Traveleze Trailer Co., Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1967

163 N.L.R.B. 348 (N.L.R.B. 1967)

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ludwig, Norman GC-161
McElrath, Estel GC-165
McElrath, Heman GC-89
McMillian, Dempsey GC-121
McMunn, Larry GC-174
McMunn, Leslie GC-190
Moore, Johnny GC-164
Moore, Kenneth GC-189
Nettleton, Clarence GC-90
Pearson, Richard GC-101
Pearson, Tommy GC-103
Perkins, Harold GC-58
Powell, Earl GC-148
Rice , Frankie GC-175
Riley, Michael GC-43
Rose, George GC-65
Rose, John GC-160
Schrader, Buford GC-118
Sims, James GC-162
Smithson, Andy GC-81
Stone, Bob GC-177
Strong, Homer GC-46
Thomas, Charles (Michael) GC-178
Van Gennip, Charley T. GC-126
Vincent, Carl GC-45
Wages, William GC-68
Walker, Bill GC-152
Walker, Billy GC-88
Walker, Charles GC-151
Walker, Charley GC-150
Waynick, George GC-30
Williams, Elmer GC-179
Wood, Earl GC-158
Cowell, Jimmy GC-124
Brandt, Jimmy GC-61
DePew, Richard GC-94
Crosby, John GC-38
Battles, John P. GC-23
Batchelor, Bob GC-49
Rose, Jimmy GC-63
Walton, Larry GC-104
Green, Acy Lee GC-105
Elsworth, Glendle GC-106
Proffer, Rodney GC-123
Traveleze Trailer Company , Inc. and
International Union , United Automobile,
Aerospace & Agricultural Implement
Workers of America , UAW-AFL-CIO. Cases
31-CA-145-1, 145-2, 145-3, 145-4, 167-2,
174-2, and 174-3.
March 10, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On October 26, 1966, Trial Examiner James R.
Hemingway issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's De-
cision. He further found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint. and recommended dis-
missal as to them. Thereafter, the General Counsel
and Charging Party filed exceptions to the Decision
and supporting briefs, and the Respondent filed a
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Traveleze Trailer
Company, Inc., Sun Valley, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner : Upon a series of
charges filed by International Union , United Automobile,
Aerospace & Agricultural Implement Workers of
America, UAW-AFL-CIO, herein called the Union,' a
complaint was issued on December 30, 1965, alleging that
Traveleze Trailer Company, Inc., herein called the
Respondent , had engaged in unfair labor nractices within
the meaning of Section 8(a)(1) and (3) of the Act (29 U.S.C.
Sec. 151 , et seq .). The complaint alleged that the
Respondent discharged seven named employees on
various dates between June and August 1965, because said
employees had formed , joined, or assisted the Union and
sought to bargain collectively through representatives of
their own choosing and engaged in union or other
concerted activities for the purposes of collective
bargaining or mutual aid or protection , and that on several
dates in July and August 1965 , the Respondent withdrew
desirable work tasks from , and assigned more onerous
work tasks to, its employees . The complaint also alleges
' The four charges numbered 31-CA- 145-1, 2, 3, and 4, were
filed on August 13, 1965; the charge in Case 31-CA-167-2 was
filed on August 31, 1965; and the two charges numbered
31-CA- 174-2 and 174-3 were filed on September 10,1965.
163 NLRB No. 43
TRAVELEZE TRAILER COMPANY, INC. 349
that the Respondent violated Section 8(a)(1) of the Act by
various acts and statements listed in the complaint. With
the exception of two corrections in dates of discharge, the
Respondent's answer, filed on January 11, 1966, admitted
the alleged discharges but denied that they were for the
cause alleged. The Respondent's answer also denies the
allegations of unfair labor practice under Section 8(a)(1) of
the Act.
Pursuant to notice, a hearing was held before me at Los
Angeles, California, on various dates between April 19 and
27,1966.2
From my observation of the witnesses and upon the
entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges and the answer admits that
Respondent is, and has been at all times material herein, a
California corporation with an office and places of
business located in Sun Valley, California,3 where it is
engaged in the manufacture of house trailers. During the
year preceding the issuance of the complaint, Respondent,
in the course and conduct of its business operations,
shipped from its plants located within the State of
California directly to points located outside the State of
California products valued in excess of $50,000.
No issue is raised with respect to the Board's
jurisdiction, and I find that the Board has jurisdiction and
that it will effectuate the policies of the Act to assert
jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to
membership, among others, employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Plant Management and Facts Bearing on Credibility of
Witnesses
1. Supervisors
Management of the Respondent at the Penrose plant in
April 1965 was headed by Kenneth Dixon, vice president;'
Dave Stahl, vice president and general manager; John
Bowater, secretary-treasurer; Buster Stewart, production
manager; Martis Bone, foreman of the fiberglass
department (the only foreman); and a number of leadmen
for other departments.5 The General Counsel contends
that leadmen are supervisors, while the Respondent
contends that they are not supervisors within the meaning
of the Act. The evidence, which is conflicting, bears only
on the issue of surveillance. It is conceded that leadmen
could not hire or discharge employees, but it was their
duty to assign work and see that it was properly done.
They could recommend discharge to Manager Stewart, but
the latter did not always discharge on the leadman's
recommendation. Stewart testified that he would make an
independent investigation before he decided to discharge
a man on a leadman's recommendation. Sometimes,
inst'ad of discharging the man whom the leadman
recommended be discharged, Stewart would transfer that
man to another department. The evidence is conflicting as
to when, if ever, Stewart would discharge a man without
an "independent" investigation. Larry Hearne, who had
been a leadman with the Respondent until September
1965, testified that he had discharged one man and
recommended discharge for five or six. He testified that he
discharged one man for using foul language. He was
unable to remember the name of this man but gave a bare
description of him. There was no corroborative evidence of
this discharge. Hearne recommended to Stewart that he
discharge a man by the name of Clagg for violating the rule
against smoking in the plant, after repeated warnings.
Stewart, according to Hearne, told him to send the man up
to him. Hearne did so and the man was terminated on
February 12, 1965. Stewart testified that after Hearne had
told him this man was smoking, he, himself, went and saw
Clagg smoking before he discharged him. Clagg did not
testify. Leadmen occasionally recommend a man for a
raise, and Stewart testified that at times he might ask a
leadman how one of his men was doing, whether he got on
well with other men. Hearne testified that he spent 85
percent of his time supervising and 15 percent working
with his hands. A witness for the Respondent reversed
those percentages as to Hearne. Hearne testified that he
had authority to permit a man to leave early. This was not
refuted, but it is not clear when this authority might be
exercised. The only evidence available indicates that this
practice of excusing men early was limited to the end of
the day when there might not be anything more for a man
to do during the last few minutes of the workday and even
then, I deduce, the leadman was supposed to notify
Stewart.
There is some evidence that the authority of leadmen
might not have been uniform and that some of the leadmen
might have been given more authority than others. In
discussing with the Union (in September 1965, after the
Union had been certified) whether or not the leadmen
should or should not be in the unit, the Respondent agreed
with the Union that two of the leadmen-Hearne and Leon
Posnoski-should be excluded, while the others should be
included.6 Although this took place some months after the
alleged interference, restraint, and coercion, it may
indicate that Hearne had somewhat more authority than
other leadmen. However, Hearne might have expected
more backing from Stewart respecting his authority than
other leadmen were given because he was on friendly
personal relations with Stewart, having been fishing with
Stewart and having taken a trip to Las Vegas with him,
and thus Hearne might have gone further in his exercise of
authority than was justified. In any event, Hearne's
recommendations of discharge were not, in a majority of
instances, accepted by Stewart, who sometimes
t Minor errors in the transcript have been corrected by the
Trial Examiner
1 There are two plants in Sun Valley, one called the Penrose
plant and the other the Tuxford plant A third plant is located in
Burbank , California
4 Dixon's father was president , but his "office" was at Palm
Springs, California Kenneth Dixon was in active charge at the
plant.
s There was a top of about 140 or 150 employees at the Penrose
plant at the height of the seasonal business, with a low of about 80
The leadmen were not all identified by department and there is no
evidence to show the number of men supervised by each of the
leadmen
' The unit agreed on before the election included leadmen
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transferred a man from Hearne's department to another
rather than discharge him as Hearne had recommended.
