Superior Coach Corp.

National Labor Relations Board - Board Decisions

Apr 2, 1969

175 N.L.R.B. 200 (N.L.R.B. 1969)

200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superior Coach Corporation , Southern Division and
United Steelworkers of America , AFL-CIO. Case
26-CA-3027
April 2, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, ANDZAGORIA
On September 20, 1968, Trial Examiner Abraham
H. Mailer issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also dismissed the complaint insofar as it alleged
that the Respondent by the conduct of its
supervisors Adams, Bennett, and McAdams violated
Section 8(a)(1) of the Act. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and the General Counsel filed
cross-exceptions with an accompanying brief.
Thereupon, the Respondent and the Charging Party
filed a joint motion by which the Respondent moved
to withdraw its exceptions except those pertaining to
the recommended Notice, and both parties moved
that the Trial Examiner's Recommended Order be
issued, but without provision for the posting of a
notice Thereafter, the General Counsel filed
opposition to the joint motion and urged that the
Board require that the notice be posted. Thereupon,
the Respondent filed a reply to General Counsel's
opposition
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, the
joint motion of the Respondent and the Charging
Party, the General Counsel's opposition to Joint
Motion to Modify Order, the Respondent's Reply to
General Counsel's Opposition to Joint Motion to
Modify Order, and the entire record in the case and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the
following modification '
in the absence of exceptions thereto, we adopt, pro forma, the Trial
Examiner's findings and recommendations as to the violation of Sec
8(a)(I) concerning Supervisor Faulkner, the violation of Sec 8(a)(3)
concerning employee Wood, and the dismissal of the complaint concerning
Supervisors Adams and McAdams In our opinion it is unnecessary for us
to pass upon the General Counsel's exceptions concerning Supervisor
Bennett since our Order would not be materially changed regardless of our
holding The joint motion of the Respondent and Charging Party is
granted except as to the request that we issue our Order without provision
We agree with the General Counsel that the
policies of the Act will best be effectuated if the
notice which the Respondent is required to sign and
post, and which informs the employees of their
rights, how those rights are violated, and by what
process they have been upheld, is expressed in
simple and readily understandable language as set
forth in the attached appendix.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Superior Coach
Corporation, Southern Division, Kosciusko,
Mississippi, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified-
Substitute the appendix attached hereto for the
appendix set forth in the Trial Examiner's Decision.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the law and has ordered
us to post this notice and to keep our word about what we
say in the notice
WE WILL NOT fire you because you join a union or
favor a union. Since the Board found that we violated
the law when we fired Jon Wood we have offered him
his old job back and have offered him backpay
WE WILL NOT ask you if you are a member of a
union or if you take part in union activities or what
your feelings are about any union.
You are all free to become or remain members of the
Steelworkers' Union or any other union, if you want to,
and we won't punish you in any way if you do
SUPERIOR COACH
CORPORATION, SOUTHERN
DivisION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
for the posting of the notice The bases of the joint motion are that the
Respondent has offered the discrimmatee full reinstatement with backpay
and that the Respondent and Charging Party have entered into a 3 year
collective-bargaining agreement Nevertheless , requiring the notice to be
posted has a preventive as well as a remedial effect The notice is an
effective means by which to advise the Respondent 's employees that their
rights will not be disregarded
175 NLRB No 32
SUPERIOR COACH CORP.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-3161.
TRIAL EXAMINER'S DECISION
ABRAHAM H MALLER, Trial Examiner: On March 6,
1968, United Steelworkers of America, AFL-CIO, herein
called the Union, filed a charge against Superior Coach
Corporation, Southern Division, herein called the
Respondent. Upon said charge, the Regional Director for
Region 26 of the National Labor Relations Board, herein
called the Board, on April 9, 1968, issued on behalf of the
General Counsel, a complaint against the Respondent,
alleging violations of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (29 U S.C
Sec. 151, et seq ), herein called the Act. Briefly, the
complaint alleged that the Respondent had interfered
with, restrained, and coerced its employees by
interrogation and threats, in violation of Section 8(a)(1)
and (3) of the Act, and had discharged Jon R. Wood' in
violation of Section 8(a)(3) and (1) of the Act In its duly
filed answer, Respondent denied the commission of any
unfair labor practice.
