Troxel Manufacturing Co.

National Labor Relations Board - Board Decisions

Feb 27, 1969

174 N.L.R.B. 853 (N.L.R.B. 1969)

TROXEL MFG. CO.
Troxel Manufacturing Company and United
Packinghouse , Food and Allied Workers , District
7, AFL-CIO. Case 26-CA-3010
February 27, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On September 13, 1968, Trial Examiner Harry H.
Kuskin issued his Decision in the above-entitled
proceeding, finding that 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.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief. The
General Counsel filed an answering brief.
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 of the Trial
Examiner made 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, and
the entire record in this case, and hereby adopts the
findings,' conclusions,2 and recommendations of the
Trial Examiner.
'Contrary to allegations made by Respondent in its exceptions, we find
ample evidence that Respondent acquired knowledge of its employees'
union activities shortly after the commencement , in late October 1967, of
the organizational efforts among the employees We note specifically (1)
that the Trial Examiner fixed the date of Respondent 's coercive
interrogation of employee Williams as being some time before Williams
was laid off, which we find was on November 10; (2) Respondent subjected
Denniston's residence to surveillance on November 11, at hours closely
related to the time at which the second meeting of the Union with
Respondent's employees was scheduled , and (3) a registered letter was sent
by J. W . Rary, the Union 's representative , to Respondent on November 20
in an envelope identifying Rary as the sender , and was refused acceptance
by Respondent ' s plant superin `endent under official instructions admittedly
formulated , in part, to shield the Company from receiving union mail
containing signed authorization cards.
With regard to the layoff of John T. Denniston , we are satisfied that the
evidence amply supports the Trial Examiner ' s finding that the layoff was
effected by Respondent with a fixed determination not to recall Denniston
because of his union activities , and that Respondent was motivated by the
same unlawful consideration in thereafter failing to recall him when work
again became available for him On that basis , we find in agreement with
the Trial Examiner that Respondent discriminated against Denniston in
violation of Section 8(a)(3) and (1) of the Act The Trial Examiner's
findings further imply, however, that Denniston but for his union activities
would not have been laid off at all on December 1, 1967, even on a
temporary basis In this latter respect, we are not fully persuaded that such
a finding is justified , bearing particularly in mind that Denniston was laid
off at the time of a customary year-end layoff , that he then had least
seniority among those then working as setup men , and that a more senior
setup man was shortly thereafter also laid off. Accordingly, we shall direct
that Denniston's backpay period be computed from the date when under
Respondent' s ordinary layoff and recall policies he would have been
recalled to work following the December 1, 1967, layoff We fix that date
ORDER
853
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Troxel
Manufacturing Company, Moscow, Tennessee, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
as the date to be more precisely determined at the compliance stage of this
proceeding - when , as appears from Plant Superintendent Worley's
testimony in this record , the first of the "two older men" was transferred
from the press department to fill Denniston ' s job as a setup man.
On the basis of the facts found by the Trial Examiner, Member Brown
concludes that Respondent unlawfully terminated Denniston on December
1, 1967, like the Trial Examiner, therefore , Member Brown would direct
that Denniston 's backpay begin running on that date
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Trial Examiner: This case was
heard at Memphis , Tennessee , on June 10 and 11, 1968 A
complaint, which was amended at the hearing, issued
herein on April 1, 1968, based on a charge and a second
amended charge filed on February 19 and March 28,
1968, respectively.' The questions presented are (1)
whether Troxel Manufacturing Company, herein called
Respondent , in violation of Section 8(a)(1) of the Act,
interfered with , restrained , and coerced employees in the
exercise of their Section 7 rights; and (2) whether
Respondent has discriminated against employees John T.
Denniston and Robert E. Warf, on December 1, 1967, and
December 12 , 1967, respectively , by discharging them and
failing and refusing thereafter to reinstate them because
they joined or assisted United Packinghouse, Food and
Allied Workers , District 7, AFL-CIO, herein called the
Union , or engaged in other union or concerted activities
protected by the Act. Respondent denies that it has
engaged in any of the alleged unfair labor practices.
Upon the entire record , including my observation of the
witnesses , including their demeanor while on the witness
stand , and after due consideration of the briefs of the
General Counsel and Respondent , I make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint, as amended, alleges, and Respondent
admits, that it is an Ohio corporation with an office and a
principal place of business at Moscow, Tennessee, where it
is engaged in the manufacture of bicycle seats, which are
its major product, and in the manufacture of welded
tubing; and that during the past year, it purchased and
received directly from points outside Tennessee products
valued in excess of $50,000, and sold and shipped directly
to points outside Tennessee products valued in excess of
that figure. I find, upon the foregoing, as Respondent also
admits, that Respondent is engaged in commerce within
the meaning of the Act.
'A first amended charge was filed on March 5, 1968 , but the above
complaint was not based thereon.
174 NLRB No. 127
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Respondent stipulates, and I find, that United
Packinghouse, Food and Allied Workers, District 7,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Some Background Facts, and Some Details as to
the Issues Herein
Organizational activity among Respondent's employees
at its Moscow, Tennessee, plant was initiated around
October 23, 1967,2 by Richard Thompson Rary and J. W.
Brown, international representatives of the Union. On that
date, Rary and Brown visited the homes of various
employees and recruited for such activity employees
Robert E. Warf and John T. Denniston, the two alleged
discriminatees herein, and employee Emogene Markle.
Each of them signed authorization cards for the Union,
agreed to serve on the organizing committee, and to help
to establish a working committee inside the plant; also,
together with Rary and Brown, they made plans to hold
the first meeting on October 31 at Warf's house.
Thereafter, Denniston and Warf each got 10 to 15 union
authorization cards signed by employees. The first
meeting was held as planned and resulted in the
organizational committee gaining 12 or 13 adherents. A
second meeting was scheduled at this time for November
11, to be held at a cotton gin in Saulsbury, Tennessee. On
the latter date, at about 6 or 6:30 p.m., Warf arrived at
Denniston's house to await the arrival by automobile of
International Representative Rary, who was to take
Denniston and him to the meeting in Saulsbury. One of
the 8(a)(1) issues herein is whether Marvin E. McQueen,
Respondent's general supervisor of the pressroom,
department 4, in which department both Denniston and
Warf worked, engaged in surveillance of the Denniston
house at the time above mentioned and again later that
evening The testimony of Marvin E. McQueen is in sharp
conflict with that of Denniston, Denniston's wife, and
Warf on this matter and will be discussed in greater detail
hereafter. Additional 8(a)(1) issues in the case relate to
whether, thereafter, during the month of November,
Lonnie H. McQueen,3 a leadman in department 4,
threatened employee Denniston with discharge as a result
of his supporting or assisting the Union, and whether
admitted supervisor William H Karman, the foreman in
the paint department, similarly threatened employee
Lawrence Williams.
The month of December was, as in the past, a period of
general layoff at Respondent's plant. As of December 1,
Respondent's normal complement of about 450 production
and maintenance employees was reduced by about 30
percent. As of December 15, the complement consisted of
about 250 employees. It would appear that by the end of
the year about 98 percent of the work force was in layoff
status. The practice has been that the setup men, like the
supervisors, are not laid off. Thus, none of the setup men
were laid off in 1964, 1965 and 1966 In 1967, however,
two setup men, namely, Denniston and one, Hays, were
laid off The complaint, as amended, alleges that
All dates mentioned hereinafter are in 1967 , unless otherwise indicated.
'Lonnie H McQueen and Marvin E. McQueen are second cousins The
supervisory status of Marvin E McQueen is admitted , but that of Lonnie
H. McQueen is in issue
Denniston was, in fact, discharged on that date because of
his union or concerted activity, in violation of Section
8(a)(3) of the Act. Respondent, in turn, contends that
Denniston was laid off in its customary year-end layoff of
employees and in the normal course of business and, that,
as of the time of the hearing herein, he was still in layoff
status and subject to recall.
