Pullman, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1975

221 N.L.R.B. 1088 (N.L.R.B. 1975)

1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trailmobile , Division of Pullman, Incorporated and
Truckdrivers and Helpers Local Union 568,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 16-CA-5842
December 9, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On August 29, 1975, Administrative Law Judge
Almira A. Stevenson issued the attached Decision in
this proceeding. Thereafter, General Counsel and
Respondent filed exceptions and supporting briefs,
and Respondent filed an answer to General Coun-
sel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Trailmobile,
Division of Pullman, Incorporated, Longview, Texas,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
2 Although the issue is not free from doubt, we agree with the
Administrative Law Judge's conclusion that General Counsel failed to
prove by a preponderance of the evidence that Charles Edwards was
discharged because of his union activities.
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
This case was heard at Longview, Texas, on April 22-24
and May 13-16, 1975. The charge was filed by the Union
November 18 and was served on the Respondent Novem-
ber 20, 1974. The complaint was issued February 26, 1975,
and amended at the hearing.'
The issues are whether or not the Respondent violated
Section 8(a)(1) of the National Labor Relations Act, as
amended, by maintaining an unlawful no-solicitation and
no-distribution rule, and by threatening an employee with
the discontinuance of smoking privileges in the event the
Union should become the employees' collective-bargaining
representative; and whether or not the Respondent
violated Section 8(a)(3) of the Act by issuing Charles M.
Edwards a warning notice and suspending him for 5 days
on October 17 and by discharging him on November 14,
1974.
Upon the entire record, including my observations of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the Respondent and the General
Counsel, I make the following: 2
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
The Respondent is a Delaware corporation engaged in
the manufacture of truck trailers. Its principal office and
place of business is located in Chicago, Illinois. During the
past 12 months the Respondent shipped from its Longview,
Texas, plant here involved finished products valued in
excess of $50,000 directly to points located outside Texas.
The Respondent admits, and I conclude, that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent employs up to 700 employees in the
manufacture of truck trailers at its Longview, Texas, plant.
The Respondent admits, and I find, that the following
individuals were supervisors and agents occupying the
positions indicated during material times:
Plant Manager Robert Coleman
Manager of Industrial Relations - Glenn Winn
Assistant Superintendent - Rex Beard
1 The complaint in this case was consolidated with and then severed
from a complaint issued in Case 16-CA-5922 before the hearing herein.
221 NLRB No. 178
2 The General Counsel's motion to correct the record is granted in the
absence of objection.
TRAILMOBILE, DIV. OF PULLMAN 1089
Foreman - Paul Bryan
Foreman - Jimmy Chapman
Foreman - Lynn Simmons
Foreman - C. W. Howard
In addition, I find that Vice President of Industrial
Relations John Rosner and Plant Superintendent Oscar
Rogers were supervisors and agents of the Respondent at
material times.
The Charging Party Union has engaged in organizing
activities among the Respondent's Longview employees
over a period of some years. It lost a Board-conducted
election on May 24, 1972. Thereafter, the Union won an
election held September 19, 1973, which was set aside on
the basis of the Respondent Employer's objections. The
Union won a subsequent election held July 17, 1974, and
was certified by the Board as the exclusive representative
of a production and maintenance unit December 9, 1974.
Negotiations- were begun, and a collective-bargaining
agreement was enteredinto'effective March 31, 1975.
B. The No-Solicitation and No-Distribution' Rule
The Respondent's plant°rules are contained in a booklet
entitled , "Policy Statement and Employee Manual," which
the parties stipulated has -been in effect at the Longview
plant since May 1974. A section of the booklet is entitled,
"Rules of Conduct," and states,
Committing any of the, following acts will be, grounds
for disciplinary action, ranging from reprimand to
immediate , discharge, depending upon management's
judgment as to the seriousnesssof the offense.
There follows a list of rules each -illustrated by a cartoon,
one of which is as follows.
Selling, soliciting , canvassing,
distributing or posting on
company/ premises without
authorization , except as
provided by law.
of union literature on nonwork time in nonwork areas
without authorization.3 It is equally well established that
such a rule is not validated by the qualification, "except as
provided by law," as an employer is not entitled to place
upon its employees the burden of determining their legal
rights in this manner.4 In the absence of any evidence that
the employees were ever advised of their right to solicit on
nonwork time and to distribute literature on nonwork time
in nonwork areas, it is immaterial that Plant Manager
Coleman may have instructed his foremen, as he testified,
that "when a man's on a break period or a lunch period he
can do anything he wants to . . . '. As long as he doesn't
disturb any other man at his work station"; or that
employees in fact did engage in union activities on their
nonwork time and none were disciplined for violating the
rule. Failure to enforce an unlawful rule is no defense
because, as the Board has said,5 the mere existence of such
a rule "makes it susceptible to application to employees
and this -factoralone tends to coerce, restrain, and interfere
with their rights to engage in self-organizational activities."
