Spartan Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1989

297 N.L.R.B. 19 (N.L.R.B. 1989)

SPARTAN EQUIPMENT CO 19
Spartan Equipment Company, Inc. and International
Union of Operating Engineers; Local 465, AFL-
CIO. Cases 11-CA-12452 and 11-RC-5420
October 18, 1989
DECISION, ORDER, AND,
CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On March 7, 1989, Administrative Law Judge
Robert A Gntta issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
an answering brief to the Respondent's exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs' and
has decided to affirm the judge's rulings, findings,2
and conclusions and to adopt the recommended
Order
In adopting the judge's conclusion that Josh
Bnsson was discriminatorily discharged in violation
of Section 8(a)(1) and (3), we do not rely on the
judge's finding that the reason the Respondent ad-
vanced for Bnsson's discharge (filing a false crimi-
nal assault and battery charge against its president)
was a pretext Rather we rely on two other ration-
ales contained in the judge's decision
First, we agree with the judge that the union-re-
lated conversation Bnsson had with the Respond-
ent's general manager on June 24, 1987, 3 "is inex-
tricably intertwined in the flow of events
Thus, from the confrontation of June 25 through
the voluntary dismissal of the assault and battery
charge on July 27, Brisson's actions fall under the
protected mantle of the Act" Stated differently,
we find that Brisson's good-faith filing of a crimi-
nal charge against the Respondent's president con-
stituted protected union activity undertaken to vin-
The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
2 The Respondent has excepted to some of the judge s credibility find-
ings The Board's established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
In adopting the judge s recommendation that the Respondent s Objec-
tion 1 to the June 1987 representation election be overruled, we find It
unnecessary to pass on his alternative finding that even assuming the tele-
phone calls that Josh Brisson and Claiborne Ellis, union business manag-
er, made to Carol Foster were within the critical period, this would not
be conduct sufficient to void the election
3 All dates are in 1987, unless otherwise stated
dicate his Section 7 right to act as union spokes-
person at the Respondent's facility free from physi-
cal coercion and intimidation See generally Eastex
v NLRB, 437 U S 556, 565-566 (1978) (Section 7
protects employee attempts to improve working
conditions through resort to administrative and ju-
dicial forums), Pete O'Dell & Sons Steel Fabricators,
277 NLRB 1358 (1985) (employee's meeting with
U S Army Corps to discuss employer's compliance
with Davis-Bacon Act is protected activity where
union initiated the Corps' investigation), Afro-
Urban Transportation, 220 NLRB 1371 (1975) (em-
ployee effort to seek the aid of governmental orga-
nizations and agencies in order to protect working
conditions is protected activity provided it is un-
dertaken without malice or bad faith) Because the
filing of the charge constituted a union-related ac-
tivity, it matters not that Bnsson acted alone Car-
penters Local 925, 279 NLRB 1051, 1059 fn 40
(1986) We do not rely on the judge's finding that
the Respondent can only rely on the falsity of the
charge if such a determination has been made by
the state criminal system However, under the cir-
cumstances here, the Respondent's belief, even if
honestly held, that the charge was frivolous is not
a defense to a discharge based on a course of con-
duct that the Act protects See NLRB v Burnup &
Sims, 379 U S 21 (1964)
Second, assuming arguendo that the filing of the
charge did not constitute protected activity, we
agree with the judge that "Bnsson was provoked
by [the Respondent] at the June 25 meeting and the
filing of the criminal charge was the result of
the provocation" We note in this regard that the
Board has long held that an employer cannot pro-
voke an employee by its unlawful conduct to a
point where he commits an indiscretion and then
rely on it to discipline the employee Vought Corp,
273 NLRB 1290, 1295 fn 31 (1984), enfd 788 F 2d
1378 (8th Cir 1986) Here, the judge found that im-
mediately prior to the filing of the charge repre-
sentatives of the Respondent unlawfully threatened
Bnsson with the loss of his job, unlawfully threat-
ened him with the loss of his wife's job, cursed at
him and shook a finger in his face, and unlawfully
threatened him with denial of future promotions,
all because of his union activities Under these cir-
cumstances, we find that the Respondent's unlaw-
ful conduct provoked Bnsson's response of filing a
criminal complaint, and we will not allow the Re-
spondent to take advantage of its illegal actions by
relying on the charge filing as grounds for dis-
charge
297 NLRB No 3
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Spartan
Equipment Company, Inc , Charlotte, North Caro-
lina, its officers, agents, successors, and assigns,
shall take the action set forth in the Order
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for International Union of Op-
erating Engineers, Local 465, AFL-CIO, and that
it is the exclusive collective-bargaining representa-
tive of the employees in the following appropriate
unit
All service and maintenance employees, in-
cluding field and shop mechanics, welders,
painters, utility workers and drivers employed
by the Employer at its facilities located in
Charlotte, North Carolina, Greenville, North
Carolina, and Charleston, South Carolina, ex-
cluding all parts employees, guards, office
clericals, professionals, and supervisors as de-
fined in the Act
George Carson, Esq , for the General Counsel
Joseph W Grier Jr, Esq (Grier & Grier), of Charlotte,
North Carolina, for the Respondent
Larry L Eubanks, Esq , of Winston-Salem, North Caroli-
na, for the Petitioner/Charging Party'
DECISION
STATEMENT OF THE CASE
ROBERT A GiurrA, Administrative Law Judge This
case was tried before me on January 6, 1988, in Char-
lotte, North Carolina, based upon a charge filed by Inter-
national Union of Operating Engineers, Local 465,
AFL-CIO (the Union) on July 29, 1987, and a complaint
issued by the Regional Director for Region 11 of the Na-
tional Labor Relations Board on September 2, 1987, con-
tained in an order consolidating the above-captioned ob-
jections case with the unfair labor practice case for
trial 2 The complaint alleged that Spartan Equipment
Company, Inc (Respondent) violated Section 8(a)(1) and
(3) of the Act by threatening employees with reprisals if
they joined or supported the Union and by discharging
an employee for supporting the Union Respondent's
timely answer denied the commission of any unfair labor
practices
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce evidence, and to argue orally Briefs were submit-
' Attorney Eubanks also appeared on behalf of Josh Brisson, a special
agent of the Petitioner/Charging Party
2 All dates herein are in 1987 unless otherwise indicated
ted by General Counsel, Respondent, and the Union All
briefs were duly considered
Upon the entire record in this case and from my obser-
vation of the demeanor of the witnesses and their de-
meanor on the witness stand, and upon substantive, reli-
able evidence considered along with the consistency and
inherent probability of testimony, I make the followmg3
FINDINGS OF FACT
I JURISDICTION AND STATUS OF LABOR
ORGANIZATION—PRELIMINARY CONCLUSIONS
OF LAW
The complaint alleges, Respondent admits, and I find
that Spartan Equipment Company, Inc is a North Caro-
lina corporation engaged in the selling, leasing, and serv-
icing of heavy construction equipment and machinery in
Charlotte, North Carolina Jurisdiction is not in issue
Spartan Equipment Company, Inc, in the past 12
months, in the course and conduct of its business oper-
ations purchased and received at its Charlotte, North
Carolina facility goods and materials valued in excess of
$50,000 directly from points located outside the State of
North Carolina I conclude and find that Spartan Equip-
ment Company, Inc is an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act
The complaint alleges, Respondent admits, and I con-
clude and find that the Union is a labor organization
within the meaning of Section 2(5) of the Act
II RECORD TESTIMONY
Glenn Arns testified that he has worked 3-1/2 years