Warf, who was a setup man also, was not included
among those laid off in the early days of December.
However, he was discharged on Tuesday, December 12,
after having been absent from work on Monday,
December 11. The absence was due to the fact that Warf
had to appear in Court on a charge of driving a car while
under the influence of alcohol. The complaint, as
amended, alleges that the discharge of Warf was, like that
of Denniston, because of his union or concerted activity
Respondent defends on the ground that the discharge was
for cause.
B. The Specific Allegations of the Complaint, as
Amended, and Conclusions Thereon
1. The 8(a)(1) surveillance
The General Counsel adduced testimony which places
Marvin E. McQueen (an admitted supervisor in
Denniston's and Warf's department) in the driveway of
Denniston's house in Moscow, Tennessee, on two
occasions for brief periods during the evenmg of
November 11. Thus, Denniston, Mrs. Denniston and Warf
placed McQueen for a few minutes in the Denniston
driveway at or about 6:30 p.m. And Mrs Denniston
placed McQueen again in the same driveway for about 5
minutes, between 9:30 and 10:00 that evening, before her
husband had returned from the union meeting.
Respondent, in turn, adduced testimony by McQueen
categorically denying that he engaged in such conduct and
claiming that, during the evening and the period in
question, he was on a coon hunting trip outside Moscow,
Tennessee.
With respect to the first occasion, a composite of the
testimony of the Dennistons and Warf, which is mutually
corroborative in most respects, is to the following effect:
The Dennistons and Warf were sitting in the living room
at about 6:30 p.m. on November 11, awaiting the arrival
of Rary, who was to drive his car to Denniston's house
and take both Denniston and Warf to the union meeting
in Saulsbury, Tennessee.' It was then "dusk dark." They
were alerted by the sound of a car pulling into the
Denniston driveway. Warf then proceeded onto the front
porch which faces the street and looks out on the left
upon the Denniston driveway. The driveway leads off the
street Denniston and Mrs. Denniston followed Warf onto
the porch, and Mrs. Denniston put the porch light on. All
three of them noticed a black and white Chevrolet
automobile in the driveway and that it was attempting to
back out of the driveway. Illuminating the scene was the
porch light, a flood light on the side of the house and the
headlights on the Chevrolet. The headlights were on and
were cast upon the Denniston cat which was in a parked
position in front of the Chevrolet in the same driveway
and their reflection illuminated the interior of the
Chevrolet. All three of them identified McQueen at the
wheel of the Chevrolet, and watched him as he backed out
of the driveway and left. The entire episode lasted a few
minutes. Rary testified, in this connection, that he arrived
'Warf had come to the Denniston home that evening in conformity with
these arrangements
TROXEL MFG. CO.
at the Denniston home about 7 or 7:30 that evening, that
he found there that "everybody was quite concerned over
the incident concerning Mr. McQueen . . .", and that he
took Denniston and Warf to Saulsbury and returned
about 10 or 10:30 that night.
As already indicated, Mrs. Denniston testified that,
between 9:30 and 10 p.m., before her husband returned
from the meeting that evening, she saw Marvin E.
McQueen again in the same driveway. According to her,
the circumstances were as follows: The house was dark
and she was watching television, when a vehicle pulled
into the driveway. She looked out the window and saw
parked behind the Denniston car a black Chevrolet truck
upon which was mounted a red doghouse.' The truck was
in this parked position, with its lights off, for "at least five
minutes." Thereafter, the person in the driver's seat of the
truck lighted a cigarette, backed out and left. She was
able to identify the driver as Marvin E. McQueen because
the light for the cigarette illuminated his face.
The testimony of Marvin E. McQueen is in sharp
conflict with the above. Although he admitted that he
owned a Chevrolet car with a white body and a black
vinyl top and a Chevrolet pickup truck which has a
doghouse on it,6 he denied that he was at the Denniston
house that evening, and added that, as of the date of the
instant hearing, he did not know where Denniston lived.
According to McQueen, on the night in question he went
coon hunting. He testified further that coon hunting is a
pastime which he pursues from "one to three times a week
during the season, in the neighborhood of that," and that
he starts to hunt between 6 and 7 p.m. and tries to get
back by II p.m. so he can get a little sleep. He testified
further that he was certain of his whereabouts on that
night because "I've got a calendar that I put down every
date that I go and how many I catch." This calendar,
which was introduced in evidence as Respondent's Exhibit
6, is a card about 1 inch by 3 inches; it appears to have
been cut from a larger record card, has the written word
"Coon" at the top, 'shows two columns with printed
headings of "date" and "quantity," respectively, and has a
series of entries in writing on both sides of the card on the
lines underneath each heading. The card lists dates from
October 15 until January 27 which correspond closely to
the 1967-68 coon hunting season.' With particular
reference to November 11, the card shows that McQueen
went coon hunting on that date and that he caught one
coon. I note, too, that the calendar shows, inter alia, that
McQueen went coon hunting on October 31; and that,
although McQueen testified that he carries the calendar
on his person in his billfold, he made no mention of going
hunting on that date in his first prehearing affidavit, dated
March 13, 1968, to a Board agent. When shown this
affidavit, which is in evidence as General Counsel's
Exhibit 16, he acknowledged that he there said "I do not
recall what I was doing last halloween night, October 31,
1967." When asked to explain the fact that his
supplemental prehearing affidavit, which is in evidence as
General Counsel's Exhibit 16(a) and is dated a week later,
registers no such uncertainty but states that he keeps a
record of his coon hunting and that this record shows that
he went coon hunting on October 31 as well as on
November 11 and other enumerated dates, he indicated
the following- When he got home after signing the initial
affidavit, it occurred to him to "look at the coon
calendar" and ascertain where he was on the night of
'Mrs. Denniston testified that she knows that Marvin E. McQueen has
such a truck
855
October 31; that he did so and noticed that he had gone
coon hunting on that date; and that consequently when he
signed the supplemental affidavit a week later, he
incorporated that fact. I note, in this connection, that if
McQueen testified truthfully that he had made his entries
on the calendar the day after he went hunting, and that he
carried the calendar on his person in his billfold, he should
have known on March 13, 1968, his whereabouts the prior
October 31, since he could have then ascertained the same
by ready reference to the aforesaid calendar. I note, too,
that, in his supplemental affidavit, McQueen indicated
that there are four men in the area where he lives who
also hunt coons "pretty regular," that, although they don't
hunt together too often "[they] keep records of the date
and how many coons they get and then compare them."
Yet, he testified in this regard, during cross-examination,
that he does not think they keep a written record as he
does, "they keep theirs in their minds." Also, at a later
point in his cross-examination, when asked again as to
whether the other fellow hunters record in writing their
catches, he answered, evasively, "they keep up with how
many they catch "
In the light of the foregoing, I am satisfied, and find,
that McQueen's testimony that none of McQueen's fellow
hunters with whom he compared catches kept written
records of their catches gave the lie to the contrary
statement in his supplemental affidavit. Absent such
record keeping by them, it would have been inconsistent
with the inherent probabilities of the situation for
McQueen to keep a written record for comparison reasons
with them. Noteworthy, in this latter connection, is the
fact that McQueen made no reference in his affidavit on
March 13, 1968, to any such written record in answer to
the apparent inquiry by the Board agent as to his
whereabouts on October 31, and swore only that he did
not recall what he was doing the night of October 31. I
am, therefore, persuaded, and infer, and find, that the
calendar was not in existence as of March 13, 1968, and
that it was prepared thereafter and that, as such, it lacks
probative force on the matter of the whereabouts of
McQueen on any of the dates mentioned therein, including
November 11.
Accordingly, in the light of the uncorroborated
testimony of Marvin E. McQueen as to his whereabouts
on the evening of November 11, in the light of my
findings above as to the circumstances under which the
calendar was prepared by McQueen and its lack of
probative force, and in view of the fact that McQueen did
not impress me as a reliable witness, I am unable to credit
McQueen's testimony on the surveillance issue, including
his testimony that he did not know where the Dennistons
lived. However, as the testimony of Mr. and Mrs.