Accordingly, I conclude that the Respondent violated
Section 8(a)(1) of the Act by maintaining the no-solicita-
tion and no-distribution rule set forth above.6
C. The Alleged Threat
In support of this allegation of the complaint, the
General Counsel relies on the testimony of employee
Robert Mitchell, a helper in the paint department. He
testified that sometime in September 1974, Foreman C. W.
Howard approached him as he was standing smoking a
cigarette outside the paint shop, where smoking was not
prohibited.
C. W. Howard come up to me and told me that I was
not allowed to, stop and smoke a cigarette ; that if I
continued it once the Union did come in that the
Company would, fire, me for smoking and that we
would have more trouble than we could handle with
the Union in.
I have given considerable thought to the credibility of
this testimony, particularly as C. W. Howard has retired
and did not testify. I have concluded that even though, this
particular testimony is therefore not denied I nevertheless
cannot believe it. Mitchell's demeanor was not impressive,
he- clearly dissembled under cross-examination with regard
to it, and his testimony on other matters referred to below
varies from that of more reliable witnesses . Accordingly, I
find that this allegation is not supported by credible
evidence and conclude that it must be dismissed.
D. The Suspension and Discharge of Charles
Edwards
It is well established that a work rule such as this is
overly broad in that it prohibits employees from engaging
in union solicitation on nonwork time and in distribution
3 Eastex Incorporate4 215 NLRB No. 58 (1974); Orleans Mfg. Co., Inc.,
170 NLRB 220 (1968), enfd. in this respect 412 F 2d 94 (CA. 2, 1969);
Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962).
4 Pasco Industries, Inc, 173 NLRB 522 (1968), enfd. 412 F.2d 589 (C A
4, 1969).
5 The Great Atlantic & Pacific Tea Company, Inc., 162 NLRB 1182, 1184
The Respondent hired Charles Edwards in March 1971,
and shortly thereafter placed him in department 21, called
(1967).- See also Leece-Neville Company, 159 NLRB 293, 298 (1966); Orleans
Mfg. Co, Inc., supra
6 Essex International, Inc, 211 NLRB 749 (1974), Gooch Packing, Inc.,
187 NLRB 351 (1970), and other cases relied on by the Respondent are
inapposite as they deal with different factual situations.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the prime shed, where he painted undercoating on trailer
chassis. After 6 months he was classified as a painter and
assigned to the second shift.,During his employment in that
job, Plant'Manager Coleman issued a written warning to
him July 7, 1972, for loafing* the job. This was the only
employee warning Coleman personally ever signed, and he
explained that he happened upon Edwards goofing off
while his helper was working. Edwards, admitted he was
sitting down when Coleman passed by, because, he said, he
was tired.
In early April 1974, the Respondent announced the
establishment- of two new classifications, painter A and
painter B, and placed Edwards in the painter B classifica-
tion. Edwards protested to Plant Superintendent Rogers
who expressed the opinion that Edwards was not qualified
for the painter A classification because he was inexperi-
enced in the use of a high-pressure paint gun-and was not a
finish painter. Upon further consideration of Edwards'
protest, however, Rogers, decided to reclassify Edwards,
and made him a class A painter with an increase in pay.
On April 25, 1974, Edwards was transferred to department
41, the paint department, as a replacement for a second-
shift employee named Smitherman who had been dis-
charged the day before for painting a helmet on company
time. Edwards was selected for transfer because he was the
least senior class A painter on the second shift. His
supervisor was Foreman Jimmy Chapman until October
1974 at which time Chapman wasslransferred to the day
shift and Paul Bryan took over as foreman of the second
shift in department 41. Edwards remained in this assign-
mentuntil his discharge November 14, 1974.
A few days after Edwards' transfer to the paint
department, Foreman Chapman gave him a written
warning dated May 9, 1974, to the following effect.
On May 8th Edwards painted Grain #67824. There
were paint runs on the Grain from one end to the other
and it had to be stripped and re-painted. Also two flats
had paint runs and not enough paint and had to be re-
worked. Edwards is a Class A Painter and was told that
his work was expected to be of a better quality.
Chapman showed Edwards this warning notice on May 9.
Edwards testified he was painting the night of May 8 with
Kyle Nelson, and that the side of the grain trailer Edwards
painted-had bad runs "from one end to the other." He did
not check the side Nelson painted, but he believed it was
O.K. Edwards' further testified that he probably also
painted the flatbed- trailers referred to in the warning notice
although he could not remember doing so. He did not
advance any reasons for his poor performance on this
occasion.