The evidence as a whole fails to convince me that
leadmen at Respondent's plants are supervisors within the
meaning of the Act
2. Credibility
This case turns largely on a resolution of credibility. In
resolving credibility, I have taken into account not only my
observation of the witnesses but also the following facts:
The key witness for the General Counsel was Leadman
Hearne. The key witness for the Respondent was
Production Manager Stewart. These titles were applicable
to them at the time of the events herein related Hearne,
however, left the employ of the Respondent in September
1965 and was elsewhere employed at the date of the
heating. Stewart left the Respondent's employ, for a time,
in early November 1965
Efforts of a Board investigator who was investigating the
charges herein to get Hearne to respond to telephone calls
with a view toward getting a statement proved ineffectual
until November 2, 1965, at a time when Hearne learned
that Stewait was no longer employed by the Respondent
Then Hearne gave a statement to the Board's agent7 and
immediately thereafter telephoned Stewart, told Stewart
that he had heard he was no longer with the Respondent,
and then told Stewart that he had just given a statement to
a Board agent The following day, November 3, 1965,
Stewait also gave a statement to a Board agent
Early the following month (December 1965), Stewart
was rehired by the Respondent to do carpentry work. On
about January 25, 1966, Stewart was made plant manager
and production manager of the Respondent's Burbank
plant, the smallest of its three plants . Two weeks before
the date of the hearing herein, when the Union began
picketing the Respondent, Stewart closed the Burbank
plant , brought his crew to the Penrose plant (where he had
been production manager through October 1965), and was
made assistant production and plant manager of that
plant
Stewart testified on direct examination for the
Respondent that, when Hearne telephoned him on
November 2, 1965, to say that he had heard that Stewart
had left the Respondent, Hearne had said, "Well, I just
wanted to let you know that 1 got them for both of us."
When Stewart, according to his own testimony, asked
Hearne what Hearne meant by that remark, Hearne
replied that "the man from the Labor Board had been
trying to get ahold of him for quite a while to take a
statement from him," and that when Hearne had learned
that Stewart had left the Respondent, he (Hearne)
"decided to get John Bowater [Respondent's secretary-
treasurer] for pulling out his rose bush." Stewart also
testified that Hearne had told him "he agreed with
everything the man [Board agent ] asked him." According
to Stewart, Hearne had rented an apartment (at one place
lie referred to it as a house) from Bowater, and Hearne had
done work for Bowater on that property and other property
which Bowater owned in the neighborhood, but Bowater
stopped using Hearne's services and had come over and
painted white a redwood fence (which Hearne had put up
to keep his child in the yard) and had pulled up a rosebush
which Hearne had put in near the front door, and Stewart
testified that this had upset Hearne. Hearne was not
recalled to refute any of this testimony, but while he was
on the stand as a witness for the General Counsel,
Respondent's counsel, on cross-examination, had asked
Hearne if he remembered having a discussion about
Bowater in which he said that he was "going to make
Bowater and the company ... pay for" what Bowater had
done to Hearne's rosebushes. Hearne denied that he had
had any rosebushes, denied that he said he "got that
s-o-b-Bowater" or was was going to get him for "pulling
up his rosebushes," and denied that Bowater had ever
pulled up any flowers, trees, or shrubs around his house.
Since Stewart did not testify to having witnessed any
damage to Hearne's rosebushes (if any), his testimony
appears to have been based on hearsay. Bowater did not
testify I do not find that Hearne made the statement
attributed to him by Stewart 8 Nevertheless, there was in
Hearne's demeanor and in the circumstances under which
he gave a statement to a Board agent that which leads me
to believe that Hearne had no affection for the Respondent
and that his testimony might have been affected by bias.
In his current employment, Hearne was a member of a
union (whether voluntary or not does not appear) On the
other hand, Stewart's return to Respondent's employ
aligned him with the interests of the Respondent. Since he
had already given an affidavit to a Board agent before he
returned to Respondent's employ, it is not likely that he
would have perjured himself by testifying contrary to his
affidavit. Of course, I have no way of knowing what part of
his testimony might have related to matters which had not
been mentioned in his affidavit at all since his affidavit
was not introduced in evidence. Stewart's demeanor on
the stand, however, did not give the impression of
fabrication or deliberate falsehood, although there were
indications that, on matters which put him in a bad light,
his memory was often sketchy, and I received the
impression that lie did not disclose all that he knew. I
have, therefore, scrutinized Stewart's testimony and
contrary testimony carefully before crediting Stewart's
testimony.
B. Interference, Restraint, and Coercion
The Union began to organize with the distribution of
union literature in front of Respondent's Penrose plant on
the afternoon of April 20, 1965, by Joseph Marinello, an
International representative of the Union. On that
afternoon, Production Manager Stewart came to Marinello
and asked for one of the leaflets. After reading the leaflet,
Stewart commented to Marinello that the Union did not
offer any more than the employees already had without a
union.
Marinello made a second distribution on the morning of
April 29, 1965, before the beginning of the workday.
Between the Respondent's building and the curb at the
street, there was a blacktopped paved area about 29 feet
wide. Marinello stood about midway between the building
and street and distributed leaflets to employees who
arrived early and were waiting to enter the plant when it
opened at 7:30. Stewart arrived about 8 or 10 minutes
' Hearne testified that he gave the statement on the day ' I consider it not unlikely that Hearne used a metaphorical
Stewart left the Respondent As heretofore stated, Hearne had expression concerning the circumstances of his leaving the
been a friend of Stewart Respondent and that Stewart misunderstood
TRAVELEZE TRAILER COMPANY, INC. 351
before opening time, and, on seeing Marinello, hd
approached and told Marinello that he was on company
property and to get out into the street. Marinello replied
that he did not believe that he was on company property
and that he had a right to be where he was to distribute
literature, but that before he came the next time he would
ascertain where the property line was. Stewart began
using language not approved in polite society and gave
Marinello the impression that he was going to strike at
him. Marinello commented that he regretted he had not
brought a witness with him to hear Stewart's language but
that, if Stewart struck him, there would be plenty of
witnesses, indicating the employees standing about. When
Marinello remarked that he would bring an assistant with
him the next time, Stewart said that he was sure Marinello
could get plenty of help down on skid row where the winos
were. When Marinello did not move, Stewart as he quoted
himself, said that he was going to "throw his ... out into
the street." At this point, Marinello testified, Stewart
swung his fist at him, and he stepped back a couple of feet
to avoid it. Stewart denied closing his fist, but he admitted
that, with his hand open, he attempted to push Marinello
back. Stewart failed to make contact, but Stewart's
belligerency and forward thrust of his arm were witnessed
by a sizable number of employees who were lined up to get
into the plant or who were getting coffee from a canteen
truck which regularly came to the plant every morning
before work and also at coffeebreaks each morning and
each afternoon. Marinello said that if Stewart wanted to
get rid of him, he would do better to call the police. Martis
(Mike) Bone, a foreman, suggested to Stewart that he go in
and telephone the police. Whereupon- the two of them
went into the building. Whether or not Stewart closed his
fist, he certainly made a belligerent gesture at Marinello
that had the appearance of an assault. Since his act was
witnessed by employees, I find that, by Stewart's
threatening words and action, the Respondent interfered
with, restrained, and coerced its employees in the exercise
of the rights guranteed in Section 7 of the Act.9
Before going to the Respondent's plant again, Marinello
went to the city planning department and procured a map
which showed the property line as only a foot from the
Respondent's building, although Marinello learned at that
time that the Respondent was attempting to get the city
to return about half the remaining distance between the
building and the curb to the Respondent. A week or two
after the aforesaid encounter with Stewart, Marinello
returned with another International representative of the
Union. Stewart approached and told Marinello that he had
already told Marinello to get into the street. Marinello told
Stewart that he had learned where the property line was
and offered Stewart a photostatic copy of the plat. Stewart
refused to look at it and said that he would call the police.
He did so, but the police arrived after Marinello and his
assistant had departed.11 Apparently the telephone call to
the police delayed the opening of the plant gates that
morning and Marinello was passing out leaflets to the men
in the line when Stewart approached and asked, "Do you
realize that you can get these people in trouble accepting a
leaflet after the whistle has blown?" Stewart told the
employees in the line that all the Union wanted was their
money, their dues, that "they can't do anything for you."
Thereafter Marinello made about nine distributions of
literature, and usually Stewart was there to observe the
distribution. On either Marinello's fourth or fifth
distribution, Stewart told Marinello, "You wino bastard,
all you want is their dues." There is no evidence that
employees were present at this time.
The first union meeting for Respondent's employees
was scheduled late in April 1965.11 Marinello testified that
this meeting was not announced in writing but was spread
by word of mouth through some of his contacts. He named
as contacts employees Joseph Darling, Wilber Owens, Gil
Sigworth, and Gilbert Garcia.12 Marinello testified that
actually two meetings were held that day-one right after
work (4 p.m.) and the other at 7 p.m. at a different
location.13 Darling, who was a friend of Leadman Daniel
Wheeler, testified that he had a conversation with
Wheeler sometime before noon that day in which he told
Wheeler that he was going to attend the meeting that
evening, that Wheeler had advised him not to do so
because Hearne would be at the meeting to let the
Respondent know who attended the meeting and how
many attended, and that Darling would be risking
discharge if he went. Wheeler's testimony of the time and
content of this conversation was somewhat at variance
with that of Darling. Wheeler testified that it was about
3:30 p.m. when he told Darling not to go to the meeting,
and he testified that he had told Darling not that Hearne
was going to report who was at the meeting but that he,
himself, intended to do so, and that he had so told Darling
because Darling was a friend of his and he did not want
Darling to lose his job. Wheeler testified that he did not
know how he learned of the meeting but that, before he
had even spoken to Darling, he had, at or about 2:30 p.m.,
spoken to Hearne, asking the latter if he intended to go to
the meeting that evening, and that when Hearne said he
intended to, Wheeler told Hearne he would ride there with
him. Hearne, whose memory as to details was often not
sharp, testified that, in the afternoon, probably as he was
leaving for the day, Stewart told him that there was going
to be a union meeting that night and asked why he did not
go down and see how many would be there, that he agreed
to do so, and that Wheeler, who was standing nearby at the
time, asked if he could ride with Hearne because he, too,
wanted to see what was going on. Hearne could not recall
how or when he first learned of the meeting or how he
knew where it was, merely supposing that someone had
told him.