for Respondent as a field mechanic Previously, he was a
member of IUOE in New York In early May, while
working with Bnsson, the two had a conversation about
their working conditions and changes they both hoped
could be made They agreed that organizing a union
would help Arns did not feel threatened or pressured by
from anyone during the election period Arns was not
told by any employee that they felt threatened Mike Da-
vidson did say that in his family expenence he and his
kin were not agreeable to unions and he was afraid to
join the union Later, after the election, Davidson said he
felt like he might be pressured because it is hard to work
with somebody if they find out you are against some-
thing that they are for Davidson did not express any
kind of fear or apprehension for his person
Arns recalled that Brisson said it would be hard on a
person if they were the only one among the employees
not agreeing with the Union The statement was made
while Arns and Bnsson were working together in the
shop Arns could not recall when the statement was
made other than before the election but not in the month
of June Arns stated that Bnsson never threatened him
and he never took anything Bnsson ever said to him as a
threat
Michael D Davidson testified he is a boom truck as-
sembler with 3 years of employment After the 10 em-
3 Transcript correction is noted and corrected
SPARTAN EQUIPMENT CO 21
ployees signed the organizing committee's petition but
before the election, Davidson heard Bnsson utter a
threat for Spartan management Brisson said, "Anyone
who is not for the Union is full of shit and if anyone in
management goes against me, I wouldn't hesitate to cut
their throat in a minute" Brisson repeated that statement
on several occasions in the breakroom when all employ-
ees were present At some point in time, Davidson in-
formed Sam Smith, treasurer of the Company, that Bns-
son had made the statement Brisson never physically
threatened Davidson although he did say people would
be crazy to not vote for the Union Bnsson would try to
persuade employees to vote union by showing his unal-
terable support for the Union and his opposition to man-
agement He also told the employees that the balloting
would be secret and each employee should vote his own
conscience
Carol Foster, a professional log nurse, testified that her
husband, Greg, has been a mechanic at the Greenville,
North Carolina location for 1-1/2 years As a mechanic
he must travel to distant locations to perform repairs
which keeps him away from home Around the first of
May, a person identifying himself as Mr Ellis from Win-
ston-Salem spoke to Mrs Poster on the phone He said
he was a union representative and that the Union was at-
tempting to organize the Company Ellis said he really
wanted to talk to Greg and would call another day Ellis
did call again around May 10 Mrs Foster spoke with
him in Greg's absence Ellis told her that the Charlotte
employees' dissatisfaction with working conditions and
wages started the organizing campaign Mrs Foster
asked Ellis .1 the Union was voted in and Greg did not
vote for it would Greg, or could Greg, lose his job Ellis
replied, "possibly" Mrs Foster told Ellis she was sur-
pnsed that Greg's failure to sign the paper to the Union
could cause him to lose his job because she worked as a
UAW member before and that union did not do that
kind of thing Ellis then asked if she had given the phone
messages to Greg Mrs Foster told Ellis that she had,
ending the conversation Ellis called one more time and
asked that Greg call him Greg tried once to call Ellis
without success but on the second attempt he did talk to
Ellis The conversation was very short but Mrs Foster
did not listen to its substance Between May 1 and 2,
weeks before the vote or dunng the first week in May, a
man identifying himself as Josh from the Charlotte office
called and spoke to Mrs Foster She told him about her
prior membership in the UAW He said that all the
people in Charlotte and Charleston were voting for the
Union except Jimmy Kilpatrick and Greg Josh said he
really wanted to talk to Greg Mrs Foster asked if Greg
did not vote for the Union was there any chance he
could lose his job Josh said, "possibly" Mrs Foster told
Josh she did not think the Union could benefit the em-
ployees anymore than what Spartan already had Mrs
Foster stated in her testimony she knew that "possibly"
meant could or could not and that she guessed Josh did
not really know Nonetheless, she said she was upset be-
cause two men had told her Greg could possibly lose his
job if he did not vote for the Union and the Union won
the election She called Mrs Huneycutt, wife of the vice
president and general operations manager of Spartan
Mrs Foster wanted to know for sure if Greg could lose
his job by not supporting the Union in the election She
did not explain in detail to Mrs Huneycutt the nature of
her call but simply asked that Mr Huneycutt return her
call In the meantime, Greg came home and Mrs Foster
told him about the two phone calls and the possibility
that he could lose his job Greg talked to Mr Huneycutt
and was told that as far as Huneycutt knew, there was
no way an employee not voting for the Union could lose
his job if the Union won the election
Josh Bnsson testified he was a welder/fabricator until
his separation on July 27, 1987 Tim Hutchinson was his
supervisor In late April, Brisson began talking to em-
ployees about forming a union at the Company After
talking to some employees, he contacted A B Dixon of
the Union on May 1 Following Bnsson's contact with
Dixon about seven employees met at the union hall on
Friday, May 8, and signed authorization cards Brisson
later called Greg Foster and other employees Bnsson's
phone bill for June and July (C P Exh 2) shows the first
call to Foster was made May 8, 8 41 p m to 9 19-964-
2255 It lasted 2 minutes and was to Sydney, North
Carolina Foster's wife answered The entire conversa-
tion was
I asked to speak to Greg and she said I'm sorry,
he's not here right now And I said do you know
when to expect him back and she said it'll probably
be sometime late tomte or tomorrow and I said,
well I'll call back later and I won't call tonite be-
cause it's already too late That was it The union
never was mentioned
The second call was made on May 10, 1987 at 6 09 p m
to 919-964-2255 in Sydney, North Carolina, lasting one
minute The entire conversation was
I asked to speak to Greg and she said I'm sorry,
he's not here I said do you know where he can
reach me and he was in Raleigh or somewhere and
I said well would you have him call me collect,
please I said this is Josh and I gave her the area
code and my number but I never received a call
from him, so I didn't call back anymore The union
never was mentioned
Bnsson did not have any other conversations with Mr
or Mrs Foster from any phone at any other time On the
Saturday following the card signing, in the plant's break-
room, Bnsson asked Mike Davidson to sign a union card ,
and Davidson signed Tommy Gore may have been
present for part of the conversation Bnsson told David-
son that anybody who is against the Union had "shit in
their blood" Davidson only shrugged his shoulders and
smiled Bnsson did not say that anybody who would not
sign a union card was "full of shit" nor did he say if any-
body up front in management went against him he would
not hesitate to cut their throats The conversation lasted
about 10 minutes
On May 11 around 9 30 a m, Bnsson saw Union Rep-
resentatives Dixon and Miler leaving the Company's
property Later, Bnsson asked Dixon and Miler what
transpired when they visited the Company Dixon said
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that Pfaff had refused to talk to him or to accept the em
ployees petition listing the organizing committee mem
bers as a basis for recognition On May 13 Pfaff au
thored and posted a special notice about the Union s at
tempt to organize the Company
On May 17 in preparation for the employee organ=
ing committee s meeting with management the next day
seven employees including Davidson and Bennett met
at Hardees Several employees asked how the Union
works when do employees start paying union dues, how
much are dues and who does the bargaining for the con
tract After the meeting Bnsson and Davidson spoke
one on one Davidson had wntten a prayer to open the
meeting with the Company and wanted Bnsson to read
