Woodline, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1977

233 N.L.R.B. 97 (N.L.R.B. 1977)

WOODLINE, INC.
Woodline, Inc. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Chauffeurs, Teamsters and Helpers
Local Union No. 878. Case 26-CA-6477
October 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On July 25, 1977, Administrative Law Judge
Robert C. Batson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions with supporting brief and a brief in
answer to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions2 of the Administrative Law
Judge, to modify his remedy so that the interest is to
be computed in the manner prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977),3 and to
adopt his recommended Order,4 as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Woodline, Inc., Little Rock, Arkansas, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(d):
"(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them under Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
l The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). we have
carefully examined the record and find no basis for reversing his findings.
2 Under the circumstances of the present case, we find that the
Administrative Law Judge's recommended Order requiring, inter alia, that
Respondent post the customary, notice to employees for 60 consecutive days
is fully adequate to remedy the unfair labor practices herein. Accordingly,
233 NLRB No. 21
we shall not order Respondent to mail copies of the notice to all employees
individually.
3 See, generally. Isis Plumbingd Heating Co., 138 NLRB 716 (1962).
4 Because the unfair labor practices here strike at the very heart of the
Act, we shall modify the recommended order by requiring Respondent to
cease and desist from "in any other manner" interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed in Sec. 7 of the
Act. Springfield Dodge, Inc., 218 NLRB 1429, fn. 2 (1975), and N.LR.B. v.
Entwistle Manufacturing Company. 120 F.2d 532 (C.A. 4, 1941).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employ-
ees these rights:
To engage in self-organization
To form, join, or assist unions of their
choosing
To bargain collectively through represen-
tatives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT threaten our employees that we
will close or change the name of our Company
and operate as a Cartage Company with new
employees if they select the Union as their
collective-bargaining representative.
WE WILL NOT threaten our employees that it is
useless for them to select the Union as their
collective-bargaining representative by telling
them that we do not have to sign a contract until
told to do so by our attorney and the attorney can
hold it up in court for as long as he wants.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7 of
the National Labor Relations Act.
WE WILL offer John Mark Yielding immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
job, without loss of his seniority or other rights
and privileges, and WE WILL make him whole for
any losses he may have suffered by reason of our
discrimination against him.
WOODLINE, INC.
97
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
Proceedings
ROBERT C. BATSON, Administrative Law Judge: This
proceeding under the National Labor Relations Act, as
amended, 29 U.S.C. § 151, et seq. (herein called the Act)
was heard by me at Little Rock, Arkansas, on April 5 and
6, 1977, based on a complaint and notice of hearing issued
by the Regional Director for Region 26, growing out of
charges filed by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Chauffeurs, Teamsters and Helpers Local Union No. 878,
herein called the Union, against Woodline, Inc., herein
called the Respondent. All parties participated throughout
by counsel or other representatives and were afforded full
opportunity to present evidence and arguments and to file
briefs. Briefs have been received from counsel for the
General Counsel and counsel for Respondent. Record and
briefs have been carefully considered.
Issues
The primary issues presented are whether Respondent
discharged John Mark Yielding on or about January 3,
1977, to discourage his, and other employees' union
activities in violation of Section 8(a)(3) of the Act, or
whether his discharge was motivated solely by his alleged
absenteeism and tardiness, and his failure to timely call in
on such occasions; whether Respondent violated Section
8(a)(1) by its agent, attorney Charles J. Lincoln, making
various threats of reprisals to its employees in a speech and
discussion the day before the December 19, 1976, election;
and whether Wilton White, alleged as assistant to the
president and sales manager, violated Section 8(a)(1) by
interrogating an employee concerning his and others'
union activities, and soliciting the employees to inform on
the union activities of other employees. A preliminary issue
with respect to White's supervisory or agency status is
raised by Respondent's denial thereof.
Upon the entire record, including consideration of able
briefs from General Counsel and Respondent,l and my
observation of the testimonial demeanor of the witnesses,2
I make the following:
FINDINGS AND CONCLUSIONS
i. JURISDICTION
At all times material herein, Respondent, Woodline, Inc.,
has been, and is, a corporation doing business in the State
of Arkansas, with an office and place of business (terminal)
located at Little Rock, Arkansas, the only location
involved here, where it is engaged in the transportation of
freight by motor vehicle. During the past 12-month period,
I In accordance with the Board's Rules and Regulations, Series 8, as
amended, I requested proposed findings of fact and conclusions of law.
