Thermo King Corp.

National Labor Relations Board - Board Decisions

Jan 16, 1980

247 N.L.R.B. 296 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thermo King Corporation' and International Union
of Electrical, Radio & Machine Workers, AFL-
CIO-CLC. Cases 10-CA-13049, 10-CA-13350,
and 10-RC-11090
January 16, 1980
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On June 27, 1979, Administrative Law Judge Phil
W. Saunders issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions, and Respondent filed cross-exceptions and
a brief in answer to the Charging Party's exceptions.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.4
ORDER
Pursuant to Section 10(c) of the National Relations
Act, as amended, the National Labor Relations Board
adopts as its Order the recommended Order of the
Administrative Law Judge and hereby orders that the
Respondent, Thermo King Corporation, Louisville,
Georgia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for International Union of
Electrical, Radio & Machine Workers, AFL-CIO-
CLC, and that said labor organization is not the
exclusive representative of all the employees, in the
unit herein involved, within the meaning of Section
9(a) of the National Labor Relations Act, as amended.
MEMBER JENKINS, concurring in part and dissenting
in part:
I join Chairman Fanning in adopting the Adminis-
trative Law Judge's finding that Respondent violated
Section 8(a)(l) of the Act when Foreman Joe Walden
247 NLRB No. 48
told employee Robert Wright that he would be cutting
his throat if he voted for the Union. Unlike my
colleagues, however, I find that this substantive
violation justifies invalidating the election and direct-
ing a second election. See my dissenting opinion in
Caron International, Inc., 246 NLRB No. 179 (1979).
The name of Respondent appears as amended at the hearing.
: On September 10, 1979, the Associate Executive Secretary notified the
Charging Party that its brief in support of exceptions was untimely filed and
would not be considered by the Board.
On October 3, 1979, the Charging Party filed a motion for special leave to
file an answering brief to Respondent's cross-exceptions and a brief captioned
"Petitioner-Charging-Party Response to Respondent's Cross-Exceptions."
Respondent filed a letter in opposition to the Charging Party's motion. The
Charging Party's brief is accepted for the limited purpose of answering the
questions raised in Respondent's cross-exceptions; such brief has not been
considered, however, insofar as it exceeds the scope of Respondent's cross-
exceptions. Consistent therewith, the Charging Party's motion is granted in
part, and denied in part. See Sec. 102.46(f)(1) of the National Labor Relations
Board Rules and Regulations, Series 8, as amended.
' The Charging Party and Respondent have excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
' Chairman Fanning and Member Jenkins agree with the Administrative
Law Judge's finding that Respondent violated Sec. 8(a)(1) of the Act when
Foreman Joe Walden told employee Robert Wright that he would be cutting
his throat if he voted for the Union.
Chairman Fanning agrees with the Administrative Law Judge that this
single violation of the Act is insufficient to warrant an inference that it
affected the election results. See Caron International, Inc.. 246 NLRB No. 179
(1979).
Member Penello does not adopt the Administrative Law Judge's finding
that Respondent committed a "serious violation of the Act" when Foreman
Walden said to employee Wright, "Well, you vote for the Union, you pay
union dues, and if you vote for the Union you will be cutting your own
throat." Member Penello emphasizes that this single statement to one
employee was the only violation that the Administrative Law Judge found
that Respondent had committed during the entire election campaign involving
a unit of over 500 employees. [i Member Penello's view, while the conduct in
question may have been in contravention of the statute as interpreted by this
Board, it was, in the total circumstances of this case, so isolated and
insignificant that he would not utilize it as a basis for finding a violation,
issuing a remedial order, or directing a second election. Accordingly, Member
Penello joins Chairman Fanning in certifying the results of the election, and
would, in addition, dismiss the complaint in its entirety.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with eco-
nomic and other reprisals if they vote or voted for
the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act, as
amended.
THERMO KING CORPORATION
296
THERMO KING CORPORATION
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Administrative Judge: Based on
charges filed by International Union of Electrical, Radio &
Machine Workers, AFL-CIO, herein called the Union or
the Charging Party, complaints were issued against Thermo
King Corporation and herein called the Company or
Respondent, alleging violations of Section 8(a)(l) and 8(a)(3)
of the National Labor Relations Act, as amended. Respon-
dent filed an answer to the complaint denying it had engaged
in the alleged conduct. All the parties filed briefs in this
matter.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation with an office and
place of business located in Louisville, Georgia, where it is
engaged in the manufacture of transport coolers. During the
past calendar year, which period is representative of all times
material herein, Respondent sold and shipped finished
products valued in excess of $50,000 directly to customers
located outside the State of Georgia. I find and conclude, as
alleged in the Complaint and admitted by Respondent, that
at all times material herein Respondent was and is and
employer as defined in Section 2(2) of the Act, engaged in
commerce as defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
All of the procedural aspects, developments, and dates
relating to these cases are outlined in the formal files
introduced as General Counsel's Exhibit 1, and need not be
set forth or repeated here. It is sufficient to note for our
purposes that on July 21, 1977, an election, which had been
petitioned for by the Union on May 6, 1977, was conducted
by the Board's Regional Office and the Company won the
election-210 votes were cast for and 342 votes against, the
Union. On July 28, 1977, the Union filed objections, and on
December 29, 1977, the Regional Director issued a Report
on Objections in Case 10-RC-11090. In this report several
objections were overruled, and the remaining objections are
encompassed within the allegations of the instant com-
plaints.'
I At all times material to this case, the following persons held the positions
following their names and were, and are, supervisors of Respondent within the
meaning of the Act: Roy Hayes-plant manager, Dave Hudson-personnel
relations manager, Steve Yonchak-general foreman, Willie Tarver-fore-
man, Joe Walden-foreman, and Billy Godowns-foreman.
It is alleged that Respondent, by its personnel relations
manager, Dave Hudson, and by Foreman Willie Tarver, on
or about May 26, 1977, threatened its employees with
discharge if they attended a Board hearing (on the RC
petition). The testimony elicited during the hearing before
me reveals that only one employee, W. R. Thompson, the
only 8(a)(3) discriminatee involved in this proceeding, was
alleged to have been threatened with discharge. However, it
is Respondent's contention that on the occasion in question
Thompson was not threatened with discharge, but rather
was permitted a day's absence with no disciplinary penalty.
Thompson testified that on or about May 25, 1977 (a
Wednesday), he asked Foreman Willie Tarver if he could be
off from work to attend the NLRB hearing on Friday, May
27. Thompson stated that Foreman Tarver then informed
him that he (Thompson) has missed 55 days of work and
that the next time Thompson missed a day of work he would
be terminated.