Pursuant to notice, hearing was held before me at
Kosciusko, Mississippi, on June 27 and 28, 1968. The
General Counsel, the Respondent, and the Charging Party
were represented and were afforded full opportunity to be
heard, to introduce relevant evidence, to present oral
argument and to file briefs with me Briefs were filed by
all parties
Upon consideration of the entire record and the briefs,
and upon my observation of each of the witnesses, I make
the following.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times material
herein, an Ohio corporation and has a place of business
located in Kosciusko, Mississippi, where it is engaged in
the manufacture of school buses and funeral car bodies
During the past 12 months, Respondent, in the course and
conduct of its business operations at its Kosciusko,
Mississippi, location, purchased and received goods and
products valued in excess of $50,000 directly from points
outside the State of Mississippi, and during the same
period, Respondent sold and shipped goods and materials
valued in excess of $50,000 directly to points outside the
State of Mississippi. Accordingly, I find and conclude that
the Respondent is engaged in commerce within the
meaning of the Act and that it will effectuate the policies
of the Act for the Board to assert jurisdiction here.
It THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO , is a labor
organization within the meaning of Section 2(5) of the Act.
in his brief, counsel for the General Counsel points out that the
transcript incorrectly reflects Wood 's given name as "John," instead of the
correct spelling "Jon," and moves that the record be corrected in this
respect No opposition to the foregoing motion has been received
Accordingly , it is hereby ordered that the transcript of the record be and it
is hereby corrected in this respect
III THE ISSUES
201
I Whether Respondent interfered with , restrained, and
coerced its employees in violation of Section 8(a)(1) of the
Act
2 Whether the Respondent discharged Jon R Wood
because of his membership in and activities on behalf of
the Union, in violation of Section 8(a)(3) and (I) of the
Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interrogation
1. By Supervisor Bill Adams
According to the uncontradicted testimony of employee
Freeman Watkins , he had a conversation in the early part
of January 19682 with Supervisor Bill Adams near the new
paint shop ' Supervisor Adams told Watkins that he had
heard that some of the boys were trying to get up a union'
Watkins replied that he had not heard anything about it
and did not know anything about it. The conversation
thereupon ended.
Counsel for the General Counsel argues that Adams'
statement that he heard that some of the employees were
trying to get a union was , in effect, an inquiry designed to
elicit information from Watkins . In support of this
contention , counsel for the General Counsel relies upon 0
A Fuller Super Markets, Inc , 152 NLRB 217,
enforcement denied 374 F.2d 197 (C A. 5), where the
following occurred : A supervisor approached an employee
and said to him , " I see you signed the card , the Union
card " After receiving an affirmative answer, the'
supervisor added , " I wonder who started it' " In'
evaluating the latter statement , the Board said at p 218:
We do not believe . that in making this statement
[the supervisor ] was talking to himself , and that
neither he nor . [the employee ] expected a reply A
more likely evaluation of the conversation is that in
"wondering" out loud about the union leadership,
[the supervisor ] was probing for the names of the
leaders.
Obviously , Supervisor Adams' statement in the instant
case cannot be so evaluated Standing alone, it was an
innocuous question which could be answered in the
negative, as it was, thus ending the conversation.
Particularly is this true as there is no showing that
Supervisor Adams knew whether Watkins was a union
member and thereby in a position to disclose who the
union organizers were. At most, it was an opening gambit
which might have been followed by a direct inquiry as to
what Watkins knew, if he answered the question in the
affirmative But this is speculative. In sum , Supervisor
Adams' statement cannot be construed as interrogation
either as to Watkins ' membership in the Union or as to
the identity of union members or organizers The
complaint should therefore be dismissed in this regard.
'All events in the instant case occurred during 1968
'Supervisor Adams was not called as a witness
'The Union's organizing campaign apparently began in January 1968
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By Supervisor Faulkner
In the latter part of January, employee James E.