Counsel ignored this request and filed only briefs.
2 The facts found herein are based on the record as a whole and on my
observations of the witnesses testifying under oath. Credibility resolutions
have been denved from such record and observations with due regard for
Respondent derived revenues in excess of $50,000 for the
transportation of freight which originated at points outside
the State of Arkansas, or which were designated for
delivery at points outside the State of Arkansas.
I find that at all times material herein Respondent
Woodline, Inc., has been, and is, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
I further find that at all times material herein the Union
has been, and is, a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found
The union activities giving rise to the instant charges
began at Respondent's Little Rock, Arkansas, Terminal in
late November 1976,3 when John Mark Yielding, the
alleged discriminatee herein, went to the office of Local
Union No. 878 and obtained some authorization cards
which he passed out to 7 or 8 of the 12-14 employees at the
terminal. He gave two cards to some employees for the
purpose of having them signed by others. The cards were
later returned to Yielding who retained them "until we got
everything straight where we could turn them in." Senior
driver John Hughes got some of the cards signed and
subsequently returned the signed authorization cards to a
representative at the union hall, which provided the basis
for the filing of a Petition for Certification in Case 26-RC-
5420 on December 6. An election was conducted pursuant
to that petition on December 29, which was won by the
Union 12 to 0. 4 Respondent's terminal manager, Al H.
Rutherford, and vice president, Scotty Douthit, deny any
knowledge of union activities at the Little Rock terminal
until receipt of the petition on December 7.
In late November or early December, billing clerk Paul
Toombs was approached by driver John Hughes and asked
to sign an authorization card. Toombs signed a card at
which time Mark Yielding joined the two and asked
Toombs to keep their union efforts a secret. Toombs
agreed. Later that day, Toombs asked rate clerk and
salesman Wilton White, with whom he shared an office, his
opinion of the Union should it ever try to come in at Little
Rock. White advised Toombs to sign a card.
On December 7, the day of receipt of the petition by
Respondent, Toombs told White there was going to be a
meeting at the union hall that evening. White asked
Toombs if he were going and if Terminal Manager
Rutherford knew about it. Toombs told White he was
going and that he didn't know or care whether Rutherford
knew about it. White asked Toombs to listen and try to
find out what was going on. The following day White asked
Toombs if he attended the meeting; who was there and
what went on. Toombs replied that he attended the
meeting and all employees except two were there and that
the logic of probability under the teachings of N.LR.B. v. Walton
Manufacturing Co., et al., 369 U.S. 404 (1962). Testimony not discussed has
been in conflict with credited testimony or incredible or unworthy of belief
3 All dates hereafter are 1976, unless otherwise indicated.
4 The credited and undisputed testimony of Yielding and Hughes
establishes the foregoing.
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WOODLINE. INC.
the stewards had explained the types of contracts and also
that he, Toombs, could not be covered under the drivers'
contract since he was a clerical.
Toombs related another conversation with White, occur-
ring about December 20, wherein White told him that he
had told Vice President Douthit that Toombs had been
asked to sign a union card and that Toombs was on a
congenial basis with the drivers and could keep his eyes
and ears open and report back to him on the union
activities. He asked Toombs to report anything he heard
involving the drivers' union activities, and, apparently, in
the same conversation, asked him who the "ringleaders"
were. Toombs told him Hughes, Yielding, Herman Fultz,
and Hank Thorpe. White replied that he had Hughes and
Thorpe "pegged," and asked if he were sure about
Yielding. Toombs told him he was pretty sure about
Yielding because he had had some cards.
The General Counsel contends the above exchanges
between Toombs and White constitute acts of interroga-
tion and solicitation to inform on employees' union
activities. White was not called as a witness, thus Toombs'
version of these conversations is undenied, and whether or
not they constitute interference, restraint, and coercion in
violation of Section 8(aXl) turns upon whether White was
a supervisor or agent of Respondent.
White has worked for Respondent I I years; the first 9,
until October 1974, as the Little Rock terminal manager.