Stewart denied that he had suggested to Hearne that he
go to the meeting. He testified that at sometime during the
day of the meeting, Hearne had come to him and told him
there was going to be a union meeting and asked if it was
all right for him to go, that he had replied that certainly it
was all right, that he did not care. Stewart also testified
that no one else was present at that conversation. Stewart
N L R B v Gibbs Corporation, 297 F 2d 649 (C A 5),
Altamont Shirt Corporation, 131 NLRB 112
"' Since the Respondent could not require the police to deprive
the Union of its right to distribute literature , I find no violation in
merely telephoning the police Poray, Inc , 160 NLRB 697
11 The date of this meeting was not fixed to my satisfaction
Joseph Darling testified it was on April 23 (a Friday) Later
evidence tended to set it as on April 29, a Thursday Marinello
testified that when a meeting was announced in one of the union
circulars, the distribution was usually made in the evening
it Darling and Sigworth are named in the complaint as
discriminatees
II There is reason to deduce that the 4 p in meeting was
arranged by word of mouth on short notice in order to divert
Hearne from attending the meeting scheduled for 7 p in
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied that he had asked Hearne to report to him about
the meeting, and testified that he did not know that
Wheeler and Hearne were going to return to the plant that
night, but that he "figured they would." Stewart's
testimony that he said it was certainly all right to go to the
union meeting appears out of character with what he
admittedly said to others about their union preferences.
But, on the other hand, he apparently believed that
Hearne and Wheeler were not in sympathy with the Union
and that there was no reason for them to go to a meeting
except to get information about any employees who might
attend. Whether or not Stewart requested Hearne to
attend the meeting, I find that he expressed approval of
their going in expectation that they would return and
report concerning the attendance at the meeting.
Other than Hearne and Wheeler only two employees,
Joe Darling and Wilbur Owens, went to the Union's hall
right after work on that occasion. Darling and Owens
drove together in Owens' truck. Hearne drove his car with
Wheeler as a passenger and arrived soon after Owens and
Darling did. The four of them were taken to a corner office,
where Marinello discussed the Union and the problem of
organization. They signed cards to be used to support a
petition for an election, and Hearne and Wheeler took
some union literature.
Darling testified that while he was in that corner room of
the union hall, he saw Stewart drive past the front of the
building, slow down, and then go on. Although he testified
that he commented on the fact that Stewart had driven by,
no one else in the room apparently saw the car Darling
saw, and only Marinello recalled Darling's commenting
about it. Hearne, on cross-examination, at first testified
that he remembered no one's saying anything about
Stewart during the meeting, but when asked whether
anyone had said anything about Stewart's driving past,
Hearne, after a considerable pause, during which I
observed no light of recollection in his eyes, answered,
"Seems like I saw him drive past." However, he still
recalled no comment about it. I do not give any weight to
Hearne's testimony about seeing Stewart drive by. Darling
was not questioned about the actions of the driver of the
car he identified as Stewart's, whether or not the driver
had turned his head to look at the union hall, or how
clearly he could see the driver of the car. Stewart denied
that he had driven past the union hall as Darling testified.
The street on which the union hall was located was not one
that Stewart would have had any legitimate occasion to be
on at the time However, no evidence was adduced to
prove that other cars of the same make as Stewart's were
not commonly painted the same color. Futhermore, if
Stewart was expecting Hearne and Wheeler to report back
to him, there would have been no occasion for him to drive
past the union hall. I consider it likely, therefore, that
Darling jumped to an unwarranted conclusion. I find the
evidence not sufficiently convincing to persuade me that
Stewart in fact drove past the union hall at the time
testified to by Darling, and I credit Stewart's denial.
Following the meeting, Hearne and Wheeler returned
and found Stewart at the drinking fountain below his
office.14 Hearne told Stewart that they wanted to talk with
him in his office. The three of them went up to Stewart's
office and there Hearne told Stewart that there were-only
four men from the plant at the meeting, naming Darling
and Owens as the only other ones besides himself and
Wheeler. Wheeler and Hearne gave Stewart the union
literature which they had picked up. Stewart testified that
Wheeler had told him it was for him to take home and that
he "had probably" replied that he had enough toilet tissue
at home. Hearne and Wheeler then told Stewart what
Marinello had told them about how big the Union was and
what benefits employees would have. They told him that
Marinello explained that, if the Union had cards of 30
percent of the employees, a petition for an election could
be filed and that Marinello had said that he had almost
enough at that time. Hearne read some of the literature
aloud and Stewart commented that the Union was not
offering any benefits that the employees did not already
have. Hearne read a passage from the union literature
which said that spying on the Union or on union meetings
was illegal, and someone jokingly remarked that Hearne
would probably go to jail. I find that Stewart knew, when
Hearne and Wheeler returned from the meeting, that they
intended to make a report to him and that he encouraged
them to do so by taking them to his office to make such
report, and that, by this conduct, the Respondent
interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act.15
Thereafter, although not requested to do by Stewart,
Hearne and Wheeler reported to Stewart regarding the
number of employees attending other union meetings,
Wheeler once telling Stewart that a majority of the
employees appeared to be those who worked in the new
building. Wheeler testified, however, that after the first
meeting he never told Stewart the names of any employees
who attended later meetings although he would have if
Stewart had asked. Stewart had other informants among
the employees, he conceded, who told him about the size
of meetings, but he denied that he was told by any of them
the identity of employees attending meetings.
Stewart did, however, admit that he knew of one union
proponent, for he received information from the lead
welder that an employee named Alex Aganza had been to
the welding shop to try to get employees there to sign
cards for the Union.'s Stewart went to where Aganza was
then working and told him not to engage in union activities
on working time. Stewart then engaged Aganza in a
discussion. testified that Stewart talked "roughly" to him
and he asked Stewart to "talk like civilized people."
Stewart asked Aganza, the only employee at that time to
wear a union button, what good the Union would do for
him. Aganza replied, "Well, what will I do without a
union," and said that he had found a friend in the Union
and attempted to explain why he was for it. Among other
things, he said that he was being paid $1.75 an hour but the
man he was teaching on the job (Sigworth) was being paid
$1.95. Aganza quoted Stewart as saying that the Union was
a bunch of winos after his money and as asking, "Well, if
you don't like this place, why don't you leave?" Aganza
spoke of the Union as a benefit for the employees the same
as union was good for the United States and that that was
why "all these Mexicans we decide to get united." Aganza
testified and Stewart denied that Stewart said that if the
" Stewart testified that the plant hours were 7 30 a in to
4 p in , that the office was open until 5 p in , and that he was (of
the managerial staff) usually the first one there and the first to
leave, although he often stayed until 6 or even 10 p in
' 5 Atkins Saw Division of Borg-Warner, 160 NLRB 790
' The date of this incident was not fixed I judge that it
occurred early in May 1965 , soon after the first meeting
TRAVELEZE TRAILER COMPANY, INC.
Union won the election "all these Mexicans will be 100
miles ... south of the border." This quoted statement does
not, literally, make much sense. Perhaps Aganza was
attempting to quote what was intended as a veiled threat of
discharge, but I am not satisfied that his memory was
accurate or complete on this. I believe that Aganza, in
recollection, may have confused this with something else
that was said or remembered only partly. Accordingly, I
find that those words were not spoken in that way by
Stewart. Stewart's version was that Aganza had said that,
if the Union came in, he (Aganza) would get $3 or $4 an
hour and that he (Stewart) had told Aganza that the Union
could not get him any more than he was already getting;
that he had asked Aganza if he thought the Company
would pay $3 or $4 for men like Ayala and Vincent
Gonzales who could not even speak English. Stewart
quoted Aganza as saying that those people were scum,
who swept out his house in Mexico. Stewart quoted
himself as telling Aganza that "I would be ashamed of
that" and that he would also be ashamed of wearing "that
badge" that Aganza had on, referring to Aganza's union
button. Stewart also testified that he had asked Aganza,
"Why did you leave Mexico?" I believe that both
witnesses were relating what they remembered and that
(except as found above) the conversation was substantially
as each testified. By thus questioning Aganza in a forceful
manner about his union views the Respondent interfered
with, restrained, and coerced employees in the exercise of
the rights guaranteed in Section 7 of the Act.
Gilbert Sigworth, an alleged discriminatee, who came
up to hear part of the conversation between Stewart and
Aganza, above related, testified, "I started talking about
how good the Union was and the benefits of the Union ..."
and "Mr. Stewart then said, `Well, if you like the Union so
well, why don't you stay back where you came from?"' It
is apparent to me that this was not an accurate quotation.