it Bnsson told Davidson that he did not have to read it
since it was appropriate to begin the meeting with a
prayer Bnsson said it was not necessary to show him
the prayer or ask if it could be made because he was all
for it Bnsson denied making any statements that if man
agement went against him he would not hesitate to cut
their throats anyone who did not vote for the Union
was full of shit or anyone against the Union was full
of shit Bnsson could not recall making a statement that
it would be hard for someone if they did not join the
Union if everybody else was in it Brisson did tell em
ployees during the campaign that they could vote for the
Union but did not have to join the Union or they could
vote against the Union and then join the Union if they
wanted to the employees had the options
Pfaff and Sam Smith represented the Company at a
meeting with the employees organizing committee on
May 18 in the plant classroom During the meeting, Bns
son handed a copy of the employees organizing commit
tee list to Pfaff
Following the tally of ballots in the election Bnsson
went to the office of Gary Jenkins service and parts
manager during work hours Brisson did not clock out
on his assigned job Bnsson suggested to Jenkins that
since company managers are allowed to dnve company
vehicles the employees should be allowed to use the
shop facilities on Saturdays to build personal items such
as barbeque grills Jenkins replied that incidents in the
past dictated the company policy of not allowing em
ployees the off time use of the facilities Bnsson told Jen
km that the employees may bargain for the privilege to
use the shop to do personal work Nothing more was
said The next day Jenkins came to Bnsson s work sta
non to summon him to the front office Bnsson clocked
Out and joined Jenkins As the two walked to the front
office, Jenkins stated Josh you ve about hoed your
row out around here haven t you`, Brisson made no
reply and Jenkins said You know it d be bad for you
and your wife both to lose your job wouldn t it Again
Brisson did not reply At this point they arrived at the
front office where Pfaff and Ted Huneycutt waited for
them Upon entering the office Bnsson was motioned to
a chair situated somewhat in the center of the room and
facing Pfaff who was seated in a second chair Pfaff then
told Jenkins to start Jenkins repeated the conversation
between he and Bnsson about employees use of the fa
alines to do personal work Pfaff then got up ap
proached Bnsson and while shaking his finger in Bris
son s face stated, Let me tell you you re not a manager
here and you never will be a manager here You re noth
mg but a welder and I don t want you to do anything
but weld and Ill take care of you if you talk to anybody
about this union anymore You don t talk to anybody
unless you talk to me first Bnsson at this point took out
his note pad according to instructions he had received
from the union officials who told him to write it
down Pfaff said write down anything you want to we
will deny it As Brisson started to write Pfaff said God
damn you Bnsson said don t cuss me old man Pfaff
responded Who are you calling old man 9 Pfaff repeat
ed damn you and Bnsson repeated don t cuss me
Pfaff said god damn it I 11 do more than cuss you
Bnsson then told the three that the meeting was over
and began nsmg from his chair While in his rising
motion Pfaff punched Brisson on his shoulder causing
him to go back down toward the chair seat Bnsson got
up went to the door turned and said You all would
really like me to fight you wouldn t you9 Then you
could fire me and you d have a real legitimate excuse
Brisson then left the office, clocked in and went back to
work He felt upset and did vomit so he went back to
the office to report his illness He told Jenkins that he
was sick and needed to leave Jenkins said, Well, I hope
you get to feeling better Bnsson left the plant premises
and went to the local magistrate s office There he swore
out a complaint for criminal assault against Pfaff Later
Bnsson tried to call Pfaff and inform him that he was
willing to drop the charges for peace and harmony Pfaff
was not in and Bnsson left a message The Friday before
the court date of Monday, July 27 Bnsson spoke to
Pfaff in the Company s office Bnsson told Pfaff that in
the interest of peace and harmony he would talk to the
District Attorney about dismissing the charges Bnsson
said he would try to persuade the District Attorney and
do everything he can Pfaff asked-why the charges were
filed in the first place Brisson said to Pfaff Let s not
get our temper up Let s not go into this thing I told
you [I] would drop the charges and I will Ill have ev
erything ,done I can Bnsson then left Pfaff's office
Monday morning Bnsson arrived at the courthouse
about 8 a m and spoke to the District Attorney The
District Attorney agreed to dismiss the charges Bnsson
went into the hallway and upon seeing Pfaff Huneycutt
Rains and the Company s attorney informed them of
the dismissal The Company s attorney and Pfaff con
firmed the dismissal and Pfaff looked over at Huneycutt
Jenkins and Bnsson and said, Well fellows let s go to
work Bnsson replied Okay
When Bnsson returned to the plant he dressed for
work and began working Shortly after starting work
Jenkins told Bnsson he was wanted in the classroom
near the main offices Bnsson went to the classroom and
found Pfaff, Huneycutt, and Jenkins waiting for him
Pfaff told Brisson the time had come for him and Spar
tan to go their separate ways, however Pfaff added that
he would give Brisson an opportunity to resign Bnsson
said he would not quit Pfaff told him in that case
you re terminated Bnsson asked why he was termmat
ed and Pfaff replied frivolous prosecution Brisson re
SPARTAN EQUIPMENT CO 23
marked that Pfaff had not been prosecuted and asked,
"How can you fire me for frivolous prosecution?" Pfaff
became red-faced, got up, and walked out of the room
without a word
Prior to his involvement with the Union, Bnsson had
spoken to Jenkins and Huneycutt on several occasions
about his work needs or about improvements to produc-
tivity On one occasion, Bnsson had suggested the pur-
chase of a new welding machine but did not hear any-
more about the machine After the Company became
aware of Bnsson's union activity, he did get the new ma-
chine and was subsequently commended at production
meetings about the savings associated with the use of the
new machine Bnsson acknowledged that Pfaff told the
employees that their continued employment at Spartan
would be based solely on satisfactory performance and
workload and not, in any respect, on the union vote or
union activity
Claiborne Ellis testified he is presently business manag-
er of Local Union 465, IUOE, with 14 years as a union
official Ellis reports to Regional Director A B Dixon
Ellis was given the responsibility of the Spartan cam-
paign In May, Ellis began contacting the employees by
phone from his Durham office, including employee
Foster He called Foster three times from his Durham
office The first call was made May 6, and lasted for 6
minutes Ellis asked for Foster and Mrs Foster said he
was not at home Mrs Foster then began talking to Ellis
about her prior union affiliation and expressing favor for
the Union Ellis did not recall Mrs Foster asking any
questions relating to if the Union won the election and
Foster had not voted for it would his job be in jeopardy
Ellis specifically did not tell Mrs Foster that her hus-
band's failure to vote for the Union would possibly affect
his employment Ellis administers 19 different bargaining
units for the Union and in none of the units does mem-
bership or nonmembership in the Union have any impact
on the employees' continued employment The second
call was made May 6, and lasted for 2 minutes Ellis
again spoke to Mrs Foster in Foster's absence Although
the call lasted only 2 minutes, Ellis repeated his prior de-
nials of any questions raised by Mrs Foster The third
call was made May 10, and lasted for 1 minute Ellis
spoke with Foster on this occasion Ellis asked Foster if
he had any questions about the election Foster said he
did not have any questions Ellis said one of the issues
was the condition of the trucks that the mechanics had
to drive Foster replied that he had a new truck and did
not have any need for a union He added that the em-
ployees in his area were satisfied with things the way
they are Ellis commented to Foster, "Look, if you can't
help these guys in Charlotte, how about not hurting"
Ellis then ended the conversation with a thank you Ellis
made no other calls to Foster
'-- 'Curtis Bennett testified he has worked at Spartan for
23 years and currently is a spray painter Bennett met
Josh Brisson when he was first employed and has since
frequently had contact with him in the shop and during
breaktimes and lunchtime All employees lunch at the
same time and after Bnsson and Mike Davidson were
present in the group with Bennett Bennett has on sever-
al occasions discussed the Union with Brisson and Da-
vidson during lunch or breaktime, particularly during the
May through June period At no time did Bennett hear
Bnsson say, "If anybody up front in management goes
against me, I wouldn't hesitate to cut their throats in a
minute," or, "Anyone who is against the union is full of
shit or has to have shit in their blood" Bennett uses the
lunchroom everyday and heard almost everything that
was said during lunch or breaktime
Gary Jenkins testified he has 25 years at Spartan and
at the time of the union election was general service
manager He supervised the service departments at sever-
al locations including the shop supervised by Tim Hutch-
inson Bnsson worked under the supervision of Hutchin-
son On June 24, Bnsson came to the shop office to talk
to Jenkins Bnsson had previously told Jenkins that he
would be the union representative and in the future man-
agement would be dealing with him since the Union won
the electibn Bnsson asked why the employees could not
use the company facilities on off time to work on person-
al projects Jenkins said the rule predated his employ-
ment but he offered several reasons for the rule , Jenkins
told Bnsson that from an insurance point of view, an em-
ployee injury in the shop while doing personal work
could be a problem Bnsson replied that he had 24 hours,
7 days a week insurance coverage on himself Jenkins
also mentioned misuse of company property and pilfer-
age at a time when the Company could not exercise con-
trols Brisson stated 'that they would get the privilege
into the contract Bnsson then' brought up the use of
company vehicles by some personnel and the limited ex-
penses required of anyone using a company supplied ve-
hicle Jenkins countered with an explanation that many
expenses were borne by the vehicle user that Bnsson ap-
parently did not know about After the conversation
ended, Jenkins reported its content to his supervisor,
Huneycutt, and to Pfaff because he thought they should
know that Bnsson was concerning himself ,with company
policies rather than things relating to his workplace as
well as making statements about what the Union would
get into a contract Either Pfaff or Huneycutt made a
comment, "Why would he ask those kinds of questions?
We don't have a union yet and he can't represent it be-
cause it's not here yet" The following day, June 25,
Huneycutt told Jenkins to bring Bnsson to the office for
a meeting with Huneycutt, Pfaff, and Jenkins Jenkins
went to 'the welding bay and told Brisson to clock off
the job and clock in on sales and service, the account for
miscellaneous time charges Bnsson followed Jenkins to
the office where the others waited Jenkins did not recall
saying a single word to Brisson as they walked to the
office and specifically denied saying, "You've about hoed
your last row" or making any threat to the job security
of Brisson's wife, also a Spartan employee In the office,
Brisson set in a chair on one wall while Huneycutt and
Pfaff sat opposite him, one to the left and one to the
nght Jenkins stood up next to the closed door Pfaff
began the meeting by asking Jenkins to relate his conver-
sation with Brisson of the day before As Jenkins related
the conversation, Bnsson injected several explanations of
the conversation and Pfaff said he had heard enough
Pfaff told Brisson that he was paid to be a welder and
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that is all he was to do Pfaff informed Bnsson that he
did not have any managerial responsibility and Bnsson
made some comment to Pfaff Pfaff said, I don t give a
damn about your other comments you re paid to weld
and that s all Do you understand that ? Bnsson said
don t cuss me old man Pfaff then got up from his seat
walked towards Brisson with his finger pointing at Bris
son and said don t call me that Pfaff did not touch
Bnsson during the exchange but Bnsson did say to Pfaff
touch me Pfaff said he had no intention of touching
him but did invite any comments from Bnsson at this
time Bnsson said he would have his chance later Jen
kins recalled that Brisson had a notebook but he did not
see what Bnsson wrote down Jenkins did not recall
Pfaff telling Bnsson that he would deny saying anything
Brisson wrote in his book He did recall that Pfaff told
Bnsson he would have to talk only to Pfaff about policy
matters and not to anyone else Pfaff again told Bnsson
that all he was to do was weld Brisson looked to Hun
eycutt and Jenkins and asked if they heard that only
weld Huneycutt told Bnsson that he would be expect
ed to do whatever was included in the job description
for a welder The meeting then broke up
Later while Huneycutt Jenkins, and Pfaff were criti
qumg the meeting in Pfaff s office Bnsson came in
saying he was sick and needed to go home Pfaff asked
what his ailment was and Bnsson said his stomach was
bothenng him Someone hoped aloud that he would get
better and Bnsson left the plant Bnsson returned to the
plant about 1 30 p m stating that he had taken some
Pepto Bismol and was feeling better
On July 27, Jenkins summoned Bnsson to another
meeting with Pfaff and Huneycutt Pfaff told Bnsson
there had been a lot of things over the dam and he
wanted to offer him an opportunity to resign because he
4. felt that it would be in the best interests of Bnsson for
Spartan Equipment Company and him to part ways
Bnsson refused to resign and Pfaff terminated him Pfaff
said he was terminating Bnsson because of the false ac
cusation and false lawsuit about Bnsson being struck in
the chest at the June meeting
On cross examination Jenkins acknowledged that
before the union activity when Bnsson suggested the
purchase of a new type welding machine there was no
management rr eetmg of Bnsson s concern with company
policy whereas after the union activity started and Bns
son suggested that employees be allowed to build barbe
que grills on their own time management considered that
he was sticking his nose into company policy In addi
tion Jenkins stated that it was not standard for an em
ployee to be summoned to a meeting with Pfaff Bnsson
had no prior history of discipline for any rule or policy
infractions Jenkins became aware that Bnsson had filed
criminal charges against Pfaff a week or two after the
June meeting There was talk that Bnsson was bragging
in the breakroom that he had filed a lawsuit against
Pfaff In a short time it was all over the plant Jenkins
did not recall any discussion about the lawsuit with Pfaff
nor did he recall any discussion with Pfaff about Bns
son s termination Pfaff made the determination in the
meeting of July 27 in Jenkins presence
Ted Huneycutt testified he is vice president and gener
al operations manager with supervisory responsibility
over Gary Jenkins On the afternoon of June 24 Jenkins
reported to Huneycutt that Bnsson had initiated a discus
sion of company policy that disallowed employees use of
the company facilities on their off time At the end of
the discussion Brisson told Jenkins that it would be re
solved when Brisson became the union representative
Bnsson also took issue with the company policy where
by some management employees had company vehicles
for business and personal use Huneycutt suggested that
the two report the incident to Pfaff Following the
report to Pfaff it was decided to meet with Bnsson the
next morning Huneycutt stated that the meeting was set
up because management had reports that Bnsson was
losing productivity discussing things he should not be
discussing during working time including Brisson s repre
sentative status with the Union
The meeting was held in one of the shop offices adja
cent to the production area The particular office was
chosen because it had glass walls and the seating ar
rangement was decided before Brisson was summoned
Pfaff sat at the desk and Bnsson was seated in a chair
opposite the desk Pfaff started the meeting by asking
Jenkins to relate the prior conversation with Bnsson
While Jenkins was talking Brisson interrupted him sev
eral times to comment During an exchange between
Bnsson and Pfaff the word damn was used by Pfaff
and Bnsson called Pfaff an old man Each took excep
bons to the others remark Pfaff stood up and pointed his
finger at Brisson and told him policy matters were not
within his jurisdiction because they were management
decisions and Bnsson was only a welder At this point
Huneycutt thought Brisson might stand up and get bel
ligerent but he had purposely positioned himself and Jen
kms to counter such an event Bnsson said to Pfaff
Don t put your hands on me Pfaff told Brisson he had
no intention of touching him and did not touch him
Pfaff did not tell Bnsson that he would deny what was
said at the meeting Pfaff did tell Bnsson that he was not
to talk to managers about policy matters during working
hours without making arrangements to do so Pfaff did
not prohibit Brisson from talking to anyone else Huney
cutt did not recall Pfaff prohibiting talk about union
business Huneycutt stated that Pfaff did all the talking
to Bnsson except Huneycutt reminded Bnsson that the
welding job included all duties in the job description and
Huneycutt told Bnsson during his exchange with Pfaff
that the use of damn was not directed to Brisson and
that Pfaff was not cussing him
On July 27 Pfaff and Huneycutt went to the plant
classroom and asked Jenkins to bring Brisson to the
room Pfaff told Bnsson that it appeared that although it
probably was not good that it turned out that way from
a company standpoint or his standpoint it appeared that
we would be unable to continue his employment with
Spartan Pfaff then asked Bnsson if he would resign and
Bnsson responded that he would not Pfaff told Bnsson
he was terminated because he had filed a false assault
charge on the president of Spartan and management was
of the opinion that if he would file an untrue statement
SPARTAN EQUIPMENT CO 25
under oath, the Company could not justify his working
for the Company because he could not be trusted in his
job Albeit, Pfaff did not discuss Brisson's termination
with Huneycutt, he did just prior to the discharge meet-
ing tell Huneycutt that he was going to fire Bnsson for
filing an untrue report Huneycutt told Pfaff he had no
reason not to agree with the termination
Tom Pfaff testified that he gave a speech to employees
on June S regarding the union organizational drive and
he spoke from a prepared text Pfaff also testified he
alone made the decision that a meeting between Brisson
and management was necessary following the conversa-
tion between Bnsson and Jenkins on June 24 Pfaff saw a
situation developing which lessened the value derived
from the employees It had gone as far as he intended to
let it go The meeting was necessary to clear the air that
the employees are supposed to be working not involved
in anything that detracts from their output Pfaff denied
he anticipated Bnsson may become violent or that any
attention was given to seating arrangements in the meet-
ing
Pfaff opened the meeting by having Jenkins relate the
conversation between him and Bnsson of the day before
Pfaff then asked Bnsson if Jenkins related the event cor-
rectly and Bnsson basically agreed Pfaff told Bnsson
that he was involving himself in matters not of his con-
cern at a time when he was supposed to be working
Pfaff said it was to stop and not be done in the future
Pfaff told Bnsson that the subject of his questions were
policy matters relating only to management and Bnsson
was not part of management Bnsson took exception to
what Pfaff had said and told Pfaff, "old man don't talk
to me like that" Pfaff told Bnsson he would talk to him
any damn way he pleased to and stood up at the same
time to emphasize his point and make sure Bnsson could
see exactly what he meant Pfaff moved toward the
seated Brisson and Bnsson said, "go ahead, touch me,
touch me" Pfaff told Bnsson he had no intention of
touching him adding, "you seem to have some things
you want to say to me Go ahead and tell me what It is
you've got on your mind Get it off If you want to go
after me, go ahead" Bnsson replied, "No," and said he
would take care of those things later Pfaff repeated that
Brisson was hired to do a job and he had a job All he
needed to do to get along was to do the job and not in-
volve himself in things that distracted from his ability to
do his job and to be on the job Pfaff asked if Bnsson
understood Bnsson responded that he did and Pfaff told
him to go on back to work Pfaff denied balling his fist
or touching Bnsson's person at any time Pfaff denied
telling Bnsson he could write down whatever he wanted
to because it would be denied later on Pfaff stated he
did not know Bnsson was writing anything down Pfaff
also denied that he prohibited Bnsson from having con-
versations with other employees during nonwork time
On June 29, Pfaff invited all the prounion employees
to his office He stated that a union was not a desirable
thing for the Company but the employees were within
their rights to want one Pfaff told them that their con-
tinued employment would not be affected by their union
activities but rather their ability to do their work and the
workload of the Company Pfaff offered to meet with
each employee individually in his office so each could
speak his mind in private Bnsson asked to be the first
one and was the first one Pfaff and Brisson again dis-
cussed the use of company facilities because Bnsson still
did not understand why employees were denied the use
of the facilities Pfaff again explained the insurance diffi-
culties but Bnsson did not agree Brisson admitted to
Pfaff that he had used the facilities many times in the
past for personal use
The following day, Pfaff got a report that Bnsson had
attempted to contact him Pfaff had heard rumors that a
criminal warrant had been issued but had not been con-
tacted by the law enforcement agencies When Pfaff re-
turned to the office, it was reported to him that Bnsson
left the message that an additional unfair labor practice
charge was being withdrawn because the Company was
cooperating and that the criminal charge had been with-
drawn Pfaff paid no attention to the message as it relat-
ed to the criminal charge because its existence was only
supported by rumors at this point in time On Jay 17,
Pfaff was served a criminal summons for assault and bat-
tery by the sheriff The morning of July 23, Bnsson
came to Pfaff s office and informed him that the criminal
case was set for the following Monday and said some-
thing about settlement Bnsson also said the Company
would see him at the courthouse As Bnsson started to
leave, Pfaff said, "You know and I know that I did not
strike you Why did you file a charge?" Bnsson replied,
"I don't want to get into an argument with you, but I
felt that you were trying to intimidate me and this was
my way of getting even" The conversation ended on
that note
Pfaff, Huneycutt, and Jenkins appeared at court on
July 27, for the scheduled trial One and one-half hours
later, the charges were dropped and without any agree-
ment between the principals about any treatment Bnsson
may or may not now receive The three returned to the
plant offices Pfaff told Huneycutt and Jenkins that he
had decided there was no recourse but to terminate Bns-
son He asked Huneycutt and Jenkins if they had any dif-
ferent feelings about it and they concurred Pfaff had de-
cided to terminate Brisson because he had lied under
oath involving Pfaff in a criminal proceeding that had no
basis in fact That revelation of Bnsson's character made
him unfit to be an employee Pfaff stated that in the
Company's 33-year history, no other employee had ever
filed a criminal or civil charge against a company offi-
cial Brisson's work record was not considered by Pfaff
in his decision to terminate him Pfaff knew which em-
ployees actively supported the Union and of their
number, Bnsson was the only employee discharged or in
any way disciplined
Pfaff stated that he did not discharge Brisson on July
17 for filing a false charge against him because he
wanted to give him every opportunity right up to the
last to come to the conclusion that a mistake had been
made and take action to provide for a reconciliation The
action expected by Pfaff was a voluntary admission to
everybody involved that Brisson had lied under oath in