Five months after the above incident, on October 17,
1974, Industrial Relations Manager Winn gave Edwards
the following disciplinary notice.
On the night of October 16th you were assigned to
the paint booth as a Painter A. You painted two flats,
L65254 and L65255, on which the workmanship was so
poor that the units, must be repainted.
You had been previously warned about the quality
of your workmanship on May 9, 1974. Because of your
failure to maintain quality standards and the resultant
loss in repainting these two units, you are suspended
for five (5) working days beginning October 16th. You
are to return to work Thursday October 24th.
Any further violation of company rules or regula-
tions or failure, to meet quality standards will .result in
your discharge.,
Edwards testified that he was summoned to Winn's
office .on the morning of October 17 where in the presence
of Plant Superintendent Rogers, Assistant Superintendent
Beard, and Foreman Chapman, Winn showed -Edwards
photographs of flatbed trailers which Edwards conceded
he and class B painter-Luther Mason had-painted the night
before. The photographs, revealed large spaces-underneath
and around the axles which had not been painted. Edwards
agreed there were missed places, and tried to explain that it
was too dark in the paint booth to see clearly, and that the
paint may have been too_ thin. Winn rejoined that he had
seen the trailers, personally and that the.workmanship'was
poor. He told Edwards he was going to lay him off for 5
days` in the hope that he would do better when he returned,
but any further violation of company rules or failure to
meet quality standards would result in discharge. Mason
was notsuspended, but was given a written warning for the
stated reason that consideration had been given to his short
experience as a painter B (since the spring of 1974) and his
prior excellent work record. Industrial Relations Manager
Winn testified he saw the flats and although no photo-
graphs' of poor workmanship had ever'been taken before,
he had these taken so he' would have something to show
Edwards and Mason` when he discussed the matter with
them. He reviewed the personnel folders of the two
painters and found that Edwards had received a previous
warning for poor workmanship and as he was the class A
painter on the job Winn held him primarily responsible.
The record contains a copy of a document entitled,
"Verbal Warning," dated October 30, 1974, signed and
identified by Foreman Paul Bryan, to the following effect.
Today I talked to Edwards # 1764 about two grain
trailers he helped paint on the 29th Grain Trailers #
No's 61592 & 61692. .1 explained that these trailers had
to be reworked today by the 1st shift & it was on the
account of poor workmanship. I also explained to him
that he would have to improve & that I was putting this
on his record.
Bryan testified he sent this document, and a similar one
regarding Mason, to the personnel office after discussing
the work referred to with them. Bryan said he did not see
the trailers -referred- to, but his action, was based on
Foreman Chapman's report that the work on them was so
poor they had to be worked on for the full day , shift.
Chapman did not tell him who painted the trailers, but
Edwards did not deny his share ,of responsibility for the
job; merely responding that he did the best he could.
Although Bryan was aware of Edwards' recent suspension,
Bryan decided to give him only a verbal warning instead of
a written one in order to give him a chance to perform
better, he said. Bryan said he explained to Edwards that
the warning would be placed in his file but told him it
TRAILMOBILE, DIV. OF PULLMAN 1091
would not be held against his record. Edwards conceded
that he and Mason had probably painted these trailers. He
testified that Bryan merely told them the "grains that you
all painted last night wasn't too good, and you all need to
do better" and "something about the grain trailers having
to be repainted, but said nothing about putting a verbal in
the files. Mason testified that Bryan said the verbal
warning would not count against them, but would be in
their files.
The following basic facts regarding Edwards' November
14, 1974, discharge are substantially undisputed.
On the evening of November 12, Edwards and Mason
were each assigned to paint one side of a white corrugated
refrigerator trailer, or reefer, with a 36-inch red stripe,
using polyurethane paint. Although it was a new kind of
paint, they had used it successfully on a few trailers
previously, and both considered it a good paint. A few
minutes after Edwards finished painting his side, the paint
started to run. He summoned Kyle Nelson, his leadman at
that time, but Nelson told him it looked all right, to let it
go. Edwards summoned Nelson again, however, and told
him, "It's running all over." Nelson then summoned
Foreman Paul Bryan. Edwards apologized for the job he
had done and told Bryan he did not know what had caused
the paint to run. Bryan responded that Edwards must have
put too much paint on. In describing the appearance of his
work, Edwards testified it looked bad, was a mess, his
whole side was running with pretty big runs, and that he
did not recall ever seeing a worse run. The side Mason
painted did not run.