Denniston and Warf on the surveillance issue is mutually
corroborative in many significant respects, and as their
testimony did impress me as reliable, I credit them.' I
'McQueen testified that he uses the latter vehicle when he goes coon
hunting and the doghouse serves to transport the dogs which assist him in
such hunting.
'The season, according to McQueen , began on October 15, 1967, and
ended on January 31, 1968
'In crediting the testimony of employee Denniston , I am mindful of the
fact that when questioned concerning whether he saw Marvin E. McQueen
on the night of November 11, he proceeded to testify that, while a union
meeting was in progress at Warf's home that evening, someone mentioned
the fact that a car was passing back and forth in front of the house, that
Warf and he got up, left the house and came out the back door to the edge
of Wart's driveway . I am mindful, too, that only after his narrative was
interrupted by counsel for the General Counsel who stated "the witness is
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore conclude, and find, that McQueen was present in
the Denniston driveway on two occasions on November
11, in the manner testified to by these witnesses.'
It is clear, and I find, that employees Denniston and
Warf were engaging in union activities at about 6:30 p.m.
on November 11, in that they were assembled in the
Denniston home awaiting the arrival of International
Representative Rary who was, in accordance with prior
arrangements, to drive them in his car to a union meeting.
It follows therefrom and from my other findings above
that, by his presence in the Denniston driveway about that
time for a few minutes, Marvin E. McQueen was
observing what transpired in and about the Denniston
house and was engaging in a form of scrutiny of
employees' union activities which constitutes surveillance.'
And the fact that no union meeting was held or scheduled
to be held in the Denniston home at that time is, of
course, no defense. It suffices that both Denniston and
Warf were then engaged in a course of action looking
toward attendance at such a meeting that evening. In all
these circumstances, I conclude, and find, that Marvin E.
McQueen's conduct at or about 6:30 p.m. on November
11 constituted surveillance and that Respondent violated
Section 8(a)(1) of the Act thereby. I find further that
Marvin E. McQueen's presence in the Denniston driveway
later that evening, after Denniston and Warf had left for
the union meeting, was calculated to ascertain more about
the union activity that evening of Denniston and other
employees, and therefore was but a continuation of the
surveillance in which he had engaged earlier that evening.
I conclude, and find, that this second instance also
constituted surveillance in contravention of the Act and
that Respondent violated Section 8(a)(1) thereby.
The General Counsel points, in this connection, to
uncontroverted testimony by employee Denniston as to a
conversation he had with Marvin E McQueen about 3
days later in the plant and argues therefrom, in his brief,
that, like the surveillance found above, this conversation
instilled in the minds of Denniston and Warf that
McQueen was engaging in surveillance of their union
activities. According to the testimony of Denniston, at
that time, McQueen told Warf and him at work that
"[they] couldn't be talking to the operators any more
unless it was absolutely talk about the dies that [they]
were changing or the running of dies." Denniston did not
include in his testimony any details concerning this
incident, e.g., as to where in the plant this occurred, when
it occurred, whether anyone else was present, and what
the plant practice was concerning conversing with other
employees while at work. And Warf was not questioned
confused on this issue , I'm sure," did employee Denniston testify as to the
presence of Marvin I? McQueen in his own driveway on the night in
question As heretofore found , the first union meeting was held at Warfs
home on October 31
I am persuaded from my observation of Denniston on the witness stand
that he was , at first, confused as to dates and that, upon being alerted
thereto, he testified credibly as to what occurred on November 11. In these
circumstances , I find that his initial confusion does not detract from the
probative force of his subsequent testimony.
'Even assuming , contrary to my finding above, that Marvin E McQueen
did go coon hunting during the evening of November 11, such a finding
would not render implausible the testimony of Warf and the Dennistons
that he was in his car in the Denniston driveway about 6.30 that evening
and the testimony of Mrs Denniston that he was in his truck in the same
driveway between 9 30 and 10 that same evening Thus , as heretofore
found, McQueen testified that he starts to hunt between 6 and 7 p.m and
tries to be back by l t p.m so he can get a little sleep.
"See Wallace Press, Inc, 146 NLRB 1236, 1238, and cases cited in fo 3
therein. See also Gold Spot Diary, Inc, 169 NLRB No. 158.
concerning this incident. In these circumstances, including
the facts that the complaint, as amended, makes no
allegation concerning such an incident, and that
Respondent did not cross-examine Denniston on this
testimony, or in any way litigate the matter, I find no
basis for predicating any additional findings adverse to
Respondent thereon, bearing on the surveillance issue.
And this is so, even assuming, without deciding, that this
remark was made, in the manner testified by Denniston,
within 3 days after the surveillance found above.
The General Counsel also adverts to a conversation
that Marvin E. McQueen had with Denniston and Warf
about a week after the above found surveillance in which
McQueen answered the inquiry of Denniston and Warf as
to why certain overtime work had been recently assigned
to other employees rather than to Denniston and Warf,
and argues therefrom, in his brief, that McQueen's
remarks, like those mentioned immediately above,
similarly instilled in Denniston and Warf that McQueen
was engaging in surveillance of their union activities." The
record shows that the context in which this conversation
occurred was as follows: Marvin E. McQueen, in response
to a supervisor's request for two or three men to paint the
lines on the parking lot, assigned two employees to do the
work that Saturday on overtime. Denniston and Warf,
who do overtime in other parts of the plant at times,
learned of this, and inquired of Lonnie H. McQueen, their
leader, as to why they did not get the assignment. Lonnie
H. McQueen indicated to them that he would see Marvin
E. McQueen, his superior, about this. In consequence,
Marvin E. McQueen discussed this matter with Denniston
and Warf on the plant floor. According to Lonnie H.
McQueen and Marvin E. McQueen, both of them were
present during this conversation; according to Denniston
only Marvin E. McQueen was present. Warf did not
testify concerning this conversation. Denniston's version,
on direct, was that in response to his remark to Marvin E.
McQueen that Warf and he "had normally been getting
the overtime like that," Marvin E. McQueen answered
that "[he, Denniston] had been doing a lot of damn things
in the past that [he] would not be doing in the future" and
that Marvin E. McQueen shook his finger in his,
Denniston's, face. During cross-examination, he
acknowledged that, in his pre-hearing statement under
oath to a Board agent, which is in evidence as
Respondent's Exhibit 1, he indicated that Marvin E.
McQueen said that it made more sense to pay a man
overtime who was making less money Both McQueens
denied that Marvin E. McQueen made the threatening
remarks attributed to him by Denniston or that he shook
his finger in Denniston's face. According to Lonnie H.
McQueen, Marvin E. McQueen said only that "it don't
make sense to use a set up man for overtime to paint lines
and we can do it with cheaper labor." And according to
Marvin E. McQueen, he said to Denniston and Warf that
"it didn't make sense to [him] to pay time and half on
$2.05 an hour, where [he] could get the work done for
$1.60 an hour time and a half." I am persuaded, and find,
under all the circumstances, and particularly in view of
the mutually corroborative testimony of both McQueens,
and the fact that Denniston's testimony, on direct, was
impugned, in part, during cross-examination, that the
evidence fails to preponderate in favor of an additional
finding adverse to Respondent bearing on the surveillance
issue.
"There is no allegation in the complaint , as amended , that Denniston
and Warf were in this instance deprived of overtime in violation of the
TROXEL MFG. CO.
2..The 8(a)(1) allegations of threats and coercion
The General Counsel adduced evidence of two
conversations during which coercive threats were allegedly
made, i.e. one between Lonnie H. McQueen, a leadman
and alleged supervisor, and employee Denniston; and
another between admitted supervisor William H. Karman,
foreman in the paint department, and employee Lawrence
Williams. With respect to the first-mentioned
conversation, Denniston testified, on direct, that in the last
part of November, Lonnie H. McQueen and he were in
the middle of the press department floor when Lonnie H.