filing the charge and then taking whatever action was
necessary with the police department to get the entire
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
matter stricken from the record so that Pfaff s name was
not on any criminal record charging him with assault
and battery
Analysis and Conclusions
III THE OBJECTIONS
The petition referred to in the text of the Employer s
objections is the petition of employee signatures compns
mg the union in plant organizing committee
There are two objections requiring a determination
numbered in the Regional Director s report as 1 and 2b
Number 1
An eligible employee who signed the petition for the
representation election has stated without solicitation by
the Employer that he signed the petition under duress
created by threats to his personal safety, if he did not
sign and his job security if the union prevailed without
his support
Albeit the objection is framed as if a single employee
was victimized the record evidence evinces two employ
ees and the spouse of a third employee Additionally the
objection is two phased with each unrelated to the other
by circumstance
Two employees Davidson and Arns signatories to the
petition testified in support of the objections Davidson
signed the petition on Saturday while working and at the
behest of Bnsson His testimony was void of any threats
to his person relative to his signing of the employee peti
tion Davidson did testify that he was never physically
threatened by Bnsson during the union campaign Arns
did not testify to any duress surrounding his signing of
the employee petition but did state unequivocally that he
was not threatened by Brisson I therefore conclude and
find that no threats of any nature were made to employ
ees in an attempt to gain employee signatures on the or
gaming committee petition
Mrs Foster, spouse of employee Greg Foster testified
that she had several phone conversations with Union
Representative Ellis and special agent of the Union Bns
son Foster on one occasion stated that her phone con
versations with Bnsson occurred 2 weeks before the
election but she was unable to remember the date On
another occasion she stated that the Bnsson calls could
have occurred in the same week as her conversations
with Ellis which she placed in the first week of May
without actually recalling the date The phone bills of
Ellis and Bnsson establish the dates of all phone calls to
Foster as May 6 8 and 10 Foster s inability to recall
any dates with certainty and the uncontroverted testimo
ny of Ellis and Bnsson supported by their respective
phone bills leads me to conclude that all the phone calls
Mrs Foster received were outside the critical period I
therefore find that the substance of the phone calls to
Mrs Foster cannot and do not support the objection I
shall accordingly overrule Objection 1
If as Respondent suggests that the critical period
should be extended beyond its usual bounds, more egre
gious conduct than that shown here must be present
Even assuming that the phone calls were found to be
within the critical period the question form of the al
leged threat originating from nonemployee person cou
pled with the equivocal response possibly, in my view,
is too insubstantial to constitute conduct capable of ren
denng a free choice of representative impossible and re
quinng the election be voided
Number 2B
At least two other eligible voters have stated to Em
ployer that a union activist approached them on a busi
ness visit to the Charlotte office during business hours
and threatened reprisals with respect to job security if
these employees did not support the union by their
votes
Employees Davidson and Arns testified to statements
made by Bnsson in the plant during the critical period
before the election Both Davidson and Arns made genu
inc attempts to recall the conversations and did not
evade questions or evaluate their answers I consider that
both employees testified truthfully and credit their testi
mony Bnsson, although admitting telling several em
ployees that anyone against the Union had shit in their
blood denied statements that employees were full of
shit if they did not support the Union or if management
goes against him he would not hesitate to cut their
throats in a minute Bnsson clearly was a vocal activist
for the Union and used shop vernacular to express him
self His additional expression to employees that the
ballot was secret and each employee should vote his con
science does not serve to deny that his more earthy state
ments were in fact made I do not credit Bnsson s terse
and categorical denials of the subject statements Rather
I find that he did on several occasions make the state
ments attributed to him by Davidson With regard to the
statement it would be hard on a person if they were the
only one among the employees not agreeing with the
Union Bnsson had no recall Whether considered a
denial or not I do not credit Bnsson s failure to admit to
the statement and I find that he indeed made such a
statement to employees
Having found that the statements attributed to Bnsson
were made during the cntical period of the campaign it
now remains to determine whether they constitute objec
tionable conduct as alleged by Respondent Albeit state
ments as those made by Bnsson should not be con
doned as acceptable campaign rhetoric they do not in
my view support the objection as framed Neither inch
vidually nor collectively do they threaten reprisals with
respect to the job security of any employee in the voting
unit At best, the statements are utterances of a zealous
proumon employee and couched in terms not subject to
any misunderstanding Respondent argues in brief that
the size of the unit and closeness of the election requires
greater scrutiny of the conduct Particularly in a case
where a change of only a few votes would affect the
outcome Respondent suggests in such a case less egre
gious actions may require a rerun of the election unlike
a case in which a clearcut choice had emerged from the
balloting
Under any standard of scrutiny the sole issue to be de
cided is Do the statements made by Bnsson reasonably
tend to interfere with the outcome of the election There
SPARTAN EQUIPMENT CO 27
is nothing threatening in any of Brisson's remarks which
were directed to any identifiable employee in the voting
unit Rather, his remarks were generalized and imperson-
al characterizations of employees harboring less sympa-
thy for the Union than Bnsson himself I conclude and
find that Bnsson's semantics do not constitute objection-
able conduct and accordingly overrule Objection 2B
IV THE ALLEGED UNFAIR LABOR PRACTICES
Respondent contends that Brisson was discharged for
filing a false information and complaint charging its
president with a criminal assault and battery
The General Counsel argues that Respondent's stated
reason for discharge is pretextual and the real reason is
Bnsson's union activity
The determination must therefore rest upon Respond-
ent's motivation for the discharge and the causality test
of Wright Line, 251 NLRB 1083 (1980), applies The in-
quiry is twofold, first, whether protected activities
played a roll in the employer's decision (probative of
prohibited motivation) and second, whether Respond-
ent's asserted reason is sufficiently proven to be the
cause for its action so as to negate the presence of pro-
tected activity in the alleged discnminatee The General
Counsel must first establish a prima facie case of discrim-
ination and he must preponderate on the basis of all the
record evidence to prevail The discrediting of all or any
part of Respondent's evidence does not, without more,
constitute affirmative evidence capable of sustaining or
supporting the General Counsel's burden of proof
Here, the General Counsel must show that Bnsson en-
gaged in protected activity, the Respondent had knowl-
edge of Bnsson's protected activity, Respondent dis-
played animus against unions or Bnsson and that Re-
spondent's action against Bnsson was triggered by his
protected activity It is clear from the record evidence
that Brisson openly engaged in union activity from the
very start and that Respondent was aware of his union
sympathies early in the campaign It is equally as clear
that Respondent, through its president, Pfaff, harbored
animus for unions as displayed in his several postings and
mailings for employees during the union campaign In