It sounds like a garbled version of what Stewart said to
Aganza. After his recollection was "refreshed" by a
suggestion, Sigworth also testified that during that
conversation Stewart had said, "If this Union goes
through, I will blackball you," speaking to Aganza and
himself. Stewart denied that he had used the word
"blackball" on that or any other occasion. Aganza, whom I
found to be an honest witness and one who appeared to
testify to the best of his recollection, although not always
connectedly, gave no indication that Stewart had said
anything to Sigworth, who, Aganza testified, "listened to
our conversation." Aganza did not indicate that Sigworth
had said a word. I am sure that if Stewart had spoken of
blackballing anyone for being for a union, Aganza would
have remembered it and given testimony about it. I
suspect that Sigworth shaped his testimony to strengthen
his claim of discriminatory discharge, and I do not credit
his testimony that Stewart spoke to him or that he spoke to
Stewart in that conversation. Sigworth also testified that at
a time in May or June17 when he was helping Aganza to
hang doors, Stewart came up and told Sigworth, "Don't
talk to that man," pointing to Aganza, and that Stewart
had once told Sigworth not to talk to an employee named
Gaylord Sebbo, an alleged discriminatee (as were Sigworth
and Aganza). Stewart denied that he had told Sigworth not
17 Sigworth was terminated on June 2, 1965
1 Brennan 's , Inc., 147 NLRB 1545, 1554, Great Dane Trailers,
Inc, 159 NLRB 537.
353
to talk to Aganza or Sebbo but admitted that he had told
Sebbo not to talk with certain people and that he might
have named Sigworth as one. However, he testified that he
had told Sebbo this because Sebbo was always talking
about his personal problems. Stewart admitted that he
suspected that Sigworth was in favor of the Union. If
Stewart were going to caution Sebbo not to talk to people
about his personal problems, I consider it unlikely that he
would have singled out specific persons not to talk to. I
deduce that Stewart was more concerned with keeping
prounion men from talking to nonunion men than he was
with prounion men talking with each other, unless it
delayed their work. Sigworth testified that he had told
Stewart that he belonged to the Union, and Stewart
admitted that he suspected that Sigworth did. In fact, at
one point, Steward testified that he thought Sigworth wore
a union button. However, I deduce that, at that time,
Stewart then believed that Sebbo was not for the Union. I
credit Stewart's denial that he told Sigworth not to speak
to certain people. However, Aganza testified that Stewart
told him many times not to talk union to anyone and "for
anyone not to talk to me." Stewart could have had in mind
union talk that interrupted work, but there is no evidence
of this. Furthermore, there is no evidence that, before the
union campaign, any restrictions had been imposed on talk
among employees even during work. I find, therefore, that
Stewart sought to curtail communication between
employees concerning the Union. By this conduct, the
Respondent interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed in
Section 7 of the Act.18
Employee Gaylord Sebbo testified on direct examination
that in late July 1965, shortly before the union election, he
had attended a union meeting and, at work the following
day, had worn a union button, that Stewart, during the
"lunch break," came to him and told him that he should be
ashamed to wear the button because of what the Company
had done for him and that he should give it back where he
got it. Sebbo testified that he took the button off and did
not wear it after that. On cross-examination, however,
Sebbo testified that the incident had taken place during
the afternoon coffeebreak, that Aganza was present, and
that Stewart looked at Sebbo and asked, "What are you
doing with it on?" Sebbo testified that he then returned to
work, apparently without having removed the button, that
Stewart came to where he was working and said, "If I was
you, I would take that pin off and give it back where you
got it, because you should be ashamed of yourself by
wearing it. Give it back to your friend Alex [Aganza]."
The third time that Sebbo repeated the story, he omitted
reference to Aganza and testified that he did not remove
the button until after Stewart had left.
Stewart testified that he never saw Sebbo wear a union
button and that, before the election on July 30, 1965, he
had seen no one wear a union button except Aganza.1s
Aganza gave no testimony about such an incident as that
testified by Sebbo. Stewart testified that during an
afternoon coffeebreak, in July or August 1965, he had
heard Sebbo laughing and saying that "UAW" meant
"unauthorized wetback." Stewart was not asked if he
could see Sebbo when he heard him make this remark.
" Stewart apparently forgot at this point that he had testified
that he thought Sigworth had worn such a button, and Sigworth
was terminated almost 2 months before the election
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Sebbo did not testify that Hearne was present
during the alleged coffeebreak incident, and although
Stewart believed that Hearne was not present, Hearne
alluded to the incident on direct examination for the
General Counsel but brought it in in a sketchy, backdoor
manner which did not assure me that he had actually
witnessed such an incident during the coffeebreak. If
Hearne had witnessed any such incident, he could have
been asked to relate the incident from the beginning, but
his testimony was left with only a casual reference to it.
Sebbo's testimony did not convince me of its accuracy,
and I do not believe that Hearne's testimony was of any
value as corroboration. Hearne's reference to seeing a
button on Sebbo and that Stewart "mentioned something
about he better take it off," does not confirm that Stewart
mentioned that "something" to Sebbo, himself. From
Hearne's testimony it could as readily be found that
Stewart had remarked to Hearne alone that Sebbo had
better take the button off as that Stewart had made the
statement to Sebbo. Also, when Hearne testified that he
did not see Sebbo take the button off, this does not mean
that Hearne was looking at Sebbo to see if he did remove
the button. The picture I draw from the preelection
incident involving Sebbo is that he might, perhaps, have
been displaying a union button during a coffeebreak while
joking that the letters "UAW" stood for "unauthorized
wetback," that Stewart heard the joke but did not see any
button. Hearne could, of course, have seen and heard
Sebbo's action, but he could as believably have learned of
it by hearsay. I am not convinced that Hearne was with
Stewart when Sebbo made his jest, and if he was not with
Stewart, he could not have heard Stewart make the alleged
remark about removing the button. In view of the
vagueness of Hearne's testimony, and the weakness of all
the evidence thereof, I am unconvinced that Stewart "on
or about July 23, 1965, ordered employees to remove their
union buttons" as is alleged in the complaint.
Hearne testified that he had several conversations with
Stewart about union meetings and that Stewart, in such a
conversation, had said that "if he caught anybody that was
attending union meetings, he was going to fire them," and
that Stewart had also said he was going to "fire all the
damn Mexicans, because they were the cause of the
Union." Stewart denied making such statements.
Although I would not think it unlikely for Stewart to make
some such remark as that he would like to discharge all
the Mexican employees for being strong for the Union (a
statement he was not alleged to have made), I consider it
most unlikely that Stewart would have said that he was
going to discharge all the Mexicans, for, as pointed out by
Stewart, 85 percent of the employees were of Mexican
ancestry. I also doubt that Stewart would have said that he
would fire anyone caught attending a union meeting. He
never discharged Owens, who attended the first union
meeting, and Darling was not discharged until a month
after the first union meeting and then for another reason,
as will be hereinafter related. When the union meetings
reached an attendance of 60 employees, Stewart certainly
would not have considered a mass discharge. On all the
evidence and from my observation of the witnesses, I
credit Stewart's denial of the statements attributed to him
by Hearne. This does not mean that I believe Hearne did
not have some basis for his testimony, but as to this
testimony, I believe that his memory was inaccurate
C. Discrimination in Regard to Hire and Tenure of
Employment
1. Discharge of Darling
Joseph Darling was employed by the Respondent as an
assembler in February 1964, and he worked in Hearne's
department, but because (at some time not fixed, but
before the union campaign) he had a "run in" with Hearne,
Stewart had transferred Darling to the cabinet-setting
department. In March 1965, Darling's wages were
attached by garnishment, and Manager Stewart informed
Darling of this and warned him to get his financial affairs
straightened out because the Respondent did not like
garnishments. Stewart testified that he also told Darling
that the Respondent did not allow a second garnishment.
Emile Florin, the leadman, who was present at this
conversation, testified that Stewart also told Darling that,
if he got a second garnishment, that would be the end of
his employment. Following that time, Stewart gave Darling
overtime work to assist him financially.
On April 27, 1965, Darling punched out a few minutes
early. When an employee punches his card out he takes
the card from the "in" rack and after punching it puts it in
the "out" rack. Stewart, who customarily was near the
rack at closing time, saw Darling's card in the out rack,
and subsequently spoke to Darling about his leaving early.
There is a conflict of testimony as to when Stewart spoke
to Darling about this. According to Darling, Stewart did
not speak to him about it until after the union meeting
which he attended on April 29. Stewart testified that he
spoke to Darling about it on either April 28 or April 29,
which would have placed his speaking to Darling about the
early punching out as either on the day before or the day of
the meeting, but before the time of the meeting Darling
testified that he had punched out early on other occasions,
but that Stewart had not spoken to him about that. The
record does not disclose how long in advance of closing
time Darling had punched out on previous occasions, if at
all Except for the 2 weeks ending April 27, 1965, none of
Darling's timecards was introduced in evidence. When
Stewart talked to Darling about his punching out early,
Darling said that he had told Florin, his leadman. Stewart
replied that Florin had not notified him and asked why
Darling had left early. Stewart testified that Darling
answered that he had to go somewhere. According to
Stewart, he told Darling that if he had notified him or the
leadman, it would be all right for him to leave early.