McQueen asked him whether he has ever noticed how
employee Warf "run his mouth all the time;" that his
reply was "no, I don't pay any attention to him [Warf]
running his mouth;" and that Lonnie H. McQueen's
rejoinder was, "I want to tell you something else, if you
are messed up in this union mess you'd better not let him
[Warf] know it, if you do it will cost you your job."
During cross-examination, Denniston acknowledged that,
in his prehearing statement to a Board agent, which the
record shows was dated March 5, 1968,1= about 4 months
subsequent to the conversation, he swore that "neither
McQueen or any other foreman or supervisor ever spoke
to [him] about the Union or asked [him] any questions
about it or anything like that." In regard to the above,
Lonnie H. McQueen admitted making a remark to
Denniston about "running off at the mouth" in respect to
Warf - a remark which meant , according to him,
"talking a whole lot when you really not suppose to." He
testified further that he also said to Denniston that "other
workers have come to [him] and said they didn 't like to
take orders from [Warf]." He denied saying anything else
on that occasion and specifically denied the remaining
remarks attributed to him by Denniston. I note, too, that
Lonnie H. McQueen acknowledged that he was in error in
denying in his prehearing affidavit to a Board agent that
he spoke to Denniston about Warf always running off at
the mouth, and explained that he happened to remember
this conversation after he had heard Denniston testify in
this proceeding the day before. In all these circumstances,
including the fact that Denniston's testimony, on direct,
that the Union was mentioned during this conversation by
Lonnie H. McQueen was impugned by his
acknowledgement, during cross-examination, that he had
previously sworn in his prehearing affidavit that neither
McQueen nor any supervisor ever spoke to him about the
Union or asked him any questions concerning it, and the
fact that the latter acknowledgement is consistent with
Lonnie H. McQueen's denial that he discussed the Union
on that occasion, I am satisfied, and find, that the
General Counsel has failed to establish by a
preponderance of the evidence that Lonnie H. McQueen,
during this conversation, made the union-connected
remarks attributed to him by Denniston. Accordingly, it
follows that, irrespective of whether Lonnie H. McQueen,
whose status is in dispute, is found to be a supervisor
within the Act's meaning, no violation of Section 8(a)(1)
of the Act can be predicated on this conversation."
Act, or that Marvin E. McQueen made coercive threats to them during
this conversation.
'rfhe prehearmg statement is in evidence as Respondent 's Exhibit 1.
"However, in order to provide for the contingency that the Board might
take a different view of the evidence with respect to this allegation than I
do, and because of the tangential significance of a finding as to Lonnie H.
McQueen's status in connection with other findings herein, I find as
follows on the supervisory issue, A composite of the testimony of Marvin
E McQueen, who is an admitted foreman and is the general supervisor of
857
With respect to the other conversation alleged to have
included a coercive threat, employee Williams testified, on
direct, that one day in November, a little before
breaktime which usually came at 9 a.m., Karman, his
foreman in the painting department, approached him and
said that he was going to buy him, Williams, a cup of
coffee; that Karman had never done this before;" that
Karman and he went to the plant's coffee shop; and that
while he was drinking the cup of coffee purchased for him
by Karman, Karman asked him whether he had anything
to do with the Union and, when he responded in the
negative, Karman said that if he wanted to work there he
"had better not have nothing to do with it." During
cross-examination, Williams testified, at first, that he did
not know the exact date of this conversation. And when
his attention was directed to the fact that his prehearing
affidavit to a Board agent fixes the time of this
conversation as being late in November, and when he was
pressed to explain-what date he meant by that, he fixed
the date variously as November 10, November 20, and
finally as November 28. Thereafter, on redirect, Williams
indicated that he was not sure that the above conversation
took place in November. Also, during cross-examination,
he testified, at first, that he was laid off in December and,
thereafter, when asked whether he was laid off on
November 10, which is the date of-his layoff appearing on
a Company record entitled "Seniority List-Dept.6," in
evidence as Respondent's Exhibit 7, he testified that he
did not remember the date of layoff. Karman 's testimony
consisted of his denial that he had ever sat down in the
coffee shop and had coffee with Williams, his further
denial that he had ever threatened Williams or any other
employee with discharge or discipline as the result of
union activity, and his insistence that his visits to the
the press department , and of Lonnie H McQueen, who is variously
referred to as an assistant supervisor and a leadman under Marvin E
McQueen in this department, establishes , inter alia, (1) There are
apparently 40 employees on the first shift when both Marvin and Lonnie
are at work , (2) whereas Marvin spends about 2 to 3 hours each day, on
average, in his office on paper work and the rest of his time alternating
between his office, the press department floor and other places where his
presence is required , Lonnie spends about 90 percent of his time going up
and down the three lines of presses in operation , numbering more than 30
presses , watching the employees and seeing to it that the work gets out,
and, in the course thereof, when the dies are first set up Lonnie checks the
presses to see if the parts are coming out right and thereafter, throughout
the day, checks to see if this situation maintains , (3) whereas Marvin issues
instructions to Lonnie as to what parts, and how many , to run, he relies on
Lonnie to execute those orders and to deal directly with the men
concerning the work involved; (4) in the course of overseeing the work,
Lonnie has the authority (a) to cut off a press and get it fixed should he
find that the press is turning out parts which are rejects, (b) to shift
personnel in the press department around to accomodate to employee
absences and to the flow of work, (c) to grant an employee time off from
work for such reasons as going to see a doctor and so forth, using his own
discretion as to whether he should consult Marvin before acting on such
request, and (d) to handle small' employee problems and grievances in an
emergency Where he anticipates that it would meet with Marvin's approval;
(5) Lonnie has, in the past, recommended promotions and discharges, (6)
Lonnie attends some of the meetings of plant supervisors; (7) Lonnie wears
a badge of a different color from those he oversees and earns 15 or 20
cents an hour more than they do; and (8 ) Lonnie is in charge of the press
department during Marvin's absence therefrom on the regular shift, during
Marvin 's customary absence during overtime periods, and during Marvin's
regular vacation period All the foregoing clearly establishes, and I find,
that Lonnie H. McQueen responsibly directs the employees in his
department and, in the course thereof, exercises independent judgment,
thus coming within the definition of a supervisor set forth in Section 2(11)
of the Act.
''Williams testified that he was first employed by Respondent the
previous August
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coffee shop have occurred only on his regular breaks
which do not coincide with break time of rank-and-file
employees. Although it is evident from the foregoing that
Williams was uncertain as to dates and could not fix
accurately either the date when the alleged conversation
occurred or when he was laid off, I observed no such
uncertainty in his testimony as to the content of the
conversation itself or the surrounding circumstances, and
found it convincing. In view of the latter, and in light of
the fact that I was not persuaded that Karman was
testifying truthfully when he denied that such a
conversation ever occurred or that he made the remarks
attributed to him by Williams, I credit the testimony of
Williams over that of Karman I therefore find that the
conversation occurred in the manner described by
Williams and that Karman made the remarks attributed
to him by Williams. While the date of such occurrence is
not clear from the record, I am persuaded, and I infer and
find, that it occurred between the time of the
commencement of union organizational activity at
Respondent's plant in October and the date of Williams'
layoff. And I find it unnecessary to, and do not, make a
finding in this connection as to whether Williams was laid
off on November 10, as Respondent contended, or
sometime thereafter in November or December. Finally, I
conclude, and find, that by Karman's threat to Williams
that he risked losing his job if he engaged in activity in
behalf of the Union, Respondent violated Section 8(a)(l)
of the Act.
4. The 8(a)(3) allegation concerning John T.
Denniston
a. Denniston's employment history with Respondent
Denniston began to work for Respondent in August
1965. Thereafter, in 1966, while working on a press in the
press department, he had an accident which resulted in the
loss of some fingers on one hand. Shortly after his return
to work following this accident, he was taken off the press
and assigned to setting dies. It is Denniston's
uncontroverted testimony, which I credit, that Marvin E.
