the
timecards and told him to let her go. Hollars said she
had never been previously so advised by Vaughn. How-
ever, she recalled the time when Harmon called her
about some timecards or something to do with her pa-
perwork. At that time he asked her if Green was still
complaining and causing trouble filing grievances. She ad-
vised him that she did not know anything about union
business, and he said, "We don't need people like that
working for us, he won't be much longer."
Discussion
It is well established by the foregoing credited evi-
dence that, a few days after the election (May 21, 1980),
Michael (Mike) Green served on the bargaining commit-
tee for the Union. Four days later he became union stew-
ard. On the same day he became steward, Respondent's
general manager, Lloyd Harmon, asked Green which
was in order "congratulations or condolences," and he
asked him if he was sure he wanted to be steward and
told him it may cost him his job with the Company. The
record shows that thereafter Green became a serious and
responsible steward in carrying out his duties. On one
occasion he had an argument with Wright because he
933
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was advocating a solution to a grievance of fellow
female employees. When Green threatened to file a
grievance to resolve the matter, Wright quickly resolved
the dispute. However, Green nevertheless filed a griev-
ance about insecure and unsanitary lodging quarters in
North Carolina.
On another occasion around November 8, 1980, Green
had an argument with Superintendent Scott Wright, at
which time he told Wright he was going to call DOT
about Respondent's unsafe trucks. The next day Wright
told employee Phillip Seitz that Green was "an asshole,"
he called DOT on Respondent, and he thought that the
Union was going to set company policy, but Respondent
was not going to have people like Green around. On an-
other occasion, General Manager Lloyd Harmon called
Deatra Hollars and asked her if Green was still com-
plaining and causing trouble filing grievances. When she
told him she knew nothing about union business, Harmon
said, "We don't need people like that working for us, he
won't be much longer." Also, with respect to Green's
grievance filings, Superintendent Wright said, "That son-
of-a-bith has to go," and Manager Vaughn said, "You're
right."
On or about November 7, Respondent suspended Mi-
chael Green purportedly because he sent a truck out
which had not been fully serviced. A few days later, Re-
spondent discharged Green but refused to give him any
specific reasons therefor. Green filed a grievance and
Terminal Manager Vaughn told the committee Green
was discharged for failing to add sufficient oil in a trac-
tor and fully service it. Respondent thereafter advanced
varied and sundry reasons why it discharged Green.
However, neither the credited testimonial, documentary,
nor circumstantial evidence of record supports Respond-
ent in this regard. On the contrary, the specified evi-
dence relating to dischargee Green, as well as the evi-
dence of record as a whole as it relates to the other dis-
chargees herein, clearly establishes that Respondent (par-
ticularly Manager Vaughn) seized upon the circum-
stances in an effort to justify Green's discharge. More-
over, the evidence is unequivocal that Respondent's dis-
charge of Green was solely motivated by his union activ-
ity as steward for the Union. This conclusion is further
supported by the terminalwide union animus and Re-
spondent's several 8(a)(l) and (3) unlawful conduct
herein found.
Thus, the General Counsel has established a prima
facie case demonstrating that Respondent's discriminato-
ry discharge of Green was solely motivated by his pro-
tected union activity in violation of Section 8(a)(3) and
(1) of the Act. Great Atlantic & Pacific Tea Co. v. NLRB,
345 F.2d 707, 709. The facts that Vaughn failed to give
Green a reason for his discharge at the time of separation
and later told the committee he ws discharged for failing
to fully service trucks reveal that this latter reason was
an afterthought and pretext.
H. Respondent's Discharge of Truckdriver Phillip Seitz
1. Interrogation
Phillip K. Seitz undisputedly testified that on or about
May 16, 1980, he was called into the office of Jack
Flora. Fellow truckdriver Jene Gaskins was there and
Manager Jack Flora asked them what they thought
about the Union and there was no response. Flora then
said, '*T]his union isn't going to get you people anything
more as far as salary goes, because the Postal Service is not
going to pay so much. And if you people strike, somebody's
going to pull those trailors. .... If the National Guard has
to do it. If the strike is not resolved you are all going to end
up out on the street without a job, because we'll close the
doors. Seitz continued to testify as follows:
A. He said, "Well, the voting will be on Monday,
so you people get out to vote." Then, I briefly
stated some things that needed to be corrected at
Norbar, and I felt that the union would correct
them. One of the things, I believe-oh, yeah, we
had to buy our own uniforms, for one thing. And
the other thing was, there have been times where
the drivers have used their own personal money to
fix tractors and the delay in reimbursing was some-
times rather lengthy.