According to Darling, the last thing that was said about
this was that Stewart said he would check with Florin.
Darling testified that before the union meeting of
April 29, Stewart never bothered to come to the cabinet-
setting department, but after the meeting he was there
constantly. To quote Darling, "Everytime I turned around,
he was behind me. He was criticizing all little errors that
he never criticized before. He also warned me about-he
says, `if you want to ruin your life, that is your business. If
I catch you in any union activities, you have had it."'
Darling testified that he had engaged in union activity in
front of the plant during the coffeebreaks and at
lunchtime, passing out union application cards for
signature and sending in signed cards to the Union.
Stewart usually was in front of the plant somewhere at
coffeebreak time and during lunch. He usually ate lunch
sitting in his car. It is the General Counsel's contention
TRAVELEZE TRAILER COMPANY, INC.
Union won the election "all these Mexicans will be 100
miles . . south of the border." This quoted statement does
not, literally, make much sense. Perhaps Aganza was
attempting to quote what was intended as a veiled threat of
discharge, but I am not satisfied that his memory was
accurate or complete on this. I believe that Aganza, in
recollection, may have confused this with something else
that was said or remembered only partly. Accordingly, I
find that those words were not spoken in that way by
Stewart. Stewart's version was that Aganza had said that,
if the Union came in, he (Aganza) would get $3 or $4 an
hour and that he (Stewart) had told Aganza that the Union
could not get him any more than he was already getting;
that he had asked Aganza if he thought the Company
would pay $3 or $4 for men like Ayala and Vincent
Gonzales who could not even speak English. Stewart
quoted Aganza as saying that those people were scum,
who swept out his house in Mexico. Stewart quoted
himself as telling Aganza that "I would be ashamed of
that" and that he would also be ashamed of wearing "that
badge" that Aganza had on, referring to Aganza's union
button. Stewart also testified that he had asked Aganza,
"Why did you leave Mexico?" I believe that both
witnesses were relating what they remembered and that
(except as found above) the conversation was substantially
as each testified. By thus questioning Aganza in a forceful
manner about his union views the Respondent interfered
with, restrained, and coerced employees in the exercise of
the rights guaranteed in Section 7 of the Act.
Gilbert Sigworth, an alleged discriminatee, who came
up to hear part of the conversation between Stewart and
Aganza, above related, testified, "I started talking about
how good the Union was and the benefits of the Union ..."
and "Mr. Stewart then said, `Well, if you like the Union so
well, why don't you stay back where you came from?"' It
is apparent to me that this was not an accurate quotation.
It sounds like a garbled version of what Stewart said to
Aganza. After his recollection was "refreshed" by a
suggestion, Sigworth also testified that during that
conversation Stewart had said, "If this Union goes
through, I will blackball you," speaking to Aganza and
himself. Stewart denied that he had used the word
"blackball" on that or any other occasion. Aganza, whom I
found to be an honest witness and one who appeared to
testify to the best of his recollection, although not always
connectedly, gave no indication that Stewart had said
anything to Sigworth, who, Aganza testified, "listened to
our conversation." Aganza did not indicate that Sigworth
had said a word. I am sure that if Stewart had spoken of
blackballing anyone for being for a union, Aganza would
have remembered it and given testimony about it. I
suspect that Sigworth shaped his testimony to strengthen
his claim of discriminatory discharge , and I do not credit
his testimony that Stewart spoke to him or that he spoke to
Stewart in that conversation . Sigworth also testified that at
a time in May or June" when he was helping Aganza to
hang doors, Stewart came up and told Sigworth, "Don't
talk to that man," pointing to Aganza , and that Stewart
had once told Sigworth not to talk to an employee named
Gaylord Sebbo, an alleged discriminatee (as were Sigworth
and Aganza). Stewart denied that he had told Sigworth not
i' Sigworth was terminated on June 2, 1965
" Brennan 's , Inc , 147 NLRB 1545, 1554, Great Dane Trailers,
Inc, 159 NLRB 537
353
to talk to Aganza or Sebbo but admitted that he had told
Sebbo not to talk with certain people and that he might
have named Sigworth as one. However, he testified that he
had told Sebbo this because Sebbo was always talking
about his personal problems. Stewart admitted that he
suspected that Sigworth was in favor of the Union. If
Stewart were going to caution Sebbo not to talk to people
about his personal problems, I consider it unlikely that he
would have singled out specific persons not to talk to. I
deduce that Stewart was more concerned with keeping
prounion men from talking to nonunion men than he was
with prounion men talking with each other, unless it
delayed their work. Sigworth testified that he had told
Stewart that he belonged to the Union, and Stewart
admitted that he suspected that Sigworth did. In fact, at
one point, Steward testified that he thought Sigworth wore
a union button. However, I deduce that, at that time,
Stewart then believed that Sebbo was not for the Union. I
credit Stewart's denial that he told Sigworth not to speak
to certain people. However, Aganza testified that Stewart
told him many times not to talk union to anyone and "for
anyone not to talk to me." Stewart could have had in mind
union talk that interrupted work, but there is no evidence
of this. Furthermore, there is no evidence that, before the
union campaign , any restrictions had been imposed on talk
among employees even during work. I find, therefore, that
Stewart sought to curtail communication between
employees concerning the Union. By this conduct, the
Respondent interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed in
Section 7 of the Act.18
Employee Gaylord Sebbo testified on direct examination
that in late July 1965, shortly before the union election, he
had attended a union meeting and, at work the following
day, had worn a union button, that Stewart, during the
"lunch break," came to him and told him that he should be
ashamed to wear the button because of what the Company
had done for him and that he should give it back where he
got it. Sebbo testified that he took the button off and did
not wear it after that. On cross-examination, however,
Sebbo testified that the incident had taken place during
the afternoon coffeebreak, that Aganza was present, and
that Stewart looked at Sebbo and asked, "What are you
doing with it on?" Sebbo testified that he then returned to
work, apparently without having removed the button, that
Stewart came to where he was working and said, "If I was
you, I would take that pin off and give it back where you
got it, because you should be ashamed of yourself by
wearing it. Give it back to your friend Alex [Aganza]."
The third time that Sebbo repeated the story, he omitted
reference to Aganza and testified that he did not remove
the button until after Stewart had left.
Stewart testified that he never saw Sebbo wear a union
button and that, before the election on July 30, 1965, he
had seen no one wear a union button except Aganza.19
Aganza gave no testimony about such an incident as that
testified by Sebbo. Stewart testified that during an
afternoon coffeebreak, in July or August 1965, he had
heard Sebbo laughing and saying that "UAW" meant
"unauthorized wetback." Stewart was not asked if he
could see Sebbo when he heard him make this remark.
"' Stewart apparently forgot at this point that he had testified
that he thought Sigworth had worn such a button, and Sigworth
was terminated almost 2 months before the election
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied telling Hearne that he had spoken with the lawyer,
and testified that he had not in fact spoken with the
Respondent's lawyer, at all. He also denied telling Hearne
that he would probably have to fire Elgin as Hearne had
testified. Elgin was, in fact, not discharged. Although
Stewart confirmed that he had spoken on occasions with
Hearne about Darling, Stewart's testimony, which
appeared to me to be spontaneous, suggested that Hearne
had distorted or enlarged upon what Stewart had told
Hearne. According to Stewart, he told Hearne that Darling
had come back with a release, but that he did not tell
Hearne anything about taking him back. He also testified
that, although he had not spoken with the Respondent's
attorney about Darling, he had spoken with Bowater about
the release which Darling had brought in to see if that
would change the situation. It is possible that Bowater,
after being told by Stewart about the release, had
telephoned the lawyer and then had given his reply to
Stewart and that Stewart had related something like that
to Hearne. It appeared to me that some of Hearne's
testimony was based upon impression rather than upon
clear recollection. I credit Stewart's denials.
Even if Stewart had had an inclination to discharge
Darling for union activities, I could not consider that as
affecting the discharge of Darling, in the first instance,
because there is no question that the Respondent's rule
that it would not retain an employee after a second
garnishment existed and had been uniformly enforced.22
At best, therefore, Darling's case turns upon whether or
not, when he brought the release to Stewart and asked for
his job back, the Respondent refused to reinstate him
because of prejudice against him because of his union
activities. In order to find that the Respondent was so
influenced, I should be obliged to find that the Respondent
would not, under similar circumstances, have refused
reinstatement to an employee who had not engaged in
union activities. There is, however, no evidence from
which I could make this determination. The Respondent
had discharged several other employees for second
garnishments and had never taken them back. The
leadman of the janitors had requested an exception in one
instance because one of his good workers was to be
discharged for a second garnishment, but the Respondent
refused to make any exceptions.