McGivney and Supervisor Faulkner were riding toward a
tavern in another county According to McGivney, while
they were in the car Supervisor Faulkner asked McGivney
whether he had heard about some union cards being
passed. McGivney replied that he had Faulkner then
asked him whether he had signed a card McGivney
replied, saying that he had, but that there was no need to
ask him other questions because he did not intend to tell
any more
Supervisor Faulkner disputed McGivney's version.
According to Supervisor Faulkner, McGivney asked him
"if he knew there was any union activity going around."
Faulkner replied that he did not know about it and added
that he did not want to know how McGivney felt about it.
I credit the testimony of McGivney. The foregoing
incident occurred prior to February 1, on which date the
Union notified the Respondent that McGivney, among
others, was a member of the organizing committee. It is
extremely unlikely that McGivney, as an employee, would
broach the subject of the Union' s organizing activity to a
supervisor and thereby open the door to a possible
probing as to the extent of the union activity and the
identity of its proponents. Moreover, Faulkner's testimony
that he stated that he did not know anything about the
Union does not square with the activities of other foremen
who both before and after the foregoing incident engaged
in a concerted campaign of speaking to individual
employees about the Union, even to the extent of visiting
employees at their homes. The coercive effect of
Faulkner's inquiry is demonstrated by the fact that,
although McGivney answered the question, he told
Faulkner that there was no need to ask him any other
questions because he did not intend to tell anymore.
Accordingly, I find and conclude that by the foregoing
conduct of Supervisor Faulkner, Respondent violated
Section 8(a)(1) of the Act.
3. By Supervisor Woodrow Bennett
On February 4, Supervisor Woodrow Bennett went to
the home of employee Danny Doty. After some general
conversation, Supervisor Bennett asked Doty whether he
had heard about the Union trying to get in at the
Respondent's plant. Doty replied that he had. Bennett
then told him that "all the foremen are going around to
the men in their department and talking to them about
this union out there." Bennett added, "I am against it and
the Company is against it." Bennett then asked Doty how
he "felt about it," and Doty replied that he was well
satisfied with his lobs The conversation ended with Doty's
request that he be transferred from the evening shift and
his expressed desire for an overhead light where he was
working.
Supervisor Bennett also called upon employee Willie C.
Harris during the first week of February. Supervisor
Bennett asked Harris if he had heard anything about the
Union and added that all of the foremen were coming
around to the men that were working under them to talk
to them about the Union. Harris replied that he "hadn't
heard but a little about it." Bennett then told Harris that
'It is apparent from Doty's reply that he interpreted Bennett's question
how he "felt about it," as referring to Doty's feeling about the
Respondent , rather than the Union This is confirmed by Doty' s answer to
that effect on cross-examination
he wanted him to know that he was against it and that the
Company was against it. Harris then volunteered that he
was against it too, and that he liked his job. Bennett then
said "Well, that's the way to show how much you like
your job by voting for the Company."
Later the same week, Supervisor Bennett came to
where Harris and Doty were standing in the plant near a
heater. They were talking about a jig that had injured
another employee. Bennett joined the conversation and
stated that the dig in question was one of the few machines
or jigs that the Respondent owned. He added that Kaiser
Jeep had approximately half a million dollars invested in
jigs and equipment at Respondent's plant. Doty thereupon
told Bennett that he had heard somebody say something
about Kaiser being about to award another contract to the
Respondent to build some more parts and jeeps. Bennett
replied, "Yes, that's right. They are, but I wouldn't be a
bit surprised if they waited until after this election before
they decide to award anybody a contract." Bennett added
that it would not take them but a little while to move
what equipment they had back up north; that they would
be a fool to pay union wages here when they can have it
built up there for the same price. Doty replied, "Well, I
never thought about it that way." To this Bennett
rejoined, "Well, it is something to think about."`
Upon analysis of the foregoing, I find and conclude
that Supervisor Bennett did not interrogate employees
Doty and Harris when he visited their homes, in violation
of Section 8(a)(1) of the Act. The only question put to
each of them, viz, whether they had heard about the
Union was not, as I have held above, an inquiry into the
union membership and/or activities of these employees,
nor was it an attempt to find out the identity of the union
organizers As the conversations with these two employees
developed, it was merely a prelude to Bennett's informing
these employees of his attitude and that of Respondent
toward the Union. As such, it was protected by the free
speech provisions of Section 8(c) of the Act.