McQueen, his foreman, then told him that he would
probably get more overtime on this job and would
probably never be laid off.
In November of 1966, Denniston's wages were
garnisheed by a creditor and his work was interrupted
again - this time for a day. Denniston explained that he
was told of the garnishment by Marvin E. McQueen when
he reported for work and that McQueen added that he
had talked to Plant Superintendent George W. Worley
and that the latter said that he was willing to take
Denniston back if he, Denniston, could get the matter
straightened out. 15 Upon McQueen's instructions,
Denniston worked that evening. The following day he paid
the bill, and reported this to Worley at the plant by 2
p.m., asking if he could have his job back. Thereupon,
Worley told him that "according to company rules and to
make it legal" he would have to be dismissed from duty
for 24 hours and that he should come back to work the
following evening. He complied with this and returned to
work the next evening.
During the early part of 1967, Denniston was working
as a setup man on the day shift when he was transferred
to the third shift of his department as a leadman. In that
"Company rules provide that a garnishment is grounds for automatic
dismissal.
capacity, he had "about 15 men working under [him] at
one time and [his] job was to keep them busy." He
continued in this job until the first week of November
when the third shift was eliminated. Thereafter and until
December 1, he worked at his former job of setup man on
the first shift. It is Denniston's uncontradicted testimony
that he was never warned or given a written reprimand
concerning his work and that, in November, although
there was no grant of a general wage increase, he received
an unsolicited raise of 5 cents an hour."
On' December 1, a customary year-end layoff was in
progress and Denniston was then separated from his job.
Lonnie H. McQueen, who was, at that time, acting
foreman of the press department in place of Marvin E.
McQueen, told Denniston that he would have to have his,
Denniston's, badge, as he was being laid off. According to
Worley, due to layoffs in the press room among floormen
and press operators, he had less need for setup men and
he selected Denniston for layoff because he had the least
seniority among the set up men. It also appears that one,
Sammy Hays, also a setup man, with more seniority than
Denniston was laid off on December 15. Hays was
thereafter recalled about January 2 or 3, 1968, whereas
Denniston had, as of the time of the instant hearing, not
yet been recalled.
b. The aftermath of Denniston's layoff
It would appear that normal operations were resumed
early in January 1968. The record discloses, in this
connection, that between January 2 and June 3, 1968,
Respondent hired 79 employees. This recruitment, some of
it by newspaper advertising, coincided with an expansion
of Respondent's operation from a normal complement of
about 450 production and maintenance employees. By the
time of the instant hearing on June 11, 1968, this
complement had reached about 500 and was still short of
contemplated peak employment. Plant Superintendent
Worley testified, in this connection, that Denniston "could
have qualified for any number of those [79] jobs," but
that he chose not to recall Denniston. It is also his
testimony that, as far as Denniston's own job was
concerned, it opened up "sometime after the first of the
year, but that two older men in the press department;
namely, a truckdriver and a pressman," who had asked
for a "promotional opportunity," were transferred by
Respondent to this job.1e And Worley admitted that, in
replacing Denniston by these two employees, he was, in
effect, deviating from Respondent's practice, "under
ordinary circumstances," of recalling a laid off employee
when his job again becomes available.
c. Additional findings as to the layoff and the events
subsequent
The circumstances of the layoff and the subsequent
failure to recall Denniston to his former job when it again
became available" or to offer him other jobs which
became available after January 2, 1968, and up to the
time of the hearing, and for which he was admittedly
qualified bears further analysis. As to the layoff, the
record discloses (1) that set up men were usually not laid
"Denniston did not fix the time precisely , saying only that it was a
"couple of weeks" before December 1.
"Worley identified one of them as John Brooks but could not recall the
name of the other
"Their jobs were apparently not in jeopardy at the time.
"Plant Superintendent Worley testified that Denniston's work was
TROXEL MFG. CO.
off during the customary year-end layoffs; (2) that this
was the first time, at least since 1964, that any set up man
had been laid off during such a period; (3) that when
Denniston was first assigned to setup work in 1966,
Foreman Marvin E. McQueen told Denniston, according
to the latter's uncontradicted testimony, which I have
credited, that he would probably never be laid off; and (4)
although Respondent attributed Denniston's layoff on
December 1, to the fact that he was the least senior of the
setup men, there is no showing that Respondent took into
account his skill and ability as contrasted with other setup
men in the press department."
As to the failure to recall Denniston, I infer, and_ find,
in light of the following, that Respondent made manifest
its determination not to rehire him.21 Thus, the record
discloses (1) that "under ordinary circumstances" an
incumbent employee is recalled from layoff when his job
becomes available again ; (2) that neither skill and ability
nor seniority as a setup man was taken into account by
Respondent in filling Denniston's job, for Respondent
transferred to this job two older men22 who had no prior
experience or seniority as setup men but were asking for a
"promotional opportunity"; (3) that Denniston's financial
problems which occurred before December 1,23 and played
no part in Denniston's selection by Respondent for layoff24
are now asserted as a reason for not recalling him,25 a
reason which, I find, under all the circumstances, to be
pretextual; and (4) that assurances by management to
Denniston and to his wife on numerous occasions after his
layoff that the return of Denniston to his job was in the
offing were idle gestures. In this latter connection, I credit
the uncontradicted testimony of Denniston (1) that Plant
Superintendent Worley told him on December 2, in
response to his inquiry, that his layoff would last about a
month and that he would be back to work on January 2,
1968; (2) that foreman Marvin E. McQueen told him on
December 23 or 24, in answer to his inquiry, that the date
of his recall was up to the office, that he, McQueen, could
not give him a definite date but that it would not be any
,later than January 15, 1968; and (3) that he spoke to
Worley in the plant around January 17 or 18, 1968, about
his job, that he was then picking up from Worley two
holiday checks which were due him, and that Worley said
that Respondent was installing some new machinery and
that the, two checks that he was drawing should tide him
over until he came back to work. And I also credit the
uncontradicted testimony of Mrs. Denniston (1) that she
spoke to Marvin E. McQueen on the telephone on
December 5, inquiring about Denniston's layoff, that
McQueen indicated that he was on vacation during the
week of Denniston's layoff but that Denniston would
come back the second day of January; and (2) that she
spoke to McQueen on the telephone again in the middle
of January and inquired whether McQueen was keeping
her husband on layoff because of "this union mess,"
reminding McQueen that "back a few years" he was
engaging in union activity in the plant and was in the
same situation as Denniston is now vis-a-vis management,
and that McQueen just laughed and promised that he
would talk to Pauline A. Carpenter, the personnel
satisfactory . Denniston's competency as a setup man is further revealed, I
find, by the fact, also found herein, that he was selected by management to
serve as leadman on the third shift in the press department where he was,
for a number of months, in charge of about 15 men
"Plant Superintendent Worley testified in this regard that seniority is
not "the governing factor " and that "[Respondent] consider [s] the job
requirement of greater importance "
859
director, and "within a few days he'd have [Denniston]
back to work."
It is true, as Respondent contends, that Denniston's
layoff occurred during a customary year-end layoff and
was in accordance with seniority and that employee Hays,
who had more seniority as a setup man in the same
department, was also laid off about 2 weeks later.
However, this layoff of Denniston is not to be viewed in
isolation but must be assessed in the context of (1) the
prior unlawful surveillance by Respondent of Denniston's
and Warf's union activity, as found herein;26 (2) of the
circumstance that Warf was terminated within less than 2
weeks after the Denniston layoff; (3) of the finding
heretofore that Respondent refused to rehire Denniston
when his own job became available27 or when other jobs
"In this connection , I reject as frivolous Respondent 's contention in its
brief that his call back is still under review.