Earlier in the week Thompson had received a subpena to
appear at the Board RC hearing, but admitted he did not
mention or show the subpena to either Tarver or Hudson,
although at the time in question he had the subpena in his
pocket. On Tuesday, May 24, 2 Foreman Tarver had issued a
written warning to Thompson for his absenteeism.'
Following Thompson's conversation with Foreman Tar-
ver, as aforestated, he was then told to see Personnel
Manager Dave Hudson. Thompson informed Hudson that
he wanted to be off on Friday to go to the hearing, and
shortly thereafter Hudson called back and reminded
Thompson of the warning he had just received as to his
absenteeism, but then informed Thompson that he could go
to the hearing; it was up to him. Thompson testified that he
then told Tarver he was going to the hearing. On Friday,
Thompson went to the representation hearing, which re-
sulted in the stipulated agreement settling on July 21 as the
election date.'
Foreman Tarver testified that he refused Thompson's
request to be absent because he was concerned about the
effect of his production line if more than 10 percent of the
department was scheduled to be absent on the same day.
Tarver also stated that he did not threaten Thompson with
termination if the latter attended the Board hearing because
not only was he unaware that Thompson wished to attend
such a hearing, but also he does not have the sole authority
to discharge an employee. Finally, Thompson never in-
formed him that he had been given permission by Dave
Hudson to attend the hearing; rather, Tarver learned that
Thompson might attend the hearing during a conversation
with Dave Hudson on the afternoon of May 26.
As pointed out, Hudson's testimony is similarly straight-
forward. Although Hudson reminded Thompson about his
previous poor attendance and extensive absenteeism prob-
lems, Hudson did not threaten to terminate him. Hudson
merely asked Thompson if he was required to attend the
hearing and, in any event, stated that his attendance at the
hearing was a matter for Thompson's discretion.
'All dates are in 1977 unless stated otherwise.
See G.C. Exh. 4.
'Thompson was not terminated until September 29, and there is no
evidence that this incident had any bearing on his discharge.
297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the final analysis here, the credited evidence reveals
that neither Tarver or Hudson made any threatening
statement to Thompson. Admittedly, Thompson had a
serious problem by missing 55 days of work, and it appears
that management had a legitimate concern about this
situation as Thompson was given a written warning a few
days earlier, as aforestated. On the day in question Foreman
Tarver merely informed Thompson that his request to be
absent could not be granted, but, when Hudson was then
confronted with the problem, he reminded Thompson of his
previous poor attendance record and advised him to consid-
er this factor when deciding whether or not he would remain
out for another day. It clearly appears that management was
attempting to deal with an employee who had been absent 55
days, and Foreman Tarver was also concerned with a more
immediate matter, i.e., the unhampered operation of his
assembly line. It is recommended that this allegation be
dismissed.
It is alleged that on or about June 17 and July 13,
Foreman Billy Godowns, and on July 21, Foreman Joe
Walden, threatened employees with economic and other
reprisals if they voted for the Union.
On the day of the National Labor Relations Board
election, July 21, employee Robert Wright wore two buttons
supporting the Union, and while Wright was at his work
station Foreman Joe Walden walked up to him just prior to
his voting and stated, "I thought you had more sense than
that." Wright then asked him what he meant, and Walden
continued, "Well, you vote for the Union, you pay union
dues, and if you vote for the Union you will be cutting your
own throat." Emphasis supplied.] When asked by Respon-
dent's counsel what Wright thought Foreman Walden meant
by that statement, Wright commented, "Well, I can't answer
that. I don't know what he meant by that. He just told me
that if I voted for the Union I would be cutting my throat; I
didn't know his opinion of it." When pressed further,
Wright said, "Well, what it meant to me, that we didn't need
a Union, and there wasn't any use in voting for a Union." In
further response as to the meaning of Walden's statement,
Wright replied, "Well, from the impression that I had gotten
from him, we was getting benefits and pay raises and what
not, without paying Union dues. And, why pay Union dues?
And, why pay Union dues when you were getting the same
benefits? That's my impression of it." The Company's
foreman, Joe Walden, did not refute Wright's testimony.
Counsel for Respondent argues that the testimony as to
this incident reveals that Wright understood the reference to
"throat-cutting" as relating merely to the waste involved in
paying dues to a union when Respondent's unorganized
employees already enjoyed regular pay raises and fringe
benefits, and therefore Walden's statement can hardly be
construded as a threat as Board precedent is clear that an
employer may legitimately proselytize its present benefits
and wages. However, I find that the nature of the initial
inquiry, as well as the threat that followed, as aforestated,
was violative of Section 8(aX 1) of the Act.'
It is alleged that on or about July 20 Foreman Willie
Tarver threatened employees with economic reprisals be-
cause they were wearing insignia in support of the Union,
' No evidence was offered in respect to Foreman Godowns and, therefore.
the part or the allegation in relation thereto is hereby dismissed.
and it is further alleged that on or about the same date
Tarver also prohibited activity for the Union by removing
union insignia from the clothing of employees. Again, the
employee to whom Foreman Tarver was alleged to have
directed such reprisals is Thompson, while Donald Jackson
is the employee from whom Foreman Tarver is alleged to
have removed union insignia.
Thompson testified that the day before the election Tarver
came over to him, pointed to his "vote yes" sticker that he
was wearing for the Union, and then told Thompson that he
could get "into trouble" by wearing the sticker. Thompson
also testified that employee Donald Jackson was working
beside him, and at the time in question Tarver pulled a union
sticker off Jackson's pocket and put it in the trash can.
Thompson said that he then informed Foreman Tarver that
pulling the sticker off Jackson was an "NLRB violation,"
but that Tarver just laughed and walked away. He testified
that employee Margaret Brown was also present when this
incident took place.
Foreman Tarver denies both of these allegations. He
testified that he did not tell Thompson that he would get in
trouble concerning the ins;gnia that the latter wore. With
respect to the allegation concerning Jackson, Tarver stated
that, although he did not pull the union insignia from the
person of any employee, he regularly did pull insignia, in
support of both the Company and the Union, from a
multitude of items including the production units on the
assembly line, his desk, and his chair, but that the removal of
all such insignia was in compliance with Respondent's rule
that no posting of any kind is to be done except on the
bulletin boards. As pointed out, Tarver further noted in his
testimony that there were also practical reasons for the
removal of stickers. First, customers prefer a clean unit
when they receive it, and, second, employees might not be
able to work on units if stickers obscure such items as bolt
holes. In addition, Tarver noted that he also removed the
many stickers placed on his desk because such items affect
the processing of the various reports for which he is
responsible.
Moreover, it is further noted that Donald Jackson, who
according to Thompson is a supporter of the Union, did not
testify on his own behalf. If the insignia was removed from
his (Jackson's) pocket by Foreman Tarver as suggested by
Thompson, Jackson would, of course, be the best witness to
such an incident. Similarly, Margaret Brown, supposedly
another witness to the alleged incident, did not appear to
offer any testimony.