At that time, according to Douthit, White asked to be
relieved as terminal manager and was assigned duties as
rate clerk. White was succeeded by Jack Salee as terminal
manager, who was in turn succeeded by Clyde McFadden,
who remained terminal manager until about July 12 at
which time he was succeeded by Al H. Rutherford, who
was terminal manager at all times material herein.
McFadden remained in the employ of Respondent in some
unspecified, but apparently supervisory capacity, s5 until
some time in October. From McFadden's departure until
Dickie Willis was hired as dock foreman in January 1977,
Rutherford was the only admitted supervisor at the
terminal. In September White took on the duties of part-
time salesman at which time he received, in addition to his
salary, a $100-a-week car allowance.
The General Counsel bases his contention that White is
assistant to the president of Respondent on the existence of
business cards reflecting that title. The existence of the
cards is not in dispute. Paul Toombs testified that, when he
came to work as billing clerk in March 1976, he was
assigned the desk formerly used by White who had been
assigned another desk located about 2 feet away and
adjacent to that of Toombs. While cleaning out the desk,
Toombs found a box of business cards and upon ascertain-
ing what they were gave them to White, who thanked him
and put them in his new desk. There is no evidence as to
when the cards were printed, or that they were authorized
or paid for by Respondent, or that such title had even been
bestowed upon White. Moreover, there is no evidence that
White distributed the cards, with or without knowledge of
Respondent, or otherwise held himself out as assistant to
the president. Neither General Counsel nor Respondent
5 On September 29, 1976, he placed a memo in the personnel file of Mark
Yielding stating he had received a call from Yielding that he would be late
called White as a witness. Rutherford testified that he first
heard of the cards from a source he couldn't remember
about a month before the hearing and that he reported it to
Douthit who stated that he would check into it. Although
Rutherford worked daily with White, at the time of the
hearing neither Rutherford nor Douthit had made any
effort to investigate the matter; Rutherford stating he did
not think it important.
While the action, or reaction, to the rumor of the
existence of the cards by Rutherford and Douthit in March
1977, particularly in view of an outstanding complaint
alleging White as "assistant to the president" is suspect, in
my opinion it is not sufficient to sustain the allegation that
White was a supervisor or agent of Respondent by virtue of
being assistant to the president, in the absence of a showing
that such title was ever conferred on him or Respondent
condoned his holding himself out as such. Moreover, it has
not been shown that any employee except Toombs was
aware of the cards, and, indeed, all the General Counsel's
employee witnesses identified White as rate clerk and
salesman.
The General Counsel's second contention is that at
material times herein, between the departure of McFadden
and the hiring of Dock Foreman Willis in January 1977,
White relieved Rutherford as terminal manager whenever
Rutherford was away and at those times exercised all the
authority of the terminal manager, including the exercise of
independent judgment in making assignments to employ-
ees and the discharge of employees. During this period of
time, according to Toombs, White performed his sales
chores in the morning and came to the terminal around or
before noon. Rutherford testified that White came in about
9 a.m. and remained until about 10 a.m., at which time he
would go out to contact prospective customers and make
sales rate proposals, he not having the authority to finalize
any proposal with a customer, and would return about
12:30 p.m. and perform his rate clerk duties in the
afternoon. At any rate he was usually there when
Rutherford went to lunch for 30 to 45 minutes each day, at
which time he would answer the telephone and receive
pickup orders and dispatch drivers to pick up freight when
they telephoned in. Respondent's trucks are not radio
equipped. If there were no freight for a driver to pick up
and he had completed his deliveries, he was told to come in
and clock out.
I do not credit Rutherford's testimony that he prepared a
rather elaborate list of the drivers and their locations with
instruction as to where to send them when they called in.
Such would seem superfluous for a former terminal
manager who was well acquainted with dispatching
procedures. However, I find that at the times White
relieved Rutherford he did so only for the dispatch duties
normally performed by Rutherford, which did not include
supervisory functions. In performing these dispatching
duties for a brief time each day White was exerting
direction and control over the movement of the freight and
direction of personnel was only an incidental result. Pilot
Freight Carriers, Inc. and BBR of Florida, Inc., 223 NLRB
286 (1976).
and had talked with him about his tardiness and gotten a promise it would
not happen again.