"Worley indicated at one point that Denniston 's job involved some
heavy lifting and hence he replaced Denniston with two men He did not
indicate whether the fact that these two men were older than Denniston
was an operative factor . I note, too , that there is no indication in the
record that any such change was being contemplated before the layoff of
Denniston
"These problems were highlighted by the garnishment of Denniston's
wages in November 1966 and by the filing of a petition in bankruptcy by
Denniston in November 1967 It is evident that there were a number of
telephone, calls from creditors of Denniston to Respondent during the
period prior to the garnishment and also some calls thereafter which were
relayed to Denniston However, except for the garnishment, none of these
calls was apparently considered of enough moment to warrant notation
thereof on Denniston 's record Thus, Director of Personnel Carpenter
testified that she noted only the garnishment on his record and that she did
not note these calls from creditors, which came in concerning other
employees as well, because "we have so many like that, so very many."
And along these lines, Foreman Marvin E. McQueen testified that "it is
not unusual for him to talk to employees about creditors' calls concerning
bills outstanding and that he did not make notes of the calls as to
Denniston which came to his attention "because [he] didn't figure it was
any of [his] business except just trying to get the word over to [Denniston],
"Worley so admitted upon being interrogated by me in an effort to
clarify prior testimony by him on this matter. I credit this admission.
"I note that Plant Superintendent Worley who' was called as a witness
by the General Counsel under section 43(b) of the Federal Rules of Civil
Procedure, testified, on direct , concerning Respondent 's failure to- recall
Denniston , in the following way.
Q Has John T. Denniston been offered a job of any kind since he was
laid off on December 1, 1967?
A. He has not.
Q. Are there any other reasons the employer has not recalled John
Denniston since December 1, 19679
A There are none
Q. Seniority - lack of job only?
A. That's all.
Q. Mr. Worley have you made a statement at any other tune that
would indicate that another reason he's not been recalled is because of
having financial difficulties?
A. I have.
Q. Well, does that remain a reason today?
A. Yes, it does
Q And that's another factor besides the job and your decision not to
recall Denniston9
A Yes. To an earlier question there I said there were other reasons It
has influenced our decision not to recall him.
"The credible evidence establishes , and I find , that Denniston and
employee Warf, each signed a union authorization card, was a member of
the Union's organization committee and got about 10 to 15 union
authorization cards signed by Respondent ' s employees. However, there is
no showing on this record that Respondent had knowledge thereof
Therefore, while I find that Respondent had knowledge of Denniston's, as
well as Warfs union activity, I predicate such finding on the illegal
surveillance mentioned above
"In contrast to this, Hays was recalled to his setup job when it became
available on January 2 or 3, 1968
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
became available for which he was admittedly qualified;
and (4) of the further finding that Marvin E. McQueen
had assured Denniston that he would probably never be
laid off from his job as setup man. Accordingly, on the
basis of the entire record, including (1) the knowledge by
Respondent at the time of the layoff that Denniston was
active in the Union; (2) the findings heretofore, in
substance, that Respondent's reason for not rehiring
Denniston in his own job or other available jobs for which
he was admittedly qualified do not withstand scrutiny and
manifest a determination by Respondent not to recall him;
and (3) the failure of the record to reveal any untoward
incident involving Denniston since the time of his layoff, I
am persuaded, and infer, and find, that both the layoff of
Denniston and the subsequent failures to recall him were
because of his aforesaid union activity. I find further that
Respondent thereby violated Section 8(a)(3) and (1) of the
Act. And this is so whether Denniston's separation of
December 1 is deemed a layoff, as Respondent contends,
or a discharge, as alleged in the complaint, as amended.
5. The 8(a)(3) concerning Robert E. Warf
a. Warfs employment history with Respondent
Wart's employment tenure with Respondent covered the
period from the fall of 1962 until December 12, 1967. For
the last year and a half, he was a setup man, having been
trained therefor by employee Denniston. On Friday
evening, December 8, 1967, after work, Warf was arrested
on a charge of driving an automobile while under the
influence of alcohol. Warf spent Friday night in jail and
was released under bond about noon on Saturday. The
hearing on the charge was scheduled for Monday,
December 11, a workday. Warf was in Court on that day
but the hearing was postponed until the following Friday,
December 15, at which time Warf was found guilty of
reckless driving and was fined $42. On December 12,
Warf arrived at the plant around 6:30 a.m. ready to go to
work. However, Marvin E. McQueen, his foreman,
summoned him to his office and there discharged him.
McQueen was acting on instructions from Worley. Warf
was given a separation notice which gave as the reason for
his separation, "Discharged-Unexcused absence from
work." According to Wart's uncontradicted testimony, he
asked McQueen why he was being discharged and
McQueen replied, "missing 1 day's work and being in
jail." Warf then inquired about his checks and he was told
to return about 9 a.m. to pick them up as the office
personnel had not yet reported for work.
b. The asserted grounds for Warts termination and
conclusions thereon
Respondent asserts, in its brief, (1) that Warf had
violated a Company rule requiring an employee to call in
if he is going to be absent and to give the reason therefor
to his supervisor or the personnel office; (2) that Warf's
absence on December 11 because he was due in Court on
that day was deemed by Respondent to be an absence
without good cause; and (3) that in reaching its decision to
discharge Warf, Respondent considered not only this
arrest but his past record of similar offenses, which it
learned on December 11 from Judge Summers of the
General Sessions Court of Somerville, Tennessee, and
that, in the latter connection, it relied not on the specific
dates or charges involved in Wart's record but only on the
knowledge that he had a record of violations relating to
drinking. These reasons shall be examined in more detail
hereinafter.
With respect to the claimed Company rule about
reporting absences, Plant Superintendent Worley conceded
that Respondent has no rule which states that a 1-day
unexcused absence will result in discharge. Further, when
asked to articulate the Company rule on unexcused
absences , Worley testified that "The basic policy, or the
basic rule is that the burden of proof for any absence
from work rests with the employee in notifying us and we
then accept the excuse on the basis of whether or not it is
excusable. We do have, and have posted in the past
several bulletins regarding absence from work. One, for an
example, 3 days, or if you are absent without reporting
for 3 days an automatic dismissal."28 As to the 3-day rule,
Warf testified that Marvin E. McQueen advised him of
that rule and that is the only rule, that he knows of, which
refers to discharging an employee for being absent from
work. Warf testified further that he has also heard of the
rule concerning calling in if, it is necessary to be absent
and reporting same to one's foreman or to the personnel
office; but that his practice has always been "to send word
in" by employee Milligan who rides to work with him.Z°
Warf also testified, in effect, that he has received no
warning or reprimand for reporting through Milligan."
This testimony stands uncontradicted on the record, as
does the testimony of employee Schrimsher and Denniston
in this regard. Thus, Schrimsher testified that he knows
that the proper way to notify the Company of an absence
is to call the personnel office but it is not always done;
that "quite a few" send word in and do not call; that, on
two occasions in 1967, when he had to absent himself
from the plant, he sent word by his mother to
management that he would be absent that day and
management "didn't say anything to [him]; said it was all
right;" and that, on two other occasions in 1966, "[he]
missed and [he] didn't tell [management] until the next
day."31 And Denniston testified, in this regard, that he
knew only of a Company rule that if an employee is
absent for 3 days without reporting, he is automatically
"No bulletins were offered in evidence by Respondent. The only item in
evidence relating thereto was introduced by the General Counsel as
General Counsel's Exhibit 7. It is a notice to employees dated May 16,
1962, and is signed by Worley It includes the following statement on
regular attendance:
3. Regular attendance is a condition of employment and any excessive
absenteeism or tardiness , for any reason , warrants strict disciplinary
action
When illness or other sufficient reason makes it impossible to report
for work on time, it is necessary for you to call and give the Personnel
Office the reason in order that a replacement may be obtained for either
the day or the period of your absence Failure to do so creates a
situation which seriously affects our ability to operate efficiently and in
so doing jeopardizes the welfare of all employees and the economic
welfare of the Company Your obligation to call in and report
circumstances becomes an absolute must and we are prepared again to
enforce this rule with suitable disciplinary action Failure to call in or
report for work within three (3) scheduled working days warrants
outright dismissal.