Nor was Supervisor Bennett's statement to employees
Doty and Harris that Kaiser might not renew its contract
with the Respondent if the Union won an election
violative of the Act. The Board has repeatedly held that
predictions of possible loss of business, not through any
action on the part of the employer, but because of
withdrawal of business by a customer which could occur
in the event of unionization "does not expressly or
impliedly threaten that the Respondent will take action
inevitably leading to job loss and reprisal for the
employees' union activity" (Foremex Company, 160
NLRB 835, 838) See also, Mayfair Midwest, Inc., 148
NLRB 1602, 1603; Steward Hog Ring Company, Inc.,
131 NLRB 310, 338; Super Sagless Spring Corporation,
125 NLRB 1214, 1215, Neco Electrical Products
Corporation, 124 NLRB 481, 482. Accordingly, I find and
conclude that the complaint should be dismissed insofar as
it alleges that the Respondent through the conduct of
Supervisor Bennett violated Section 8(a)(1) of the Act.
4 By Supervisor Walter McAdams
During approximately the same period of time,
Supervisor Walter McAdams visited the home of James
McGivney and his son-in-law, Jon Wood, both employees
of the Respondent. Supervisor McAdams told McGivney
`The foregoing is the credited testimony of Doty which was partially
corroborated by Harris Supervisor Bennett denied that anything was said
about a Kaiser contract I do not credit his denial
SUPERIOR COACH CORP. 203
that he "guessed that I knew that he was there for" and
that he was looking for Wood. McGivney answered that
McAdams knew where he stood because his name had
been sent in to the Respondent as a member of the
Union's organizing committee. During the conversation
employee Wood arrived. McAdams told Wood that he
had come to see if he could get him to vote against the
Union, and Wood replied that he had not made up his
mind. McAdams added that "he was trying to get the
boys to vote against the Union, that's what they were
going around for." McAdams terminated the visit by
stating that he had some more stops to make.
It is apparent from the foregoing recital which is based
upon the uncontradicted testimony of McGivney and
Wood' that neither was coercively interrogated by
McAdams. Both McGivney and Wood volunteered the
information as to how they stood about the Union. The
obvious purpose of the visit, as in the case of Supervisor
Bennett's visits to Doty and Harris, was to attempt to
persuade Wood to vote against the Union. As such,
McAdams' remarks were protected by the free speech
provisions of Section 8(c) of the Act. Accordingly, the
complaint should be dismissed insofar as it alleges that the
Respondent by the conduct of Supervisor McAdams
violated Section 8(a)(1) of the Act.
B. The Discharge of Jon Wood
Respondent's plant is relatively large and is spread out.
It is completely fenced in in those areas where the
building do not form a part of the perimeter of the plant
area. There are several gates to the plant. The main gate
is located on Business Route 12 and consists of a
vehicular gate and a personnel gate. The clock alley where
the employees clock in and out is immediately adjacent to
the main gate. At this gate there is also a guard house
where a guard is stationed. There are several other gates
to the plant area, including one at the northeast corner,
through which runs a railroad siding. Normally, all gates,
except the main gate, are kept locked when not in use,
and the gates are locked at night.
Jon Wood was hired on January 18 and worked on the
school bus line. After approximately 4 weeks, he was
transferred to the Army ambulance line on paint touchup.
Although the base rates of pay in both departments were
the same, there was a difference in the piece rates; the
ambulance rate was 25 cents per job higher.