Although Darling brought in a release and told Stewart
about having gone to his creditor to learn why his
bankruptcy had not forestalled the garnishment, and
although he told Stewart that the garnishment was a
mistake, presumably on the part of the creditor, the
Respondent was not obliged to believe that Darling was
free from fault in the matter. In fact, it was Darling's
financial difficulties which, mistakenly or not, resulted in
the second garnishment. Although I, personally, might
have felt that the nullification of the second garnishment
by the bankruptcy proceedings acted to nullify the
garnishment notice ex post facto, and that this would put
Darling in the position of a debtor who had paid his debt in
full before garnishment, I note that the bookkeeping
problem had already been encountered by the
Respondent. Furthermore, I do not consider it
unreasonable for Dixon to feel that bankruptcy was not the
equivalent of meeting one's obligation on time, as he
testified in substance. On all the evidence, therefore, I
conclude and find that the Respondent did not
discriminate against Darling because of his union
sympathies or activities.23
2. Discharge of Sigworth
Gilbert Sigworth was hired on April 6, 1965, and
sometime thereafter he was assigned to the doorhanging
department. Sigworth testified that during coffeebreaks
and at lunch period he passed out union cards and talked
about the Union with employees. Sigworth was present
when Stewart spoke with Aganza about the Union as
heretofore related.
On June 1, 1965, before work, Sigworth went to Stewart
and asked to have the day off to take his wife to the doctor.
He quoted Stewart as saying , "Okay, I don't need you
anyhow." Stewart testified that Sigworth had asked for the
day off to take his wife to the hospital, that he had asked
what hospital, and that Sigworth had said, "On Sherman
Way and Hollywood Way," and that he had told Sigworth
to go ahead. Stewart testified that, during the day, it had
occurred to him that if the hospital was at Sherman Way
and Hollywood Way, it must have been in the "middle of
Lockheed."24 Stewart testified that on June 2, when
Sigworth returned to work, he asked Sigworth the name of
his doctor. Sigworth gave Stewart a name of a doctor.
Stewart testified that Sigworth had given him the name of
a doctor in North Hollywood. He could not remember at
the hearing the name given him. Sigworth testified that he
had given the name of his family doctor, Dr. Marcus, on
Glenoaks Boulevard in Glendale.25 Stewart went to the
office to attempt to call the doctor whose name Sigworth
had given him. He found no such name listed in the
"Valley" telephone book. He tried unsuccessfully to locate
the doctor's number through the information service. Then
he returned to Sigworth and told Sigworth he could not
find any doctor of the name which Sigworth had given.
According to Stewart, Sigworth said: "I am not going to
talk to you any more. I am not going to say any more to
you. You gave me the day off, and the hell with it." Stewart
told Sigworth that he did not like liars working for the
Respondent and that he was going to discharge Sigworth,
and he promptly did so.
Sigworth admitted that he did not take his wife to see
the doctor . He testified that he was not feeling well,
himself, and that he had given the excuse he did "because
Mr. Stewart knew I was union - minded . I was afraid if I told
him the truth, well, I would get canned for it . . . " It does
not make sense that Sigworth would expect to be
22 Darling testified that his father had worked for the
Respondent and, while there, had not been discharged after three
garnishments . There is no showing that the senior Darling had
been employed by the Respondent during the past 5 years that the
rule had been in effect.
23 Federal Tool Corporation, 130 NLRB 210, Capital
Distributing Co, 147 NLRB 1138, Pacific Electncord Company,
153 NLRB 521, Lutst Truck Lines, 160 NLRB 530
24 Sherman Way, an east and west street, ends where it runs
into the west side of the Lockheed grounds Hollywood Way, a
north and south street, runs along the east side of the Lockheed
grounds There is, therefore, no actual junction of those two
streets.
25 Sigworth first gave the name of the city as Glenoaks When
interrogating counsel commented that he knew of no city of that
name , Sigworth said Glendale Boulevard, another mistake
Glenoaks Boulevard is in Glendale
TRAVELEZE TRAILER COMPANY, INC.
discharged for asking for the day off if he was, in fact, ill,
and I do not credit this testimony. I likewise do not credit
Sigworth's testimony that he gave Stewart the name of his
family doctor. He had good reason to believe, when he
gave Stewart a name of a supposed doctor, that Stewart
was going to call the doctor to see if Sigworth had an
appointment for his wife on June 1. Knowing that Dr.
Marcus would have had to answer negatively, Sigworth
apparently made up a name to give Stewart. Stewart
testified that he did not always check up on excuses given
by employees, but that he had done so, apparently, when
he felt there was something peculiar about the employee's
explanation. _
The General Counsel's case rests on the theory that
Stewart knew Sigworth was union-minded and that, in the
absence of a discriminatory motive, a production manager
would "not be concerned with an employee's absence."
The evidence discloses, on the contrary, that Stewart was
the one whose consent had to be obtained by an employee
for a day off, and it was Stewart who was supposed to
check on unexcused absences. The best argument that the
General Counsel could make would be that, if Stewart
gave Sigworth the day off because his services were not
needed, Stewart should not care why Sigworth was off and
that he only checked Sigworth' s excuse as a means of
getting a pretended cause for his discharge, the real
reason being Sigworth's union advocacy. There is no
evidence, however, that Stewart would consent to an
absence unless there were some urgent reason. True,
Stewart admitted that he suspected that Sigworth was
prounion. But even with this admission, I am not
persuaded that Sigworth's discharge was discriminatory.
Sigworth testified that the Respondent had been laying off,
but that, instead of his being laid off, he had been
transferred from the doorhanging department to the
plastic department that very morning-June 2, 1965. Had
the Respondent wished merely to rid itself of a union
advocate, it could more readily merely have laid Sigworth
off on June 1 instead of discharging him on June 2. Since
Sigworth had had less than 2 months' employment at the
time of his discharge, he had not accumulated much
seniority, and a layoff presumably would have raised no
question. On all the evidence, I find that the Respondent
did not discriminate in regard to Sigworth's tenure of
employment because of his union membership or
activities.
3. Discharge of Kelley
John Kelley was hired by Respondent in early April 1965
and was assigned to the finishing line, but he was later
made a janitor. Kelley testified that during lunch periods
outside the front gate he passed out and collected union
cards. Although this is not disputed, I would not credit this
testimony without corroboration. Kelley testified that,
about a week before his discharge, Stewart "pulled me
over to the side after punching in after lunch and told me if
I was caught in any union activities at all, that he would lay
me off, and I better watch my step." Kelley further
testified that the next morning, when he was in the office
cleaning, Stewart had told him that he could not, believe
that Kelley would have anything to do with the Union and
26 Since the Union would be more likely to pass out than collect
pamphlets , this testimony is odd , unless he mistakenly used the
word "for" instead of "from " Perhaps Hearne had in mind union
authorization cards . That is apparently the way Respondent's
357
he "said something about that with the money they would
collect that he could send a few guys around the world free
and give everybody paid holidays and all the benefits."
Ex-leadman Hearne, after having Kelley identified for
him by the General Counsel, who asked Kelley to stand,
testified that Kelley was "trashman." Asked if he had ever
had any conversations with Stewart concerning Kelley.
Hearne testified: "If I remember correctly, I think I told
him that Kelley was the one that was picking up
pamphlets26 for the Union. He [Stewart] said if he ever
caught him goofing off, that he was going to fire him."
Stewart testified that he had not said three words to
Kelley all the time he was at the Respondent's plant; he
denied having any conversation with Kelley about the
Union or of having any conversation with Hearne or
anyone else concerning Kelley and the Union; he denied
that Hearne had told him that "Kelley was the guy that
was picking up union cards"; and he denied that he had
any knowledge or suspicion that Kelley might be involved
in the Union or might have something to do with the Union.
He specifically denied that he told Kelley that he did not
think he would have anything to do with the Union or that
he had told Kelley (although he admitted that he had told
Marinello) "that for $5.50 a month or $5 a month I could
collect from these guys, I could send at least three of them
around the world once a year." He testified that he had
made that statement outside the plant and that employees
could have heard him. His testimony appears to be
confirmed in this respect by other employees. On
demeanor, alone, I would credit Stewart as against Hearne
and Kelley on the above testimony, but there are other
reasons apparent from a reading of the record which
suggests that Hearne was attempting, in a vague way, to
assist Kelley's case and that Kelley was fabricating.
Accordingly, I credit Stewart's denials as above related.