99
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally the General Counsel argues that White had, and
exercised, the authority to discharge. This contention is
based on an event occurring, apparently in November,
when, according to Paul Toombs, White discharged driver
Hosea Williams for refusing to move some freight from a
trailer to the dock or another trailer as directed by White.
Toombs' testimony is extremely general and vague as to
exactly what happened, although he testified he was
present and heard the exchange between White and
Williams. Rutherford's testimony concerning what hap-
pened, and why, as reported to him, was likewise vague
and evasive. Rutherford stated that White and Williams
had some "words" or that Williams did not like White's
tone of voice and Williams went home. In any event
Williams called Rutherford later the same day and asked if
he could come back to work. Rutherford told him to come
on in the next day. Williams lost no time from work as a
result of the incident. I am unable to conclude from
Toombs' general testimony that White discharged or
attempted to discharge Williams and find that as a result of
a disagreement over the movement of freight Williams did
clock out and leave the terminal.
Assuming that White instructed Williams to clock out, I
find that such was in connection with his dispatch duties
and is not evidence of the existence or exercise of discharge
authority or of the authority to effectively recommend
such.
The General Counsel urges that memos placed in the
personnel files of Jerry Richardson and Hosea Williams on
January 4, 1977, by Rutherford, to the effect that they were
to punch off the clock when told to do so by himself or
White, conclusively establishes White's supervisory status.
I cannot draw that inference from the memos. Admittedly,
during this period of time White was in charge of
dispatching drivers and directing the movement of freight
on the dock for brief periods of time daily when
Rutherford was at lunch or otherwise away from the
terminal. I find that White's duties during this period of
time were not those of terminal manager, but merely those
of a dispatcher concerned with the movement of freight.
While the issue is not free from some doubt, particularly in
view of Rutherford's evasiveness concerning the Williams
incident and his "bootstrapping" testimony concerning the
preparation of elaborate instructions to White as to daily
assignments to make while he was at lunch, which I do
credit, and his general unreliability as a witness, the
General Counsel has failed to sustain his burden of proof
with respect to White's supervisory or agency status.
Therefore, the allegations of interrogation and solicitation
to inform on the union activities of fellow employees by
White, directed to Toombs, do not violate Section 8(a)(1).
On December 28, the day before the Board-conducted
election, Respondent's attorney, C. J. Lincoln, conducted a
meeting with all unit employees from about 8 a.m. to 10 or
11 a.m. at the terminal. Employees Yielding, Richardson,
6 Terminal Manager Rutherford was present at the beginning and from
time to time throughout the meeting, thus no issue is presented with respect
to Lincoln's speaking to the employees as an agent of Respondent.
7 On April 4, 1977, Administrative Law Judge Robert A. Giannasi issued
his Decision in Woodline, Inc.; Marshall Wood an Individual and Marshall
Wood d/b/a Fort Smith Cartage Company. Cases 26-CA-6226; 26-CA-
6264, and 26-CA-6314. finding that Respondent, at its Fort Smith
and Hughes testified about the meeting. Hughes, whose
recollection of the meeting appeared to be better than that
of Yielding and Richardson, gave the most cogent account
of what was said. A composite of the testimony reveals that
Lincoln opened the meeting by introducing himself as
attorney for the Company and with the rhetorical question
as to why the employees wanted a union.6 The answers
indicated dissatisfaction with wages, condition of the
equipment, long hours of work, and other working
conditions. Lincoln told the employees that they were
going to get a raise in pay and then proceeded to tell each
of them how much they were making and how much of a
raise they would get. According to Hughes, the raises as
indicated by Lincoln were received after the first of 1977.
The employees told Lincoln they had been "promised and
promised," but nothing had been done about the equip-
ment and the 10- to 12-hour workdays. Lincoln told the
employees they were going to do something about that.
Either Hank Thorpe or John Hughes asked Lincoln if the
employees at Respondent's Fort Smith (Arkansas) terminal
had gone union. Lincoln replied that they had and "don't
none of those boys at Fort Smith have a job anymore." He
continued that he could do the same thing at Little Rock as
he had at Fort Smith, "get us out and get a new crew." He
stated that Woodline could shut the doors and not operate
or could operate as a cartage line with all new men.