"According to Warf, he has reported such absences for other employees,
including one , Norris, and Milligan.
"According to Warf the only warning or reprimand he ever received was
dated November 17, 1967, and related to his "bucking the clock line", i e ,
clocking out when it was not yet his turn.
"Schrimsher testified that one of these absences was due to his being
arrested on his way to work and his being put in jail for an hour, that he
told the night foreman when he reached the plant about his,being in the
Somerville jail, and that he "didn't get no warning slip or nothing like
that."
TROXEL MFG. CO. 861
discharged; that he has been absent from work without
reporting his absence that day to management, and upon
reporting the reason for his absence at work the next day,
nothing was said to him about not reporting that he was
going to be absent; and that when he was a leadman "it
was usual" for employees to report that other employees
would be absent and nothing was ever said about this by
any member of management.
I find, from all the foregoing, (1) that the only rule
extant calling for discharge for failing to report absence
from work was the 3-day rule; and (2) that, as to absences
of less than 3 days' duration, while employees were
advised that they were to call in and report to their
foreman or to the personnel office that they were to be
absent that day and the reason therefor, there were, as
employees Warf, Schrimsher and Denniston credibly
testified, numerous instances in which the employees
breached the rule with impunity either by sending word to
management through other employees or through relatives
concerning such absence, on the day of,the absence, or by
reporting such absence to management upon their return
to work.
In the case of Warf's absence on December 11, Warf
testified credibly that he asked employee Milligan, who
usually rides to work with him, to report his absence to
management when he came to work on December 11.
Milligan testified, without contradiction, and I credit him,
that he spoke to Lonnie H. McQueen, the leader in the
press department, around 6:30 that morning, telling him
that Warf would not be at work that day as he had to be
in Court. In partial corroboration of Milligan, Lonnie H.
McQueen testified that an employee, whom he did not
identify, reported to him that Warf would not be at work
that day.32 Lonnie H. McQueen also testified that he
reported this fact to Marvin E. McQueen "around
lunchtime" that day or "maybe a little before lunch
time." I infer, and find further, from the testimony herein
of Mrs. Carpenter, the Director of Personnel, that this
fact was made known to her on that day also. In the light
of the above, I conclude, and find, that Warf reported his
absence to Lonnie H. McQueen, his leadman, through
Milligan and that this information was then imparted to
Marvin E. McQueen, his general supervisor, and to Mrs.
Carpenter, the director of personnel, and that, in reporting
his absence through employee Milligan, Warf was
following a procedure that had been accepted by
Respondent in the past
The further contention that, in, being absent because he
was due in court, Warf was not absent for good cause
must be considered against Respondent's prior approach
to Wares similar absences. Thus, this was not the first
instance in which Warf had to be in Court on a work day
because of an arrest by police. And according to Warf's
uncontroverted testimony,33 which I credit, the only time
lost from work because of these arrests was on the days
he appeared in Court. And nowhere does it appear that
Respondent ever took action against Warf because of such
absences, although it was aware of the reasons for such
absences'34 or that Warf was given a warning that, by such
absence, he was putting his job in jeopardy. It is thus
apparent, and I find, that Respondent's position that
Wart's absence on December 11 because he was due in
Court was without good cause constitutes a departure
from its prior position in similar situations involving
Wart.
"Lonnie H McQueen testified further that Respondent has allowed an
employee to report his absence through another employee "in some cases."
And finally, as to Respondent's contention that, in
reaching its decision to discharge Warf, it took into
consideration not only his arrest on December 8 but his
past record of similar offenses, I note the following At
the time of the discharge on December 12, court
proceedings had not as yet been held with respect to the
charges arising out of Warf's arrest on December 8. In
fact, it was not until December 15, three days later, that a
hearing was held and Warf was found guilty of reckless
driving, and not as charged, of driving while under the
influence of alcohol. And with respect to Wart's past
record of similar offenses, Respondent concedes, in effect,
that it did not have all the information thereon, by
asserting in its brief that it was not relying in this
connection on specific dates or charges involved in Wart's
past arrest record but only upon the knowledge that he
had a record of violations relating to drinking. It seems
strange, indeed, that, after having initiated steps to get
such details, in writing, Respondent saw fit to act without
them. Thus, Mrs. Carpenter, the director of personnel,
testified that, after learning on December 11 that Warf's
absence from work that day was due to being in. court as
the result of being arrested over the weekend for driving
while intoxicated, she telephoned Judge Summers of the
General Sessions Court of Fayette County, Tennessee, to
ascertain whether her information was correct.', She
learned from Judge Summers that it was correct and
further that there had been other arrests of Warf prior
thereto, relating to his drinking. Whereupon, she
requested Judge Summers, and he agreed, to send her a
letter detailing such events and the action taken by the
court therein, and such a letter was sent to her under date
of December 23. Furthermore, as of December 12, neither
Mrs. Carpenter nor Plant Superintendent Worley was
clear as to the extent, and the outcome, of these charges
against Warf. Thus, when Mrs. Carpenter was asked
whether Judge Summers said during this telephone
conversation that there were other occasions of arrests or
convictions, she replied, "I don't remember whether he
said that or not. He just said there had beenothercases .. .
I mean other instances of arrests. I don't think he said
convictions. I'm not sure about that." And, at another
point, Mrs. Carpenter testified that Judge Summers
possibly told her the occasion and the dates of these
arrests but it did not mean anything to her, "because she
couldn't . . . we needed it in writing." In light of this, I
find that Worley was exaggerating when he testified that,
after Mrs. Carpenter enumerated to him the number of
arrests from her notes,36 he "was impressed with the
number and quality of them.',' It follows from all the
foregoing, and I conclude, and find, that, in discharging
"Warf admitted that he had a prior arrest record dating back to 1965,
consisting of two arrests in 1965 and two in 1966 and that the charges
varied between driving while under the influence of alcohol, reckless
driving and public drunkenness.
D"In this connection, Plant Superintendent Worley testified that he had
some prior knowledge of Warf having been in trouble with the local
authorities, although he denied knowing Warrs arrest record, as such. And
Warf testified, without contradiction, that he had talked to Lonnie H
McQueen, his leadman, about three of his convictions, during 1965 and
1966, namely for driving while intoxicated, for reckless driving, and for
public drunkenness, and that both Lonnie H McQueen and Marvin E
McQueen knew of his serving 10 days in jail over weekends in connection
with one such conviction
"Mrs Carpenter testified that she did not know whose idea it was to call
the Court
"Mrs. Carpenter testified that she did not know what she did with these
notes
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warf on December 12, Respondent acted with
considerable haste, as there was then pending the
investigation initiated by it in regard to the prior arrest
record of Warf, as to which record it had incomplete
information, and the court proceeding relating to Warts
arrest on December 8, was yet to take place.
In addition, it would appear from the record, and I
find, from the following instances involving unexcused
absences of other employees, that Respondent has dealt
more severely, and hence disparately, with Warf in this
instance. Thus, according to a composite of the testimony
of Worley and Carpenter, (1) employee Vernon Hoskins is
still working for Respondent, although he has a drinking
problem and his record shows four failures to report
which were unexcused and four automatic terminations,"
and, in none of these instances, was there any contact
made with the Court of General Sessions of Fayette
County to ascertain any possible arrest record that
Hoskins might have had; (2) employee Graham Butler,
who had an unexcused absence from work on February 8,
1968, was still employed at the time of the hearing herein,;
in this connection, when Respondent learned in March
1968 of a newspaper article referring to Butler's arrest
about the time of this absence for operating a still along
with two others, it did not proceed forthwith to investigate
the matter or to call the Judge of the General Sessions
Court of Fayette County to check on Butler's record ;31
and (3) employee Norman Finnie, who had an unexcused
absence in 1968 due to his being in jail and not being able
to report for work, was also discharged, but the reasons
for his discharge were twofold, namely, the unexcused
absence and the fact that he did not have a good work
record.39 There is also record evidence as to the discharge
of employee Thomas Feathers in 1965 and employee
Willie Franklin in the fall of 1967 after they were charged
with infractions of the law. So far as appears, Feathers
was arrested and charged with bootlegging, and Franklin
was arrested and jailed on a charge of stealing hubcaps
and he was absent from work, due to being jailed.