Q. Were you on any particular committee with
the union in October after the election was over?
A. Yes, sir.
Q. What committee were you on, if any?
A. I was on the union bargaining committee.
On November 5, 1980, Seitz said, he fell between a
tractor frame and twisted his back. Thereupon he com-
pleted forms (G.C. Exhs. 2 and 3). He also completed an
accident report for Vaughn on January 8, 1981. When he
visited his doctor on December 9, his doctor advised him
that he would have to be off from work until at least
April 6, 1981, or possibly the first week of January on a
limited basis. He thereupon called Vaughn and told him
what the doctor said. Vaughn said he would have to
check with Harmon. Later that day, Vaughn informed
him that Harmon said he was not to return to work until
he could run a full schedule. Vaughn asked when was he
coming back and he said the doctor said April at the ear-
liest. Vaughn said, "I'll tell you what Phil, please try to
let me know 2 weeks in advance before you come back,"
and he said, "I will." Seitz testimony was not disputed in
this regard.
Seitz also testified that he received a certified letter
(G.C. Exh. D) from the Union on March 4, 1981. On or
about March 6, he said, he called the Cincinnati terminal
and asked Harmon why he received a letter about poor
fuel mileage. Harmon said it was a mistake and that
Hinkle evidently sent a letter to everybody. He also
asked Harmon why he had not heard from his work-
men's compensation claim and Harmon said he did not
know because the Company had done everything it was
supposed to do. Seitz thereupon went to the Workmen's
Compensation Bureau and examined his file and found
letters (G.C. Exh. E, F, and G).
Seitz attended the opening of the current proceeding
on April 15, 1981, and was in the presence of Respond-
ent's supervisory officials, none of whom said anything
to him about his position with the Company or his plans
to return, except, possibly, to give him the time of day.
934
NORBAR, INC.
The record shows that General Counsel's Exhibit H is
a doctor's supplemental report which states, "Light work
on July 6, 1981 and regular work on October 5, 1981."
All of the above exhibits were a part of Seitz' workmen's
compensation file which either himself or his employer
(Respondent) has a right to see at any time upon signing
a card and showing proper identification. Seitz also
found in his file certain responses made by his employer
and decided to file a claim with the Ohio Industrial
Commission. On June 8, 1981, he had a hearing which
Vaughn attended and his claim was allowed through
July.
General Counsel's Exhibit I is a letter to Seitz dated
May 14, 1981, advising that company policy forbids
former employees on its premises without prior authori-
zation from management. It was signed by Ronald
Vaughn.
General Counsel's Exhibit J is also a letter from Re-
spondent dated May 14, 1981, which reads as follows:
Dear Mr. Seitz:
Upon my return from an out-of-town trip I saw in
our terminal a notice stating that you intend to run
for the position of union steward here.
I was surprised to see that notice because, as we
told you in a previous letter, a copy of which we
enclose for your reference, you had resigned from
the company on April 15.
I trust that letter will clear up any confusion in
your mind concerning your status with the compa-
ny.
The letter was signed by Terminal Manager Vaughn.
General Counsel's Exhibit K is also a letter from Re-
spondent dated April 15, 1981. In essence, the letter
states that Respondent was recently informed by the
Workmen's Compensation Bureau that its records indi-
cated a Dr. Weaver authorized Seitz to return to work
on April 8, 1981; and that, inasmuch as Respondent had
not heard from Seitz, Respondent assumed that he had
found a position elsewhere, or for his own reasons was
no longer interested in employment, and, therefore, his
employment was terminated because Respondent deemed
his silence a resignation. This letter was also signed by
Terminal Manager Vaughn. All three letters were mailed
together.
Seitz undisputedly testified that he had never received
Respondent's initial letter of which General Counsel's
Exhibit K is a copy, and which incidentally is dated the
same day that he (Seitz) attended the hearing in this pro-
ceeding and saw management officials. He testified that he
did receive a certified letter containing the three letters
on May 16, 1981. In any event, Seitz testified that he
went to the terminal on May 12, 1981, to carry a notice
for the Union which stated, "Those wishing to run for
Steward sign here"; and that his name was on the list.