In the final analysis, Foreman Tarver's account of the
problems in his department with stickers and insignia of all
kinds, is believable and consistent, and his denials concern-
ing the specific allegation here under consideration are
emphatic and supported by Tarver's straightforward and
convincing testimony. In accordance with the above, these
allegations are hereby dismissed.
It is alleged that Respondent's general foreman, Steve
Yonchak, on or about July 21, threatened employees with
reprisals by telling them that, if the Union were not
successful in its organizing campaign, they would have "hell
on your hands for the rest of the time."
298
THERMO KING CORPORATION
Willie Thompson testified that on the afternoon of the
election General Foreman Yonchak was walking through
department 235 and stopped to talk at his work station, and
that Yonchak then told him, "[You] better hope that the
Union comes in, if it doesn't [You] got hell on [your] hands
the rest of the time." Thompson said that this remark meant
to him that he would be catching hell until management got
an opportunity to fire him.
Foreman Yonchak recalled walking through department
235 with Foreman Tarver on the day of the election to
discuss various minor defects in the department's produc-
tion. Yonchak testified that when he was near Thompson's
work station he told Tarver, "If he [Tarver] didn't get the
situation corrected pretty soon, all hell was going to break
lose." Foreman Tarver said that he later complained to
Yonchak about being embarrassed in front of his employees.
Yonchak stated that he does not use the word "hell" very
often, but that the problems in department 235, which led to
his statement on this occasion, were still not corrected.
Foreman Tarver also testified that he recalled a comment
made by Yonchak as he walked with the general foreman
through department 325 on election day, Tarver said that he
and Yonchak were discussing certain defects in the work-
manship in his department, and at one point Yonchak told
him, "Well, if these write-ups don't go down, there's going
to be hell to pay around here."
As pointed out, Thompson interpreted Yonchaks's alleged
statement to him to mean that he (Thompson) would catch
hell until Yonchak found an opportunity to fire him.
However, Thompson also contended, in one phase of his
testimony, that he had no problems with management at
anytime prior to his discharge, and this suggests either that
Yonchak's threat was an empty one or that Yonchak never
made such a threat, and the latter alternative is undoubtedly
the correct one for if anyone was in a position to actually
harass an employee or threaten such harassment it would
certainly be the general foreman. I am also in agreement
that, if Yonchak had really wished to take reprisals against
Thompson for his union activities, he would probably not
have warned Thompson, thus permitting the latter the
opportunity to display only his best behavior. It appears to
me that Thompson overheard the conversation between
Foremen Yonchak and Tarver, as aforestated, and mistaken-
ly or otherwise converted it to his own use. This allegation is
without merit, and it is hereby dismissed.
It is alleged that in or about mid-July Respondent
threatened its employees with discharge by posting in its
plant a poster bearing the following slogan: "You only get
one strike and you are out. And that's the way it is with the
Union."
Dave Hudson, Respondent's personnel manager, testified
that he was the custodian of all the posters displayed by the
Company, and in July it was his responsibility to insure that
these posters were properly rotated around the plant. He
stated that each poster was displayed in 10 or 12 locations
throughout the plant for 24 hours, and at the end of that
time the poster was removed from all locations except the
cafeteria, and a new poster was put up.' Ultimately, all of the
posters used by Respondent were displayed together in the
It appears that, in order to display the same poster at the same time in all
of the locations, duplicates of each were posted.
cafeteria. Hudson testified that out of all the posters only
one, Respondent's Exhibit 5, illustrated a baseball scene, but
testified that no poster was displayed which carried the
slogan, "You only get one strike and you are out. And that's
the way it is with the Union.
Employee Lonnie Lewis testified that around July 18 he
saw one poster which showed "[someone] pitching a
baseball, and the guy missed it, and it said, "One strike and
you're out, and that's the way it is with the Union." Lewis
said he saw other posters, but the above was the only one he
saw which had anything to do with baseball, although he
saw other posters which said "strike" and "out." Lewis was
also shown the poster here in question, Respondent's Exhibit
5, but stated that he had seen a different poster, one which
only had a pitcher and a batter on it, and only contained the
phrase "One strike and you're out, and that's the way it is
with the Union."
George Cooper, who worked on the day shift in Depart-
ment 226, saw the baseball poster here in question behind his
foreman's desk. Cooper testified he did not see any other
posters with baseball themes put up elsewhere in the plant,
but he asked Foreman Joe 'Valden if he thought the contents
on the poster he did see were correct, and Walden replied
that he believed it was true.
The General Counsel maintains and argues that whether
there was one or two baseball posters in existence is
irrelevant, that either poster contains clear threats to the
employees who observed them, and that the problem
inherent in the poster or posters is ambiguity in that the
posters are saying to the employees that if they select the
Union they are "out," and such is a threat of reprisals for
supporting the Union. Moreover, the second possible inter-
pretation, equally as bad, is that, if the employees select the
Union, there will be a strike and the employees will be
"out," and that such a message again conveys a fear of
adverse consequences for selecting the Union.
The testimonies of Lewis and Cooper obviously are in
conflict. George Cooper, the employee witness who observed
posters at only one location, Joe Walden's desk, testified that
he did not see the poster described by Lewis, but that he did
see the poster marked as Respondent's Exhibit 5. Lewis,
however, testified that he never saw Respondent's Exhibit 5,
but that he did see another poster with a baseball theme.' I
accept and credit the testimony of Personnel Manager
Hudson to the effect that Respondent's Exhibit 5 was the
sole baseball poster displayed by the Company during the
July election campaign. Moreover, I am also in agreement
that this poster does not constitute a threat. As pointed out,
the very first line alerts the reader or employee that this
poster is designed to be factual. The second line is a general
statement which is then explained by the next three lines. As
the poster states, when employees engage in a strike, those
employees are not working, they are not receiving pay, and
they are walking on a picket line. Such factual representa-
tions during a union campaign are permitted by the Act as
expressions of free speech. In accordance therewith, this
allegation is hereby dismissed.
It is alleged that Plant Manager Roy Hayes, in speeches to
employees on or about July 19 and 20, threatened employees
' The most probable resolution of this matter is the reasonable assumption
that Lewis did see the poster marked as Resp. Exh. 5 but misread it.
299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with plant closure and the loss of jobs if the Union was
successful in its organizational campaign. This allegation can
be divided into two separate issues-first, did Hayes speak
extemporaneously during the course of his speech, and,
second, does the speech on its face contain any threats of
plant closure and job loss.