Lincoln told them, according to Yielding, that they may
have heard that the men at Fort Smith had gotten theirjobs
back but that it was not true, the matter was still tied up in
court. He continued that he could keep it tied up in court
as long as Marshall Wood (president of Respondent)
wanted him to. He continued that Wood would not have to
sign a contract until he (Lincoln) told him it was "O.K.";
that Wood didn't want a contract and wouldn't have one,
or "that he could hold it up in Court about a year." 7
Mr. Lincoln did not testify, and in its brief Respondent
contends that General Counsel has not carried his burden
of proof that Lincoln threatened the employees with loss of
jobs since only one witness made a catagorical statement to
that effect, and that Lincoln was merely relating the status
of the law in alluding to the fact that Wood could not be
compelled to sign a contract.
From the above it is clear that Lincoln interfered with,
restrained, and coerced employees, by telling them that
Respondent could close its doors and/or operate under a
new name with new employees, much as it had done at
Fort Smith. Lincoln also suggested the futility of selecting
the Union as their collective-bargaining representative by
telling the employees that he could hold the Union up in
court for as long as he wanted. Lincoln's promise of a wage
increase and the later granting of it, and his promise to do
something about the long work hours, is not alleged as a
promise of benefits to reject the Union, and the General
Counsel did not move to amend his complaint, nor did he
argue such in his brief, notwithstanding that the testimony
operation, had violated Sec. 8(aXl), (3), and (5) of the Act; the 8(aX3)
violations being, inter alia, the wholesale termination of all Fort Smith
Cartage employees, urging as a defense its cessation of operations and its
purchase of Carter Truck Lines authority and ICC requirement that it take
such action. I relate these findings to shed light on Lincoln's references to
the Fort Smith employees and their misfortune with the selection of the
union.
100
WOODLINE, INC.
had been received without objection and Respondent had
the opportunity to litigate the issue. Therefore, I make no
finding that such violated Section 8(a)( ).
B. The Discharge of Mark Yielding
Yielding worked for Respondent on two occasions, the
first from October 1975 to March 1976, at which time he
quit to work for another truckline for more money. He
discussed his leaving with Terminal Manager McFadden
and Vice President Douthit, who urged him to stay, but
stated they could not give him more money since they were
trying to bring all employees up at the same time. About
July 12, McFadden telephoned Yielding and asked him if
he was looking for a job. Yielding said he was, having quit
his other employer. McFadden told Yielding they had a
new terminal manager, Al Rutherford, and he would talk
with Rutherford and get back to him. About an hour later
McFadden called Yielding and told him to come on in.
Yielding reported to work that day. A couple of days later
Rutherford talked with Yielding, telling him "Clyde
recommended you highly, and Ijust wanted to tell you that
I'm glad, you know, you are on the team."8
As noted above, Yielding testified that he talked with
employees about getting a union almost from the time he
came to work and in late November obtained cards from a
union representative and took them to the terminal where
he distributed them and obtained signatures from a
number of employees. Having found that White was not a
supervisor or agent of Respondent, it cannot be shown that
Respondent was aware of Yielding's leading role in the
union activities. However, at the Christmas party on
December 23, Yielding, along with Thorpe and Hughes,
complained to Rutherford about the alleged unsafe
condition of the equipment and the attitude of manage-
ment personnel. This occurred after Rutherford pointed to
the notice of election poster and told the employees "that
we didn't need that to get what we wanted from Marshall
Wood." After hearing these complaints, Rutherford told
them that Wood was trying to "fix" the trucks and give
them more money, and if they wanted to talk to Wood he
would pick up the phone and call him right then. Yielding
told him no, but that he would like to come in the next
working day "when we was sober" and talk to him.
Yielding obtained permission for Hughes to accompany
him. Rutherford did not deny this incident. The following
Monday, after Christmas, Yielding and Hughes went to
Rutherford's office and complained about the condition of
the equipment and Rutherford told them Wood was having
problems replacing his shop foreman and getting the trucks
in shape. Thus, while there is no direct evidence of
Respondent's knowledge of Yielding's leading role in the
Union, he was vocal in his complaints about the condition
of the equipment.