However, although there are surface similarities between
these situations and that of Warf, it does not appear that
there was at the time of such discharges pending, as there
was in the case of Warf, both an investigation initiated by
Respondent as to the arrest record of such dischargee and
a court proceeding on his most recent arrest. I therefore
find that, in relation to Feathers and Franklin, Warf also
received disparate treatment.
In sum, I find that Respondent's asserted grounds for
discharging Warf have not been sustained by the record
and are lacking in merit since (1) in reporting his absence
through employee Milligan, Warf was following a
procedure that had been accepted by Respondent; (2) in
deeming Wart's absence on December 11 for the reason
that he was due in Court on that day to be an absence
without good cause, Respondent departed from its prior
position in similar situations involving Warf; (3) in
discharging Warf on December 12, Respondent acted with
"Respondent stipulated that Warf has called and asked for his job back
but he has not been rehired . It would appear that, as of the time of the
hearing herein , Respondent did not intend to offer him reemployment
"Mrs. Carpenter indicated in her prehearing affidavit , which is in
evidence as General Counsel 's Exhibit 10, that as of March 20 , the date of
the affidavit , she had not yet checked into the information about this arrest
of which she had learned the week before Although she did testify that she
did call Judge Summers thereafter about it, I was unimpressed by this
testimony and do not credit it
"Respondent has nowhere indicated that it found fault with Warrs work
record, or that his work record was also a reason for his discharge
considerable and -unwarranted haste as an investigation
initiated by it in regard to the prior arrest record of Warf
concerning which it then had incomplete information was
then pending, and the court proceeding relating to Wart's
recent arrest was yet to take place; and (4) Wart's
discharge, when contrasted with Respondent's conduct in
dealing with other employees in cases of unexcused
absences, reveals that Warf was accorded disparate
treatment by Respondent.
c. The motivation for the discharge of Warf and
concluding findings
The reason for Respondent's discharge of Warf, I find,
lies elsewhere. Thus, my findings heretofore establish that
Warf, like employee Denniston, was active in the Union;
that Respondent had knowledge thereof as shown by its
illegal surveillance on the night of November II of the
union activity in which only these two employees were
then engaged; that within the month that followed, i.e. on
December 1 and December 12, Denniston and Warf were,
in that order, separated from their jobs; and that the
initial separation of Dennison was discriminatory. It
follows therefrom, and I infer, and find, that Wart's union
activity was the motivating factor in Respondent's
decision to separate him, just as Denniston' s similar union
activity motivated Respondent's decision to separate
Denniston. Accordingly, I conclude, and find, that, by
discharging Warf on December 12 and thereafter failing
and refusing to reinstate him, Respondent violated Section
8(a)(3) and (1) of the Act.
Upon the basis of the entire - record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning 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 interfering with, restraining, and coercing its
employees in the exercise of their rights guaranteed in
Section 7 of the Act in the manner above found,
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of
John T. Denniston and Robert E. Warf because of their
interest in, and activities in behalf of, the Union,
Respondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged, and is
engaging, in unfair labor practices violative of Section
8(a)(1) and (3) of the Act, I shall recommend that it cease
and desist therefrom and take certain affirmative action,
as set forth below, designed to effectuate the policies of
the Act. Because of the nature of the unfair labor
practices found, the danger of further unfair labor
practices may reasonably be anticipated. The preventative
purposes of the Act will be thwarted unless a remedy
coextensive with the threat is directed. Accordingly, in
order to make effective the interdependent guarantees of
TROXEL MFG. CO.
Section 7 of the Act, I shall recommend an order
requiring Respondent to cease and desist from in any
manner infringing upon the rights guaranteed employees
by Section 7 of the Act.
Having found that Respondent discriminatorily
discharged John T. Denniston and Robert E. Warf, I shall
recommend that Respondent offer each of them
immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority or other rights, privileges, or working conditions,
and make him whole for all earnings lost by reason of the
discrimination against him, by paying to each of them a
sum of money equal to the amount he would have earned
from the date of his discharge to the date of a proper
offer of reinstatement, less his net earnings during said
period. Backpay, with interest at the rate of 6 percent per
annum, shall be computed in the manner set forth in F.
W. Woolworth Company, 90 NLRB 289; and Isis
Plumbing & Heating Co., 138 NLRB 716.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that-
A. Respondent , its officers , agents, successors, and
assigns , shall:
1. Cease and desist from-
(a) Engaging in surveillance of lawful union or
organizational activities by employees.
(b) Threatening employees that they risk losing their
jobs if they engage in prounion activity.
(c) Discouraging membership in United Packinghouse,
Food and Allied Workers , District 7, AFL-CIO, or any
other labor organization of its employees by
discriminatorily discharging , or in any other manner
discriminating against, any employee in regard to his hire,
tenure, or any other term or condition of employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to
self-organization , to form, join , or assist labor
organizations , to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purposes 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
designed to effectuate the policies of the Act:
(a) Offer to John T. Denniston and Robert E. Warf,
respectively , immediate and unconditional reinstatement
to his former or substantially equivalent position, without
prejudice to his seniority or other rights, privileges, or
working conditions , and make each of them whole for any
loss of earnings he may have suffered, in the manner set
forth in the section hereof entitled "The Remedy."
(b) Notify John T . Denniston and Robert E Warf,
respectively, 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 Service and Training Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request , make available to the
National Labor Relations Board or its agent for
examination and copying all payroll records, social
security records, timecards , personnel records and reports,
and all other records necessary or useful to determine or
compute the amounts of backpay due, as herein provided.
863
(d) Post at its plant in Moscow, Tennessee, copies of
the attached notice marked "Appendix."40 Copies of said
notice, on forms provided by the Regional Director for
Region 26, shall, after being signed by a representative of
Respondent, be posted by Respondent immediately upon
receipt thereof and be maintained for 60 consecutive days
thereafter in conspicuous 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.
(e) Notify the said Regional Director, in writing, within
20 days from the date of the receipt of this Decision, what
steps Respondent has taken to comply herewith.41
IT IS FURTHER ORDERED that those allegations of the
complaint alleging violations of Section 8(a)(1) of the Act
not found herein be dismissed.
"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 said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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:
WE WILL NOT discourage membership in United
Packinghouse, Food and Allied Workers, District 7,
AFL-CIO, or any other labor organization of our
employees by discriminatorily discharging, or in any
other manner discriminating against, any employee in
regard to his hire, tenure, or any other term or
condition of employment.
WE WILL NOT engage in spying upon the lawful
union or organizational activities of our employees.
WE WILL NOT threaten our employees that they are
risking the loss of their jobs if they engage in pro-union
activity.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join or assist a
labor organization, to bargain collectively through a
bargaining agent chosen by themselves, to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act; or to refrain from
any such activities.
WE WILL offer to John T. Denniston and Robert E.
Warf, respectively, immediate and unconditional
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other
rights, privileges, or working conditions, and WE WILL
pay each of them for any loss suffered by him because
of our discrimination against him.
All our employees are free to become or remain, or
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refrain from becoming or remaining, members of the
aforesaid union or of any other labor organization.
TROXEL MANUFACTURING
COMPANY
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify each of the above-named
employees, if presently serving in the Armed Forces of the
United States, of his right to 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.
This notice must remain pasted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
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 534-3161.