Hayes testified that he spoke to the plant employees on
three occasions during the 2 days prior to the July 21
election, but on each occasion he read the full text of the
speech entitled "Managers 24-Hour Message-July 19,
1977."" Hayes stated that he deviated from this text only at
the beginning of each session when he explained to the
employees that the speech would probably take some time to
present and then suggested that everyone get comfortable,
but that subsequent to these introductory remarks he did not
deviate from the text of the speech, and at no time did he
threaten plant closure or loss of jobs if the Union won the
election. Two witnesses, former employee Myrtis Walter and
current employee O. W. Hodge, testified that Plant Manager
Hayes made comments other than those contained in his
written speech.
As heard by Myrtis Walter, Hayes told the assembled
employees that if the Union was successful the employees
had no guarantee that the plant would continue to operate;
told the employees not to make the biggest mistake of their
lives in voting for the Union; and stated that many people in
the community had better jobs because of Respondent, but if
the Union won the election there would be a lot of people in
the community out of jobs. Finally, according to Walter,
Hayes, at the end of his speech, reminded the employees
about a film that had been shown depicting violence and loss
of jobs and noted that once the Union was elected the
employees could not vote it out. Walter further testified that,
in order to ascertain whether the Union had an accurate text
of the speech here in question, she carried a tape recorder
into the meeting, but stated that she was unable to use the
recorder as General Foreman Art Dion followed her into the
meeting, sat right next to her, and also proceeded to move to
the adjacent seats when she moved to avoid him.
Employee O. W. Hodge testified that on July 20 he went
to a speech given by Hayes, although he was not certain
whether it was the same meeting that Myrtis Walter
attended. Prior to taking the stand in the instant hearing,
Hodge was shown the text of the speech here in question and
verified that Hayes had read the speech, but contends that
Hayes made additional comments. Hodge recalled that
Hayes summarized his speech at the end by adding the
following:
[Y]ou have heard the man Ray Alexander from
Charlotte tell you once you get a Union you can't get
rid of them. He also said you saw the slides, you saw the
photos about the man from Aberdeen (six), Virginia,
Mac McDaniel or something, he showed you the slides
and the films and the violence and the strikes that took
place in that plant. He said, if you get a Union, you are
going to have strikes, violence, and work stoppage.
'See G.C. Exh. 5.
' The plant manager's mention in his speech of McElroy and the Abingdon
plant in Virginia was in reference toanemployee-employer meeting around
July 13 which was accompanied by slides and films. The reference in his
Hodge said that several weeks before at a different meeting
he had seen the slides and photos Hayes made reference to,
and that this prior meeting had been attended by Mac
McDaniels from the Westinghouse plant in Virginia.9
As pointed out, it is noted that a number of the
extemporaneous references attributed to Hayes by both
Walter and Hodge were subjects which were discussed in his
written speech. Hayes did, for example, comment upon the
difficulty employees would encounter if they wished to vote
the Union out. In addition, Hayes reminded employees
concerning the experiences of other plants and the strikes
which occurred at the Abingdon, Virginia, plant.
As further detailed, it is also noted that, although both
Walter and Hodge heard the speech here in question, their
memories are markedly different. Walter testified that Hayes
deviated from the text of his written speech much more often
than indicated in the testimony by Hodge. Moreover,
although Walter testified that Hayes threatened the employ-
ees with plant closure and loss of jobs, Hodge testified to
neither of these alleged threats. As argued by counsel for the
Respondent, such discrepancies in conjunction with the
inability of these two witnesses to accurately remember the
substance of the speech can lead only to the conclusion that
both must be discredited. Furthermore, as far as this record
reflects, only two witnesses came forward to suggest that
Hayes had deviated from his speech out of approximately
552 employees who voted in the election. It would appear to
me that, had Hayes actually made these severe antiunion
remarks attributed to him by Walter and Hodge, then at
least a few others might have also recalled such statements.
The credited testimony on this record reveals that Hayes
did not deviate from his written speech other than by
making a few general remarks for the comfort of his
audience at the beginning of each season, as aforestated.
I turn now to the question of whether or not the written
speech itself contained any threats of plant closure and the
loss of jobs.
Counsel for the Union argues that even with the small
portion of the Company's propaganda which has been
revealed one can still see an attempt by management to show
that the selection of the Union would jeopardize the future
existence of the plant in Louisville and the job security of the
employees, and to convey the distinct impression that voting
for the Union was a meaningless gesture which would result
in strikes and discharge. The General Counsel argues that
the written speech itself contains statements violative of
Section 8(a)(l), and he sets out the portion of the speech
which states:
You take home the largest paycheck in this area. You
know there is no one person who can walk out of here
and find another job in this area which pays higher
wages and offers more vacation, more holidays, and
better insurance benefits than Thermo King. We have
shown you the IUE contract and you know there is no
benefit offered in that contract that you do not already
have.
speech to Ray Alexander of the Westinghouse Charlotte plant reminded
employees of another meeting and presentation in July which included slides
and records made by the manager of another Westinghouse plant.
300
THERMO KING CORPORATION
If you trade what you have not for IUE representa-
tion you will gain absolutely nothing, except misery,
anger, and frustration.
The General Counsel maintains that such pronouncements
that voting for the Union will "gain absolutely nothing,"
standing alone, delivers a message of futility to the employ-
ees, and goes beyond the bounds of Section 8(c) of the Act.
I am in agreement with counsel for Respondent and find
that the speech in question contained no threats. As set
forth, the written speech by Hayes must be regarded as a
compilation of general factual material in combination with
a review of the organizing campaign. As noted, Hayes
mentioned various pieces of campaign literature circulated
by the Union, and also reminded the employees of speeches
given by Mac McElroy from Abingdon, Virginia, and Ray
Alexander of Charlotte, North Carolina. However, both of
these prior speeches were the subject of objections filed by
the Union, and in both instances the objections were found
to be without merit.
The General Counsel points to the final page of the speech
and argues that it delivered a message of futility to the
employees, as aforestated. However, it appears to me that
these remarks merely summarize the speech. Hayes outlined
some of the benefits already enjoyed by the employees, and
he then noted that the Union benefits were no greater than
those already enjoyed. It further appears that his statement
in his speech to the effect that, if employees trade what they
already have for union representation, they will gain only
anger, misery, and frustration is a reference to the problems
encountered by employees in union plants at the other
locations mentioned in the speech, as well as to the possible
reaction of Respondent's employees in the event that the
Union fails to keep the promises made during the course of
the campaign. Finally, as also noted, the last paragraph of
the speech is a factual presentation of the economic
problems which could arise if the Company was met with
demands it could not meet. It appears that this is mere
speculation based upon Hayes' consideration of possible
consequences beyond his control. I will also dismiss this
allegation.
It is further alleged that Plant Manager Roy Hayes, in a
letter published in the June issue of the monthly employee
newsletter, Thermo King News, threatened its employees
that the plant would close if the Union were successful in its
organizational campaign.