About 2 1 /2 weeks after he started to work at
Respondent's plant, Wood began soliciting signatures on
union cards and got about 20 to 25 cards signed. He also
attended union meetings, usually one per week, together
with other employees of the Respondent. By letter dated
February 15, the Union notified the Respondent that
Wood was a member of the organizing committee. In
addition to the foregoing activities, Wood on two
occasions gave out handbills at the intersection of the
highway and drive leading to the plant. One of these
occurred about 3 weeks before his discharge, and the
other 2 weeks before he was terminated.
When Wood first came to work for the Respondent, he
lived in Singleton, Mississippi, approximately 10 miles
from the plant, and rode to work with others because he
did not have an automobile. On February 25, Wood
moved to an apartment in Kosciusko, about 200 to 300
yards from the railroad gate of the Respondent's plant.
When he rented the apartment, the landlady told Wood
'Supervisor McAdams did not testify.
that a former tenant had used the back entrance to the
plant. Use of the railroad entrance represented a
timesaving to Wood. Walking outside the fenced area to
the front gate and clock alley involved a distance of
approximately a mile. By entering through the railroad
gate, Wood walked a distance of 200 to 300 yards from
his apartment to the gate, and thereafter through the plant
area approximately 500 yards to the clock alley.
There were no plant rules known to Wood which
prohibited his entering through the railroad gate. He was
never given any printed rules, he never saw any, and was
never told of any. There were no signs at the railroad gate
prohibiting employees from using it. Personnel Manager
Hardison admitted that there was no written rule
requiring employees to use only the clock alley gate." On
each occasion that Wood used the railroad gate, he found
it unlocked.
At lunch one day, Wood mentioned to several of the
employees with whom he was eating that he was using the
railroad gate for ingress and egress. One of these
employees, Colon Belk, reported Wood's statement to
Personnel Manager Hardison. On March 5, Hardison
requested Assistant Superintendent Bailey to have several
foremen assigned to various posts to keep the railroad
gate under surveillance the following morning in order to
catch whoever came in through that gate.
At about 6:40 a.m. on March 6, Wood entered the
plant area through the railroad gate to go to work. As he
entered, he heard someone call his name and turned to see
Assistant Superintendent Bailey emerging from behind
some barrels. Bailey asked Wood, "What in hell do you
mean coming through the gate?" Wood answered that he
was going to go to work and asked if he was not supposed
to use the gate. Bailey replied that they would discuss it in
the office. At about that time Personnel Manager
Hardison got off of one of the Army buses parked there,
and the three men proceeded to the office. There,
Personnel Manager Hardison told Wood that he had
made an unauthorized entry into the plant and that he
could call the police and have him arrested. Wood replied
that he was not aware that he was not supposed to come
through the gate, that the gate was unlocked, and there
was not any sign on it. Hardison said that there had been
quite a few thefts at the plant.' Wood replied that he had
not stolen anything and that Hardison was welcome to
search his apartment. Hardison replied that he was not
insinuating that Wood had stolen anything. Hardison also
told Wood that he could not complain about his work or
his attitude. Hardison said that he had but one
alternative and that was to fire him. Wood asked
Hardison if there was any way that he could keep his job,
and Hardison replied in the negative. At this point, Wood
asked if he could talk to Hardison alone, and Bailey left
the office. According to Wood, he asked if the reason he
was being fired was because he was on the organizing
committee. Hardison refused to talk about it and stated
that every time he fired someone they wanted to blame it
'There appears to be a conflict between Respondent's witnesses on this
point . Assistant Plant Superintendent Dallas Bailey stated that such a rule
had been posted on the bulletin board I do not credit Bailey's testimony
Respondent did not produce any written rule on this subject
'Early in 1968, Respondent had been experiencing a theft problem,
involving such items as spare wheels, tires , batteries , hydraulic jacks, and
starters, which were taken from completed buses and chassis that were
parked within the plant area . On January 25, Respondent instituted a
system of surveillance by which a designed person made the round of the
chassis yard every hour In addition , a person sat in a parked bus outside
the gate at 11 45 p in when the midnight shift left work, and at l•45 a.m.
when the pressroom shift was working 10 hours These persons sat in the
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the Union 10 Wood had McGivney's lunch bag with
him and asked Hardison if he could give it to him
Hardison replied in the negative and stated that he would
get it to McGivney. Wood thereupon left the plant.