The next day, November 13, Industrial Relations
Manager Winn viewed the reefer, discussed Edwards'
overall performance with Plant Superintendent Rogers and
Foremen Chapman and Bryan. He then met with Edwards
and Foreman Bryan in his office. The ensuing discussion
was taped by Winn. Edwards conceded the trailer he had
painted the night before looked pretty bad. Winn asked
him what had happened, and he replied that he did not
know whether he put too much paint on or got too close, or
whether it was the cold weather. Winn granted it had' been
cold, but pointed out that the side Mason painted turned
out all right. Winn reminded Edwards that his problems
had been discussed previously, and that Bryan had talked
to Edwards a couple of weeks before about some, grain
trailers which had to be reworked. Although Edwards had
been given the benefit of the doubt, on that occasion
because the lighting might have been inadequate, Winn
said, there was no such problem this time. Edwards said he
was willing to bust back to' B Painter if he was not doing
the job, that he was tired of getting writeups. Winn told
him that even as a B painter he would still be required to
operate the equipment an d do the job.' Winn told Edwards
he thought Edwards had been given adequate notice that
he was not performing up to quality standards. He said
that no decision had yet been reached in the matter, but he
would let Edwards know the decision the next day.
After the meeting with Edwards, Winn met with 'Plant
Superintendent Rogers again and they decided that
Edwards should be discharged. They so informed Plant
Manager Coleman. Upon being told that Edwards had
received three or four writeups, Coleman agreed to the
discharge but told Winn to check the matter out with Vice
President of Industrial Relations Rosner to make' certain
that the contemplated action was within company policy.
Upon receiving Rosner's approval, Winn discharged
Edwards the following day, November 14. At the final
interview, Winn asked Edwards if he preferred to resign,
and when Edwards replied he did not, suggested places
Edwards could apply for work and said Winn could be
contacted if he needed help. The termination slip gave as
the reason, "Repeated failure to meet quality standards."
The General Counsel contends that the reasons ad-
vanced for Edwards' discharge were a pretext, and that the
Respondent built up a case against Edwards over a
substantial part of the 2-1/2 years of organizational
activity in the plant in order to nd itself of one of the most
militant advocates of the Union. In support of this
contention, the General Counsel asserts that the record
establishes the Respondent's union animus and its knowl=
edge that Edwards played a leading role in the prounion
campaign, and that the Respondent treated him in a
disparate manner.
1. Alleged union animus
There are in evidence 16 documents, most of them over
Plant Manager Coleman's name, which were either posted
on plant bulletin boards or mailed to employees during the
5-month period leading-up to the last election held July 17,
1974, which the Union won. Except for one instance
referred to below, the General Counsel has not specified
any statements in these 'documents relied on. I have
nevertheless reviewed all the documents carefully. The
major themes expounded in them by the Respondent were
(1) unfair labor practices and preelection misconduct by
the Union had caused the NLRB to set aside the prior
election at the plant; (2) the Company had employee
interests more at heart than the union representatives and
inplant organizers who were interested only in collecting
dues and assessments from them; (3) the leaders of the
Teamsters Union have been exposed as corrupt; (4) true
employment security can be provided only by the
Company which has had no layoffs; unions, cause loss of
work and pay by fomenting strikes, deprive employees of
their freedom to represent themselves, and cause unrest,
discord, and dissension; (5) at Longview wages are not
substandard and benefits are better than at some plants
under contract with the Union; and (6) employers have
moved plants out of highly unionized areas where workers'
families are now in distress. I
The Respondent also distributed an undated flyer
entitled, "Remember Smidgens! It appeared in many
newspapers," upon which the General Counsel particularly
relies. The flyer contains a four-block cartoon depicting
two men talking to each other, one of them saying, "We
finally won our strike! Our Union got everything it
demanded! They got us a 50% salary increase . . . a 4-day
workweek . . . 8 more holidays and 10' weeks' vacation!"
The other man responds, "Wow! You really got it made,
Leon! When do you go back to work?" And the reply is,
"Who's got a job?! The company folded!" The legend at
the bottom of the flyer is, "Sometimes what sounds good
ends up ruining everything for everybody." I interpret the
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
message conveyed by this document not as an implied
threat to close the plant if the employees opt for union
representation , as the General Counsel contends , but as an
expression of the view that giving in to excessive union
demands can cause a business to close.
In my judgment , the themes , and messages in these
documents, considered separately and collectively, reveal a
determination to defeat the unionization of the plant if
possible, but they do not reveal a willingness to go beyond
the limits prescribed by law to bring about that result. As
the documents merely constitute campaign propaganda of
a kind which the Respondent was entitled to disseminate, I
find that they provide no basis for inferring unlawful
motivation in the Respondent's conduct towards Charles
Edwards.