The June edition of the Thermo King News carried an
article written and signed by Plant Manager Hayes which, in
the context of discussing schedules and workloads, stated in
part:
Now, we come to June, and another election set for
July 21. Already, I see the organizers dividing friends,
families-even husbands and wives, just like their last
campaign.
'° See G.C. Exh. 3.
"In its brief and during the hearing before me, counsel for the Charging
Party argued that Respondent's campaign against the Union-literature,
posters, speeches, job harassment, film clips, and various meetings with
employees-was designed to communicate to the employees that they would
be the victims of strikes, violence, and loss of financial security if they voted
for the Union. I note, however, that the Union raised the same general
Normally, at this halfway mark through the year,
managers are expected to forecast plant performance
for the balance of the year. But I would not attempt to
do this until you exercise your responsibility to your-
selves, your families, and this plant by voting in the
upcoming election. I know how this plant operates
without a union and could reasonably project future
operations.
I don't know how we could manage with a union. Do
you?' °
Counsel for the Charging Party contends and argues that
the above statement by Hayes in the Thermo King News
distributed to all employees in June was intended to
deliberately tie the prospects for the future of Respondent's
plant in Louisville to the rejection of the Union in the
upcoming election. It is further argued that not only did
Hayes threaten that the Company could not manage with a
union, but also that Hayes also refused to forecast the plant's
performance, as he apparently routinely did at that time of
year, until he saw the results of the election. Counsel
maintains that no employee could miss the point of Hayes'
published statement. The General Counsel argues that the
last two paragraphs quoted above conveys an implied threat
to the employees that the plant would close if the Union
were successful.
I am in agreement with Respondent that the article here
in question is merely a letter in summary of the events and
accomplishments of the previous 6 months with concluding
comments by Hayes informing employees that, until the
outcome of the election was known, it would be difficult for
him to project plant performance and production for the
next 6 months. It appears that the plant manager can predict
his production on the basis of a nonunion operation, but
does not know what changes would occur with the advent of
unionization. As suggested, his last comment emphasizes his
lack of knowledge on this point, and invites employees to
consider for themselves the consequences of unionization.
This article or letter to the employees does not contain a
threat that the plant would close in the event of a successful
campaign by the Union. In accordance with the above, this
allegation is also dismissed."
It is alleged that on or about September 29, 1977, the
Company discriminatorily discharged Willie Roger Thomp-
son.
Thompson was hired by Respondent in 1973, and, during
the time material hereto, worked in the department super-
vised by Willie Tarver. In 1976 he was active during the
union campaign then in progress; he passed out literature at
the plant, wore badges, and performed in-plant organizing
committee work. The Union lost the election in 1976, but
commenced the new campaign here in question in 1977, and
again Thompson was active for the Union. He passed out
Union literature at the gate, was a committee member, wore
"vote yes" stickers in the plant, attended meetings, and got
cards signed by other employees.
arguments in its objections to the election, but, as the formal file and exhibits
reflect, many of its objections to the election were overruled by the Regional
Director and found to be without merit. I mention the above merely to
emphasize that my conclusions and findings in this Decision have also been
made with full consideration to the entire record and with due respect to the
total and combined effect which Respondent's campaign may have had on the
employees.
301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The incidents which culminated in the discharge of Willie
Thompson span a period of or about I week from Friday,
September 23, to Thursday, September 29, the date on which
he was informed of his discharge.
During the afternoon of September 23, Foreman Tarver
attempted to contact George Black, his assistant on the
assembly line. Tarver used the telephone at his desk to call
Black, but after the telephone rang and no one answered
Tarver then looked down the assembly line toward the
extension telephone and noticed that the receiver was off the
hook, and also noticed that Verdree Walden was the nearest
employee in the vicinity of the telephone. Tarver thereupon
paged George Black, and after completing his conversation
with Black asked to speak to Verdree Walden. At this time
Foreman Tarver, because he believed that Walden had
removed the telephone receiver from the hook, informed
Walden that the telephone was not a toy to play with, but
Walden denied using the telephone, and, in fact, informed
Foreman Tarver that he had not played with the telephone
and that, if Tarver said that he had done so, Tarver was
lying. Tarver then informed Walden that if he had not
played with the phone to forget about it. Walden returned to
his work station and Tarver stayed at his desk, but
admittedly Walden was still upset over this incident. Shortly
thereafter, Tarver noticed four other employees, Johnny
Mack, Jimmy Williams, Thomas Lewis, and Willie Thomp-
son, gathered around Walden's work station. After a few
minutes Tarver approached them and inquired if they had
anything to do. Willie Thompson, however, who was
standing near a cooler unit on which they were working,
then threw his safety glasses on the unit, and exclaimed to
Tarver, "Don't start on me, I'll whip your ass." Meanwhile,
the other three employees who had gathered began to move
back toward their work stations, but Thompson repeated his
threat by asserting, "I'll whip your ass if you start on me."'
After returning to his desk, Tarver called General
Foreman Steve Yonchak and after some delay was able to
tell him about the above incident involving a threat by
Thompson. Yonchak then had both Thompson and Tarver
report to his office, and the evidence shows that at this time
Thompson repeated his initial statement or threat to "whip
[Tarver's] ass," but told Yonchak that he had made his
remark on the basis that Tarver had cursed him during the
initial phase of their argument earlier that afternoon.
Yonchak then asked Thompson if he was aware that by his
threat to Tarver he was in violation of company rule A-8
prohibiting the use of threatening and abusive language for
which he could be immediately discharged, and also asked
Thompson if he could remember what Tarver had said in
' Willie Thompson testified that, when Verdree Walden returned to his
work station, Walden told him about the phone incident with Tarver, and he
(Thompson) then started laughing; meanwhile, Foreman Tarver came back to
see him and inquired what he was laughing about, and told him to complete
what he was doing and then to get his "ass on up the line" and that he was
"fed up" with him. Thompson then admittedly told Foreman Tarver, "If'you
[don'tl like my ass, you could get some of my ass after 3:30."
" Thompson testified that at this meeting, when he attempted to discuss the
Verdree Walden telephone incident, as aforestated, Foreman Yonchak
indicated his disinterest and said, "We're waiting for you to make a mistake
and now you've made one."
' The Company has adopted and posted plant rules which apply to all
personnel. Among the deemed violations to be "serious misconduct" which
may result in immediate discharge is: "8. Fighting, assault, horesplay, or other
cussing him, but Thompson responded that he could not.
Since it was now near the end of the shift, Yonchak told both
Thompson and Tarver to take the weekend to consider the
matter in order to try to remember the exact words which
were used, and to report back to his office on Monday
morning.'