Yielding was given notice of his termination on January
3, 1977, after being absent from work on December 30 and
31, the 2 days immediately following the December 29
election which the Union won 12 to 0. At the hearing,
Respondent settled upon the defense that it discharged
8 I do not credit Douthit's testimony that Yielding was an unsatisfactory
employee the first time and he would not have permitted his rehire had he
known about it at the time.
Yielding for his excessive absenteeisms and tardinesses,
and his failure to timely call in to report them. However, in
a pretrial affidavit obtained by an agent of the Regional
Office, Scotty Douthit had stated that the decision to
discharge Yielding was made on December 30, on the
recommendation of Rutherford, and had been building up
for some time, citing incidents of alleged mishandling of
freight going back to November 1975. Rutherford testified
that he and Douthit also discussed Yielding's os & D
problems, along with those of absences and tardiness, in
the December 31 telephone conversation at which the
decision was made to terminate Yielding.
Yielding's attendance record received into evidence
shows that he was absent August 26, sickness; August 31,
wife in auto accident; September 7, personal problems;
and December 17, 29, 30, and 31, due to sickness.
Rutherford admitted that the December 29 entry was an
error since Yielding had been at work that day, the day of
the election. Although not reflected on his attendance
record, a notation on the back indicates he was absent at
least a part of the day on September 13 for a court
appearance at noon. As to Yielding's tardiness, the first
event of which there is any evidence that anyone had
spoken to him about it is September 29, in a file memo
signed "Clyde," identified by Rutherford as Clyde McFad-
den, wherein he states Yielding was 30 minutes late and he
talked with him and "advised him what he had done to us."
Yielding does not recall McFadden's talking with him on
this occasion. Yielding was again late on October 14, 15,
and 16, by 12, 42, and 30 minutes, respectively, and on
October 18, Rutherford placed a memo in his file stating he
had talked to him. Yielding remembers Rutherford's telling
him if he were supposed to be there at 6:30, he expected
him there at 6:30, and Yielding responded that he would
try not to be late again. The record does not reflect that
Yielding called at all on those occasions or that Rutherford
indicated he should.9 Yielding was not thereafter absent
from, or late reporting to, work until December 17, on
which date he telephoned Rutherford at 7:40 a.m.,
according to Rutherford's memo, and reported that he had
a stomach virus and could not come to work. Rutherford
asked why he had not reported earlier and Yielding stated
he had just awakened. According to the memo placed in
Yielding's file, Rutherford told him "in the future when he
was unable to report to work he must call before time for
him to report not after." This is the first memo reflecting an
admonition to call in before worktime when going to be
absent and it does not support Respondent's contention
that its "flexible" rule was to report I hour before
worktime. On December 21, Yielding was due to report to
work at 6:30 a.m. and reported at 7 a.m., testifying that he
had car trouble. Rutherford's memo to the file states
Yielding called at 7 a.m. and said he had lost his car keys,
but would be in. On this date, Yielding requested that
Rutherford change his starting time to 8 a.m. Rutherford
agreed. Yielding was not thereafter late.
On December 30, the day following the election,
Yielding was sick and had his sister call in for him.
9 Yielding placed this event in late November. However, he states that it
followed his being late 3 consecutive days and the October incident is the
only time this occurred.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Rutherford's file memo, Yielding's wife
called at 7:45 a.m. and reported him sick. Douthit was at
the terminal at that time, according to his testimony, and
told Rutherford to ask to speak with Mark, and Rutherford
was told that the caller was at a pay phone and Mark was
not there. Rutherford could not recall whether Douthit was
present at that time. Douthit stated that he thereafter went
through Yielding's personnel file and called three tele-
phone numbers found there; Yielding's home number, his
brother's number and his mother-in-law's number. He
received an answer only at the latter number and was told
by the party they did not know where Yielding was.
Douthit offered no explanation as to why he wanted to talk
with Yielding. Later that day, noon, according to Yielding,
and 4:30 p.m., according to Rutherford, Yielding tele-
phoned and told Rutherford he would try to be at work the
next day.'°
The following day, Yielding was still sick and had his
sister call Rutherford, according to Rutherford's memo, at
8 a.m. At noon Yielding called Rutherford and told him he
was feeling better and could come in if he were needed.
Rutherford told him things were slow and he had let a
couple of drivers go home, and he did not need him. Later
that day, Yielding went to the terminal and got his
paycheck from Rutherford, who told him to come in at 8
a.m. on Monday.