The only evidence of union animus directed specifically
at Edwards consists of testimony by Robert Mitchell, who
said that, about 2 weeks before Edwards was transferred to
the paint department in April 1974, Foreman Chapman
told him he and Plant Manager Coleman had decided to
transfer Edwards because "Edwards was a trouble maker
and a Union organizer and that . . . within two or three
weeks he could run him off or get rid of him." Mitchell said
he asked Chapman how he was going to do that, and
Chapman responded that that was none of Mitchell's
business . Upon occasions after that, Mitchell testified,
Foreman Chapman told him Edwards' work was not
satisfactory, he was "not worth a damn" and "it wouldn't
be long until he would get rid of Edwards." Mitchell
testified he and Chapman were "average friends," but he
had no explanation as, to why Chapman made these
remarks to him about Edwards.
There is testimony that Mitchell told this story to
Edwards, that Edwards asked Chapman about it some time
in August, and that Chapman denied the story, saying,
"Well, you're still here, ain't you?"
I have no doubt that Foreman Chapman was opposed to
the Union, and this record certainly makes clear his
growing dissatisfaction with Edwards' work. I cannot
believe , however, that he made the critical remark to which
Mitchell testified . As stated above , Mitchell's demeanor
was not impressive , and he had no real explanation for a
foreman's choosing a helper to receive his only confidence
of this nature . Moreover, it is most unlikely that such a
remark would be made only 1 week after Edwards was
promoted to class A painter at an increase in pay and 2
weeks before management had any reason to anticipate
that an opening would occur in department 41 to which
Edwards could be transferred.
In the absence of direct evidence of antiunion motivation
in the suspension and discharge of Edwards , we must look
at other factors from which such motivation might be
inferred.
2. Edwards ' union activity
The Respondent concedes it was aware that Edwards
favored the , union cause , on and after September 7, 1973,
when it was advised by the Union that he was an inplant
organizer . It denies knowledge of his prounion stance
before that date and denies recognizing him at any time as
a leader in the union campaign.
I do not consider the extent of Edwards' union activity
before September 7, 1973, or the Respondent's alleged
knowledge of it of any significance in this case. Thus,
Edwards testified he "really didn't push [the Union]
much," and the Respondent's witnesses disavowed any
reliance on the warning which Coleman gave him, during
this period, even though the warning remained in Edwards'
personnel file. Indeed , it seems to me that the earliest date
of any significance in this respect is April 26, 1974. Thus,
the day before that the Respondent's promotion of
Edwards to class A painter at an increase in pay had to
cancel out any suspicion that it was building a case against
him prior to that time.
On April 26, 1974, however, the Union dispatched to the
Respondent another letter listing the names of employees
whom it designated as inplant organizers for the 1974
campaign . Edwards was 1 of the 133 names listed. In
support of his assertion that he was one of the most active
of the organizers during the 1974 preelection period,
Edwards testified that he handbilled frequently at the main
gate, wore a union button on his clothing and stickers on
his lunch kit, signed up employees for the Union, and
distributed among them form letters advocating repeal of
right-to-work statutes. Edwards conceded that other inside
organizers did their share of the campaigning , most of the
employees on the Union 's 1974 list soliciting signatures
and many handbilling. At one point Edwards testified that
just about everybody in the paint department except
Luther Mason wore a union button after the 1974 election,
but corrected himself to say that all the helpers did so.
For comparison purposes, testimony was received from
others who were listed as inplant organizers: Kyle Nelson,
a class A painter who acted as leadman while Bryan
supervised the paint department on the second shift,
testified that he supported the Union during the 1974
campaign and still does . He said he solicited signatures but
not as many as Edwards did, and that ' Edwards was more
outspoken in his advocacy. He also testified, however, that
he attended more union meetings than Edwards did. He
said that Foreman Chapman was aware of both his and
Edwards' union advocacy . James Chapman, nephew of
Foreman Chapman and a class A painter who worked the
first and second shifts at different times through the fall of
1974, testified that he wore a union button on plant
premises and handbilled once or twice at the gate.
According to him, no one in the paint department was
more active for the Union during the 1974, campaign than
Edwards; and Mitchell was the only department employee,
other than himself and Edwards , who passed out literature
at the gate. Franklin Dixon was a B painter until October
1974 when he became an A painter on the second shift.
Dixon wore union buttons to work , had a union bumper
sticker on his car in the plant parking lot, and passed out
handbills at the gate once or twice in 1974.
As, opposed to this evidence presented by the General
Counsel, the Respondent presented testimony by Assistant
Superintendent Beard and Foreman Bryan that they
classed Edwards as a follower and not a leader in the union
movement, and by Beard that he considered William
Combest and William Weir as the leaders. A letter over the
name of William Weir advocating the Union was passed
TRAILMOBILE, DIV OF PULLMAN 1093
out to employees at the plant July 11, 1974. There is also
evidence that the Respondent has promoted Weir, Frank-
lin Dixon, Gerald Nelson, Kyle Nelson, J. A. Richardson,
Joe Risinger, Andy Dunn, Robert French, Travis Stoker,
and Gary Norwood, all of whose names were on the
inplant organizer list.
The above evidence indicates that Edwards was an active
prounion advocate, perhaps even one of the most active in
the plant, and that the Respondent must have been aware
not only of his status on the Union's list but also of his
handbilling and his open flaunting of his union buttons
and stickers. The evidence fails to show, however, either
that he was a leader or that management considered or
suspected him to be. In view of the undisputed evidence of
known union activity by others as well, and the Respon-
dent's favorable treatment of some of them, the probability
that it would single Edwards out for discriminatory
treatment seems remote.
3. Alleged disparate treatment of Edwards
It is the General Counsel's contention that Edwards'
work performance was no worse than that of other class A
painters, and that the Respondent condoned unsatisfactory
work by employees whose union preferences were not
known.
It is undisputed that Edwards was the only painter ever
discharged for paint runs and misses.
Practically all the witnesses testified that paint runs and
misses were common occurrences, and it is clear that
disciplinary action was not taken against painters for
ordinary or routine runs which could be erased and
repainted in a beef time or for misses which could be
covered by employees stationed in the spinner in part for
that purpose, or for runs caused by the metal surface being
oily as preparation was the responsibility of the helpers and
oil was not always visible to the painters:
As to evidence of more serious infractions condoned by
supervisors, Edwards testified to an occasion when
Foreman Chapman showed him and Kyle Nelson a trailer
with "bad places on it that was missed" by Herman
Johansen and C. B. Wilkens, saying, "Just look at this.
Ain't it a shame? I ought to run them off" or "write them
up." At another point, Edwards said this trailer also had
"runs all the way down it," and was "ten times worse than
anything I ever turned out . . . worser than anything
anybody ever painted," and that it was painted by
Johansen and Ross Richardson. Foreman Chapman
recalled showing Edwards and Nelson a trailer on which a
lot of places had been missed but he could not recall who
had painted it. Even so, I cannot rely' on Edwards'
testimony here because of his uncertainty as to both the
nature of the poor workmanship and as to the employees
involved, and because of the contradiction between his
testimony that these alleged runs were worse than any he
ever had and his testimony described above that he could
not recall any runs worse than the ones he had the night of
November 12.
7 I consider Dixon's testimony that the runs on the trailer Edwards
painted on the night of November 12 were "Just ordinary runs," and that he
himself produced work like that 15 or 20 times during the preceding year,
totally unbelievable
James Chapman, generally agreed to be the best painter
in the plant, testified regarding two faulty paint jobs of
which supervision was aware in January 1975, but there is
no direct evidence as to who was responsible for them.
Although James Chapman said he had not had a bad paint
run for 5 years, he told about an incident in August 1974
when he boastfully showed Foreman Howard a trailer he
thought he had done well on and they discovered a 4- or 5-
foot miss and Howard laughed at him.
Franklin Dixon testified that twice in September 1973,
and once in the fall of 1974, he had runs which were so bad
he should have been discharged. Dixon also testified that A
painter Cleo Dooling once missed a spot so big that
Foreman Howard laughed about it.7
As against this, the Respondent presented copies of
warnings given to seven employees other than Edwards.
Foreman Chapman gave a verbal to Franklin Dixon
October 12, 1973, for poor workmanship; he gave written
warnings to Smitherman February 15, 1974, for unsatisfac-
tory work and talking; to Lester Giebert April 26, 1974, for
painting bare metal which had not been primed; and to
helper Ward August 6, 1974, for unsatisfactory work.
Foreman Paul Bryan gave verbal warnings to three helpers
- Ward, Bell, and Harris - November 5, 1974, for failure
to clean or caulk a trailer for painting. As set forth above,
Luther Mason received a written warning May 9, and a
verbal warning October 30, 1974.
As indicated, Smitherman was discharged April 24, 1974,
for painting a helmet on company time. The record also
shows that Lester Giebert was discharged in May or June
1974 for destruction of company property.
The names of Kyle Nelson, Franklin Dixon, Terry
Smitherman, Lester Giebert, and James Chapman were on
the Union's inplant organizer list. Ward, Bell, and Hams,
along with all other painter helpers, wore union buttons.