Thompson was not suspended or disciplined on Friday,
and nothing occurred between him and Tarver after work
that night or over the weekend. After he left Yonchak's
office, Thompson called the office of Plant Manager Roy
Hayes to discuss the matter with him, but Hayes was not
then available."
On Monday morning, September 26, Yonchak invited
both Tarver and Thompson to his office, and Yonchak again
asked Thompson if he remembered how Tarver had cursed
him. Thompson responded by saying that he did not
remember, but that he had it written down to present to the
Labor Board. Yonchak then inquired if he was certain he
could not remember what he had written down, and
Thompson responded that he could not, but about this time
Thompson repeated his threat to Tarver by stating, "I said
to him I was going to whip his ass; I mean I'm going to whip
his ass, and I'll whip his ass." At this point, Yonchak ended
the meeting by directing Thompson to go to the office of
Dave Hudson, personnel manager. However, on his way out
the door Thompson again threatened Tarver by saying, "I'm
going to get you yet; And, when I say I'm going to whip
your ass, I mean I'm going to whip your ass." Immediately
after Thompson left the office, Yonchak then called Person-
nel Manager David Hudson to advise him of the situation,
and at this time Yonchak also made his recommendation as
to Thompson-that he be suspended pending an investiga-
tion.
When Thompson reached Hudson's office, Hudson asked
him what had happened. Thompson began by discussing the
Walden telephone incident, as aforestated, and then asserted
that Tarver became annoyed with him for laughing, but he
did not remember what Tarver had actually said to him.
However, according to the credited testimony of Hudson,
Thompson did admit that he threatened Foreman Tarver
that he (Thompson) would "whip [Tarver's] ass." Moreover,
Thompson stated that he could not remember what Tarver
had said, but told Hudson he had it written down for the
Labor Board.
Personnel Manager Hudson advised Thompson that the
matter was very serious, that Yonchak had recommended
suspension pending an investigation or discharge, and that
he (Hudson) intended to consult Plant Manager Hayes
concerning any action to be taken. Hudson testified that he
disorderly conduct, such as the use of abusive or threatening conduct, such as
the use of abusive or threatening language." Both General Foreman Yonchak
and Plant Manager Hayes testified that the Company takes the rule
prohibiting abusive or threatening language very seriously, and that violation
of that rule is a dischargeable offense.
" In his conversation with Yonchak on this occasion Thompson also noted
that his situation was not going to be like the "Frank thing." The only "Frank
thing" which Yonchak could remember was an incident in which Frank
Williford arrived in Yonchak's office extremely upset because he felt his wife
was badly treated by Tarver after returning to work from a disability leave.
Later, Yonchak did have a brief discussion with Williford, but Williford
merely repreated the statement that the Company was not treating them right.
Yonchak denied that he was ever told that Williford had threatened to "whip
Tarver's ass."
302
THERMO KING CORPORATION
then went to Hayes' office where he summarized all of the
information he had thus far received, and recommended to
Hayes that Thompson be suspended until an investigation
could be conducted. Hayes accepted this recommendation,
and Hudson then informed Thompson that threatening a
foreman constituted a very serious violation of the plant
rules and that he was suspended pending an investigation of
the matter. Hudson concluded the interview by requesting
Thompson to contact him on Wednesday afternoon.
In an effort to determine exactly what had occurred on
the plant floor on the Friday in question, both Steve
Yonchak and Dave Hudson conducted independent investi-
gations. Foreman Yonchak spoke with employees Martha
Dye, Verdree Walden, Johnny Mack, and Grace Holton
concerning what they heard during the exchange between
Thompson and Tarver the previous Friday. Both Day and
Walden confirmed Foreman Tarver's statement that
Thompson had threatened him, but neither Holton nor
Mack heard any part of the conversation. After concluding
his investigation, Yonchak informed Hudson of the result,
and reiterated his recommendation that Thompson be
placed on suspension pending termination.
Hudson's investigation commenced with his written
memo relating to Thompson's "version" of the incident,
which he (Thompson) related to Hudson on Monday
morning. Hudson thereafter also interviewed Foreman
Tarver and Yonchak and prepared written statements which
each signed. On Tuesday, September 27, Hudson also
interviewed employees Martha Dye, Verdree Walden, and
Johnny Mack. Both Dye and Walden stated that Thompson
had threatened to "whip [Tarver's] ass," although only Dye
agreed to sign her statement. Mack informed Hudson that
he did not hear any part of the argument between Thompson
and Tarver.'"
On Wednesday, September 28, a meeting was held in the
plant manager's office, in which Tarver, Yonchak, Hudson,
and Hayes discussed the situation involving Thompson.
Hudson read aloud the statements of the employees he had
interviewed, as well as the statements of Tarver and
Yonchak. Hayes then sought recommendations concerning
the disposition from all present, and each recommended
discharge. In electing to endorse the discharge recommenda-
tions, it appears that Hayes considered all the factors which
had a bearing on the incident. He testified as follows:
Well, first of all there was the seriousness of the
violation itself, which I personally regard as a very
serious violation. Secondly, there was a lack of evidence
as to why the threats were made in the first place. It was
very difficult, we had not really been able to determine
at that time exactly why the threats had been made.
Thirdly, we had statements from employees in the
plant, which to my knowledge were complete [and]
unbiased, and we had statements from employees in the
plant, one of which was signed, that they heard Willie
'Both Dye and Walden testified as witnesses for Respondent, and both
again asserted that they heard the threat in question and were close enough to
hear what was said. The sole employee who testified on behalf of Thompson
was Thomas Lewis. Although Lewis noticed that a group of employees had
gathered around, he could hear nothing. Therefore, Lewis' testimony neither
confirms nor contradicts the testimony I have relied upon and set forth herein.
Moreover, as pointed out, it is not difficult to speculate concerning the reasons
Thompson threaten the foreman. I felt under those
circumstances it was a justifiable decision.
On Thursday, September 29. Hudson met with Thompson
to inform him that he was to be discharged for using
threatening and abusive language to a supervisor. Thomp-
son, according to Hudson, then read aloud the statement
which he (Thompson) claimed that he had given to the
Labor Board, and included in that statement was the
admission that he (Thompson) threatened to beat Tarver's
"damn ass" after 3:30." Thompson denies that Hudson told
him the reason for his discharge, and that he read any
statement to Hudson. According to Thompson, he was
discharged for laughing, an action which "he guessed" was
violation of the company rule. Again, Thompson's version
exceeds the bounds of believability.
Shortly after his meeting with Hudson wherein he was
informed of his discharge, Thompson expressed a desire to
utilize the special appeal process in order to obtain a review
and reconsideration of this matter by Plant Manager Hayes.