At or about 8 a.m. on Monday, January 3, 1977, Yielding
discovered his timecard was not on the board and went to
Rutherford's office and asked about it. Rutherford told
him he had the card and to come in he wanted to talk with
him. Rutherford had a piece of adding machine tape on
which he had written "Mark Yielding called in December
21, 30 minutes late," and reminded Yielding that he had
missed Thursday and Friday, and told him he was going to
have to let him go because of his absenteeism. Yielding
refused to sign the resignation letter Rutherford had
prepared, at which time Rutherford discharged him.
C. Analysis and Resolutions
Respondent contends that it had for at least the last year
a "flexible" rule requiring employees to call in I hour
before reporting time if they were going to be absent or
late, and it was the repeated violation of this rule, in
addition to the number of absences and tardinesses, that
precipitated Yielding's discharge. Admittedly, the rule was
never written or posted until some time after Yielding's
termination. Moreover, the numerous written notations
placed in the personnel files of Yielding, Richardson, and
Williams do not indicate the existence of such a "one hour
rule," but merely a rule to call in prior to worktime. I find
the "one hour rule" came into existence after the discharge
of Yielding and even then employees were not discharged
for a single or several violations. The record discloses that
'0 I do not credi; Rutherford that Yielding told him he was feeling fine
and promised faithfully to be at work the next day.
'" This is illustrative of the unworthiness of Douthit's testimony. In
addition to the forenoted discrepancies between his pretrial affidavit and his
testimony, I note that in his affidavit he stated that he decided to discharge
Yielding on December 30, while in Little Rock, but at the hearing testified
the decision was not made until December 31, when he was back in
Russellville. Also in his affidavit he stated that he played no role in the
discharge of Richardson, but at the hearing testified that after the filing of
the petition he was consulted on all discharges, including Richardson.
Jerry Richardson failed to call in eight times prior to his
scheduled worktime before being given a written warning
to the effect that continued failure to do so would result in
his discharge.
Douthit testified that in reviewing the personnel files of
all employees at Little Rock on December 30, he discov-
ered that Yielding's absentee record was "a lot worse" than
that of any other employee. The record shows that at that
time Richardson had 19 absences compared with 6 for
Yielding." Further, the record shows that employee John
Stage was absent on eight occasions between August and
December.
Respondent argues that the failure of the General
Counsel to show that it had knowledge that Yielding was
the "ringleader" of the union activities eliminates any
motive it may have had for discharging him for that reason.
Be that as it may, on December 29, when the Union won
the election 12 to 0, Respondent knew that all of its
employees, including Yielding, had supported the Union,
and Yielding's absence the following day made him
vulnerable and provided Respondent an ostensibly legiti-
mate reason to discharge him.
In determining employer motivation for an alleged
unlawful discharge, all the circumstances of each case must
be weighed, and where an employer has "good ground for
the discharge of an employee. . ." the Board must "find an
affirmative and persuasive reason why the employer
rejected the good cause and chose a bad one." The
Firestone Tire and Rubber Company v. N.LR.B., 539 F.2d
1335 (C.A. 4, 1976). Where, as here, the assigned reason for
discharge is riddled with inconsistencies, exaggerations,
and falsehoods concerning the extent of the employee
misconduct,'2 a finding is warranted that the assigned
reason is not the real one. Respondent's animosity toward
the Union was clearly demonstrated by C. J. Lincoln on
December 28, by his blatant threats of mass discharges and
cessation or change in the operation of the business which
would bring about the termination of employees if the
Union were selected. Since Respondent's assigned reason is
rejected, I find the more rational explanation for Yielding's
discharge was retaliation for the employees having selected
the Union as their collective-bargaining agent, and to
discourage membership in, and support of, the Union. As
the Fourth Circuit of Appeals recently observed in Neptune
Water Meter Comtpany, a Division of Neptune International
Corporation v. N. LR.B., 564 F.2d 92 (C.A. 4, 1977). "Such
motivation can be found from the absence of any good
cause for discharge. This must be so unless we are willing
to assume something we know to be false: that business-
men hire and fire without any reason at all." My finding of
invidious motivation here is not impaired by the fact that
Yielding was perhaps not an exemplary employee and did
have absences and tardinesses and, on occasions, failed to
iz Douthit's testimony that, after reviewing all the personnel files,
Yielding's absentee record was the worst is refuted by exhibits received at
the hearing showing that at least two employees had more absences, one
more than twice as many as Yielding. Rutherford's testimony that other
employees always called in, presumably in accordance with the "one hour
rule," is totally refuted by exhibits showing that on at least 13 occasions
both before and after Yielding's discharge employees called after their
reporting tir,.e, or not at all.
102
WOODLINE, INC.
call in; it is sufficient that a discriminatory motive was a
factor in the employer's decision to discharge. Winn-Dixie
Stores, Inc. v. N.L.R.B., 448 F.2d 8 (C.A. 4, 1971). The
discharge of Mark Yielding violated Section 8(a)(3) of the
Act.
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By telling its employees that in the event the Union
were selected, it could cease its operation or operate under
a different name, or as a Cartage Company, much as it had
done at Fort Smith, operating with new employees; and by
threatening its employees that it would be futile for them to
select the Union by telling them Respondent would not
have to sign a contract and could hold up the Union in
court as long as it wanted, Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
3. By discriminatorily discharging and thereafter failing
and refusing to reinstate its employee John Mark Yielding
because of his union activities and to discourage union
activities of its employees, Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (I), and Section 2(6) and (7)
of the Act.
4. Respondent has not otherwise violated the Act.
THE REMEDY
Inasmuch as Respondent has been found guilty of
violations of Section 8(a)(1) and (3) of the Act, it should be
ordered to cease and desist from those or like violations,
and to take certain affirmative actions in effectuation of
the policies of the Act. The affirmative actions shall include
the unconditional offer of immediate and full reinstate-
ment to John Mark Yielding, to his former job, or, if that
job no longer exists, to a substantially equivalent one,
without loss of seniority and other rights and privileges,
and make him whole for any loss of earnings suffered by
reason of such discrimination, by paying him a sum of
money equal to the amount he would have earned from the
date of the discrimination against him to the date of
Respondent's offer to reinstate, less his net earnings during
the period in accordance with the Board's formula set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest thereon at the rate of 6-percent per annum as set
forth in Isis Plumbing & Heating, Co., 138 NLRB 716
(1962).
Finally, Respondent should post the usual informational
notice, attached hereto as an Appendix.' 3
I3 On May 12, 1977, counsel for the General Counsel filed a motion with
the Board that upon issuance of this Decision, this case be consolidated with
Woodline, Inc., et al., Cases 26-CA-6226; 26-CA-6264 and 26-CA-6314, in
which Administrative Law Judge Giannasi issued his Decision on April 4,
1977, and is now pending before the Board on exceptions. Should the Board
grant that motion and adopt the remedy recommended by Administrative
Law Judge Giannasi with respect to the mailing of copies of the notice to the
homes of all its employees, I recommend that such be ordered in this case
also.
14 In the event no exceptions are filed as provided by Sec. 102.46 of the
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:
ORDER 14
The Respondent, Woodline, Inc., Little Rock, Arkansas,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees that it will close its Little
Rock Terminal, or change the name thereof, or operate as a
Cartage Company with new employees.
(b) Threatening its employees that it would be futile for
them to select the Union as their bargaining representative
by telling them that it would not sign a contract until told
to do so by its attorney and the attorney could hold it up in
court as long as he wanted.
(c) Discharging employees and refusing to reinstate them
in order to discourage employees from membership in or
support of the Union or from engaging in any other union
or protected concerted activities.
(d) In any other like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies and purposes of the
Act:
(a) Offer its employee, John Mark Yielding, immediate
and full reinstatement to his former job, or, if that job is no
longer available, to a substantially equivalent one, without
prejudice to his seniority or other rights, including, but not
limited to any and all raises given employees since his
termination, and make him whole for any loss of earnings
in the manner set forth in this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to determine the amount of backpay due under
this Order.
(c) Post at its Little Rock, Arkansas Terminal, copies of
the attached notice marked "Appendix." 15 Copies of said
notice, on forms duly provided by the Regional Director
for Region 26, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for a period
of 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.
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of those 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.
1s In the event 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."
103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices not
found herein.
104