The Respondent has had for years a plant rule
prohibiting smoking anywhere in the plant except in the
offices. This is based on the danger of fire throughout a
major part of the plant, but the rule has been applied even
to the welding shop, where there is little danger, in order to
deter contentions about special privileges. On June 4,
1965, late in the day (approaching 4 p.m.) Kelley was seen
smoking in an area about 10 feet from the "dike," a low
raised portion of pavement paralleling the boundary fence,
which cuts a diagonal line at the rear, and behind which
dike Respondent keeps drums of various kinds of volatile
fluids and explosive chemicals.27 Although Kelley was
standing behind a trash trailer while smoking, he was
visible from the fiberglass building. The man who saw
Kelley smoking was Mike Bone, the supervisor or foreman
of the fiberglass department, an area of the greatest fire
hazard. The fiberglass building was about 30 or 35 feet
from the dike at its closest point. Bone immediately told
Orville Mitchell, leadman of the janitors, who was passing
at that moment, that one of his men was back there
smoking, and suggested that Mitchell stop him. Mitchell
said he would take care of it at once. Bone then walked up
to the front of the plant grounds and told Stewart what he
had seen. Stewart berated Bone for not bringing the
violator to him at once instead of referring the matter to
Mitchell. Bone apparently felt that because Kelley was not
counsel interpreted Hearne's testimony , because he so framed his
question when he asked Stewart about the matter
n The raised portion of the pavement was apparently designed
to keep leakage from spreading out onto the rest of the pavement
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his man he should not intervene while Mitchell was
present. Mitchell testified that he went back and "bawled
out" Kelley and told him that the foreman of the fiberglass
department had seen him. By quitting time, when Kelley
came to punch out, Stewart had pulled Kelley's timecard
and, when Kelley found his card missing, Stewart asked
him if he had been smoking "out back."28 Kelley admitted
that he had. Stewart told Kelley he was discharging him.
Kelley waited until his check was prepared. Then Stewart
discharged Kelley.
Stewart testified that he told each employee when he
hired him that there was no smoking in the plant. No-
smoking signs were posted in many locations about the
buildings and grounds, although there probably was none
then at the point where Kelley was smoking that day. I
observe, however, that Kelley never protested that he did
not know of the no-smoking rule or that he did not know
that it applied to the spot where he was smoking, so I am
satisfied that he was aware of the rule and knew that he
was violating it. His attitude was rather that other
employees smoked in violation of the rule, too, so there
was no reason why he should not smoke, too.
The General Counsel does not dispute the existence of
the no-smoking rule but contends that violation of the rule
by employees was not uncommon and that Kelley was the
first employee who had been discharged for smoking
without prior warning; i.e., the first time he was caught.
Leadman Hearne and Wheeler both testified that they did
not know of anyone who had been discharged for smoking
without being warned. They were not counting as warnings
either the notice given to an employee when he was hired
or the no-smoking signs. The evidence does indicate that a
leadman might not report one of his employees for
smoking but would, instead, tell anyone who tried to
smoke to put it out, and he might warn him about smoking
more than once before reporting him to Stewart Stewart,
however, testified that he had never failed to discharge a
man he had seen smoking, but that if one employee
reported to him that another employee had smoked and, if
he did not, himself, see it happen, he would ask the
employee about it. If the employee denied it, Stewart
testified, he would warn him. He did not testify,
specifically, as to what he would do if the employee
admitted it. In one instance, to be hereinafter related,
Stewart was aware of the fact that A man was smoking in
the toilet, that he waited outside and, when the man came
out, asked him if he had been smoking. When the man
(Sebbo) admitted that he had, Stewart reproved him but
did not discharge him on the spot. The evidence justified
the conclusion that employees "sneaked" smokes when
they thought they could get away with it, with the men's
toilet being one of the most common places for sneaking
smokes, although this area, too, was a prohibited one.
However, I am sure that the Respondent's supervisors
must have suspected that smoking went on at times in
prohibited areas, a conclusion I reach because stamped-
out cigarette butts could be found on the pavement in most
places in the plant, according to my observation on
viewing the premises, subsequently followed by
Z" Stewart was not certain if he had asked Kelley about the
location where he was smoking, but Bone had told him it was near
the dike, and Kelley testified that Stewart asked him if he had
been smoking "out back "
t" The leadman of the welding shop apparently had smoked
openly near the welding shop until Vice President Dixon spoke to
him about it After that the lead welder satisfied his tobacco
concurrence of counsel in my observations and because
Dixon testified that every night an inspection was made to
be sure no burning cigarettes were left lying around.
Employees did not generally smoke openly in the plant in
the presence of supervisors. Kelley was the only one to
testify to the contrary. He testified, without going into
detail, that he had seen other employees smoking when
supervisors or foremen were around. And he testified that
Vice President Stahl had seen him smoking a couple of
times in back of the factory building and a couple of times
in the washroom without saying anything. Since Kelley did
not testify that the supervisors or foremen were looking in
the direction of the other employees who were violating
the no-smoking rule, his testimony regarding seeing
employees generally smoking in the presence of
supervisors was, alone, of little weight. His testimony that
Stahl had seen him and fellow workers smoking would, if
believed, indicate a tolerance of this violation.29 Stahl did
not testify. I am skeptical of Kelley's testimony that Stahl
had actually seen him smoking under the circumstances
he described and said nothing, especially since I have
discredited Kelley's testimony of conversations with
Stewart. In any event, Stahl was not the man who
discharged Kelley. It is Stewart's motivation that must be
determined, and Stewart's reputation was not one of
leniency.
Leadman Mitchell testified that between 10 and 10:30
a.m. on June 4 (the day of Kelley's discharge) he had
warned Kelley about smoking There is no evidence,
however, that Stewart knew of this warning. Stewart
testified that, in deciding to discharge a man for smoking,
he took into account the location where the man had been
smoking Theie was no evidence that Stewart knew of
smoking by any other employee near the dike. The
General Counsel relies on disparity of treatment by
pointing to the case of the employee whom Stewart
thought was smoking in the toilet and who admitted it
when asked by Stewart but who was not discharged on the
spot. I am not persuaded, however, in view of the
difference in danger of smoking between the toilet room
and the dike area that the lenience shown in the case of
the toilet-room smoker can be used as a basis for
establishing a disparity such as to show a discriminatory
motive in Kelley's case.so
Kelley had been employed for only 2 months. The
employees to whom lenience might have been shown were
men of considerably more seniority and skill than was
Kelley. In June, Respondent's production begins to
reduce, although the reduction is not so sharp until July or
August. The record is bare of any evidence to show that a
replacement was hired for Kelley. It does not appear odd
for the Respondent to dispense with the services of a
janitor at that time.
I conclude that the sum of the credible evidence is
insufficient to make out a case of discrimination. I have
credited Stewart's testimony that he had no knowledge of
any union activity or preference by Kelley. Accepting
Stewart's denial, I conclude that scienter was lacking. But
even if it were not, I am unable to find that Kelley's
craving by chewing it Dixon testified that he did not discharge the
lead welder because he was too valuable a man and because there
was little fire danger from smoking in the area of the weld shop
"' Poray, Inc , 143 NLRB 617, enfd sub nom Metal Processors'
Union Local No 16, AFL-CIO v NLRB, 337 F 2d 114
(CADC)
TRAVELEZE TRAILER COMPANY, INC.
smoking near the dike was so analagous to violations of
the no-smoking rule by other employees in other places as
to create an inference of animosity by the Respondent
against Kelley because of presumed union activities by
him. Indeed, I find that Stewart might well have been
greatly perturbed by word that a man was smoking in an
area where volatile liquids or explosive chemicals were
kept. In fact, he indicated that he was perturbed when he
berated Bone for not bringing the man to him at once when
Bone saw the man smoking. I conclude, therefore, that the
Respondent did not discriminate against John Kelley
because of his union membership, activities, or
preference.
4. Discharge of Aganza
Alexander Aganza was hired by the Respondent in
February 1965 as a door assembler. I have hereinbefore
related Stewart's exchange of words about the Union with
Aganza in which he told Aganza, among other things, not
to engage in union activities in the plant during working
time.31 Thereafter Aganza engaged in union activities
outside the front gate. He was the only employee to wear a
union button from the beginning of the Union's campaign.
The Respondent admits that it knew Aganza as a leading
exponent of the Union. In fact, on July 29, 1965, the day
before the union election at the plant, in a speech by Vice
President Dixon to the employees, Dixon said that the
rumor that employees were being discharged because of
union activities was untrue, that "not even Alex [Aganza]
will be fired because of union activities." At the union
election on Friday, July 30, 1965, Aganza was a union
observer.
The next working day after the election was Monday,
August 2. According to Aganza, Stewart came to him to
tell him he wanted Aganza to "sweep that trailer good."
About mid-July Stewart had assigned Aganza to sweep
trailers (I assume when the trailer reached his position in
the production line) in addition to his assembly work.
Aganza testified that his assignment of sweeping trailers
was punishment. The evidence indicates that, during the
busy season, some of the employees had helpers, and
these helpers would do the sweeping, but as production
fell off and work flowed down, the helpers would be
assigned to other work, and the sweeping would then be
done by men on the production line. Aganza's department,
the window and door department, followed the metal and
molding department, where bits of metal would be left on
the floor. To avoid damage to the linoleum or floor tile, it
was important to sweep out the trailer before work was
commenced in each succeeding department. Since
Aganza had been employed during the busy season, he
was not familiar with the changes of routine normally
made during slack times, and his reaction to additional
duties he was assigned was exemplified by his tes-
timony, "I knew that he [Stewart] was up to, what was
going to happen, because they [the Union?] told me
he was going to press on me. . . ." Later in the morning,
an employee named ay Aganza as Jesus Sanchez 32 came
to Aganza and asked Aganza to install windows. Aganza's
31 The first time Aganza related this conversation, he testified
that Stewart had told him not to engage in union activities in the
plant . Stewart testified that he told Aganza that he did not want
Aganza fooling with the Union on company time Actually, at that
time, the employees were on the plant premises only dunng
working time They took their lunch and coffeebreaks in front of
the plant, outside the gate. Thus, whether or not Stewart used the
words "on company time" or merely "in the plant," it would have
meant the same thing to Aganza , as he disclosed when questioned
359
testimony concerning what followed was disconnected
and he tended to commingle statements with thoughts.