Concluding Findings
It is undisputed that Wood was an active union
adherent and that the Respondent was aware of the fact
that he was a member of the Union's organizing
committee it is also clear from the activities and
statements of the foremen to the employees that the
Respondent was opposed to the Union Respondent
concedes that employee Belk informed Personnel Manager
Hardison that Wood was using the railroad gate for
ingress and egress. The stakeout followed immediately
thereafter, and was for the obvious purpose of catching
Wood in the act of entering the plant area. Respondent's
evidence to the effect that a number of thefts had occurred
in the plant area is nothing more than an attempt to
muddy the waters and to ascribe an unrealistic motive for
the stakeout. The attempt must be rejected. Theft does
not occur on entrance into a plant area
Respondent next attempts to justify Wood's discharge
by labelling his use of the railroad gate as an unauthorized
and illegal entry. This attempt must likewise be rejected.
There were, admittedly, no published plant rules
prohibiting employees from entering through the railroad
gate Nor was there any sign at the railroad gate
prohibiting its use by employees. Finally, had it been the
intention of the Respondent to prevent employees from
using that gate, it would have been much simpler to have
locked the gate, instead of setting up a stakeout to catch a
known employee-organizer in the act of using the gate
Respondent argues that it could lawfully discharge
Wood "for good cause, or bad cause, or no cause at all"
(N L R B v. McGahey, 233 F.2d 406, 413 (C.A. 5)). But
the foregoing does not apply when it must be concluded
under all the circumstances that the discharge was
discriminately motivated And the circumstances detailed
above compel me to find and conclude that Wood was
discharged because of his union activity and that the
reason advanced by the Respondent was pretextual. First,
Wood was a satisfactory employee, having been
transferred to a higher paying job. "The discharge of
qualified workers who are also active unionists . . . is a
circumstance of suspicion which may give rise to a
justified inference of violative discrimination ." (Betts
Baking Co v. N L R. B., 380 F 2d 199, 204 (C.A. 10),
enfg. 155 NLRB 1313). Second, Wood was admittedly
discharged without preliminary warning. While there is no
requirement in the Act that an employer is bound to warn
an employee of impending dismissal, "[s]uch action on the
part of an employer is not natural" (E. Anthony & Sons
v. N L.R B., 163 F.2d 22, 26 (C.A.D C.)). See also,
Downtown Sales, Inc, 170 NLRB No. 23; Marshall
Maintenance Corp., 145 NLRB 538, 545-546, Harvey
Aluminum (Incorporated), 147 NLRB 1287, 1293;
Dunclick, Inc , 159 NLRB 10, 16. "From this failure to
issue a warning it can be inferred that the reason
propounded . [the employer] was not the activating
factor and further that . . [the employer's] activity was
bus until the last shift had left the plant The foregoing system was
continued for 3 days , then dropped to once a week it was discontinued
around the first of May
"According to Hardison, Wood offered to "help you out with this union
business if you let me keep my job" It is unnecessary to resolve this
conflict
motivated by a desire to discourage the union" (N.L.R.B
v Melrose Processing Co., 351 F.2d 693, 699 (C A. 8). A
third factor is the severity of the penalty imposed, viz,
discharge Considering the fact that there was no
published rule against using the railroad gate or requiring
the employees to use the gate where the clock alley was
located, it is apparent that there was no justification for
imposing the ultimate penalty for what was not even an
offense under Respondent's rules. Cf N L.R.B. v. The
Visador Co, 387 F.2d 368 (C.A. 4), enfg 162 NLRB
No. 100, Bonnar-Vawter, Inc, 129 NLRB 127, 143-144,
enfd 289 F.2d 133 (C.A. 1). Fourth, the timing of Wood's
discharge and the method used to catch him using the
"wrong" gate also supports the conclusion that he was
fired in violation of the Act. The stakeout was arranged
immediately after Plant Manager Hardison had been
informed by employee Belk that Wood was using the
railroad gate. In this connection, it may be noted that the
Respondent did not arrange a stakeout when Wood was
leaving the plant area in the hopes of catching him with
Company property. "Obviously the discharge of a leading
union advocate is a most effective method of undermining
a union organizational effort." (N L.R.B. v. Longhorn
Transfer Service, Inc, 346 F 2d 1003, 1006 (C.A. 5).)