addition, Pfaff singled out Bnsson as a ringleader of the
union forces Bnsson exercised his ringleader status
when, immediately following the tally of ballots on June
24 he engaged his supervisor, Jenkins, in a conversation
Bnsson related to company policies and employees'
rights receiving a negative response from Jenkins Bns-
son told Jenkins that union negotiations would result in
some policy changes initiated by himself as the union
representative
Jenkins reported the substance of his conversation
with Bnsson to Huneycutt and Pfaff Pfaff's consider-
ation of Jenkins' report focused on the premature nature
of any union representation at this time Pfaff and Hun-
eycutt asked themselves, why Bnsson asked the ques-
tions he did because there is no union yet Either Pfaff or
Huneycutt told the other, "Bnsson cannot represent the
Union because it is not here yet" Pfaff then decided that
Brisson needed to be counseled but not in the usual
manner of through a shop supervisor Instead, Pfaff
would counsel Bnsson Clearly, Pfaff was intent on de-
flating Brisson's expressed status as someone more than a
mere welder and with union sanction Huneycutt testi-
fied that Pfaff's meeting with Bnsson was partially set up
because reports of lost production due to discussions of
prohibited things on working time had surfaced There
was no substantial evidence offered to support the exist-
ence of such reports or that Bnsson was guilty of any
such infractions The evidence does show that Bnsson
was never disciplined for his work performances or for
any lost productivity Thus, the thrust of Pfaff s meeting
with Bnsson was the latter's union stance taken on June
24 It is clear from Huneycutt's testimony that he and
Pfaff anticipated that the confrontation with Bnsson
might produce an altercation It was decided that to pro-
tect Pfaff, both Huneycutt and Jenkins would position
themselves on either side with Bnsson somewhat cen-
tered in the small room Pfaff s denial that anyone antici-
pated Bnsson may become belligerent or that any atten-
tion was given to seating arrangements in the meeting I
do not credit I cannot conclude on this record that the
meeting was staged to incite Bnsson into conduct for
, which he could be discharged as contended by the Gen-
eral Counsel I can, however, conclude definitely that
the managers could reasonably expect Bnsson to react
negatively and possibly demonstratively displaying con-
duct for which he could be discharged
To facilitate the confrontation, Jenkins was ordered to
escort Bnsson to the shop office for the meeting Jenkins
denied making any statement to Bnsson as he accompa-
nied him to the office, however, he was well aware of
Pfaff's outrage at Bnsson's gall displayed the day before
Jenkins was also aware that Bnsson's temperament could
excite the confrontation with belligerent conduct It's
most plausible to me that the three managers speculated
on what Bnsson might do if provoked in the meeting,
even to the extent that he could be discharged for his
conduct Considering such a genesis for the circum-
stances, it is certainly within the realm of reason that
Jenkins made the statements attributed to him by Bns-
son Jenkins would logically have been in that frame of
mind and with Pfaff's prior support would have little dif-
ficulty injecting his personal appraisal of the situation I
credit Bnsson's testimony of the statements made and I
do not credit Jenkins' terse denials Jenkins was an on-
site supervisor with daily contact among the shop em-
ployees and admittedly he conversed daily with his em-
ployees, including his recent conversation with Bnsson
about negotiations and company policies His professed
silence as he led Bnsson to the chamber of management
runs counter to the weight of the record evidence Addi-
tionally, Jenkins' statements to Bnsson were in keeping
with the prior discussions of the three managers, i e,
Bnsson's job could be on the line Accordingly, I con-
clude and find that Jenkins, on June 25, threatened Bns-
son with the loss of his job and impliedly threatened
Bnsson with the loss of his wife's job also Both state-
ments are violative of Section 8(a)(1) of the Act and I so
find
As Pfaff testified, "It had gone as far as he intended to
let it go " "It," refers to Brisson's policy discussions with
Jenkins and references to union negotiations and union
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
negotiators Pfaff further declared that the meeting was
necessary to clear the air that the employees are sup-
posed to be working not involved in anything that de-
tracts from their output The only pollution of the shop
air was Bnsson's union talk with Jenkins the day before
Further, at the time of the occurrence, there was no
mention of or consideration of Bnsson's loss of output
for any reason
Undisputed facts, relative to the June 25 meeting,
show clearly that Pfaff cursed when talking to Brisson
and Bnsson responded saying, "Don't cuss me old man"
Pfaff replied, "I'll talk to you any damn way I please"
and to emphasize his point, stood up, walked toward
Bnsson and shook his finger in Brisson's face Pfaff then
informed Brisson that he was not a manager but rather
was only a welder and Pfaff did not want him to do any-
thing but weld Pfaff told Bnsson that he was to talk
only to Pfaff about policy matters and not to anyone
else Although, I cannot place the statement sequentially
within the conversations between Pfaff and Bnsson, suf-
fice it to say that Pfaff at one point in the discourse chal-
lenged Brisson with, "If you want to go after me, go
ahead" That Pfaff was angered over Brisson's stated
union status and his concern for policy matters is clear
It is equally as clear that Bnsson became angered at
Pfaff over the admonishments Their joint anger can
somewhat explain their difference of recall and the con-
fusion over any "touching" that may or may not have
taken place However, the issue of touching is not before
me for resolution Rather, it is the motivation of Re-
spondent in the subsequent discharge that is before me
for resolution
The record evidence relative to the General Counsel's
allegations that Pfaff, during the June 25 meeting, pro-
hibited Bnsson from talking about the Union with his
fellow employees or threatened Bnsson with unspecified
reprisals because of his union activities is too insubstan-
tial to be probative The record evidence does evince an
implied threat to Bnsson of denial of future promotion to
a management position Pfaff made it clear to Bnsson
that he was only a welder and that was all he would be
at Spartan Pfaff's remarks were precipitated by Brisson's
exercise of his rights to engage in union activity the day
before Thus, Pfaff's remarks would coerce or restrain
employees from engaging in union activity and therefore
are violative of the Act Accordingly, I conclude and
find that Pfaff did not prohibit Bnsson from talking
about the Union with his fellow employees or threaten
Bnsson with unspecified reprisals because of union ac-
tivities I do find that Pfaff threatened Bnsson with
denial of future promotions because of union activities
The General Counsel contends that Pfaff's admitted
statement prohibiting Bnsson from conversing about
policy matters with anyone but Pfaff himself are viola-
tions of the Act Although Pfaff's statements are founded
upon Brisson's union activity of the day before, as was
the entire substance of the meeting, the scope of the
General Counsel's complaint allegations is too narrow to
include the additional remarks I therefore do not find
Pfaff s policy statements to Brisson violative of the Act
As a result of his confrontation with management on
June 25, Brisson swore out a criminal complaint for as-
sault and battery against Pfaff Albeit a rumor that Bns-
son had filed on Pfaff circulated throughout the plant,
Pfaff was not officially served until July 17 Before the
case actually came to trial, Bnsson succeeded in having
the case voluntarily dismissed Almost immediately fol-
lowing the dismissal of the criminal complaint, Pfaff indi-
vidually decided to discharge Bnsson and did so Pfaff
terminated Bnsson because he had filed the assault and
battery charge which Pfaff felt was based upon a false
accusation
Contrary to Respondent's argument in brief, Bnsson,
during the exchange with Pfaff on July 23, did not admit
that Pfaff had not struck him during the meeting of June
25 Therefore, no factual basis exists for anyone to deter-
mine the falsity of the criminal charge Respondent spec-
ulates that the criminal justice system would absolve
Pfaff, however, without a trial, the truth or falsity of the
charge is indeterminant In my view, whether the charge
made by Bnsson is true or false is of no consequence
The protected activity of Bnsson on June 24 is inextrica-
bly intertwined in the flow of events Actions, and con-
duct of all the principals stemmed from the union-related
conversation Bnsson had with Jenkins That Bnsson's ac-
tivity that day is protected is not subject to conjecture
nor is it subject to conjecture that the Act's protection
continues within the extended time frame Thus, from
the confrontation on June 25 through the voluntary dis-
missal of the assault and battery charge on July 27, Bns-
son's actions fall under the protected mantle of the Act
The briefs showed a concern for the lapse of time
from July 17, the date of service of the criminal sum-
mons on Pfaff, to July 27, the actual date of discharge
The General Counsel contends that if Respondent meant
to discharge Bnsson for filing what it characterized as a
false charge, it should have done so on July 17 Other-
wise, the false charge basis is a pretext
Respondent argues that the delay is supported by
logic, i e, to wait until the criminal justice system has
had a chance to weigh the charges Respondent then ex-
plains its action of discharging Brisson after the court
dismissal on two stated grounds (1) If Bnsson believed
the charges had merit, he should have pressed the case
Respondent states that Bnsson's failure to prosecute
shows the charge to be false (2) Brisson failed to extract
some form of employment security as a quid pro quo for
his voluntary dismissal of the criminal charges Respond-
ent considers that Brisson could be discharged for having
filed the false charge without recourse from the criminal
justice system Both Respondent's argument and explana-
tion are based upon erroneous pyramided presumptions
and constitute a boot strap argument As such, they are
unavailing The criminal justice system did not weigh the
charges as suggested and neither the system's failure nor
Brisson's election to not prosecute are probative of a
false basis for the charge Therefore, Respondent cannot
rely upon its speculative conclusion that the charges
were false to discharge Brisson Assuming arguendo, that
the lack of sanctions from the criminal justice system of
North Carolina would support Respondent's use of the
filing of the charge to terminate Brisson, Respondent is
SPARTAN EQUIPMENT CO 29
not relieved of its obligations under the National Labor
Relations Act
The General Counsel has sustained his burden of prov-
ing a prima facie case of discrimination His evidence
shows unequivocally that Brisson engaged in protected
activity, that Respondent had knowledge of the activity,
that Respondent harbored animus against unions and par-
ticularly had animus against the ringleader Bnsson It
was Respondent's animus against Bnsson that forged the
chain of events culminating in the discharge In my
view, Bnsson was provoked by Pfaff at the June 25
meeting and the filing of the criminal charge against
Pfaff was the result of the provocation There is no evi-
dence to suggest that Bnsson was motivated by bad faith
in filing the charge I therefore conclude and find that
Bnsson acted in good faith when he filed the charge
Further, I conclude and find that Respondent's reliance
upon its claim of a false charge is a pretext and the real
reason for Bnsson's discharge was his protected activity
Additional support for my findings is Respondent's base-
less contention that the charge was false Respondent can
only rely on falsity of the charge if such a determination
was made by the state criminal justice system A volun-
tary dismissal of the charge does not equate to a false
filing
Accordingly, I conclude and find that Respondent's
discharge of Bnsson on July 27 was discriminatory and
violates Section 8(a)(1) and (3) of the Act
ADDITIONAL CONCLUSIONS OF LAW
1 Respondent, through General Service Manager Jen-
kins, threatened an employee with loss of employment
because of his union activities in violation of Section
8(a)(1) of the Act
2 Respondent, through President Pfaff, threatened an
employee with future denial of promotions because of his
union activities in violation of Section 8(a)(1) of the Act
3 Respondent discriminatorily discharged Josh Bnsson
on July 27, 1987, in violation of Section 8(a)(1) and (3) of
the Act
4 Since June 24, the date of the tally of ballots, the
Union has been the exclusive representative of Respond-
ent's employees by virtue of Section 9(a) of the Act
5 The appropriate unit is
All service and maintenance employees, including
field and shop mechanics, welders, painters, utility
workers and drivers employed by the Employer at
its facilities located in Charlotte, North Carolina,
Greenville, North Carolina, and Charleston, South
Carolina, excluding all parts employees, guards,
office clericals, professionals, and supervisors as de-
fined in the Act
6 The General Counsel has not sustained his burden
of proof for paragraphs 8(b) and (c) of the complaint
7 The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act
Having discriminatorily discharged Josh Bnsson, its
employee, Respondent must offer him full reinstatement
to his former position, or, if that position no longer
exists, to a substantially equivalent position, with back-
pay computed on a quarterly basis and interest thereon
to be computed in the manner prescribed in F W Wool-
worth Go, 90 NLRB 289 (1950), and New Horizons for the
Retarded, 283 NLRB 1173 (1987), 4 from July 27, 1987,
the date of discharge, to the date of proper offer of rein-
statement
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 5
ORDER
The Respondent, Spartan Equipment Company, Inc ,
Charlotte, North Carolina, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Threatening employees with loss of employment or
loss of future promotions for having engaged in union
activities
(b) Discharging employees for having engaged in
union activities
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Josh Bnsson immediate and full reinstatement
to the job from which he was discharged on July 27,
1987, or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
earnings he lost, plus interest, as outlined in the remedy
section of this decision
(b) Remove from its files any references to the dis-
charge of Josh Bnsson on July 27, 1987, and notify him
in writing that this has been done and that evidence of
this unlawful discharge will not be used as a basis for
future personnel action against him
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
4 Under New Horizons, Interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621
5 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) Post at its facilities in Charlotte and Greenville,
North Carolina, and Charleston, South Carolina, copies
of the attached notice marked "Appendix " 6 Copies of
the notice, on forms provided by the Regional Director
for Region 11, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found
IT IS FURTHER ORDERED that the objections to the
election be overruled in their entirety and that Case 11-
RC-5420 be severed and remanded to the Regional Di-
rector of Region 11 for Certification of Representative
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading ' Posted by Order of the Nation
al 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
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these nghts
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT threaten employees with loss of jobs or
loss of promotions for exercising their nghts under the
Act
WE WILL NOT discharge employees for exercising their
rights under the Act
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Josh Bnsson immediate and full rein-
statement to the job from which he was discharged on
July 27, 1987, or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or other rights and privileges, and WE WILL make
him whole for any loss of earnings and other benefits re-
sulting from his discharge less any net interim earnings,
plus interest
WE WILL notify Josh Brisson that we have removed
from our files any reference to his discharge and that the
discharge will not be used against him in any way
SPARTAN EQUIPMENT COMPANY, INC