There is no credible evidence regarding Johansen's, Ross
Richardson's, Wilkens', Dooling's, or Mason's attitudes for
or against the Union.8
The above evidence indicates, as the General Counsel
contends, t' at all the disciplinary actions shown to have
been taken by the Respondent were taken against union
advocates except for the two warnings issued to Mason.
However, there is no evidence that the Respondent was
aware of Dixon's or Smitherman's advocacy at the time it
disciplined them, before it received the Union's April 26,
1974, inplant organizer list on which their names appeared.
Moreover, there is no correlation between the Respon-
dent's alleged 'condonation of errors by employees other
than Edwards and known umon adherents, because two of
those whose errors were said to have been on occasion
condoned - James Chapman and Franklin Dixon - were
known at the time as inplant organizers. As found above,
Dixon was promoted to class A painter after management
became !aware of his union affiliation. As for the warnings
issued to the three helpers, Edwards himself testified that
all the helpers wore umon buttons.
8 In view of my adverse comments above regarding Robert Mitchell's
credibility; sand because his testimony on these issues is not supported by
any other credible testimony , I discredit him here also
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As further evidence of alleged disparate treatment of
Edwards, there is testimony by Edwards , supported to
some extent by James Chapman and Franklin Dixon, to
the effect that Foreman Chapman singled Edwards out by
cursing him , threatening him, honking his scooter horn at
him, staring at him, and telling him to hurry up. The basic
difficulty with this testimony is that even if it is true, there
is no evidence that Foreman Chapman was motivated by
Edwards' union adherence in treating him so. In any event,
the evidence that Edwards was singled out in this respect
was undermined considerably . Thus, James Chapman said
that Foreman Chapman did a lot of cursing , and Dixon
said that Foreman Chapman stood over him also, rushed
him, watched him, and rode him. Robert Mitchell said
Foreman Chapman cursed him every night and that he
reported it to Plant Manager Coleman. Kyle Nelson
testified that Foreman Chapman honked to prevent
Edwards from backing into his scooter . Accordingly, I find
no merit in this contention.
4. Alleged departure from company practice
The General Counsel also contends that the Respondent
departed from its usual practices in Edwards ' case in that
(1) the usual number of three written warnings were not
issued to Edwards; (2) verbal warnings were relied on; (3)
Edwards was a good employee and it was policy to retain
good employees with more than three written warnings; (4)
Industrial Relations Manager Winn personally took charge
of the suspension and discharge of Edwards; and (5)
Edwards' request to bump back to class B painter was
rejected.
I find no merit to any of these contentions. As to (1),
Edwards was given written warnings May 9 and October
17 when he was also suspended, and was discharged for his
third such offense November 14, 1974. I do not read the
record as establishing that this was a departure from
company practice or policy. As to (2), although the record
preponderates toward a practice of not relying on verbal
warnings for discharge purposes , I note that Smitherman's
discharge seems to have been based on one. Although
Winn disavowed reliance on Edwards' October 30 verbal,
employees had been told that verbals became a part of
their record , and I see no reason why Winn should not
have referred to it in his November 13 interview with
Edwards by reminding Edwards that Bryan had recently
spoken to him about his poor workmanship. As to (3),
there is testimony that Edwards received compliments
from his foremen upon occasion when he did a good job,
including , a compliment from Bryan the night before
November 12, when he did well with the new polyurethane
paint . Management indicated that these compliments were
part of their unsuccessful program of trying to make a
good painter out of Edwards. In any event, the evidence on
this point is, in my opinion , insufficient to show that
Edwards was a good enough painter to fall within the
category of good men who are retained even after they
have received three written warnings.
As to (4), the record shows that foremen have discretion
to issue verbal and written warnings, but do not have
authority to discharge. Industrial Relations Manager Winn
has authority to discharge, but normally he makes such
decisions in conjunction with Plant Superintendent Rogers,
and Plant Manager Coleman is so advised or notified.
Winn testified that, in making discharge determinations, he
favors a procedure of progressive discipline, and that he
reviews the employee 's record and tries to look at the total
problem in each instance . In Edwards ' case , Winn also
checked with Vice President of Industrial Relations Rosner
to make sure company policy was being complied with,
because, Coleman and Winn testified, Edwards' name was
on the list of inplant organizers and the Union might object
to his discharge. Photographs had never been taken of
work before, and they were taken in the instance of
Edwards' suspension in order to have something to show
him and Mason, Winn said. Although neither Chapman
nor Bryan recommended Edwards' discharge , there is no
evidence of company practice requiring such recommenda-
tions by foremen. However, Foreman Chapman was
present when Winn suspended Edwards , and Bryan was at
the November 13 interview. Both Chapman and Bryan
were consulted before the decision to discharge Edwards
was made and there is no indication that either of them
advised retaining him. I note that Bryan testified that he
was dissatisfied with Edwards ' occasional "I don 't care"
attitude, but that he never reported this to higher authority.
To the extent that the Respondent departed from its usual
practice by obtaining photographs of Edwards' and
Mason's poor workmanship and of obtaining clearance
from the vice president of industrial relations , it seems to
me that these were merely prudent steps ' to take in view of
Edwards' status as an inplant organizer for the Union.
With regard to (5), Winn's refusal to allow Edwards to
bump back to class B painter as an alternative to discharge,
the General Counsel relies on a section ' of the Respon-
dent's "Policy Statement and Employee Manual" entitled
"Seniority," paragraph J, (3), which states:
If an employee who has been promoted or transferred
from a classification, in one department to a classifica-
tion in another department does not demonstrate that
he is qualified to perform the duties of his new
assignment in a reasonable period of time, he will be
returned to his former classification.
The General Counsel contends that Edwards fell within
this rule because, according to Edwards, Foreman Chap-
man told him at the time he was transferred to the paint
department it would take him 6 months to learn how to
spray with the pressure gun, and because James Chapman
testified it took 5 or 6 months after his transfer to the paint
department to learn to know what he was doing at the
speed the Company wanted.
Winn testified that he interpreted the term "reasonable
period of time" referred to in this rule as 2 to 3 weeks. He
and Coleman both testified credibly that it was not
company policy to downgrade employees after they had
demonstrated during this initial period that they are
capable of doing the job to which assigned.
Edwards was promoted to class A painter in early April
1974. At the time of his discharge he had been in grade
more than 7 months. He had been transferred to
department 41 April 25, 1974, and had worked there
almost 7 months. Therefore, even if one were to accept the
TRAILMOBILE, DIV. OF PULLMAN
General Counsel's interpretation of rule J, (3), Edwards did
not qualify for reassignment under that rule.
5. Conclusions regarding Charles Edwards
It is odd that Edwards, known to be a most active union
adherent, was the only painter, ever discharged for poor
workmanship. On the other hand, the evidence fails to
show that the Respondent had union animus of the kind
which would justify an inference of discriminatory motiva-
tion . Moreover, Edwards is not shown to have been a
leader of the union campaign, and no compelling reason is
advanced as to why the Respondent would single him out
of the 133 mplant organizers, many of whom were also
active on behalf of the Union, for discrimination, while
promoting others. Nor can any inference adverse to the
Respondent be based on the timing of the discharge, 4
months after the final election, won by the Union. Finally,
Edwards admittedly turned in poor performances on the
occasions charged by the Respondent, and no significant
departure from company policy or practice, or disparate
treatment of Edwards, has been revealed.
In all the circumstances, therefore, I find that a
preponderance of the credible evidence fails to support the
allegation that Charles Edwards was suspended and
discharged for discriminatory reasons, and I conclude that
this allegation of the complaint must be dismissed.
IV. REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that the
Respondent be ordered to cease and desist therefrom and
from any like or related unfair labor practices. I shall also
recommend that the Respondent take the affirmative
action provided for in the recommended Order below,
which I find necessary to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
The Respondent, Trailmobile, Division of Pullman,
Incorporated, Longview, Texas, its officers, agents, succes-
sors , and assigns, shall:
1. Cease and desist from:
(a) Maintaining a plant rule which prohibits employees
from engaging in union solicitation on nonwork- time and
distribution of union literature on nonwork time in
nonwork areas without authorization.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action:
1095
(a) Revoke the rule contained in its "Policy Statement
and Employee Manual" which prohibits employees from
engaging in union solicitation on nonwork time and in
distribution of union literature on nonwork time in
nonwork areas without authorization.
(b) Post at its Longview, Texas, plant copies of the
attached notice marked "Appendix." 10 Copies of said
notices, on forms provided by the Regional Director for
Region 16, after being duly signed by the Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
'by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. -Reasonable steps shall be taken by the
Respondent to insure that said - notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges violations of the Act not
found herein.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
10 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain a plant rule which prohibits
employees from engaging in union solicitation on
nonwork time or in distribution of union literature on
nonwork time in nonwork areas without authorization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights under Section 7 of the National Labor
Relations Act, as amended.
WE WILL revoke the rule contained in our "Policy
Statement and Employee Manual" which prohibits
employees from engaging in union solicitation on
nonwork time and in distribution of union literature on
nonwork time in nonwork areas without authorization.
TRAILMOBILE, DIVISION OF
PULLMAN, INCORPORATED