Finally, it is important to note that the Respondent did
not want this union advocate on its premises and ordered
him to leave as soon as he was discharged, even to point
of not permitting him to deliver to McGivney, his
father-in-law, the latter's lunch bag. The use of an unusual
method of discharging an employee is a circumstance
which may be weighed in determining whether the
discharge was discriminatory Downtown Sales, Inc.,
supra; Gerhard Landgraf, et al., 167 NLRB No 44, Lee
Cylinder Division of Golay & Co, Inc, 156 NLRB 1252,
1281, enfd as modified 371 F.2d 259 (C.A. 7)
The Respondent argues that the conclusion that Wood
was discharged in violation of the Act is negated by the
fact that he was but one of 500 employees and that other
union advocates were not discharged. A similar contention
was rejected by the Court of Appeals for the Sixth Circuit
in N L R B. v Challenge-Cook Brothers of Ohio, Inc.,
374 F.2d 147, 152, where the court said
However, the mere fact that all union members or
supporters are not discharged, does not disprove the
fact that an employee's discharge is based upon an
unlawful discriminatory motive. Nachman Corporation
v. N L.R.B, 337 F.2d 421 (C A. 7).
See also, NL.R B v W C Nabors Co., 196 F.2d 272,
276 (C.A. 5).
Accordingly, I find and conclude that Respondent
discharged Jon Wood in violation of Section 8(a)(3) of the
Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent, set forth in section
IV, above, occurring in connection with the operations of
the Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
SUPERIOR COACH CORP. 205
IV. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, I shall recommend that it cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent discharged Jon
Wood because of his union membership and activity, I
shall recommend that the Respondent be required to offer
him immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority or other rights, dismissing if necessary any
employees hired after his discharge. Respondent should
also be required to make him whole for any loss of
earnings he may have suffered because of its
discrimination against him, with backpay computed in the
customary manner."
I shall further recommend that the Board order
Respondent to preserve and, upon request, make available
to the Board or its agents, payroll and other records to
facilitate the computation of the backpay due and the
right of employment.
As the unfair labor practices committed by the
Respondent are of character striking at the root of
employee rights safeguarded by the Act, I shall
recommend that it cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the
Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the case,
I recommend that the Respondent, its officers, agents,
successors, and assigns, shall:
I Cease and desist from:
(a) Interrogating employees concerning their
membership and/or interest in United Steelworkers of
America, AFL-CIO, or any other labor organization of its
employees, in a manner constituting interference, restraint,
or coercion within the meaning of Section 8(a)(1) of the
Act.
(b) Discouraging membership in United Steelworkers of
America, AFL-CIO, or any other labor organization of its
employees by discharging or in any other manner
discriminating against employees in regard to hire and
tenure of employment or any term or condition of
employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization, to form, join, or assist any labor
organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Offer to Jon Wood, immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, dismissing if necessary any employees hired
subsequent to his discharge, and make him whole for any
loss he may have suffered as a result of Respondent's
discrimination against him in the manner set forth in the
section of this Decision entitled "The Remedy "
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records necessary for the determination of the amount of
backpay due.
(c) Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces
(d) Post at its Kosciusko, Mississippi, plant copies of
the attached notice marked "Appendix "" : [Board's
Appendix substituted for Trial Examiner's] Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and
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.
(e) Notify the Regional Director, in wnting, within 20
days from the receipt of this Decision, what steps
Respondent has taken to comply herewith."
"F W Woolworth Company , 90 NLRB 289, Isis Plumbing & Heating
Co, 138 NLRB 716
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order," shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board's Order is enforced by a Decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 26 , in wnting, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "