Great Dane Trailers Indiana, Inc

National Labor Relations Board - Board Decisions

Mar 22, 1989

293 N.L.R.B. 384 (N.L.R.B. 1989)

384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Great Dane Trailers Indiana, Inc and United
Cement, Lime , Gypsum and Allied Workers
International Union, AFL-CIO Cases 25-CA-
14341, 25-CA-14437-2, 25-CA-14586, and 25-
RC-7822
March 22, 1989
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On August 17, 1983, Administrative Law Judge
Steven M Charno issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup
port of the judge's decision
The National Labor Relations Board has delegat-
ed its authority in this porceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings,2
and conclusions, and to adopt the recommended
Order as modified 3
1 The credited evidence shows that the Re-
spondent's representatives made statements-at
meetings, in leaflets, and in letters to employees-
that economic strikers at two other facilities owned
by the Respondent were permanently replaced and
lost their jobs, that economic strikers do not have a
right to their jobs after the strike at the Respond
ent's plant, they would be permanently replaced
and could not get their jobs back (see sec II,D, of
the judge s decision) We agree with the judge that
all these statements are unlawful This is not simply
a matter of failing to explain employees' Laldlaw4
' The Respondent asserts that the judge s findings of fact and conclu
stons of law reflect bias After a careful review of the entire record we
are satisfied that this allegation is without ment There is no basis for
finding that bias and partiality existed merely because the administrative
law judge resolved important factual conflicts in favor of the General
Counsels witnesses As the Supreme Court stated in NLRB Y Pittsburgh
Steamship Co 337 U S 656 659 (1949) [T]otal rejection of an opposed
view cannot of itself impugn the integrity or competence of a tner of
fact Furthermore 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 the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products 91 NLRB 544
(1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined
the record and find no basis for reversing the findings
2 We note that the General Counsel has not filed exceptions to those
complaint allegations dismissed by the judge
a In accordance with our decision in New Horizons for the Retarded
283 NLRB 1173 ( 1987) interest on and after January 1 1987 shall be
computed at the short term Federal rate for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621 ) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
4 Laidlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cir
1969) cert denied 397 U S 920 (1969)
reinstatement rights when referring to an employ
er's right to permanently replace economic strikers
Eagle Comtronlcs, 263 NLRB 515 (1982) Rather,
the statements particularly when viewed in the
context of the other unlawful threats made during
the union campaign, affirmatively indicate that em-
ployees have no reinstatement rights and would
lose their jobs if they went out on strike Thus, we
find that the Respondent's statements constitute
threats that go beyond the permissible bounds of
protected speech under Section 8(c) of the Act
See Gino Morena Enterprises, 287 NLRB 1327
(1988), Emerson Electric Co, 287 NLRB 1065
(1988) 5
2 We also agree with the judge's findings that
the Respondent violated Section 8(a)(1) of the Act
when it reprimanded and suspended James Wright
on April 20 1982, however, we do not agree with
the judge's findings that these actions violated Sec
Lion 8(a)(3) of the Act
Wright ran one of the two press machines in the
press department He ran the press with one other
employee unless the job was a difficult one and a
third employee was needed On three separate oc-
casions on the morning of April 20, Wright re
quested Supervisor Vic Brown to provide a third
employee to work with Wright and James Cooksey
because every second or third job would be a diffi
cult one Brown refused each request for assistance
After Brown refused Wright's third request,
Wright yelled a profanity at Brown Brown re-
sponded that he would take care of Wright's prob-
lem after lunch and that he had had it with
Wright s bugging' him about help Later that day,
Wright was reprimanded and suspended for a day
and a half The Respondent claimed that Wright
was disciplined for using abusive language toward
a supervisor (See sec II,E,5, of the judge's deci
sion )
The judge found, and we agree, that Wright's re-
quests for assistance were protected concerted6 ac-
tivity See Meyers Industries, 268 NLRB 493 (1984)
(Meyers 1), remanded sub nom Prill v NLRB, 755
F 2d 941 (D C Cir 1985), Meyers Industries, 281
NLRB 882 (1986) (Meyers II), enfd sub nom Prill
v NLRB, 835 F 2d 1481 (D C Cir 1987) 7 We also
5In finding this violation we need not rely and do not pass on the
statements made by Plant Manager James Rossiter on May 28 that after
a strike against another employer ended the people out on strike would
not have a right to get their jobs back from those hired to replace them
during the strike and that [s]trikers do not have the right to get their
jobs back from people hired to replace them-after the strike is over
6 A review of the record discloses that Wright and Cooksey discussed
the need for additional help before Wright actually asked Brown for as
sistance and that Wright specifically told Brown that We need some
help and asked could we have some help on the job
Member Johansen did not participate in Meyers
293 NLRB No 41
GREAT DANE TRAILERS
agree with the judge that, although the Respondent
had punished other employees in the past for using
obscene language toward foremen, that was not
what motivated Brown to seek to have Wright dis-
ciplined Brown's response to Wright focused
solely on Wright's persistent entreaties for a third
employee to help him and his coworker with the
difficult trailer jobs We further find that Wright's
use of strong language in the course of making his
protest did not remove the protection of the Act
See Fall River Savings Bank, 247 NLRB 631, 633
(1980), American Telephone & Telegraph, 211
NLRB 782, 783 (1974), enfd 521 F 2d 1159 (2d
Cir 1975) Because discipline resulting from
Brown's hostility to Wright's continuing protests
would reasonably tend to restrain protected con-
certed activity, we affirm the judge's finding that
the suspension violated Section 8(a)(1) of the Act
However, because, as the judge also found,
Wright's union sentiments played no part in this,
we do not find that the suspension violated Section
8(a)(3) of the Act
3 Finally, essentially relying on PPG Industries,
251 NLRB 1146 (1980), the judge found that the
Respondent engaged in an unlawful interrogation
and created the impression of surveillance on Feb
ruary 23, 1982, when Supervisor Vic Brown asked
Michael McRoberts if he had been attempting to
persuade other employees to support the Union
McRoberts responded that he had not engaged in
such activity Brown replied that he had heard that
such an incident took place in the "reefer" plant
McRoberts stated that he had not been in the
"reefer" plant and Brown responded, "that's what
I heard " The judge found that Brown's conduct
was unlawful because it was not an isolated inci-
dent and it conveyed the Respondent's hostility to
McRoberts' activities The Respondent argues that
the incident was isolated and that it had no coer-
cive impact on McRoberts
In Rossmore House, 269 NLRB 1176 (1984), affd
sub nom Hotel & Restaurant Employees Local 11 v
NLRB, 760 F 2d 1006 (9th Cir 1985), issued after
the judge's decision in this case, the Board over-
ruled PPG Industries, stating that it would hence-
forth evaluate interrogations according to whether,
under all the circumstances, the interrogation rea
sonably tends to restrain, coerce, or interfere with
the rights guaranteed by the Act See also Sunny-
vale Medical Clinic, 277 NLRB 1217 (1985) Apply
ing these principles, we find that Brown's conduct
was unlawful Only shortly before, on February 19,
the Respondent had begun its antiunion campaign
and committed several unfair labor practices, the
interrogation was accompanied by another unlaw-
ful act, the creation of the impression of surveil-
385
lance,8 and it was one of many unfair labor prac
tices committed by the Respondent during the
union campaign 9 We note also that the evidence
does not demonstrate that McRoberts was an open
union supporter See DeCasper Corp, 278 NLRB
143, 145 (1986)
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, Great Dane Trailers Indiana, Inc, Brazil,
Indiana, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi
feed
1 Substitute the following for paragraph 1(f)
`(f) Reprimanding and suspending its employees
because they engaged in concerted protected ac
tivities "
2 Substitute the following for paragraph 2(b)
"(b) Make James Wright whole for any loss of
earnings he may have suffered as a result of the
unfair labor practices against him in the manner set
forth in the remedy section of the judge's decision
as modified in this decision "
3 Substitute the attached notice for that of the
administrative law judge
IT IS FURTHER ORDERED that Case 25-RC-7822
is severed and remanded to the Regional Director
for Region 25 for the purpose of conducting a
second election at such time as the Regional Direc-
tor deems appropriate
[Direction of Second Election omitted from pub-
lication ]
8 We note that Browns remark that he had heard that the incident
took place in the reefer plant is unlawful not only because it creates
the impression of surveillance but also because it solicits a reply regard
mg the employees union sympathy thus constituting an attempt to inter
rogate in violation of Sec 8(a)(1) of the Act See Cardivan Co 271
NLRB 563 567 (1984) (Nicholson incident)
9 These unfair labor practices include the promulgation and mainte
nance of an invalid no access rule threats of plant closure and discharge
numerous threats of violence implied threats of discharge of economic
strikers another interrogation Supervisor Saunders withholding request
ed work assistance for antiunion reasons surveillance and creating the
impression of surveillance and the reprimand and suspension of James
Wright
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
Accordingly, we give you these assurances
WE WILL NOT maintain rules that prohibit unau
thorized employee access to plant premises during
nonworktime or prohibit you from discussing a
union
WE WILL NOT interrogate you concerning your
union membership, activities, or sympathies
WE WILL NOT conduct surveillance of your
union activities or engage in conduct that tends to
create the impression that we have your union ac-
tivities under surveillance
WE WILL NOT threaten to do everything in our
power to prevent you from selecting a union as
your collective-bargaining representative
WE WILL NOT threaten to discharge striking em-
ployees
WE WILL NOT threaten you with discharge,
physical violence, injury, death, or other reprisals
for engaging in union or other concerted protected
activities
WE WILL NOT threaten nonemployee union rep-
resentatives with physical injury or death in your
presence
WE WILL NOT withhold assistance to you in per
forming your assigned work because of your union
activities
WE WILL NOT reprimand or suspend you for en-
gaging in concerted protected activities
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL remove from our files any reference to
the unlawful reprimand of James Wright on Febru-
ary 19, 1982, and to his unlawful reprimand and
suspension on April 20, 1982, and WE WILL notify
him that this has been done and that evidence of
this unlawful discipline will not be used as a basis
for future personnel action concerning him
WE WILL make James Wright whole, with inter-
est, for any loss of pay resulting from his unlawful
suspension
GREAT DANE TRAILERS INDIANA,
INC
Ann Rybolt Esq, for the General Counsel
G Thomas Harper Esq (Haynesworth Baldwin Miles &
Bowden) of Jacksonville Florida and Cecil B De
Lorme Esq, of Savannah, Georgia, for the Respond
ent
Barbara J Baird Esq (Fillenwarth Dennerline & Groth),
of Indianapolis, Indiana, and William Hunter, of Fort
Wayne Indiana for the Charging Party
DECISION
STATEMENT OF THE CASE
STEVE M CHARNO, Administrative Law Judge In re
sponse to charges timely filed, complaints were issued on
April 13, May 17, and July 12, 1982 the latter one of
which was amended on August 3 1982 These com
plaints allege that Great Dane Trailers Indiana, Inc (Re
spondent) had violated Section 8(a)(1) and (3) of the Na
tional Labor Relations Act through the use of discrimi
natory rules threats surveillance interrogation, and the
discriminatory modification of terms and conditions of
employment Respondents answers deny the commission
of any unfair labor practice
In response to a petition filed by the United Cement,
Lime, Gypsum and Allied Workers International Union,
AFL-CIO ( the Union) on May 5 1982 in Case 25-RC-
7822, a secret ballot election was heid on June 3, 1982,
which the Union lost Timely objections filed by the
Union resulted in the Acting Regional Directors recom
mendation that a hearing be held on six objections and
two additional allegations of objectionable conduct iden
tified during his investigation That recommendation was
coupled with an order consolidating the representation
case with the outstanding unfair labor practice cases
The record contains no exceptions to the Acting Region
al Directors report and his recommendations and order
were adopted by the Board s Order of August 4 1982
A consolidated hearing was held before me in Terre
Haute Indiana on August 23-27 and September 28-30
1982 At the heanng over Respondents objections the
General Counsel was allowed to amend the complaint by
adding two additional allegations that Respondent had
violated Section 8(a)(1) The briefing schedule estab
lished at the close of the heanng was suspended when
the record was reopened to permit consideration of
newly consolidated complaints Ultimately the new
cases were settled and severed Briefs were thereafter
filed under extended due date of February 22, 1983 by
the General Counsel and the Respondent
FINDINGS OF FACT
I JURISDICTION
Respondent is a Delaware corporation that manufac
tures freight hauling trailers at a facility located in Brazil
Indiana During the 12 months preceding issuance of the
most recent complaint in this proceeding a representa
tive period, Respondent, in the course and conduct of its
business sold and shipped products valued in excess of
$50 000 from Brazil to customers located outside Indiana
During that period, in the course of its operations, Re
GREAT DANE TRAILERS
spondent purchased and received products at Brazil
valued in excess of $50,000 from points outside Indiana
It is admitted and I find, that Respondent is an employer
engaged in commerce within the meaning of the Act
The Union is admitted to be and I find is, a labor or
ganization within the meaning of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent has manufactured custom made refngerat
ed and dry freight trailers at its Brazil facility since 1975
During the period relevant to this proceeding, Respond
ent employed approximately 400 production and mainte
nance employees at the facility Organizationally, Re
spondent s facility is run by Plant Manager James Ros
siter, who has ultimate authority over all aspects of ad
ministration and production Reporting to Rossiter are
Industrial Relations Manager William Charlebois and
Plant Superintendent David English These individuals,
together with Cecil DeLorme, Respondents corporate
director of labor relations, and G Thomas Harper, Re
spondent's attorney, formulated the strategy that Re
spondent intended to use to defeat the Unions organiz
ing campaign
Reporting to the plant superintendent are two assistant
plant superintendents, Wayne Morris and Fred Nevils
Respondents facility is further divided into 14 depart
ments each of which is run by a department head who
has firstline supervisors reporting to him Based on Re
spondent s admissions and the voluminous testimony con
cerning the duties and authority of the foregoing super
visory personnel I find them all to be supervisors and
agents of Respondent within the meaning of the Act
The Union s organizing campaign at Respondents fa
cility began during the week of November 22, 1981 The
top levels of Respondent s management became aware of
the campaign almost immediately, and all Respondent s
supervisory personnel attended one or more meetings
early in 1982 where they were addressed on the method
ology they were to employ in combating the campaign
Many of them were already veterans of the unsuccessful
organizing campaign conducted at the facility by the
United Auto Workers during 1979 The Union began dis
tnbuting literature on February 16 1982 i and held its
first generally publicized meeting the following day Re
spondent began to conduct captive audience meetings of
its employees immediately thereafter and continued to do
so until just prior to the election
B Respondent's Access Rule
Prior to commencement of the organizing campaign
Respondent promulgated a set of rules in its employee
handbook One of these, rule 13, prohibits Visiting plant
premises during off time without obtaining written per
mission in advance That rule has been implicitly, if
somewhat ambiguously, modified by a notice posted by
Respondent at its employees timeclocks that reads, Em
ployees may not clock in before 600 A M Respond
i All dates hereinafter are 1982 unless otherwise specified
387
ent's first production shift begins at 7 am There is no
evidence that a comparable dispensation has ever existed
for Respondents second or third shifts 2 Respondent has
not issued a retraction or any other modification or clan
fication of rule 13 since it was promulgated
There is no direct evidence that the rule was adopted
or maintained for a discriminatory purpose Further,
there is no evidence that the rule was ever enforced,
either to interfere with organizing activity or for any
other purpose Indeed, credited testimony indicates that
the rule was violated with apparent impunity by four
employees who came to work as early as 6 a in, re
marred in the plant after their respective shifts had
ended, or returned to the plant on errands after working
hours Although union adherents on two occasions dis
tributed handbills by the guard station inside the plant,
their activity took place between 6 30 and 6 55 a in 3
There is no evidence that the Union distributed literature
inside the plant or in the adjacent nonworking areas after
working hours 4
A rule that prohibits all unauthorized access by off
duty employees to the interior of a plant and to the adja
cent nonworking areas, such as parking lots and road
ways is presumptively invalid Tn County Medical
Center, 222 NLRB 1089 (1976) A presumptively invalid
rule does not become valid simply because there is no
showing that it was enforced See Lexington Metal Prod
uctr Co, 166 NLRB 878, 879-880 (1967) Accordingly, I
find that Respondents promulgation and maintenance of
an overly broad no access rule violated Section 8(a)(1) of
the Act
C The Camera
For the last 6 years, a Polaroid camera has been kept
in the personnel department and used to take photo
graphs of employees for their identification badges
Before and during the organizing campaign, the camera
was mounted on a tripod located on a table that abutted
the north wall of the building The camera itself was
normally situated in front of or adjacent to a window in
the north wall 5 It is undisputed that the camera without
2 Respondents brief asserts that the posted notice allowed employees
to be inside the plant one half hour after their shifts Respondent fails
to cite record support for this assertion and my review of the record dis
closes none
3 The hearsay testimony of the Union s representative William Hunter
to the effect that handbilling took place on these two occasions between
6 and 6 55 a in is contradicted by the eyewitness testimony of employee
Michael Rambo that distribution took place between 6 30 and 6 55 a in I
find the testimony of the individual actually involved in the activity to be
more probative and credit Rambo rather than Hunter on this point
4 On brief Respondent contended that employee witnesses that it spon
sored had testified that union literature was distributed in the plant after
work The record citations supplied by Respondent provide no support
for its contention Similarly although Respondent noted that handbilling
occurred after work on approximately 18 occasions examination of the
record discloses that this activity took place at a point where the plant
driveway intersects a public road rather than on Respondents premises
Charlebois who was in the personnel department on a daily basis
testified that the camera was normally in front of the window Sherry
Gilbert the personnel department secretary testified that the camera had
been in front of the window since December 1981 Marcella Loveall a
data processing employee who entered the personnel department several
times a day for over 6 years testified that although the table was in front
Continued
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
substantial modification could not be used to photograph
anything that occurred at the entrance to Respondent's
premises
At an unspecified time on a day around March 1, em
ployee Michael McRoberts visited the personnel depart
ment and saw the camera in front of the window with its
lens pointed outward On his way to work one May
morning and on his return from lunch at 12 30 p in that
day or the next, employee Sandy Sanders noticed the
camera in the window with its lens pointed outward Be
tween 4 30 and 5 p in on 2 days in March or April, em
ployee Daniel Sanders noticed the camera in the window
as he returned from distributing union literature at the
entrance to Respondents premises, there is no evidence
as to the direction in which the lens was pointed on
these occasions
The General Counsel contends on brief that upon oc
casion Respondent placed the camera in front of one of
the windows and turned its lens outdoors, to make em
ployees wonder if they were being photographed as they
handbilled As I found above, it was not unique for the
camera to be located in front of the window If Re
spondent wished to create an impression of surveillance
among its employees, surely it would have positioned the
camera so that the lens pointed outdoors during the pen
ods when union literature was actually being distributed
There is, however, no evidence that the camera was ever
so positioned between 3 30 and 6 p in , the only hours
during which union adherents distributed handbills
Indeed I infer from Daniel Sanders failure to testify
concerning this point that the camera lens was not point
ing outward on the occasions he noticed the camera Be
cause I do not believe that the evidence demonstrates
that Respondent has violated the Act I shall dismiss the
relevant allegation
D Respondents Captive Audience Meetings and
Campaign Propaganda
On December 9 1981 and on February 19 and March
24, 1982 Plant Manager Rossiter and Corporate Director
of Labor Relations DeLorme conducted captive audi
ence meetings each of which was attended by all the
Respondents employees Rossiter and DeLorme also
conducted a series of four meetings in Respondents cafe
tena for smaller groups of employees between May 12
and June 2, each meeting was repeated to the extent re
quired to ensure that all the Respondent's employees
were present at one session
The meeting held on February 19 was opened by Ros
siter, who commented briefly concerning the economy
and business at the plant DeLorme then introduced the
Company's attorney and told the employees that the
of the window the camera was usually at the side of the window Em
ployee Michael McRoberts indicated that in his trips to the personnel de
partment once or twice a year since 1977 he had seen the camera in the
vicinity of a window although not necessarily in front of it Employee
Sandy Sanders recalled that the camera was not in front of a window
when his identification photo was taken some 4 years previously and fur
ther testified that the only time he recalled seeing the camera in the
window from outside the building was during the UAW organizing cam
paign in 1979 I do not find these accounts of the camera s location to be
seriously inconsistent given the circumstances of its normal use
lawyer was there to make sure the Company did every
thing legally possible to prevent a union victory 6
During the meeting DeLorme asked the employees not
to sign union authorization cards 7 Immediately after
making this request DeLorme assured his listeners that,
should the Union secure signatures from 30 percent of
the employees, the Company would do everything in its
power to keep the Union out 8 At some point during his
presentation, DeLorme stated Look around you and
see who it is who wants the Union Are these the kind of
people you want to represent you?" DeLorme also told
the assembled employees that Respondent `would not
permit any distribution or solicitation on Company time
or property and anyone doing it would be dismissed 10
8 The testimony to this effect of DeLorme and 10 of the 11 employee
witnesses sponsored by Respondent is unrebutted
r DeLorme so testified as did 9 of Respondent s 11 witnesses and all 4
of the General Counsels witnesses Although the notes of the General
Counsels witness Rick Eveland contained the phrase do not sign cards
turn them down Eveland testified on three separate occasions that De
Lorne s reference to the cards was a request rather than an instruction I
find the foregoing testimony especially in light of the admissions made
by the prounion employees who testified to be more probative than the
testimony to the contrary given by Respondents witness William Noblitt
8 On direct examination by Respondent employee Glenn Pell volun
teered that DeLorme s statement to this effect immediately followed the
request not to sign a union card Both the nature of DeLorme s statement
and the sequence of events were corroborated by employee Brian
Scobee The nature of the statement was further corroborated by the tes
timony and contemporaneously executed notes of both James Wright and
Daniel Sanders I credit the testimony of these witnesses because of their
demeanor while on the stand because Scobee and Sanders displayed a
detailed recollection of the February 19 meeting and because all three of
the General Counsels witnesses testified in a straightforward manner and
were not averse to giving answers unfavorable to their interests I do not
believe that the testimony of these four witnesses is controverted by the
fact that DeLorme had used the phrase legally possible earlier in his
presentation indeed Pell testified that DeLorme made both comments
To the extent that employee Ernest Heeke s testimony which does not
specifically associate DeLorme s use of legally with the introduction of
Respondents lawyer may be thought to run counter to my finding I do
not credit Heeke based on my observation of his demeanor and on his
demonstrated lack of probity on other issues
8 DeLorme so testified
10 The wording of the statement is drawn from employee Daniel Sand
ers contemporaneous notes which I feel to be the most accurate account
of what was said Sanders and Brian Scobee who testified that DeLorme
made such a statement were both impressive witnesses who showed de
tailed recollection of what transpired and testified in a candid and forth
right manner Their testimony was further corroborated by employee Mi
chael Rambo
DeLorme who originally testified as the General Counsels witness
that he may have mentioned union literature was almost positive he
had not done so by the time he took the stand on Respondents behalf
DeLorme categorically denied making any reference to firing employees
Contrary to Respondent s assertion on brief 11 employees did not deny
that DeLorme made such a statement Employee Rick Eveland and five
employee witnesses called by Respondent (Noblitt Hood Bullerdick
Black and Boston) testified that they did not recall or did not hear the
statement The six remaining employees called by Respondent while they
did not recall or hear the statement were sure that it had not been made
In contrast to this purported certainty DeLorme and Respondents em
ployee witnesses recalled virtually nothing about any of the other cap
five audience meetings and their purported recall of what transpired on
February 19 was limited almost exclusively to allegedly unlawful events
I am forced to agree with the General Counsel s contention on brief that
this testimony more closely resembles the product of coaching than the
spontaneous reports of candid individuals Indeed one witness Mark
Harbin (whom I found to lack candor on other questions) volunteered a
rationale for why he was sure DeLorme did not make the statement
Continued
GREAT DANE TRAILERS
Finally, DeLorme mentioned that Respondents parent
company had experienced strikes at its Savannah Geor
gia facility Talking of one economic strike at Savannah
DeLorme stated that strikers who did not cross the
picket line were permanently replaced and lost their
jobs 11
DeLorme did not explain recall rights 12
A number of allegations of the complaint relate to
statements that were made at the February 19 meeting
Based on the foregoing findings, I further find that De
Lorme s threats concerning Respondent s intention to do
everything in its power to avoid unionization and to dis
charge employees caught engaging in solicitation or dis
tribution were unfair labor practices in violation of Sec
tion 8(a)(1) of the Act There is no probative evidence
that Respondent instructed its employees not to sign
union authorization cards as alleged in the complaint,
and that allegation will be dismissed The General Court
sel contends on brief that, because union insignia had
been distributed only 2 days before the February 19
meeting, DeLorme s statement, Look around you and
see who it is who wants the Union, created an impres
sion of surveillance 13 Although there is a paucity of evi
dence on the question, it was established that at least two
of the principal union adherents James Wright and John
Moore, were wearing union insignia at the time of the
February 19 meeting I therefore conclude that this alle
gation is not adequately supported by the record, and it
will be dismissed
Finally the General Counsel contends that DeLorme s
discussion of the replacement of economic strikers at Re
spondent's Savannah facility constituted an implied
threat to discharge economic strikers Standing alone an
employers statement that it has a right to hire permanent
replacements for economic strikers does not violate the
Act Eagle Comptronics, 263 NLRB 515 (1982) When an
employer goes beyond a simple statement of this right
and, through ambiguity or artifice suggests that perma
nent replacement is equivalent to termination of the em
ployment relationship between it and the economic strik
ers it implies that all rights of reinstatement have been
terminated and its suggestion constitutes an implied
before Respondents counsel had an opportunity to ask whether the state
ment had been made
For the foregoing reasons and based on the other credibility determi
nations concerning these witnesses I have made in this decision and on
my observation of their demeanor while testifying I credit the witnesses
presented by the General Counsel over those who testified on behalf of
Respondent on this point
11 Employees Rick Eveland and Brian Scobee so testified on behalf of
the General Counsel Although Respondents witness Steve Boston
denied that DeLorme had stated that strikers would be fired he admitted
recalling DeLorme s explanation that a lot of people lost their jobs in
connection with the Savannah strike Respondents witness Mark Buch
holz testified that DeLorme said that the majority [of stokers] were not
rehired a remark that Buchholz interpreted to mean that they had lost
their jobs I believe that the testimony of these witnesses (in the context
of DeLorme s admission that he later told employees that the Savannah
strikers lost their jobs) is far more probative than the miscellany of state
ments concerning the discharge of strikers evoked from Respondents
witnesses
12 I credit DeLorme s admission that he did not discuss recall rights
over Steve Boston s testimony to the contrary which was conflicting and
confused
13 Respondent did not address this allegation on brief
389
threat to discharge economic strikers Harrison Steel
Castings Co, 262 NLRB 450 (1982), Webel Feed Mills
217 NLRB 815 818 (1975) Hicks Ponder Co, 186 NLRB
712, 724 (1970) enfd 458 F 2d 19 (5th Cir 1972) See
also Mead Nursing Home 265 NLRB 1115 (1982) Brown
ing Ferris Inc, 263 NLRB 79 (1982) When DeLorme
stated that the economic strikers who were permanently
replaced at Respondents Savannah facility lost their
jobs," he clearly implied that the employment relation
ship between Respondent and its striking employees had
been permanently severed I find that this statement
which was made in the context of DeLorme's threats
that Respondent would do all in its power to avoid
unionization and that employees engaged in solicitation
or distribution would be discharged, was an implied
threat to fire economic strikers I further find that this
threat is beyond the limits of the protection afforded by
Section 8(c) of the Act and is an unfair labor practice in
violation of Section 8(a)(1) of the Act
On May 19 and 20, Rossiter and DeLorme conducted
a series of meetings in question and answer format for
groups of 35 to 40 employees In one such meeting,
which was attended primarily by members of the union
organizing committee, employee Michael Arnold asked
why he had not received an anticipated time in grade
raise Prior to that meeting Arnold had asked his imme
diate supervisor the same question and had been in
formed that the raise was not due until the end of June
At the meeting Rossiter responded that Arnold should
check with Employee Relations Manager Chapman 14
There being no probative evidence supporting the allega
tion that the Respondent informed its employees that
promotions and wage increases were being withheld
during the organizing campaign, I shall dismiss the alle
gation
In another question and answer group meeting em
ployee Gary Nuckols asked whether a union could be
decertified once it was voted in DeLorme responded in
the affirmative and at least partially explained the
Board's decertification process DeLorme also stated
that, although he was not familiar with the Union's con
stitution such documents allowed unions to fine mem
bers and you could be fined large sums of money by
the Union for attempting to get it decertified 15
14 Arnold so testified but went on to the effect that Rossiter had
stated that all wage increases and promotions were being deferred until
after the election Rossiter denied making any such statement and gave a
coherent detailed explanation of what occurred I find it illogical that
Rossiter would direct Arnold to Chapman for assistance while telling
Arnold that no assistance would be forthcoming Arnold s testimony on
this point was evoked only after several attempts by counsel for the Gen
eral Counsel and even then was exceptionally confused Although I gen
erally found Arnold to be a credible witness on other questions in this
proceeding I cannot credit his testimony on this point However it is
neither improper nor uncommon in litigation for the trier of fact to
accept some but not all of the testimony given by a witness See NLRB
v Universal Camera Corp 179 F 2d 749 754 (2d Cir 1950)
15 These findings are based on the testimony of employee Douglas
Hayes DeLorme testified that he recalled the question that he answered
by explaining the decertification process that he was unsure whether he
had discussed union fines in that context and that he was confident
that he did not say someone signing a decertification petition would be
fined In view of DeLorme s exceptionally poor recollection of what
was said at this meeting and based on my observation of both witnesses
demeanor on the stand I credit Hayes over DeLorme
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In a letter mailed to employees on May 27, Respond
ent referred to a strike called by the Union against an
other employer and then stated
We at Great Dane know about strikes and vio
lence first hand At the company s Savannah Plant
we did have a terrible strike one time The Savan
nah strikers were out of work for a long, long time
Most of them were eventually replaced and lost
their jobs altogether and for what9 For noth
ing The union and the strike did not force the com
pany to give in to a thing and in the end the union
just walked away from the whole mess [Ellipsis in
original ]
This letter echoed a handbill distributed by Respond
ent on April 13, which stated that strikers
3 Can be permanently replaced in strikes over
union economic demands
4 Do not have a right to their jobs after the
strike if permanently replaced
The next small group meetings, which were held on or
about May 28, began with two video presentations con
cerning union related violence and corruption Rossiter
concluded the meetings with a speech on bargaining and
strikes He began by noting that the Company s duty to
bargain in good faith did not require it to make good on
wild union promises" and stated
The point of this is if the company says no to any
of the union's demands, the only thing the union
can do to try and force the company to give in is to
call you-the employees-out on strike
After noting that strikes depend on unions and are not
inevitable Rossiter brought to the employees' attention a
yearlong strike called by the Union against another em
ployer He went on to state
If this union got in here and called a strike I be
lieve our company would hire replacements for the
strikers and continue to operate as best we could
This is our right under the law and it s our responsi
bility to all the other employees in the company
who need and want their jobs When the strike was
over, the people out on strike would not have a
right to get their jobs back from those hired to re
place them during the strike
Let me summarize four facts about strikes that I
believe are important to you
4 Strikers do not have the right to get their jobs
back from people hired to replace them-after the
strike is over
At the next set of small group meetings on June 1, Re
spondent showed a film about a violent economic strike
against a company in Clinton, Iowa Because the film
was made before the strike ended, DeLorme informed
the viewers of the strike's outcome the employees who
did not cross the picket line lost their jobs because they
had been permanently replaced 16 During one of these
meetings, apparently in the course of discussing different
types of union fines, DeLorme told the employees that
fines could be assessed against members for disbanding
the union 17 DeLorme also discussed the Board s
decertification procedures
At the final small group meetings on June 2, DeLorme
told his listeners that, should the Union win the represen
tation election, Respondent didn't have to agree to a
damn thing during any subsequent negotiations 18 De
Lorme went on to explain that, in the event of a strike at
Respondent's plant, the striking employees would be
permanently replaced "19 At the close of one of the
meetings on June 2, employee Michael Rambo ap
proached Industrial Relations Manager Charlebois and
told him that DeLorme was wrong in telling the employ
ees that strikers could not get their jobs back if they had
been replaced Charlebois told Rambo that DeLorme
was correct 20
The General Counsel contends on brief that Respond
ent's statements in captive audience meetings and cam
paign literature subsequent to February 19 concerning
the replacement of economic strikers constitute an addi
tional threat to discharge such strikers Respondent main
tains that its behavior was lawful under the holding in
Eagle Comptronics, supra During the campaign, Re
spondent told its employees that it would do everything
in its power to avoid unionization and repeatedly threat
ened its employees with reprisals for engaging in union
activities It focused a significant portion of its campaign
on strikes, attempting to present them as violent, eco
nomically damaging to employees, and generally unsuc
cessful as an economic weapon The employees were re
peatedly informed during captive audience meetings that
18 DeLorme s concession that he made this statement was corroborat
ed by employees Brian Scobee and Michael Rambo Although Rambo
testified on direct examination that the striking employees had no right
to recall he explained on cross examination that the phrase was his
rather than one used by DeLorme at the meeting
17 This finding is based on the testimony of employee Michael Rambo
Although DeLonne testified that he stated that some of the stoking em
ployees in the film had been fined by the union and that that union had
ultimately been decertified he never denied making the statement attnb
uted to him by Rambo To the extent that DeLorme s testimony may be
thought to controvert that given by Rambo I do not credit DeLorme
based on the fact that he had made a similar unrecalled statement at an
earlier meeting and on my observation of the demeanor of both witnesses
while they were on the stand
18 This finding is based on the unrebutted testimony of employee Brian
Scobee Rick Eveland made passing reference to a statement by De
Lorme concerning Respondents right of not having to negotiate with
us Based on overwhelming evidence that Respondent never threatened
to refuse to negotiate with the Union I conclude that Eveland misspoke
and was actually referring to DeLorme s statement quoted in the accom
panying text
19 This finding is based on the uncontroverted testimony of Brian
Scobee and Michael Arnold which was supported by the testimony of
Michael Rambo and the testimony and contemporaneously executed
notes of Rick Eveland Rambo s testimony that DeLorme said something
to the effect that striking employees couldn t get their jobs back is
found to be Rambo s impression of what was said on this occasion rather
than a verbatim account of DeLorme s statement
20 This finding is based on Charlebois version of the interchange
which I credit Rambo s recollection of the conversation was sketchy and
confused while Charlebois account was concise and supported by De
Lorne
GREAT DANE TRAILERS 391
if there were an economic strike the strikers would be
permanently replaced Respondents May 27 letter equat
ed permanently replaced economic strikers with those
who lost their jobs altogether, ' and this charactenza
tion was repeated by DeLorme on June 1 during a set of
meetings involving Respondents entire work force
Based on the authorities cited in the discussion of De
Lorme s February 19 threat, I find that Respondent s
statements constituted an implied threat to discharge eco
nomic strikers and that this threat was an unfair labor
practice in violation of the Act
E Allegations Involving Employee James Wright
Wright was employed by Respondent in May 1977
and, as relevant here, operated a brake press with the as
sistance of James Cooksey The other press in Wright s
department was operated by Monte Hayes, who was as
sisted by Diane Lawson Both press operators reported
to Supervisor Victor Brown and Department Head
Walter Bragg
Wright was an active participant in the organizing
campaign from its outset He joined the in plant organiz
ing committee on December 4, 1981, and its first two
meetings were held in his home He attended numerous
committee and general organizing meetings, distributed
over 100 authorization cards, and passed out union litera
ture on 23 of the 26 occasions on which it was distribut
ed between February 16 and June 2 After the first
public organizing meeting on February 17 Wright wore
union insignia daily
1 The prohibition against employees speaking to
Wright
It is Respondents policy to allow its employees to talk
with each other while they are working, unless such a
conversation would interfere with production
On the morning of February 3, Hayes who was on his
break, began a conversation with Wright, who was
working at his press After 10 minutes Brown ap
proached and asked Hayes not to talk with Wright be
cause it was slowing production Hayes admitted that
Brown had made a similar request when Hayes talked to
another employee in April or May At 1 30 p m that
day Kurt Pflueger an employee from another area
began a conversation with Wright while the latter was
working After a minute or two Brown appeared and
asked Pflueger what he was doing holding up production
and sent Pflueger back to his own area to take his break
The record is silent as to whether Wright s press met its
production quota on February 3
The General Counsel contends that Brown s undis
puted instructions to Hayes and Pflueger on February 3
were discriminatory and violative of Section 8(a)(1)
There is no evidence, however that Respondents man
agement had any reason on February 3 to be aware of
Wright's involvement in the organizing campaign
Wright did not begin wearing union insignia until 2
weeks later, and there is no evidence that any of Re
spondent's employees were instructed not to speak with
him after he publicly identified himself as a union sup
porter For the foregoing reasons, I cannot conclude that
Brown s actions have been shown to be discriminatory I
shall therefore dismiss this allegation of the complaint
2 Surveillance
At the captive audience meeting on February 19, em
ployees Rick Eveland and Wright were standing toward
the back of the room when the meeting began Eveland
had noticed Department Head Bragg and Supervisor
Charles Hoskins standing behind him when Rossiter,
who was addressing the meeting, asked if all the employ
ees could hear him Apparently prompted by Rossiter s
question, Wright and Eveland moved approximately 30
feet forward and to the right They were followed by
Bragg and Hoskins Both Wright and Eveland observed
Bragg and Hoskins standing behind them at their new lo
cation During the course of the meeting, while Wright
was taking notes on his clipboard of what was said, em
ployee Cooksey observed Bragg and Hoskins looking
over Wright s shoulder in the direction of the clip
board 21 Cooksey noticed that Wright moved a short
time after Bragg and Hoskins began looking over his
shoulder Thereafter, Cooksey paid no further attention
to what occurred 22
On entering the captive audience meeting on March
24 Wright who was again carrying his clipboard,
walked to the front of the room and joined employee
Sandy Sanders in the first row Before the meeting
began, Wright noticed Bragg and another foreman stand
ing behind him Employee Michael McRoberts, who was
standing with Wright and Sanders, observed Sanders
taking notes during the meeting McRoberts also repeat
edly observed Bragg attempting to see what Sanders was
writing 23
As indicated by my findings I do not regard the testi
mony given by Cooksey and McRoberts, when read in
context, to consist merely of subjective impressions' as
argued by Respondent Respondent also argued that if
Bragg and Hoskins watched employees taking notes at a
meeting attended by all Respondents supervisory and
21 Hoskins testified that he could not remember who he was standing
with or near at the February 19 meeting but denied that he attempted to
see Wright s notes Bragg could not recall observing any employees
taking notes at the meeting To the extent that Hoskins testimony is in
consistent with that of Cooksey whom I found to be a fully candid wit
ness I do not credit Hoskins
2 2 Because Wright and Eveland (followed by Bragg and Hoskins) first
moved before the speeches and Wright s resultant note taking began
Cooksey must have first observed Wright taking notes at some point after
Wright and Eveland made their initial move Thus Respondents asser
tion on brief that Cooksey testified that Bragg and Hoskins did not
follow Wright and Eveland is without support Indeed Cooksey did not
testify on the question of whether Bragg and Hoskins followed Wright
when the latter moved a second time
23 Bragg testified that he could not recall where Wright or Sanders
was standing but stated that he was standing four or five rows deep It is
uncertain whether this was his location before or after he moved forward
at the beginning of the meeting To the extent that Bragg s testimony
may be construed to be inconsistent with the credited testimony of
Wright or McRoberts I do not credit Bragg Hoskins who was not iden
tified by either McRoberts or Wright testified that he could not recall
looking over Sanders shoulder or where Sanders was standing at the
March 24 meeting although Hoskins did remember that he had stood 10
to 15 feet away from Sanders at a meeting of uncertain date Contrary to
Respondents assertion on brief I do not regard Hoskins testimony as
probative
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hourly personnel Bragg and Hoskins were doing nothing
more than lawfully observing open activity which oc
curred during working time on an employers premises I
would agree if Respondents management personnel had
confined themselves to observing employees taking
notes When Bragg followed Wright on February 19 and
when he attempted to read the notes taken by Wright
and Sanders he went beyond an observation of open ac
tivity Accordingly, I conclude that Bragg s conduct on
February 19 and March 24 constituted unlawful surveil
lance in violation of Section 8(a)(1) of the Act
3 Reprimand of February 19
Respondents policy in Wright s department was for
the press operators to rotate [breaks ] as much as possi
ble in order to avoid slowing production by shutting
down a press , but it was admitted that the employees
working on both presses slacked off from the policy 24
The employees working on each press were allowed to
take their breaks together whenever they were caught
up 25 All the employees working on the presses had
been informed of Respondents break policy and it was
the responsibility of the lead operators Wright and
Hayes to determine when and how to take breaks
On the morning of February 19,26 Wright 's press was
staffed with a three man crew because the work sched
uled for that day involved some concededly difficult
jobs At some point between 9 and 9 30 am, Wright s
press was running approximately 10 minutes ahead of
schedule, and he decided to shut it down to take a
break 27 After the two employees assisting Wright had
left, Brown approached and instructed Wright to start up
his press Wright explained that the next job he was re
quired to run a stainless steel trailer would require a
crew of three and that it was therefore appropriate for
24 The foregoing finding is based on the credited testimony of Supervi
sor Brown The testimony given by Department Head Bragg concerning
the break policy was replete with inconsistencies and logical impossibil
uses Bragg testified that it was Respondents policy never to shut down
the presses when taking a break He variously testified that this policy
had always been in effect and that it had been instituted around January
1 His statements on the four occasions he testified concerning the times
at which he had informed his subordinates of the policy are confused and
conflicting Bragg testified that based on his personal observation his
employees had followed the policy from January 1 through February 19
he then stated that his employees failure to follow the policy had been a
continual problem since January and that he had spoken to Hayes and
Wright about their respective failures at unspecified times and places Fi
nally I found Bragg to be an argumentative witness who repeatedly vol
unteered self serving statements For these reasons and based on my ob
nervation of his demeanor on the stand I have not credited Bragg s un
corroborated testimony in this proceeding
25 This finding is based on Cooksey s testimony which was corrobo
rated by Wright and Hayes Although Bragg originally testified that the
employees could shut down a press to go on break if a machine is
caught up his subsequent descriptions of company policy omitted this
proviso I credit his original testimony that is supported by that of the
remaining witnesses who testified on the subject See fn 24 supra
26 Wright recalled these events as having occurred on February 18 the
remaining witnesses believed they occurred on February 19 In view of
my other findings the date is immaterial and I have adopted the consen
sual view
27 The fact that Respondents witnesses testified that there was room
for Wright to continue working when he shut down his press and the
fact that his press was behind schedule at the end of the day do not con
trovert Wright s testimony that he was ahead of schedule at the time the
break was taken
all of them to take their break prior to the job 28 Brown
demurred and Wright called Cooksey and told him to
return to the machine
Between 12 30 and 1 30 p in that day, Wright was
called to Bragg s office where he met with Brown
Bragg, and William Charlebois Wright was told that he
had been called in because he had shut down his press to
take a break Wright indicated that he believed that it
had been the most convenient time to take a break He
was then asked if he had not previously been told not to
shut down his machine and he responded that he had
Charlebois yelled that Wright was going to run the ma
chine the way he was told or he was going to lose his
job Wright asked Charlebois not to yell and attributed
the reprimand to the fact that he was a union organizer
Charlebois denied that the Union had anything to do
with the discipline being administered 29
Because Wright was caught up when he shut down
his press on February 19, I find that he did not violate
Respondents break policy Even if he had done so, I
note that none of the other employees who were shown
to have violated that policy were disciplined Based on
these facts and the timing of Wright s reprimand which
occurred only 2 days after the first public meeting held
by the Union and on the same day Bragg had engaged in
unlawful surveillance of Wright s protected activities, I
conclude that the reprimand given to Wright and Char
lebois threat of discharge were discriminatorily motivat
ed and violative of the Act as alleged in the complaint
4 Denial of assistance
Beginning no later than January 1 , it was Respondent s
policy that each of the presses in Wright s department
was to be run by an operator and one helper a third
man was to be assigned for difficult jobs when an
extra man was available This policy was communicated
to Wright and Hayes by both Bragg and Brown during
January
In the period between the first of the year and April
19, Wright often observed what he believed to be unoc
cupied coworkers and repeatedly asked Brown to assign
a third man to his press Brown estimated that Wright
28 Wright s analysis is supported by the testimony of his supervisor
Brown testified We also run stainless steel trailers which requires [sic]
three people on the handling Although Brown further testified that it
was possible for two people to handle a stainless steel trailer he admit
ted that it takes two men 15 to 20 minutes longer to do so than it would
take three men In contrast it takes a two man crew only 5 minutes
longer than a three man crew to run a normal trailer There is therefore
support for Wright s claim that it is inefficient to use a two man crew to
process a stainless steel trailer
29 On brief Respondent asserts that Wright was at least partially disci
plined for intentionally slowing work down and contends that Wright
had a history of conducting work slowdowns The record demonstrates
that most if not all of the employees in Wright s department had called
for a work slowdown at one time or another Although Respondent con
sidered a work slowdown to be a serious offense Brown and Bragg both
testified that no one had ever been disciplined for committing that of
fense (In this context I do not credit the assertion that asking a press
operator if he had any problems constituted discipline ) The testimony of
Respondents managerial witnesses conclusively rebuts Respondents con
tention that Wright was disciplined for engaging in a slowdown I there
fore conclude that Respondents allegation that Wright engaged in a
work slowdown is without relevance to its treatment of Wright
GREAT DANE TRAILERS 393
made such a request at least once a day from February
through April Wright and Brown agreed that a number
of these requests were denied With one exception the
record does not disclose whether Wright was running a
difficult job on any of the occasions he requested as
sistance The exception occurred on April 7 when
Wright was running a difficult job, requested help
from Brown, was refused by Brown, complained to
Bragg that Hayes press had received help the prior day,
and was assigned a third man shortly thereafter
Respondents policy within the department also re
quired any unoccupied worker to offer to assist at one of
several operations, including the presses When unoccu
pied workers attempted to volunteer their service at
Wright's press on four to seven occasions during Febru
ary and March, Brown directed them not to do so On
one occasion the volunteer had no other work to per
form after he was ordered to leave Wright s press, but
there is no evidence that this fact was known to
Brown 30 The record does not disclose whether
Wright s press was running a difficult job at the times
his coworkers volunteered to assist him
Wright was clearly denied assistance operating his
press during the first 3 months of the year Because there
is no evidence that he was ever denied assistance while
running a difficult job, there is no showing that those
denials ran counter to the departmental policy then in
effect Two things, however, are clear from the record
First the two presses were required to perform the same
quantum of work over any extended period That is
Wright s press constructed one side of each trailer pro
duced in the department and Hayes press constructed
the other Second the credited testimony of Cooksey
Wright s helper, and Hayes establish that each press got
about as much extra help as the other during the relevant
period I must therefore conclude that no showing was
made that the denial of assistance experienced by Wright
resulted in the discriminatory imposition on him of
more onerous working conditions as alleged in the
complaint Accordingly I shall dismiss the allegation
5 Events of April 20
On April 20 although the departmental production
schedule dictated that every second or third trailer
would be a difficult job a third man was not assigned
to Wright s press Wright and Cooksey noticed a number
of apparently unoccupied workers in the department and
discussed the possibility of securing additional help On
two occasions during the morning, Wright approached
Brown and requested help Each time Brown responded
that there was none to spare and Wright returned to his
press At approximately 11 55 am, Wright again asked
Brown for help When Brown answered that no one was
available, Wright in the hearing of another hourly em
ployee on the plant floor, called Brown a fucked up
30 Richard Browning testified as to not having any other work in a
wholly credible manner To the extent that Browns testimony that he
never removed a man from Wright s press unless there was something for
the man to do is inconsistent with Browning s version of the incident I
do not credit Brown based on my observation of the demeanor of both
witnesses while they were on the stand
foreman ' 31 The conversation closed with Brown s com
ment
I in going to take care of your problem right after
lunch (I made a motion to my chin) I ve had it up
to here with you bugging me about help
Brown reported the incident to Charlebois Respond
ent s management investigated the incident, and Charle
bois and English agreed to reprimand and suspend
Wright unless Wright could come up with some compel
ling justification for his conduct, a possibility which net
ther considered likely
It was established that obscenity was not uncommon
inside Respondent's plant, but that obscene comments
were not directed at supervisors in the normal course of
business Respondents disciplinary records indicate that
in the three incidents involving the use of obscene ]an
guage by an employee to a supervisor that occurred be
tween 1978 and 1982, one offender was suspended for 3
days and the other two were terminated
At approximately 2 p in, a meeting was held in the
plant conference room that was attended by Wright,
Brown, Charlebois, and English 32 English opened the
meeting by asking Wright what the problem was Wright
responded that Bragg and Brown had been doing every
thing possible to irritate him for 2 months When English
suggested that he was available under such circum
stances Wright indicated that speaking to English would
have no lasting effect on the situation Wright was asked
if he had sworn at Brown and denied having done so for
fear of discharge English stated that Brown and other
people had heard Wright do so Wright was then
handed a reprimand for insubordination-using abusive
language toward your foreman' which indicated that
Wright would be subject to dismissal if he violated any
company rule within the next 6 months Wright refused
to sign the reprimand English stated that Wright was
going to receive the warning and in response to
Wright s question explained that the suspension had
nothing to do with Wright s refusal to sign the warn
ing 33 Wright was suspended for 1 1/2 days
It is clear that Wright s use of profanity was viewed as
a serious offense by Respondent and that the discipline
decided on by English and Charlebois is more lenient
than that meted out for any similar offense I therefore
91 Brown so testified and Wright s discipline was purportedly based
on Brown s version of the incident Wright remembered calling Brown
a fucking piss poor foreman
32 Wright testified that Nevils who escorted Wright from his work
station to the conference room attended the meeting Because English
and Charlebois did not place Nevils at the meeting and because Wrights
account of the meeting does not indicate participation by Nevils I do not
credit Wright on this point
33 English and Charlebois so testified Wright testified that Charlebois
stated that the suspension was caused by Wright s refusal to sign the rep
nmand It would seem illogical to conclude that an employee s use of an
obscene epithet to his foreman would not result in a suspension (especial
ly in view of the seventy with which Respondent normally treated such
conduct) but that an employees refusal to sign a reprimand would cause
a suspension For that reason because Wright s testimony on this point
was confused and somewhat contradictory and based on my observation
of the demeanor of the relevant witnesses while testifying I do not credit
Wright
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conclude that English and Charlebois had no intention of
discriminating against Wright because of Wright s un
questioned support for the Union No inquiry into the
events of April 20, however, can end with that assess
ment Brown s admitted final statement to Wright on the
morning of April 20 as well as Brown s other testimony,
makes it clear that Brown sought to put an end to
Wright s repeated requests for assistance Those requests
were, of course concerted protected activity Based on
Brown s testimony, I am forced to conclude that he
seized on Wright s profanity as a pretext to ensure
Wright s discipline and to end Wright s requests for as
sistance Accordingly, I find that Wright s written repri
mand and suspension violated Section 8(a)(1) and (3) of
the Act
F Alleged Violation Involving Assistant Plant
Superintendent Nevils
Sometime after 3 30 p in on February 17 the day on
which the first public union organizing meeting was to
be held, employee Michael Rambo was working over
time with employee William Noblitt Noblitt asked
Rambo if the latter was going to attend the meeting
Rambo did not reply because Assistant Plant Superin
tendent Nevils was standing 15 to 20 feet away watching
Noblitt and Rambo at work Noblitt repeated the ques
tion, but Rambo still did not answer At that point
Nevils asked if Rambo was going to answer Noblitt
Rambo then replied that he intended to go to the meet
Ing 34
Respondent contends on beef that no unfair labor
practice occurred because it is clear that Rambo had al
ready manifest [sic] his support for the Union and there
fore, Nevils statement could not have had any coercive
effect on Rambo This rationale appears to be without
factual support because there is no evidence that any em
ployee was publicly identified as a union supporter until
after the meeting on February 17 Accordingly I find
that Nevils interrogation of Rambo was violative of Sec
tion 8(a)(1) of the Act
G Additional Alleged Violations Involving Supervisor
Brown
Shortly after lunch on February 23, employee Michael
McRoberts was approached at his workplace by Victor
Brown who was the supervisor in an adjacent work
area Brown asked if McRoberts had been in the rest
34 The above findings are based on Rambo s testimony Although
Nevils did not recall the conversation he specifically denied having
asked Rambo to answer Noblitt Noblitt admitted that he always asked
Rambo about union meetings Although Noblitt could not remember a
single detail concerning these exchanges he was positive that Nevils had
never been present during one of them Noblitt however demonstrated a
disregard for candor when testifying on another subject Later in the
campaign a cartoon signed by everyone on Noblitt s shift was delivered
to Rambo That cartoon carried the message that Rambo s toolbox had
been damaged as a result of his involvement in the Union s organizing
campaign Noblitt admitted his signature but testified that he had inno
cently signed a blank sheet of paper without any knowledge of its intend
ed use Judicial credulity is more than strained by such perfidy For the
foregoing reasons and based on my observation of the demeanor of the
witnesses as they testified I credit Rambo s version of what transpired
over that of Nevils and Noblitt
room trying to talk some employees into supporting the
Union McRoberts replied that he had not Brown stated
that he had heard that the incident occurred in the
reefer plant, and McRoberts replied that he had not
been in the reefer plant that day Brown responded
that s what I heard and departed 35
Respondent argues on brief that Brown s questioning
of McRoberts was an isolated incident that had no coer
cave impact on McRoberts I am forced to conclude
however, that Browns questioning of McRoberts con
veyed Respondents displeasure over McRoberts' activi
ties When viewed in the context of Respondents other
violations of the Act, that questioning constituted inter
rogation and created an impression of surveillance that
tended to interfere with the rights of Respondents em
ployees to engage in union activities I therefore find that
Brown s conduct violated Section 8(a)(1) of the Act See
Harrison Steel Castings Co 262 NLRB 450 (1982)
H Alleged Violations Involving Department Head
Meeks
Employee John Moore is one of a team of employees
who assembles trailer interiors at Respondents facility
Moore s duties require him to visit various parts of the
facility in order to secure tools and materials In accord
with Respondents acknowledged policy of allowing its
employees to discuss work and nonwork related subjects
while at work as long as such conversations do not
impede production Moore was in the habit of chatting
with employees when he was sent on errands Moore s
supervisor Authur Wilson admitted that such behavior
was common among the men under his control, and
there is no evidence that Respondents management had
previously indicated that such conduct interfered with
production After the first public union meeting on Feb
ruary 17 many of Moore s verbal interchanges with
other employees concerned the Union Five employees
complained to Wilson that Moore had talked with them
and tried to get them to sign authorization cards or
attend union meetings the record does not indicate
whether the complained of behavior took place during
worktime
Toward the end of February Wilson warned Moore
he needn t [sic] to stop talking and bothering other
people in other areas 36 There is no evidence that prior
as The above findings are based on McRoberts testimony Brown testi
fled that McRoberts had approached him and asked if Brown had heard
any rumor concerning the reefer plant incident Some corroboration of
McRoberts account is provided by a subsequent conversation between
McRoberts and Walter Bragg McRoberts department head McRoberts
testified that in an attempt to squelch rumors about his union involve
ment he approached Bragg and told Bragg about Brown s questioning
Although Bragg disagreed with McRoberts version of the conversation
he conceded that McRoberts had been worried about the Union s in
volvement rumors and thought Vic Brown was involved in it It ap
pears unlikely that McRoberts would have told Bragg that Brown was
involved in the propagation of a rumor if Brown s role had been total
ly passive For that reason and based on my observation of the demeanor
of Brown and McRoberts while testifying I credit McRoberts version of
what occurred on February 23
38 On direct examination by Respondents counsel this testimony was
recast through leading questions as a dissatisfaction with Moore begin
ning in mid February for being away from his job more frequently and
Continued
GREAT DANE TRAILERS 395
to this warning, Wilson had observed Moore talking to
other employees outside his department37 or that Wilson
was aware of any complaints by other management per
sonnel concerning Moore's behavior 38 I therefore infer
that Wilson's warning was based on the employee com
plaints concerning Moore s union activities
On the morning of March 3 while Moore was at the
drinking fountain, he told employee Kevin Bowman
who was at the soft drink machine, that Bowman had
missed a good union meeting Bowman responded that
he had seen no reason to go Half an hour later, Moore
was called into the office of his department head, Vin
cent Meeks, where he met with Meeks and Wilson
Meeks began the meeting by telling Moore that other su
pervisory personnel were complaining that Moore was
bothering people in their work areas 39 Moore asked if
the complaints had to do with his union activities, and
Meeks responded affirmatively 40 Moore stated that, if
he was allowed to talk about hunting and fishing on the
job, he had a right to talk about the Union as long as he
did not interfere with production 41 Meeks responded
that Moore was interfering with production and that
Moore could discuss anything he wished at breaks,
lunch, before or after work or when he was working
with his crew but that he was not to talk to other em
ployees when he was outside his work area 42 Meeks
for longer periods than previously Further examination revealed howev
er that Moore never left his work area except on authorized errands Al
though Wilson testified that he measured the time it took Moore to per
form some errands (although Wilson had no records and could not recall
any details) he had no idea what might have caused Moore to take
longer than expected
37 Although Wilson observed Moore talking to employee Kevin
Bowman and to two unnamed employees in Department Head Mcllrath s
work area while Moore was on errands Wilson was sure that these ob
servations occurred after he had warned Moore
33 Wilson said he received a complaint about Moore from Supervisor
Mark Thomas after Moore had been warned Moore s department head
Vincent Meeks received an alleged complaint about Moore from Mcll
rath at around the same time as the complaint made by Thomas From
the limited facts of record it appears that the behavior Mcllrath com
plained of may have been that observed by Wilson To the extent that
Meeks testimony that he repeatedly observed Moore talking to other em
ployees may be thought to be inconsistent with my finding in the accom
panying text I do not credit Meeks due to his total lack of recall con
cerning the details of his purported observations In any event Wilson
first talked to Meeks about Moore after Thomas complaint and there
fore after Wilson had warned Moore Thus Wilson could not have been
aware of Mcllrath s complaint to Meeks or Meeks purported observa
tions at the time of the warning
36 This finding is based on Moore s credited testimony that was cor
roborated by Wilson Meeks testified that he said he had personally ob
served Moore talking with people in other areas It is however unlikely
that Moore would have known of the existence of the supervisory com
plaints if Meeks had not provided the information For these reasons and
based on my observation of the demeanor of the witnesses while testify
mg I do not credit Meeks on this point
40 This finding is based on Moores credited testimony Although nei
ther Wilson or Meeks testified as to this exchange it is clear from their
testimony about the ensuing conversation that the fact that Moore was
talking to other employees about the Union must have been raised at the
outset of the meeting
4 i This finding is based on credited testimony by Moore corroborated
in part by Wilson Meeks testimony that Moore claimed a right to kill
whatever time it took to explain the Union is rejected based on my obser
vation of Meeks demeanor while on the stand
42 This finding is based on Wilson s testimony on direct and cross ex
ammation which was substantially corroborated by Moore and in part
by Meeks
went on to state that, if Moore was caught talking about
the Union again , he would be subject to immediate dis
missal 43
As Moore, Wilson and a group of employees prepared
to leave the facility that day employee Daniel Sanders
asked Wilson if it was true that Wilson had told Moore
that he couldn t talk about the union, and Wilson re
plied yes 44
The only purported bases for Moore s discipline were
Wilson s observations of Moore s behavior and the com
plaints of other supervisory personnel 45 Wilson indicat
ed that one of the conversations he observed lasted 5 to
7 minutes and that he was unsure as to the duration of
the others There is no evidence on the question on
whether the employees Moore talked with were working
or on break during the conversations The duration of
the conversations complained of by Thomas and Mcll
rath is not of record As described above, Moores ex
change with Bowman on March 3 could not have lasted
30 seconds Finally, there is no evidence that Moore was
ever asked by any supervisor to break off a conversation
and return to work, nor is there any evidence that
anyone other than Moore was ever reprimanded for en
gaging in such conversations Accordingly, I conclude
that Respondents contention that Moores conversations
were impeding production is not supported by substantial
probative evidence
In contrast, there is ample evidence that the March 3
meeting resulted from Moore s union activities Dissatis
faction with Moore for talking to other employees began
only after Respondents management became aware that
Moore was actively soliciting support for the Union
during his conversations Meeks direction to Moore not
to talk to employees outside Moore s work area was di
rectly contrary to Respondents general policy In the
absence of any indication that Moore s behavior inter
fered with production, I conclude that Meeks instruc
tions were discriminatorily motivated Accordingly I
find that both the instructions and Meeks threat of dis
missal were unfair labor practices violative of the Act as
alleged in the complaint
I Alleged Violation Involving Department Head Hale
Between 6 30 and 6 55 am on March 5, employees
distributed union literature inside the plant on the first of
the two occasions they did so during the 6 month orga
43 Moore so testified Meeks and Wilson denied the threat although
Meeks testified that Moore was told that he couldn t take our time time
that he was supposed to be working and not-you know talk about the
union Rhoda Sanders who was present in the hearing room when
Moore was on the stand testified that she overheard Meeks ask Wilson
I didn t tell him he d be subject to dismissal did I? Sanders further tes
tified that Wilson responded by nodding his head in the affirmative and
rubbing his forehead Based on my findings concerning the remainder of
the March 3 meeting and on my observation of the demeanor of the wit
nesses both on the stand and in the hearing room I credit Sanders and
Moore and reject the testimony of Wilson and Meeks
44 Sanders and Moore so testified while Wilson did not recall the
interchange
45 For the reasons given in fns 38 and 39 supra and based on my ob
servation of his demeanor while testifying I do not credit Meeks tests
mony that he repeatedly observed Moore talking to employees outside
Moore s work area
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nizing campaign At approximately 1 l a in Rambo over
heard part of a conversation between Department Head
George Hale and employee Thomas Hood outside the
former's offfice 46 At the time, Rambo was standing at a
water fountain 15 to 20 feet from the conversation In
the segment of the conversation overheard by Rambo,
Hale told Hood that the employees who had handbilled
that morning were to be called in the office and be
fired 47 Rambo returned to work and heard nothing
more These findings require the further finding that
Hales threat was an unfair labor practice violative of
Section 8(a)(1) of the Act as charged in the complaint
J Alleged Violations Involving Employee Relations
Manager Chapman
1 The pencil
On March 12, an argument took place between Rambo
and Robert Helton, an antiunion employee who had
never gotten along with Rambo Helton who was angry
because he believed that Rambo had placed a union pro
motional pencil in his toolbox walked up to Rambo at
the latter s work station, broke the pencil into pieces in a
threatening manner and stated [t]his is what I fell [sic]
like doing to you and your union 48
49 Rambo and Hood agreed that a conversation between Hood and
Hale occurred in this location on this date Hale could not recall a con
versation having taken place
47 Rambo so testified Hale although not remembering the conversa
tion denied that he made the statement attributed to him Hood testified
that the conversation was prompted by his question to Hale about what
would happen to an employee who violated a no distribution rule that
Respondent had just posted The rule referred to had been posted
almost 3 months earlier and was clearly not the factor that precipitated
the conversation as Hood claimed Hood further testified that Hale an
swered that the Company could not do much except ask the employee to
stop distributing literature In addition to the improbability of a member
of Respondents management telling an employee that Respondent would
not enforce its rules Hood s credibility on this point is rendered suspect
by his failure to testify candidly on other subjects For example Hood
whose signature appeared on the note attributing damage to Rambo s
toolbox to Rambo s union involvement testified that he had seen the note
when it was passed around as a blank sheet of paper that he had refused
to sign it and that his purported signature thereon was a forgery The
lack of logic inherent in Hood s recognition of a note that he had alleged
ly seen only as a blank sheet of paper together with the similarity of ad
muted examples of his signature to that on the note convinces me that
Hood is not a stranger to the falsification of testimony For the foregoing
reasons and based on my observation of the demeanor of the witnesses
while testifying I do not credit Hood s version of the conversation or
Hale s denial that he made the statement testified to by Rambo
48 Rambo so testified Helton supported by employee Ernest Heeke
testified that he did not break the pencil in a threatening manner did not
threaten Rambo and merely stated this is what I think of your pencil
Department Head Richard Crowell s version of the incident totally defies
credulity Crowell testified that he observed Helton walk over to the
back of the trailer where Rambo was working (a place admittedly within
Helton s work area) that he could not overhear the conversation be
tween Helton and Rambo that he did not see Helton break the pencil
that Rambo did not talk to him about the incident and that he later told
Helton we don t need any stuff like this and don t-just stay on your
job Given his testimony that he neither saw nor heard anything threat
ening it is difficult to conceive why Crowell felt a need to give Helton
what Respondent characterized on brief as a verbal reprimand Indeed
from the fact that Helton was reprimanded (both Crowell and Helton
so testified) I infer that the behavior that Crowell observed was in fact
threatening For these reasons and based on my observation of the de
meanor of the witnesses while on the stand I do not credit the versions
of the incident recited by Helton Heeke or Crowell
Rambo reported the incident to his supervisor, Steve
Day, and his department head Richard Crowell Dissat
isfied with Crowell's response,49 Rambo reported the in
cident to Chapman who stated that the matter would be
investigated 50 There is no evidence that anyone again
communicated with Rambo concerning the incident
At some unspecified point in time on March 12,
Crowell spoke with Helton concerning the incident
Helton explained his view of the incident, and Crowell
delivered a warning to the effect that the Respondent
did not need such behavior and Helton should not let it
happen again
On March 1, Respondent posted a notice stating that
any employee guilty of threatening a coworker in order
to induce that coworker to sign a union authorization
card would be subject to discharge The General Court
sel contends that this policy (which is apparently not al
leged to be unlawful standing alone), coupled with an al
leged failure of Respondent to protect employees who
supported the Union from threatening conduct is
violative of the Act There is no evidence that Respond
ent's March 1 policy was ever enforced and thus, no
evidence of disparate discipline Although the warning
given Helton was relatively mild in nature, it falls short
of a discriminatory failure by Respondent to protect its
prounion employees from threatening conduct Accord
ingly, I shall dismiss the relevant allegation of the com
plaint
2 The toolbox
On March 15 Rambo reported to work and found that
his toolbox had been broken open, that sealer had been
poured in it and into his safety hat, and that his safety
glasses had been painted with aluminum paint 5 i Rambo
reported the vandalism to Crowell and, a few hours
later to Chapman As a result of the conversation with
Chapman, the safety glasses and hat were replaced by
Respondent at no cost to Rambo 52 There being no pro
bative evidence in support of the allegation that Chap
man announced on March 15 that Respondent would
desparately [sic] enforce a rule prohibiting threatening
and harassing conduct by employees to the detriment of
the employees who supported the Union that allegation
will be dismissed
49 Rambo testified that Crowell stated that it sounded like a personal
problem but Rambo s tendency to place these words in the mouths of
different supervisors on different occasions does not inspire confidence
that the phrase was the one actually used
ao Rambo so testified and Chapman had no recollection of the conver
sation
S i The record contains a large volume of testimony concerning a fur
ther vandalization of Rambo s toolbox in early June all of that I find
to be irrelevant to the allegation of the complaint treated in the accompa
nying text
52 After describing a June conversation with Rambo concerning the
latter s toolbox Chapman testified credibly that he had never told Rambo
that the Company would disparately discipline acts of vandalism to the
detriment of union adherents Rambo testified variously that Chapman
stated that all offenders would be treated similarly and that prounion of
fenders would be discriminated against Based on the confused and inter
nally inconsistent nature of Rambo s testimony and on my observation of
both Rambo and Chapman while they were on the stand I credit Chap
man over Rambo
GREAT DANE TRAILERS
K Alleged Violation Involving Assistant Plant
Superintendent Morris
On March 18, employee Rick Eveland called Assistant
Plant Superintendent Morris attention to a 9 square foot
sign that had been hanging from the rafters of an adja
cent work area for several days and that bore the legend
`Non Union Work Area Referring to a rule promulgat
ed by Respondent a year earlier that forbade the posting
of notices on company property except in designated
areas, Eveland inquired if the sign was in a designated
area Morris indicated it was not, and Eveland asked
how Morris would like it if Eveland hung up an AFL-
CIO banner, set out a little desk, put out Union cards,
and started soliciting" at his work station Morris said he
would check on the matter and departed On his return a
few minutes later, Morris stated Go ahead and hang
them up if you feel like dying 53 In response to Eve
land s startled interrogative, Morris repeated the state
ment
Respondent's contrary contention on brief notwith
standing, I conclude that Morris statement was not an
ambiguous remark' solicited by an open ended ques
tion and my reading of Sports Coach Corp of America,
203 NLRB 145 (1973), discloses nothing that would re
quire a contrary conclusion Further, in view of the ex
plicit nature of the threat and the extensive background
of unfair labor practices against which it was uttered, I
conclude that it was not the type of isolated and mini
mal conduct referred to by the Board in Bomber Bait
Co, 210 NLRB 673, 674 (1974) Accordingly, I find that
Morris threat was an unfair labor practice violative of
Section 8(a)(1) of the Act 54
L Alleged Violation Involving Plant Superintendent
English
Mark Harbin an employee called by Respondent testi
feed on cross examination that, on one occasion during
the organizing campaign , he had distributed round, red
stickers bearing the legend , NO TEAM He further
volunteered
I was asked to come in at 600 that morning and
pass out buttons by David English, but the buttons
were passed-given to me by Doug Tisdale [a
fellow employee] And that-that would be the
truth now 55
53 This finding is based on the credited description of the incident
given by Eveland whose testimony was corroborated by his contempora
neously executed notes and by the testimony of ex employee Steven Gib
bens Based on my observation of the demeanor of the witnesses as they
testified I do not credit Morns version of what occurred or his denial
that he threatened Eveland
54 Respondents argument on brief that it did not disparately enforce
its policy controlling the posting of literature is immaterial to any issue
raised by the complaint
55 Harbin initially testified on cross-examination I believe Mr English
give us the stickers that morning (Emphasis added) After being ex
cluded from the hearing room during the argument of objections relating
to the admissibility of his testimony Harbin stated that he had reflected
further on the matter and testified as set forth in the accompanying text
When Harbin was again called during Respondent s surrebuttal presenta
tion he reversed his prior testimony and denied that English had asked
him to distribute antiunion insignia English also denied making the re
quest In view of the inconsistencies in Harbin s testimony and based on
397
This incident took place in April 56
Although Harbin was an admitted opponent of the
Union, there is no evidence that English was aware of
this fact when Harbin was asked to distribute the stick
ers I therefore find that English s request constituted un
lawful interrogation in violation of Section 8(a)(1) of the
Act See Reeves Rubber, 252 NLRB 134, 142 (1980)
Kurz Kasch Inc 239 NLRB 1044 (1978)
M Alleged Violation Involving Supervisor McMichaels
On May 28 Union Representative Don Billups and
employees Rick Eveland Daniel Sanders, and Michael
McRoberts distributed handbills at the gate to Respond
ent s plant Shortly after 4 p m , McRoberts left the
group and began walking back to the employees parking
lot Shortly thereafter, Supervisor James McMichaels,
who was alone in his car, approached the gate Moving
at a speed of 3 to 5 miles per hour, McMichaels drove
within 2 to 3 feet of Eveland and Billups, who were
standing in the middle of the driveway on the driver s
side of exiting vehicles As McMichaels passed Eveland
and Billups, a package of 20 to 25 firecrackers was
dropped at their feet The firecrackers were at least mod
erately large,57 and caused both Billups and Eveland to
jump back when the explosions started McMichaels was
observed rolling up his window as he left the driveway
followed by several automobiles driven by other supervi
sory personnel 58 McMichaels did not testify, and the
foregoing findings are based on the uncontroverted and
mutually corroborative testimony of McRoberts, Sand
ers and Eveland 59
Respondent characterizes this incident as a display of
the normal animal exuberance" that accompanies a
union organizing campaign I disagree In addition to the
immediate apprehension caused by being surrounded by
explosions of whatever size such a situation must inevi
tably create a continuing state of anxiety about the
chance of being subjected to further irrational behavior
in retaliation for engaging in concerted protected activi
ties This would tend to intimidate any reasonable indi
vidual Furthermore, as detailed in this decision and con
trary to Respondents assertion on brief this was not an
isolated instance of employee intimidation Accordingly
I find that McMichaels conduct was an unfair labor
practice in violation of Section of 8(a)(1) of the Act
my observation of Harbin and English while they testified I do not
credit the denials solicited by Respondent on surrebuttal
"The surrebuttal testimony of Harbin and English that the stickers
were distributed in April is uncontroverted
54 McRoberts who was at least 50 yards away described the effect as
a series of bangs and Eveland while referring to popping and crack
ling going on all around us thought someone might have been shooting
a firearm
5e The degree to which Eveland was upset by the incident can be as
sessed by the fact that he did not recall the other automobiles that Sand
ers credibly testified followed McMichaels out of the gate
5111 find that Supervisor George Saunders testimony concerning his
verbal interchanges with union adherents on other occasions is irrelevant
to the issue under consideration Insofar as Saunders testified to being as
saulted by one of the union s representatives I do not credit him See sec
II N of this decision
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
N Alleged Violations Involving Supervisor Saunders
1 The safety meeting
Just before noon on December 2, 1981, Supervisor
George Saunders conducted a weekly safety meeting in
department 71 that was attended by 10 to 15 employees
At the conclusion of meeting, employee Michael Arnold
asked Saunders what he thought about promoting a
union at Great Dane ' Saunders replied that he thought
a person could get shot trying to promote a union 6 o
All the employees present, including Arnold laughed at
Saunders response 61 Arnold later participated in con
versations in which Saunders statement was mentioned,
but no one admitted that he or she had been scared by it
Respondent contends on brief that Saunders threat
was a joking remark that could not have been coercive I
disagree It is not uncommon for people to laugh in the
face of intimidating circumstances in an attempt to evoke
a talismanic protection or simply to become a part of a
group who are laughing I find it highly improbable that
any reasonable individual could casually dismiss a threat
made by Saunders, who is an individual of imposing
bulk, possessed of a hot temper, and not incapable of
physical violence 62 The very fact that Saunders threat
was later discussed demonstrates that it remained in the
minds of those who heard it Such an undercurrent in
the mind of an employee must tend to have a coercive,
albeit subtle, effect on that employees behavior Accord
ingly, I find that Saunders threat was an unfair labor
practice in violation of Section 8(a)(1) of the Act
2 The trailer lining
On the morning of February 23, Assistant Plant Man
alter Nevils instructed employees Michael Rambo and
Daniel Vanatti to take a piece of plywood used for the
60 Two witnesses Michael Arnold and Ernest Lantz testified concern
ing this interchange Of the two Lantz was by far the more tentative as
to the exact words that were employed by Arnold and Saunders Ac
cordingly I have adopted the version given by Arnold who participated
in the interchange
Si The above findings are based on the testimony given by Arnold and
Lantz Respondent offered a series of Saunders timecards to demonstrate
that although he was normally assigned to department 71 Saunders was
temporarily assigned to department 82 for the period between September
6 1981 and January 17 1982 Respondent offered further documentary
evidence that Saunders acted as a supervisor on the night shift on both
December 1 and 2 In addition Saunders and Donald Bullerdick Jr an
employee in department 71 testified that Saunders did not conduct the
meeting on December 2 Given the surfeit on documentation introduced
by Respondent on this question I find it strange that Respondent did not
offer the December 2 Weekly Ten Min Shop Safety Meeting report
form for department 71 R Exh 22 and the testimony of Department
Head Crowell established that ( 1) after each safety meeting the presiding
supervisor fills in the form by inserting the date the department number
his signature and a report of what took place and (2) these forms are
retained by Respondent in the normal course of business Respondents
failure to offer the single conclusive piece of evidence on the question of
who conducted the December 2 meeting is unexplained Based on my ob
nervation of their demeanor as they testified I credit the testimony of
Lantz and Arnold over that given by Bullerdfck and Saunders Accord
ingly I will draw the further inference requested by the General Counsel
that while Saunders was assigned to department 82 for payroll purposes
on December 2 he still had supervisory responsibilities in department 71
at least to the extent of conducting the weekly safety ireeting held on
that date
62 Some details of these traits are set forth in the remainder of this sec
tion of the decision
interior lining of a trailer to Saunders to have the edge
beveled When informed of Nevils request Saunders re
plied that he would not cut the lining63 and stated If
you want any damn help, call the damn number on the
pencil 64 Rambo was carrying a pencil bearing the
Union's logo and telephone number in his shirt pocket
Rambo then entered a nearby trailer to ask employee
William Vanatti how to bevel the edge of the lining 65
Almost immediately thereafter, Saunders came to the
back of the trailer and told Daniel Vanatti and Rambo to
get back down to the other end and leave his help
alone "86 Rambo emerged from the trailer and asked to
use Saunders' panel saw to cut the lining Saunders re
fused on the ground that the saw would not perform the
job in question 67 When Rambo and Daniel Vanatti lo
cated another saw, Saunders told them not to work in
his area and picked up a bench and threw it into the ad
joining aisle for them to use when they cut the lining 68
Rambo and Vanattf measured the job and, while Vanatti
cut the lining, Saunders stood 50 to 75 feet away and
jeered If you need any more help, just call the damn
number on the pencil 69 After completing the task the
63 Saunders alternatively testified that he was too busy to help Rambo
and Vanatti and that he actually did help them The former testimony is
contradicted by my findings concerning his subsequent behavior and the
latter is controverted by both Rambo and Vanatti whom I credit over
Saunders based on my observation of the demeanor of all three witnesses
as they testified
64 This finding is based on Rambo s testimony Saunders testified that
it was Rambo who mentioned the pencil stating I ve got a number on
this pencil for guys like you Daniel Vanatti who admitted on cross
examination that he was an extremely reluctant witness could not recall
the pencil being mentioned by either Rambo or Saunders (Unfortunately
Vanattf s attempt to explain why he might not remember Rambo s state
ment was cut off by Respondent s counsel ) It is clear that some reference
was made to the pencil and I find Saunders version of what occurred to
be internally inconsistent and in some particulars improbable or impossi
ble Saunders testified that Rambo mentioned the pencil just before Van
atti actually cut the wood a time when both Rambo and Vanatti agreed
that Saunders had left their immediate area In contrast Saunders notes
which were purportedly prepared on the day of the incident indicate
that Rambo mentioned the pencil in front of two witnesses (neither of
whom was placed at the scene by anyone who testified including Saun
ders and one of whom Thomas Mullenix testified as Respondents wit
ness on other subjects) immediately after being told that Saunders would
not assist him Parenthetically I must confess to sharing the General
Counsel s doubt whether these notes which began with the words of the
relevant allegation of the complaint (i e on or about February 23 )
were in fact contemporaneously executed For the foregoing reasons and
based on my observation of their demeanor while on the stand I credit
Rambo over Saunders on this issue
85 Rambo and Saunders agreed that Rambo entered the trailer Al
though William Vanatti testified that only Daniel Vanatti did so William
Vanatti made four references to the occupants of the trailer as they or
them On consideration I conclude that Rambo and Saunders gave the
more accurate testimony on this point
66 This finding is based on the testimony of William Vanatti who testi
fled consistently on direct and cross examination concerning the wording
of Saunders remark In contrast I found the versions of the remark re
ported by both Rambo and Saunders to be self serving and improbable
For the foregoing reasons and based on my observation of their demean
or I credit William Vanatti over Rambo and Saunders
81 I find Saunders testimony on this point to be more logical and co
herent than that given by Rambo and accordingly I credit Saunders
88 Saunders so testified
69 I credit Rambo s testimony to this effect over Saunders denial
Daniel Vanatti s failure to hear the comment may be explained by the
noise of the saw and his admittedly intense concentration on cutting an
accurate angle in the lining
GREAT DANE TRAILERS
two employees returned to their work area with the
lining
The General Counsel urges on bnef that Saunders
withheld assistance to Rambo and Vanatti and restricted
their movement within his department because of
Rambo s endorsement of the Union The first allegation
is amply supported by the record, and I find that Saun
ders withholding of assistance was an unfair labor prac
tice violative of Section 8(a)(1) and (3) of the Act There
is, however, no evidence that Saunders attempted to re
strict Rambo s movements except as was incidental to
withholding assistance, and the relevant allegation of the
complaint will be dismissed
3 Conversations in the deck department
On the morning of February 22 during a conversation
in the deck department between Saunders and employees
Ernest Lantz, Bob Martin, and Bill Cormigan, Saunders
volunteered the following remark to Lantz That
nephew of yours is up to his neck in that union stuff
Lantz' only nephew at Great Dane is Michael McRo
berts Lantz responded Well, I have to forgive him be
cause he s kin At lunch that day, Lantz reported Saun
ders' comment to McRoberts, who subsequently lodged
a complaint concerning the statement with Department
Head Bragg McRoberts had not yet begun to wear
union insignia on February 22
In mid March, Lantz, Martin, and Cormigan were
again engaged in a conversation when they were joined
by Saunders After the employees brought up the orga
nizing campaign , Saunders volunteered We know who
the troublemakers are "70 The three employees made no
comments in reply to Saunders remark 71
I cannot accept Respondent' s argument on brief that,
because some employees were "openly pro union at the
time of Saunders' mid March remark , no one could think
that Saunders acquired his knowledge through surveil
lance The sweeping nature of Saunders remark , with its
implication of omniscience, would tend to indicate that
Respondent was not relying solely on lawful observation
Further, unlike Respondent, I believe that a reasonable
individual hearing Saunders use the term troublemak
ers' would conclude that he referred to union adherents
Accordingly I find that Saunders remarks in February
and March could reasonably have created an impression
of surveillance and were therefore unfair labor practices
in violation of Section 8(a)(1) of the Act
70 My review of Lantz testimony in its entirety causes me to conclude
that when he used the phrase I think he made a remark like Lantz
intended think to modify like rather than made Accordingly I
reject Respondents contention on brief that Lantz was unsure whether
Saunders made the statement set forth in the accompanying text
71 The foregoing findings are based on the testimony given by Lantz
who impressed me as a completely straightforward witness who took
pains to answer the questions posed to him fully and candidly On exami
nation by Respondents counsel Saunders answered No I didn t when
asked whether he recalled making the statements attributed to him by
Lantz and it is unclear whether Saunders meant that he did not recall
making the statements or that he did not make the statements To the
extent that Saunders testimony may be thought to controvert that given
by Lantz I do not credit Saunders
399
4 The parking lot
While awaiting the results of the representation elec
tion on June 3, a group of approximately 150 supervisors
and employees gathered in the supervisors parking lot at
Respondents facility After the Union's defeat had been
announced, four union representatives, including William
Hunter 72 and James Colston, emerged from the plant
and approached the lot with the intention of departing in
Colston s car An aggressively antiunion atmosphere pre
vailed in the parking lot and, in order to avoid a con
frontation with an antagonistic group, the union repre
sentatives selected a route through the lot that took them
next to a truck in which Saunders was standing and
drinking a beer 73 As they passed Saunders, he initiated
an interchange with Colston 74 Exactly what was said is
uncertain, but the conversation was clearly heated 75 At
the end of the interchange, Colston sarcastically invited
Saunders to visit him in his home State of Georgia, to
which Saunders replied "I will I will come down, and
111 kill you son of bitches "76 The union representatives
72 Respondent makes much on bnef of the fact that Hunter did not tes
tify concerning what transpired in the parking lot on June 3 When
Hunter attempted to do so however counsel for Respondent argued that
such testimony was improper rebuttal and I sustained Respondents ob
jections
73 Hunter credibly so testified and his description of the jeering and
heckling directed at him and his companions was at least partially con
firmed by Department Head Crowell Darrell Patterson an employee
witness sponsored by Respondent testified that he heard shouting and
figured there was going to be trouble when the union organizers
emerged from the plant Mike Arnold observed shouting and yelling
and people running around and shaking their fists and cussing and carry
ing on and Rick Eveland described the situation as a ruckus
74 All the Respondents witnesses so testified
75 In support of Saunders version of what occurred Respondent of
fered the testimony of five employees and one supervisor who purported
ly heard the entire interchange between Saunders and Colston Collec
tively they portrayed the conversation as a picture of tranquility replete
with expressions of mutual admiration Saunders supported by Michael
Jordan John Elliott and Ken Fisher testified that not only did Saunders
not make any threats but also he told Colston I like you Brian Fatch
testified that both Saunders and Colston were smiling during the inter
change and John Elliot and Brian Patterson testified that neither partici
pant was mad
I cannot credit this testimony which I found to be wholly self serving
First the spirit of comradene that these witnesses described is contradict
ed by the aggressively antagonistic atmosphere I found to exist at the
time Second Supervisor Thomas Mullenix conceded that after Saunders
had commented that Colston was facing a long ride home with your tail
between your legs Colston seemed like he was getting kind of hot
and was shaking his finger at Saunders The testimony given by Saunders
and Respondent s employee witnesses uniformly omits any mention of an
antagonistic comment by Saunders and contains no rational basis for a
display of anger by Colston Finally Saunders impressed me on the stand
as a truculent individual given to bursts of anger This impression as well
as my skepticism concerning Saunders credibility generally was con
firmed by Saunders denial that he had ever been criminally charged for
beating his wife This denial was clarified after a recess when Satin
ders admitted that he had been served papers for battery and criminal
mischief based on hitting his wife In sum I do not credit Saunders claim
that he maintained his composure and conducted himself in a mild and
reasonable manner
76 This finding is based on the credited testimony of Rick Eveland
who apparently arrived on the scene after the interchange had begun
The fact that Colston asked Saunders to visit him at home was wholly or
partially corroborated by Respondents witnesses Jordan Fatch Elliot
Brian Patterson and Fisher the latter of whom perceived the inter
change to be tinged with sarcasm For the reasons set forth in the prior
note and based on my observation of the demeanor of all the witnesses
Continued
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
continued their progress to Colston s car When they ar
rived, they found it had been vandalized and that be
cause vehicles were parked behind it they could not
leave the parking lot
When employee Michael Rambo emerged from the
plant after the election, he started toward the employees
parking lot Saunders who was standing on the back of a
pickup truck in the supervisors parking lot approximate
ly 100 feet away yelled that he was going to beat
Rambo to a pulp 77 Thereafter, Rambo and a number of
other union adherents, including Michael Arnold, Mi
chael McRoberts and Rick Eveland, entered the super
visors lot and congregated at Colston s car Some time
passed and the union representatives left the immediate
area At this point, Saunders left his truck and ap
proached the group Saunders successively pointed at
McRoberts and Rambo and told them that they were on
his list and that he was going to get them He then point
ed at Arnold and said You re no 1 on my list
you 11 be dead before the weekend 78
Having resolved all credibility determinations concern
ing this incident against Saunders, I find that his threats
of death and physical injury to employees and nonem
ployee representatives of the Union constitute unfair
labor practices in violation of Section 8(a)(1) of the Act
5 The Alabama Tavern
When the union representatives left Respondents facil
ity on the afternoon of June 3, they and several employ
ees, including McRoberts, drove to the sheriffs depart
ment in Brazil to file a criminal complaint After doing
so, they drove down the street and stopped for a red
light next to the Alabama Tavern The first car at the
light was driven by Colston who was accompanied by
several passengers, including Hunter 79 The third and
last vehicle at the light was driven by McRoberts who
had with him employees Michael McKinney and Jamie
Wardlow
Saunders who was standing on the sidewalk outside
the tavern with a beer in his hand yelled an invitation to
McRoberts to have a dunk McRoberts replied that he
did not drink Saunders said I m going to get you and
bending forward asked Who s that riding with you9
McKinney leaned forward and said Hi George to
who testified concerning Saunders response to Colston s comment I do
not credit the denials that Saunders threatened Colston
77 This finding is based on Rambo s consistent testimony on direct and
cross examination which was controverted by Saunders For the reasons
previously set forth concerning Saunders credibility and based on my
observation of the demeanor of both witnesses as they testified I credit
Rambo over Saunders
78 This finding is based on the mutually consistent testimony given by
Rambo Eveland and Rhoda Sanders the wife of one of Respondents
employees For the reasons previously set forth concerning Saunders
credibility and based on my observation of the demeanor of all the wit
nesses testifying about this incident I credit those witnesses who testified
that it occurred as set out in the accompanying text
7s Respondent on brief purports to find it significant that Hunter did
not testify concerning a threat by Saunders The scope of Hunter s testi
mony on rebuttal however was restricted by the fact that I sustained
Respondents objections Thus Hunter was prevented from testifying
about comments made by Saunders but was free to testify concerning the
Patterson because their purported presence and comments were first
raised in Respondents case in chief
which Saunders replied, I m going to get him too
McRoberts said he would see Saunders at work the next
day The light changed and as McRoberts pulled away,
Saunders repeated his threat 80
Based on the foregoing findings, I find that Saunders
threat to McRoberts and McKinney was an unfair labor
practice in violation of Section 8(a)(1) of the Act 81
6 The union office
Approximately one half hour after the interchange out
side the Alabama Tavern Saunders and employees Dar
rell and Brian Patterson left the tavern in Darrell s truck
Darrell was driving, Brian was in the middle and Satin
ders sat on the passenger s side At approximately 6 p in ,
the truck stopped in the parking lot adjacent to the
Union s temporary office in Brazil When the union ad
herents at the second floor window noticed the truck,
Saunders yelled for them to come down so that he could
beat them up 82 I find that this threat was an unfair labor
practice violative of Section 8(a)(1) of the Act
80 The above findings are based on the mutually corroborative testimo
ny of McRoberts and McKinney Although Respondent offered the tests
mony of several individuals in order to demonstrate that the threat was
not made I cannot accept their version of the incident Brian Patterson
testified that he had a conversation with Colston while the latter s car
was stopped at the light and Hunter confirmed that a somewhat different
interchange had in fact taken place Darrell Patterson testified that both
he and Brian talked with Colston but this is not supported b, Brian or
Hunter Although both Pattersons testified that Saunders said nothing to
McRoberts Brian admitted that he might not have heard McRoberts
speak with someone and Darrell thought he heard someone yell some
thing at McRoberts Saunders testified that he heard some kind of inter
change between one of the Pattersons and Colston but he denied threat
ening McRoberts and McKinney Finally Department Head Lester
Powers testified that during one of his frequent trips to the tavern s door
to see if Colston s car had left the sheriffs department he overheard an
exchange between one of the Pattersons and Colston Powers further tes
tified that neither he nor Saunders said anything to McRoberts Based on
my observation of their demeanor while testifying and on my prior deter
minations concerning Saunders probity I credit the testimony of McRo
berts and McKinney concerning the threat over that of Saunders Darrell
Patterson s admission that he thought someone had yelled at McRoberts
suggests the possibility that the Pattersons engrossed in their own con
versation with Colston did not hear Saunders make the threat Similarly
it is marginally possible that the threat was made before Powers reached
the door of the tavern To the extent that these possibilities are thought
unlikely I do not credit the testimony given by Powers and the Patter
sons
81 Although this threat was not specifically alleged in any of the com
plaints notwithstanding the amendments made before and during the
hearing it is well established that where as here the facts underlying a
violation are fully developed at the hearing and on brief an unfair labor
practice finding is appropriate See Ackerman Mfg Co 241 NLRB 621
(1979)
82 The person who yelled from the truck was credibly identified by
Rambo Lantz and McRoberts as Saunders McRoberts actually saw
Saunders hanging out the window of the truck and yelling The Patter
sons and Saunders testified that it was Brian Patterson who yelled
Come on down and 111 whip your ass an act that Saunders testified
that he protested mightily Strangely Saunders was smiling when he so
testified Saunders also testified that he repeatedly tried to roll up the
truck window to cut off the interchange presumably intending his listen
ers to believe that an individual of his bulk who was sitting next to the
handle of the window could not wrest control of that handle from a
smaller person sitting in the center of the truck Finally Saunders testi
fled that the only threats of physical harm he made on this occasion were
directed at the Pattersons not at the union adherents Based on the
highly improbable nature of Saunders story on his previously discussed
penchant for perfidy and on my observation of the demeanor of the rele
vans witnesses while testifying I do not credit the testimony given by
Saunders or the Pattersons concerning this incident
GREAT DANE TRAILERS
O Alleged Violations Involving Department Head
Garland
On the evening of June 3, Michael Arnold was seated
with his wife and another employee at the bar in the
Alabama Tavern when Department Head James Garland
joined them Arnold told Garland that he had reported
Saunders earlier threat in the parking lot to the sheriff
and that he intended to file charges against Saunders for
the threats Garland said that did not make sense and the
problem could be straightened out at work the next day
Arnold repeated his intention to file charges, and Gar
land commented, Well that is your legal right 83 The
two continued talking, and Arnold stated that he was
going to testify at the hearing in this proceeding Gar
land responded that he also had to go to court because
someone had filed charges against him After Arnold re
peatedly maintained that he had not filed charges against
Garland Garland stated that he did not want to see
Arnold take him to court because he did not want to see
anything happen to Arnold's job home, or general wel
fare 84 I therefore find that Garland made a threat that
was an unfair labor practice in violation of Section
8(a)(1) of the Act
Still later at the Alabama Tavern, a conversation took
place between Garland and employees Chris Reynolds
and Joe Yockey a portion of which was overheard by
Arnold who was sitting approximately 15 feet from the
participants After the discussion had covered a number
of conventional topics Garland told Reynolds I feel
like you probably voted yes 85 Reynolds asked why
and Garland remarked that Reynolds had worn a
VOTE YES sticker on his hardhat when talking with
Garland 3 weeks before 86 Because Garland explained
that his comment was based on Reynolds openly wear
mg prounion insignia , neither Reynolds nor any other lis
tener could reasonably assume that Garlands remark
was based on an unlawful surveillance of union activities
Accordingly I find that Garlands statement did not
83 Respondent asserts on brief that there is an inconsistency between
Garland s concession that Arnold had a legal right to file charges against
someone else and Garlands reaction when he found himself the subject
of charges I find the two situations distinguishable and disagree with Re
spondent
84 These findings are based on Arnold s credited testimony Respond
ent contended on brief that Arnold testified that his conversation with
Garland was heard by Chris Reynolds and Joe Yockey but the transcript
reveals that Arnold was referring to a subsequent conversation between
Garland and these two individuals Although Garland denied that he had
threatened Arnold he was unable to remember any details of their admit
ted conversation beyond a purported discussion of the eating habits of a
boa constrictor Because of the improbability of Garlands story and
based on my observation of the demeanor of both witnesses while they
testified I credit Arnold over Garland
85 Reynolds so stated in an affidavit executed I week before the hear
mg Reynolds testimony on direct examination (i e Garland said I
know you voted yes ) was tentative and uncertain and Reynolds admit
ted on cross examination that the wording in the affidavit could have
been that employed by Garland Because Reynolds was a participant in
the conversation and Arnold was a relatively distant observer I believe
that Reynolds affidavit contained a more accurate account of the inter
change than Arnold s testimony
85 The findings concerning this conversation are based on Reynolds
credited testimony which was supported by Arnold Based on my obser
vation of the demeanor of these witnesses as they testified I do not credit
Garlands testimony that the matter was brought up by Reynolds and
that Garlands role was wholly responsive
401
create an impression of surveillance and I shall dismiss
the relevant allegation of the complaint See Aero Corp
237 NLRB 455 (1978) Cook s Discount Store 208 NLRB
134 (1974), Schrementi Bros 179 NLRB 853 (1969)
III OBJECTIONS
As noted, six objections and two additional allegations
of objectionable conduct identified by the Acting Re
gional Director have been referred by the Board for
hearing in this proceeding Several of these objections
are totally without record support Thus, there is no pro
bative evidence that (a) the Employer on May 18 or at
any other time directly threatened that it would not bar
gain with the Union and that a strike would be inevita
ble, (b) the Employer created the impression that em
ployees would lose their current benefits as a result of
bargaining with the Union, and (c) the Employer on
May 19 told the employees that wage raises were being
withheld because of the filing of the petition here I
therefore find that the first instance of alleged objection
able conduct identified by the Acting Regional Director
did not occur, and I shall recommend dismissal of Objec
tions 4 and 9
Although the record clearly establishes that Respond
ent on two occasions misrepresented to its employees
that they could be fined by the Union for attempting to
decertify it these misrepresentations are not objection
able conduct under the holding in Midland National Life
Insurance Co, 263 NLRB 127 (1982) 87 Accordingly, I
find that the second instance of alleged objectionable
conduct identified by the Acting Regional Director oc
curred, but I conclude that it was not objectionable
Two of the objections alleged conduct that corre
sponds to those paragraphs of the complaint that charged
that Respondents access rule was unlawful and that Re
spondent had threatened employees with physical injury
because of their union affiliation Having found that Re
spondent committed those violations as alleged,88 I find
that Objections 1 and 2 should be sustained See Dal Tex
Optical Co 137 NLRB 1782 1786 (1962) Similarly, Re
spondent s conduct that I found to constitute implied
threats to discharge economic strikers89 is within the
ambit of Objections 5 and 8 Those threats are almost
identical to the conduct found to be objectionable by the
Board in Mead Nursing Home 265 NLRB 1115 (1982),
and Browning Ferris Inc 263 NLRB 79 (1982) I there
fore find that Objections 5 and 8 should be sustained to
the extent that they refer to a threat to discharge strik
ers Based on the foregoing findings, I recommend that
the election in Case 25-RC-7822 be set aside and that
the case be remanded to the Regional Director for the
purpose of conducting a second election to determine the
question of representation
87 This decision was issued after the issuance of the Report on Objec
bons
88 See secs II B and M of this decision
88 See sec 11 D of this decision
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com
merce within the meaning of Section 2(2), (6), and (7) of
the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 By promulgating and maintaining rules that (a) pro
hibit unauthorized employee access to `plant premises
dunng nonworktime and (b) prohibit its employees from
discussing the Union, Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act
4 By interrogating its employees concerning their
union membership, activities, and sympathies Respond
ent has engaged in unfair labor practices in violation of
Section 8(a)(1) of the Act
5 By conducting surveillance of its employees' con
certed protected activities and by engaging in conduct
tending to create the impression among its employees
that their concerted protected activities were under sur
veillance, Respondent has engaged in unfair labor prac
tices in violation of Section 8(a)(1) of the Act
6 By threatening (a) that it would do everything in its
power to prevent the Union from being selected by its
employees as their collective bargaining representative,
(b) that it would discharge striking employees, (c) its em
ployees with discharge for engaging in union and other
concerted protected activities, (d) its employees with
physical violence, injury, and death for engaging in
union activities, and (e) nonemployee union represents
tives with physical injury and death in the presence of its
employees, Respondent has engaged in unfair labor prac
tices in violation of Section 8(a)(1) of the Act
7 By withholding assistance to certain of its employ
ees in performing their assigned work because of their
union activities, Respondent has engaged in an unfair
labor practice in violation of Section 8(a)(1) and (3) of
the Act
8 By reprimanding and suspending employee James
Wright for his participation in union and other concerted
protected activities, Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act
9 By its conduct occurring between May 5 and June
2, 1982, set forth in paragraphs 3(a) and 6(b) and (d) of
these Conclusions of Law, Respondent has interfered
with its employees' freedom of choice in selecting a bar
gaining representative, and such conduct warrants setting
aside the election conducted on June 3 1982 in Case 25-
RC-7822
REMEDY
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act, it shall be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act Such affirmative
action shall include making unlawfully suspended em
ployee James Wright whole for any losses he may have
suffered as a result of Respondents discrimination
against him Backpay will be calculated in accordance
with the formula set forth in F W Woolworth Co 90
NLRB 289 (1950), to which interest shall be added in the
manner provided in Florida Steel Corp, 231 NLRB 651
(1979) 9O
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed9i
ORDER
The Respondent, Great Dane Trailers Indiana, Inc
Brazil , Indiana, its officers, agents, successors, and as
signs, shall
1 Cease and desist from
(a) Maintaining in effect or enforcing rules which (i)
prohibit unauthorized employee access to plant premises
during nonworktime and (ii) prohibit its employees from
discussing the Union
(b) Interrogating its employees concerning their union
membership, activities, or sympathies
(c) Conducting surveillance of its employees concert
ed protected activities or engaging in conduct that tends
to create an impression among its employees that their
concerted protected activities are under surveillance
(d) Threatening (i) that it will do everything in its
power to prevent the Union from being selected by its
employees as their collective bargaining representative,
(u) that it will discharge striking employees, ( iii) its em
ployees with discharge for engaging in union or other
concerted protected activities, (iv) its employees with
physical violence, injury and death for engaging in
union activities, and (v) nonemployee union represents
tives with physical injury and death in the presence of its
employees
(e) Withholding assistance to its employees in perform
ing their assigned work because of their union activities
(f) Reprimanding, suspending, or otherwise discrimi
nating against its employees because they engaged in
union or other concerted protected activities
(g) In any like or related manner interfering with, re
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
(2) Take the following affirmative necessary to effectu
ate the policies of the Act
(a) Remove from its files any reference to the repri
mand of James Wright on February 19 1982, and to his
reprimand and suspension on April 20, 1982, and notify
him in writing that this has been done and that evidence
of that unlawful discipline will not be used as a basis for
future personnel action concerning him
(b) Make James Wright whole for any loss of earnings
he may have suffered as a result of the discrimination
against him in the manner set forth in the remedy section
of the decision
(c) Post at its Brazil , Indiana facility copies of the at
tached notice marked Appendix "92 Copies of the
90 See generally Isis Plumbing & Heating Co 138 NLRB 716 (1962)
91 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses
92 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
Continued
GREAT DANE TRAILERS
notice, on forms provided by the Regional Director for
Region 25 after being signed by the Respondents au
thorized representative, shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
403
that the notices are not altered, defaced or covered by
any other material
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER RECOMMENDED that the allegation of
the complaints not specifically found here are dismissed
IT IS FURTHER RECOMMENDED that Objections 1, 2, 5
and 8 be sustained that the results of the election held
on June 3, 1982, in Case 25-RC-7822 be set aside, and
that the case be remanded to the Regional Director for
Region 25 for the purpose of conducting a new election