By this time Hayes had read the statement Thompson had
made to Hudson which also contained various allegations of
past harassment of Thoml,son by Foreman Tarver. When
Thompson appeared in his office, Hayes questioned Thomp-
son with respect to his failure to raise these prior problems
with Tarver during his previous meetings with Yonchak and
Hudson, but Thompson claimed he had been saving this
information for the Labor Board. Moreover, when Hayes
again expressed concern over the fact that Thompson had
not brought these allegations about Tarver to his attention
previously, Thompson maintained that he had, but Hayes
had refused to see him. At this point Hayes consulted his
secretary, Gloria New, who then confirmed the fact that a
telephone caller had requested a meeting with Hayes the
previous Friday afternoon (September 23), but was informed
that Hayes was in a meeting and asked if he wished to leave
a message. The caller said no and hung up the telephone
without leaving his name. Thompson himself confirmed this
account of his telephone call to Hayes' office on Friday
afternoon.
Thereafter, Hayes reviewed with Thompson the events
which occurred subsequent to the incident on the previous
Friday, including Thompson's renewal of his threat to
Tarver, as aforestated, and about this time Thompson again
renewed his threat by telling Hayes that he (Thompson) still
intended to "whip [Tarver's] ass." Hayes thereupon notified
Thompson that the decision to terminate him would not be
rescinded.
The General Counsel and the Charging Party contend
that in the many areas of contradictions and inconsistencies
the witnesses they presented should be credited because of
their candor and forthright demeanor on the witness stand
and for various other reasons. However, as noted and
detailed herein, I have found otherwise in most instances."
The Charging Party argues that for "some people" a
statement such as Thompson's admitted comment on the
why Lewis might not wish to testify on Tarver's behalf Tarver testified that
he had had several discussions with Lewis concerning Lewis' refusal to carry
out his work assignments.
" Hudson then put in writing the statement made on this occasion as
Thompson had no objections to this procedure.
" It appears to me that Tarver's reactions and statements. as previously set
forth herein, are not only in conformity with his normal reactions. but under
(Conrtinued)
301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasion in question that Tarver could "have a piece of his
ass after 3:30" would be taken as a threat, but to many other
people, and particularly those familiar with industry, the
language used on the shop floor, although lacking in the
civility or politesse of conventional semantic norms, is
frequently exaggerated and abrasive, and the crosstalk of
workers and foremen alike is punctuated by boasting and
verbal horseplay not intended to be taken literally; further,
no matter what Thompson told Tarver it was not made as a
threat and was not taken as a threat. The Charging Party
also suggests that Respondent cannot explain the fact that
no other employee has ever received so much as a written
warning for the violation of its rule against threatening and
abusive language, and that there is abundant testimony that
the use of phrases such as "whipping ass" is a daily
occurrence in the plant, and then points to the testimony of
Thomas Lewis, Lonnie Lewis, and Bob Godowns in these
respects.
As pointed out, the issue in the motivation of the
discharge of Thompson is interwoven with the nature of the
normal language used at the plant. It is Respondent's
position that the phrase attributed to Thompson by Foreman
Tarver, i.e., "Don't start on me, I'll whip your ass," or the
other phrase which Thompson said he used, i.e., "If you
don't like my ass, you could get some of my ass after 3:30,"
either one of them, constitutes threatening or abusive
language for which, according to the rules of conduct,
discharge is the appropriate penalty.'9
It appears to me that there is amply evidence in this
record to demonstrate that neither of the above comments in
which the word "ass" was prominently invoked is common-
ly used in the plant, and that even if they were the context in
which either phrase might have been used in this instance is
such as to neutralize any commonplace meaning which
might be otherwise attributed to such language. Admittedly,
as further indicated, the word "ass" is sometimes used
among and between employees in phrases such as "get your
ass off my station" or "get your ass back down the line," or,
on occasions when such phrases have been overheard, the
context was such as to reveal a friendly and casual
conversation between employees, and, therefore, this lan-
guage was not a matter for discipline." Tarver stated that
because he does not want employees to use the term "ass"
when talking to him he does not use that term when talking
to employees, and further testified that no employee, other
the circumstances were reasonable and geared to fulfill his supervisory
responsibilities and duties. Moreover, neither would a lie enhance his status as
a supervisor because his is not the only testimony to the effect that he was
threatened by Thompson. Not only were there employee witness to the initial
threat, but Thompson then repeated his threats in front of at least three other
supervisors. On the other hand, in many instances Thompson's testimony, and
and the versions of what took place by other witnesses for the Union and the
General Counsel, lacked consistency and logic, and were also frequently
undermined by their own statements. In this case, the testimony and
demeanor of Willie Tarver and Willie Thompson was especially critical. The
former testified credibly on all matters and responded directly to the questions
put to him. Thompson, however, exhibited few of these qualities. He was
evasive in some of his answers and on other occasions expressed reluctance to
respond to questions. Further. it appears to me that the substance of
Thompson's responses in some instances was even contrived or fabricated. It
should also be noted that the facts found herein are based on the record as a
whole and upon my observation of the witnesses. The credibility resolutions
herein have been derived from a review of the entire testimonial record and
exhibits with due regard for the logic of probability, the demeanor of the
than Willie Thompson, used this word when directing
comments or remarks to him. I am in agreement that
Thompson's use of the term in question directed to a
supervisor or foreman, as distinquished from one employee
to another, was an unusal occurrence and especially so when
Foreman Tarver was involved.
The Charging Party also contends that Foreman Tarver
was not really threatened by Thompson's remark to him.
However, the foreman obviously felt otherwise. Tarver
testified that, when he went out of the plant door on the
Friday afternoon in question, he looked both ways in the
parking lot and made certain that nobody was standing
behind the cars, and that when he got home he turned his
German shepherd dog loose. Tarver testified, in fact, that he
was "fearful"; he stated that Thompson "said he was going
to whip my ass and . . . anytime a man tells me he's going
to whip my ass, I take him at his word until I find out that
he's not going to do it." Then Tarver added, "At the time he
[Thompson] made the threat, he was not kidding."
The Charging Party also introduced testimony by other
witnesses attacking Tarver over various alleged problems or
disputes he supposedly encountered with other employees.
Specifically, Robert Godowns and Polly Williford testified
concerning assignment disputes they encountered with
Tarver. However, in neither of these instances did either
employee threaten Tarver or use the term "ass" in talking to
him. A third employee, Frank Williford, testified concerning
his attempts to intercede for his wife, Polly, as aforestated.
Yet a fourth incident was described by employee Lonnie
Lewis, who testified that another employee, Tony Hairr, had
refused to work during his shift and that Tarver failed to
discipline Hairr. Again, there was no suggestion that a threat
of any nature was made, nor is there any suggestion of
unacceptable language. Moroever, this alleged incident
supposedly happened in 1974, hardly relevant to the instant
case.