He asked the secretary (Judy) if he could speak to
Vaughn but she informed him that he was not there. He
asked her when would he return and she said she did not
know. He then gave her the notice and asked her to post
it on the bulletin board, which she did.
Seitz testified that upon his receipt of the May 16,
1981, letter he called the terminal immediately and asked
Vaughn what was this nonsense all about. Vaughn said,
"[D]idn't you get that letter we sent you on April 15,"
and he said, "[Y]ou know I never got it because you
never sent it." He told Vaughn that he had "trumped-up
it all up, had written the letters on the same day, dated
one the 15th of April and sent them all in the same enve-
lope." Vaughn said the Company would not do that.
They then had a discussion about the Company's living
up to the contract and Seitz willingness to enforce the
contract. With respect to his condition and availability
for work, Seitz said he told Vaughn the dates for his
return could be verified. Vaughn said, "[N]o, we have to
go what we have got"; that Respondent had a letter
from his doctor and had talked to the Workmen's Com-
pensation Bureau; and that the Workmen's Compensation
Bureau was contesting his claim.
Seitz said he decided to go and examine his file at the
Workmen's Compensation Bureau. He explained to
Vaughn that any letter that he had from the doctor indi-
cating a date for his return was a tentative date. Since he
was not able to get any change of position by Vaughn
with respect to his retention in the employ of Respond-
ent, Seitz thereafter filed a grievance, on which no
action has been taken by the Union to date. Seitz also
obtained permission from Respondent to enter its prem-
ises on May 22, at which time he spoke with Vaughn
again regarding his employment status. At that time,
Seitz showed him the letter that gave an estimated return
for light work on July 6 under his doctor's signature. He
requested Vaughn to return his name to the bulletin
board as an employee. Vaughn stated that he had to go
on what he had and maintained his position that Seitz
was no longer an employee.
In defense of its position, Respondent cited the union
contract, which provides that an employee will be grant-
ed medical leave for illness and/or disability for a period
of 30 days when the request for such is supported by a
physician's statement, and that such leave will be ex-
tended upon an application supported by a physician's
statement regarding the continuance of the condition,
with no loss of seniority.
Seitz, however, stated that he did not recall Respond-
ent's asking him for any supporting statements. He ac-
knowledged that he did not call Respondent on April 6
and advise it that he would not be returning because that
was a tentative date. He said the only time he was asked
for supporting data was on May 22, at which time he
showed Vaughn his letter which is General Counsel's
Exhibit H. Seitz testified that Respondent's Exhibit P, a
letter regarding a January 7, 1980, doctor's visitation,
was correctly dated, and that the written date of "1981"
was put there by Respondent. a
12 After examining Resp. Exh. P, I find that it was correctly dated
January 7, 1980, and that the year thereof was altered to 1981 in longh-
and by someone. Moreover, I credit Seitz' testimonial explanation that
the letter was actually referring to a doctor's visit by him on or about
January 7, 1980, for another injury. Respondent was therefore using
and/or relying upon a letter which was not relevant to Seitz' current
injury, and is therefore discredited.
935
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Discussion
The foregoing credited evidence regarding the dis-
charge of Phillip Seitz makes it clear that Seitz was also
interrogated by Manager Flora about his union interest
prior to the union election. The evidence is equally clear
that during their discussion Seitz told Flora what em-
ployee problems he thought the Union would be able to
correct. Hence, Respondent (Flora) had actual knowl-
edge that Seitz was in favor of the Union and Respond-
ent's union animus is well established by its remarks
during the discussion. In October 1980, Seitz served on
the Union's bargaining committee. With respect to the
injury Seitz sustained on the job on December 5, 1980,
the undisputed and credited evidence shows that he vis-
ited his doctor on December 9 and was advised he could
return to work on a limited basis the first on January and
on a full-time basis by at least April 6, 1981. Seitz so in-
formed Respondent. However, Respondent told Seitz not
to return to work until he could work full time and to
give it 2 weeks' notice prior to returning. Seitz agreed
and completed and submitted to Respondent the appro-
priate accident form on January 8, 1981.
Seitz filed a claim with the Workmen's Compensation
Bureau. On March 4, 1981, he received a letter from Re-
spondent about poor fuel mileage. When he called to in-
quire about the letter, he was advised that the letter was
probably sent to every driver. When Seitz asked Manag-
er Harmon why had he not heard from his workmen's
compensation claim, Manager Harmon said he did not
know because the Company had done everything it was
supposed to do.
Seitz' claim file contained a physician's supplemental
report which said, "Light work on April 6, 1981 and
regular work on October 5, 1981." This letter and Seitz'
claim file are accessible to Respondent too. On April 15,
1981, Seitz attended the trial in this consolidated pro-
ceeding and saw members of management who in turn
saw him. On May 12, 1981, Seitz had a notice posted on
Respondent's bulletin board requesting persons interested
in running for steward to sign it. Seitz had signed the
notice himself. On May 16, 1981, he received three let-
ters in one envelope. One letter was dated May 14, 1981,
advising that Respondent was surprised to see his name
on the notice because it had previously notified him in a
letter dated April 15, 1981, that it had assumed he re-
signed since he did not report for work on April 6, 1981,
and it had not heard from him. Thereupon, Respondent
terminated his employment.
It is obvious from the systematic chain of events in
Seitz' case, as it was in the cases of the other dischargees
herein, that Respondent knew, and did not have any rea-
sonable information upon which to conclude that Seitz
had resigned or obtained work elsewhere. The record
evidence shows that Seitz was advised by Respondent
not to return to work until he could assume a regular
workload. His claim file contained a letter stating that
the most recent date for that eventuality was October 5,
1981. If Respondent had any misgivings about the dates,
it is strange it did not contact him. Seitz did not receive
the letter dated April 5, 1981, and I credit his testimony
in this regard because Seitz did receive the letters mailed
on May 16 at his same address.
When the time of the letter mailed on May 16, 1981, is
compared with the time (May 12) Seitz had his name on
Respondent's bulletin board as a candidate for union
steward, it is reasonably inferred that the notice bearing
Seitz' name caused Respondent's well-established antiun-
ion fever to rise to the point that it was provoked to ter-
minate his employment. This is especially so when Re-
spondent's history of union animus.is recalled, along with
its other 8(a)(l) and (3) unlawful conduct found herein.
Consequently, under the above circumstance, the evi-
dence is more than ample to conclude that Respondent's
discharge of Phillip Seitz was motivated solely by his
union activity, and was therefore discriminatory and in
violation of Section 8(a)(3) and (1) of the Act. Respond-
ent's contention that Seitz failed to apprise it of his con-
dition or that it assumed he found employment elsewhere
was a pretext contrived to conceal its unlawful discharge
of him.
I. Analysis and Conclusions
I have herein found that Respondent discharged truck-
drivers Charles Burge and Howard Baumer on June 27,
1980, solely because they engaged in union activities
which resulted in the Union's victory in the election on
May 21, 1981. Respondent failed to establish any reason
for their discharge because the evidence clearly shows
that the dischargees' delay on their June 27 trip was due
to well-explained reasons beyond their control. Likewise,
although Respondent contended it discharged Lloyd
Tucker on July 11 or 12, 1980, because he was speeding
in a rainstorm and did not drive with due care for the
road circumstances, it was not able to substantiate this
contention. Respondent was not present nor did it have
any witnesses or highway report, but concluded Tucker
was at fault in view of his very reasonable and practica-
ble explanation. Moreover, the damage caused by the ac-
cident was very minor (about $15) and it was shown Re-
spondent did not uniformly enforce its accident policy
even when some drivers had multiple and more serious
accidents.
Under the above circumstances, it is clear that the
only substantiated reason Respondent discharged Burge,
Baumer, and Tucker was for their successful union ac-
tivities, of which Respondent was fully aware.
The overwhelming evidence also demonstrates that
Respondent's contended reasons for the discharges of
Michael Green and Phillip Seitz were exposed at the
trial as a contrivance to carry out its well-established ob-
jective, to terminate all of the leading union organizers,
whom Respondent acknowledges it knew. In each case,
Respondent failed in its proof to show that Green sent
out a truck that was not roadworthy and/or not fully
serviced, or that Seitz did not apprise it, and it did not
learn, of his capacity to return to work full time on April
6. At most, Respondent's contended reasons constituted a
pretext, which is not a legitimate reason at all.
Perhaps Respondent became nearest to a reason for
the discharge of an employee in the case of Jeffrey Snod-
grass. Here, Respondent made a sophistocated effort to
rid "itself of Snodgrass by promoting him to a position it
deemed supervisory in character, so as to enable it to dis-
936
NORBAR, INC.
charge him at will, or on slight provocation." However,
the evidence exposed its plan by a witness (Hollars) who
was privy to the plan. Moreover, the charge on which
Respondent predicated its discharge (speeding) was not
well established because the driver (Snodgrass) was driv-
ing, at the time of the charge, with a speedometer that
was not working. Respondent probably knew before-
hand, but certainly learned after the charge, that the
speedometer was not operational at the time.
I have been persuaded by the evidence that this was a
failure of proof because I do not believe Respondent's
testimony, which clearly demonstrated a continued con-
trivance to terminate all of the leading union organizers.
However, even if Snodgrass was in fact a supervisor, as I
did not find, or even if this case is deemed one of dual
motive on the part of Respondent, I nevertheless find the
discharge discriminatory and unlawful for the following
reasons: As hereinbefore found, Snodgrass was purposely
promoted to the driving instructor position so that he
could be terminated by Respondent for his union activi-
ties. Additionally, even if Respondent's charge of speed-
ing is deemed established, as I do not find, Respondent
has nevertheless failed to overcome the General Coun-
sel's prima facie case by establishing that it would have
discharged Snodgrass even if he were not known to have
engaged in union activities Wright Line, 251 NLRB 1083
(1980).
Finally, Respondent violated Section 8(a)(1) of the Act
by undisputedly telling an employee (Larry Walton) not
to file for unemployment compensation and implying
that he should withdraw such claim.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce. They are unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
v. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall rec-
ommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies
of the Act.
It having been found that Respondent interfered with,
restrained, and coerced its employees in the exercise of
their Section 7 protected rights, in violation of Section
8(a)(l) of the Act, by interrogating employees about
their union interest or sympathies, by threatening em-
ployees with bodily harm for telephoning fellow employ-
ees about union activities, by giving employees the im-
pression their union activities were under surveillance by
Respondent, by threatening employees with discharge
for accepting the position of steward for the Union, by
threatening employees to discharge a union steward for
performing the duties of a steward, and by asking em-
ployees to drop charges against management filed with
the Board; by telling employees not to file for unemploy-
ment compensation and implying that they should with-
draw such claims; that Respondent discriminatorily sus-
pended and/or discharged employees for engaging in
protected concerted and/or union activities, in violation
of the Act, the recommended Order will provide that
Respondent make all unit employees suspended and/or
discharged whole, as of the date of their suspension, or
the date they accepted a new position by contrivance of
Respondent, for any loss of earnings within the meaning
and in accord with the Board's decisions in F. W Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977), except as specifically modified by
the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from in any other manner
interfering with, restraining, or coercing employees in
the exercise of their rights guaranteed by Section 7 of
the Act NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536
(4th Cir. 1941).
Upon the basis of the above findings of fact and upon
the entire record of this case, I make the following:
CONCI.USIONS OF LAW
1. Norbar, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Truckdrivers, Chauffeurs and Helpers Local 100, an
affiliate of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is,
and has been at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By interrogating employees about their union inter-
est or sympathies, Respondent violated Section 8(a)(1) of
the Act.
4. By threatening employees with bodily harm for tele-
phoning employees about union activities, Respondent
violated Section 8(a)(1) of the Act.
5. By giving employees the impression their union ac-
tivities were under surveillance by Respondent, Re-
spondent violated Section 8(a)(1) of the Act.
6. By threatening employees with discharge for ac-
cepting the position of steward for the Union, Respond-
ent violated Section 8(a)(1) of the Act.
7. By threatening employees to discharge an employee
because he performed the duties of a steward, Respond-
ent violated Section 8(a)(1) of the Act.
8. By asking employees to drop charges filed against
Respondent with the Board, Respondent violated Section
8(a)(l) of the Act.
9. By threatening employees to close the terminal, Re-
spondent violated Section 8(a)(1) of the Act.
10. By telling employees not to file for unemployment
compensation and implying that they withdraw such
claims, Respondent violated Section 8(a)(1) of the Act.
II11. By discriminatorily suspending and/or discharging
employees, or promoting them to discharge them be-
cause they engaged in protected concerted or union ac-
937
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivities, Respondent violated Section 8(a)(3) and (1) of 12. The aforesaid unfair labor practices affect com-
the Act.' 3 merce within the meaning of Section 2(6) and (7) of the
Act.
13 See, generally, Isis Plumbing Co., 138 NLRB 716 (1962). [Recommended Order omitted from publication.]