As further noted, during rebuttal testimony several
incidents were described by witnesses for the Charging Party
in which an employee was alleged to have threatened Tarver
without incurring the appropriate disciplinary penalty. Two
of the incidents were mentioned in the testimony offered by
Robert Godowns. He testified that in 1978 Tarver had a
dispute with employee Booker Walker after which Tarver
informed Godowns and Hairr that, if Walker had not left his
office, he (Tarver) would have whipped Walker's "ass."
witnesses, and the teaching of N. LR.B. v. Walton Manufacturing Company &
Loganville Pants Co., 369 U.S. 404 (1962). As to those witnesses testifying in
contradiction of the findings herein, their testimony has been discredited
either as having been in conflict with the testimony of credible witnesses or
because it was in and of itself incredible and unworthy of belief. All testimony
has been reviewed and weighed in the light of the entire record.
" In making my final evaluations as to the discharge here in question, I
have given full weight and consideration to the fact that Thompson was an
active, strong, and open adherent for the Union, as aforestated, and also that
management had prior knowledge of his numerous activities on behalf of the
Union. On the other hand, it is also noted that Thompson was not discharged
until September 29. some 2 months after the Board election.
"' Thompson disputes the testimony of Tarver, Yonchak, Dye, Walden, and
others concerning the type of language used at the plant. Thompson asserts
that not only did he hear comments involving the word "ass" frequently
exchanged between supervisors and hourly employees during his employment
with Respondent, but also that such comments are currently being directed to
supervisors.
304
THERMO KING CORPORATION
Tarver, on the other hand, admitted that he did have a
minor dispute with Walker, but stated that he did not
threaten to whip Walker's "ass," nor did Walker threaten
him. Further, Tarver denied having a conversation concern-
ing Walker in which Godowns was present, and, as further
indicated, even if Tarver did utter such a statement, it is
irrelevant here for it cannot be construed as a threat to
Walker because Godowns also admitted that Tarver made
the statement after Walker had left the office.
Robert Godowns, a brother to Respondent's foreman,
Billy Godowns, also suggested in his testimony that employ-
ee Billy McKenzie, while holding a hose pipe in his hand,
also threatened to whip Tarver's "ass." Later, according to
Godowns, employee McKenzie then verbally expressed fear
that he would be fired as a result of the threat. McKenzie,
however, testified on surrebuttal that, although he had a
disagreement with Tarver concerning a work-related proce-
dure, he did not threaten Tarver. Further, McKenzie denied
informing Godowns that he was afraid of losing his job, for,
as McKenzie explained, he was self-sufficient in being able
to do other work and did not need his job at the plant to earn
his living." Finally, Thomas Lewis testified that in 1975,
after becoming angry with Tarver over a work assignment in
which he needed help, he threatened to whip Tarver's "ass."
Tarver credibly denies that Lewis ever threatened him.
Moreover, this incident supposedly occurred in 1975-be-
fore the advent of the Union's initial campaign. The
attempts to discredit Tarver's testimony, as demonstrated
above, have failed, and the testimony submitted on rebuttal
likewise has failed to rehabilitate witnesses I have discredit-
ed.
In the final analysis, a plant rule prohibited the use of
threatening language, and this record is replete with evi-
dence that Thompson's threat to Tarver violated the rule
and was the motivating reason for his discharge. Similarly,
the fact that Thompson expressed an intention to direct a
complaint concerning this matter to the National Labor
Relations Board had no bearing upon the decision to
institute the disciplinary action of discharge. Rather, the
violation, by itself, was sufficiently serious to be the sole
subject as the basis for the discharge. As Plant Manager
Hayes explained:
Well, the plant has to have rules of conduct. Discipline
has to be maintained. It's not as severe as the military,
of course, but we do have to have discipline, and, if we
allowed employees to threaten . . . our supervisors at
any time they felt they could and get away with it, I'm
afraid that we would have absolute anarchy in the
plant. There would be no way that we could retain
control if we allowed employees to threaten supervisors
"I do not, in fact, credit any of Godowns' testimony. His own testimony, in
conjunction with that of Martha Dye and Billy McKenzie who both testified
for Respondent, establishes a strong personal bias on the part of Godowns
against Foreman Tarver. Godowns testified that his mother-in-law, Martha
Dye, was friendly with Tarver and that Tarver had even visited Dye in her
home. Godowns intimates in his testimony a closer relationship between Dye
and Tarver than that which usually exists between supervisor and employee.
Dye then stated that she had told Godowns that, until he stopped spreading
rumors about her and Tarver, he was no longer welcome in her home. The
and not have to answer for that type of a threat. We
couldn't operate the plant.
Moreover, the decision to discharge Thompson was
reached only after careful consideration and investigation of
the incident, and was then approved and endorsed by all
relevant supervisory personnel, especially when Thompson
kept continually repeating and reasserting his threat. Lastly,
while the company rule here in question had not previously
resulted in any discharge or discipline, conversely, there is
no credited evidence in this record that any employee had
ever before seriously threatened his foreman, let alone
specifically repeated the threat on several subsequent occa-
sions so that eventually almost everyone in management
knew about it, including the plant manager.
In concluding, I point out that I have found only a single
instance wherein Respondent violated Section 8(a)(1) of the
Act-by Foreman Joe Walden's telling Robert Wright that,
if he voted for the Union, he would be cutting his own
throat. However, I regard this incident to be a serious
violation of the Act as it was an attempt to restrain
employees from exercising ights guaranteed by Section 7 of
the Act. Accordingly, I find that it will effectuate the
purpose of the Act to issue a remedial order for this
violation."
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(l) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom, and to take certain affirmative action designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
I. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in the conduct described and detailed in
section II, above, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The above-described unfair labor practice affects
commerce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
fact that Godowns had spread several rumors is evidenced by other testimony
in this record.
Godowns' suspicions and beliefs concerning Tarver and others make him a
most unreliable witness at the very best.
"2 The Charging Party maintains that the election be set aside, but, in view
of my finding that there was only one violation, I reject this argument. Here,
the objectionable conduct is much too isolated in reference to the total
circumstances and to the number of employees involved and the vote count to
warrant any inference that it affected the election results.
305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER"'
The Respondent, Thermo King Corporation, Louisville,
Georgia, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with economic and other
reprisals if they voted for the Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which is found
necessary to effectuate the purposes of the Act:
(a) Post at its plant in Louisville, Georgia, copies of the
attached notice marked "Appendix. "2' Copies of said notice,
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
on forms provided by the Regional Director for Region 10,
after being duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof, and be by
it maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 10, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that all allegations in the
complaints not found herein to be violative of the Act be,
and the same hereby are, dismissed.
" In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
306