However, as near as I can decipher his testimony, he
just kept on sweeping or getting ready to work, thinking
that Sanchez had no authority and thinking also that, for
what he was being paid, he should not have to do so many
different jobs. He testified that he told Sanchez that his job
was getting behind with so much work to do. Actually, the
production line was slow that morning and Aganza did not
have anything to do but get ready for the work on his next
trailer. Aganza told Sanchez that he did not care if the
trailers (i.e., production line) got behind. When Aganza
would not install windows as requested, Sanchez went to
Stahl and reported that Aganza did not want to put win-
dows in. Stahl told Aganza to do whatever Sanchez told
him to do, that Sanchez was in charge of the department.
Apparently, Sanchez had just been made leadman, and
Aganza had not been so informed before and said so. Stahl
told him he knew it now. Because Stahl spoke "mean,"
Aganza still would not do what Sanchez requested,
because he wanted to "have everything ready" for
the door work that would later be arriving. Sanchez
reported to Stahl that Aganza still refused to do the
work that Sanchez called on him to do. Stahl sent for
Aganza to come to the office where Stahl, Stewart,
and Sanchez were. Stahl asked Aganza to repeat for
Stewart what Aganza had said. Aganza quoted himself
as saying that "that wasn't a very nice way of telling
me." Then Aganza repeated what he had told Sanchez.
Stewart asked Aganza how he hoped to get ahead if
he did not do the work he was told to do. Aganza said
that he was making only $1.75 an hour and Sigworth,
his helper, was getting $1.95, and he was not going to put
windows in when he was making only $1.75 and he was
worth more. Stewart said if he was worth so much, why did
he tear the grinder apart when all it needed was a set of
brushes-that Aganza had ruined it and that it had cost
the Respondent $60. This aroused Aganza, who said,
according to a composite of Stewart's and Aganza's
testimony, "What do you want me to do? Buy you new
furniture, a new thunderbird? You want my wife, too?"
Then he told Stewart, according to Aganza: "Well, it is up
to you. Decide ... I won't talk to you anymore, because I
don't like you. I want to see my adviser, the union adviser,
so I can keep talking to you." He testified that he crossed
his arms and said, "Well, if you are not satisfied, let me go
with something. Do something. Whatever you want to do,
it is all right. Go ahead, and do it." He quoted Stewart as
saying: "All right, I am going to give you this [i.e., a]
check. Wait until the bookkeeper gets here." Aganza said
he would wait outside. There he told Stahl he wanted to do
something and not just stand around. Stahl, according to
Aganza, said, "O.K., do something in there. I don't know."
Aganza went to Sanchez and asked, "What do you want
me to do?" Sanchez replied that he, himself, would do it.
About that time the lunch signal was given and the men
broke off for lunch.
Stewart decided that, because Aganza was such a
prominent union man, he should have Dixon and Bowater
decide whether or not to discharge Aganza. He waited for
about a conversation with Stahl who asked Aganza not to engage
in union activities dunng working time
31 The first name may not be right It was not mentioned by
Stewart Dixon testified that Sanchez was captain of the Union's
picket line which was picketing the plant at the time of the
hearing. There were two brothers of the same surname-Sanchez
-who were identified by Stewart as men who, he had been told
attended union meetings , but they had different initials than Jesus
Sanchez Sanchez did not testify
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them to return and told them he thought Aganza should be
discharged. They told Stewart to call Aganza. When
Aganza arrived, Dixon asked him to repeat what he had
already told Stewart. Aganza told Dixon that Sanchez had
asked him to put in windows and that he had replied,
"Who is Sanchez?" Aganza said he told Sanchez "that I
don't care-it is all right if the lines gets behind." Dixon
asked Aganza why he had refused to install windows.
Aganza said that he had not refused. Sanchez was sent for.
When he arrived he was asked if Aganza had refused to
help him put in windows, and he replied affirmatively.
Aganza was quoted by Dixon as saying that he was paid
only $1.75 an hour and that he was going to do $1.75-an-
hour work. Stewart quoted Aganza as saying: "You guys
can't run this business yourself. You have to go out and-get
guys like me to do it." Stewart further quoted Aganza as
saying that for 12 years he had been looking for a job with-
out a dictator, that he had gone to Cuba but left because
of the dictatorship there, that if he had a gun he would
kill all dictators. Then he looked at Stewart, according to
the latter, and said: "You are a dictator. If I had a gun,
I would kill you, too." Aganza conceded that he had
called Stewart a Hitler and that maybe he had said he
would shoot him if he had a gun, but he testified that this
was only talk.33 Dixon asked Aganza if he would go out and
do the work he was asked to do. Aganza folded his arms
and said that he was not going to say or do anything more
until he had seen his counsel, referring his union ad-
viser. Dixon said that if Aganza would not go back and
do his work, he was afraid he was going to have to let
Aganza go Since Aganza was adamant, the Respondent
discharged him.
The General Counsel does not argue that Aganza's
insistance on seeing his union adviser insulated Aganza
from discharge. The Union had only just been chosen by
the employees and had not yet even been certified so far as
the evidence shows. Aganza's case does not, therefore,
come within the line of cases holding that an employee
may not lawfully be discharged for asserting rights under a
union contract. The General Counsel merely argues that
"Respondent's avowed reasons for discharging Aganza
was a pretext to cover its real purpose to rid the plant of an
open supporter and activist for the UA . ." He suggests
that "it appears suspect that a fellow employee [Sanchez]
would inform - management of an employee's remarks,
unless he was solicited to do so." I do not find any cause
for suspicion in Sanchez' conduct. Since he had been
placed in charge of the work on doors and windows,
Sanchez had the responsibility of assigning work. If a man
refused an assignment, the leadman could not, himself,
punish the recalcitrant employee. He would have to report
the matter to Stahl or Stewart. Thus, Sanchez acted as
would be expected of him in the normal course of events
The General Counsel also finds the "entire incident
suspect in light of the fact that Stewart ordinarily
terminates employees and that Dixon did not get involved
in terminating employees, except in Aganza's case."
Again, I find nothing suspicious about this. Aganza was
known to be a prominent and active protagonist of the
Union. It would be' only natural for the Respondent to
expect that a charge of unfair labor practice might ensue
as a consequence of Aganza's discharge, and it is not
unnatural that Stewart would assume that the Respondent
would like to take precautions to avoid even the ap-
pearance of unfair conduct and so would give Dixon an
opportunity to make the final decision.
Granted that the Respondent was openly opposed to the
Union and that it would have liked to avoid unionization,
such disposition, alone, does not suffice to establish a
specific motivation in Aganza's case. Regardless of
Respondent's antiunion sentiments, it had a business to
carry on. If, absent union activity, the Respondent would
have grounds which would justify discharging an
employee, it would still be entitled to act on those grounds
in the face of union activity. 34 In the light of all the
evidence here, I find that the evidence does not present
more than suspicion, which is not enough upon which to
base an inference of discriminatory motive, especially
when the reason given for discharge is supported by the
evider' p 35 Accordingly, I find that the General Counsel
has not proved that the Respondent discriminated in
regard to Aganza's hire and tenure of employment.
5. Discharge of Sandifer
Danny Sandifer was hired by the Respondent in January
1963. He started cutting pipe at a rate of $1.85 an hour.
Toward the end of his employment, he was putting roofs
on trailers, and his rate was $2.40 an hour. He testified that
in April, May, and June, 1965, he distributed union cards
for signature, picked them up, and talked about the Union
before and after work and during lunch and coffeebreaks.
He testified on direct examination that he did all this "in
the presence" of Production Manager Stewart and
Foreman Bone. But on cross-examination he testified that,
although supervisors could have seen him passing out
cards, he did not know if they had. Stewart testified that
no one had told him and that he did not have any reason to
believe or suspect that Sandifer was engaged in any union
activities and he denied that he had ever seen Sandifer
passing out union literature or cards.
On the morning of August 2, 1965, Sandifer failed to
show up for work. He testified that he had had to take his
son to the doctor and that he had tried to call the plant at
7:20, 7:30, and 7:45 a.m. that day and got no answer. He
testified that he later learned that the last digit of the
number he had called was wrong. The last call, he testified
was made from a telephone near the doctor's office while
his wife and son were in the doctor's office. On cross-
examination, he gave the name and address of the doctor
he had taken his son to. The Respondent subpenaed the
records of that doctor, and the doctor's secretary testified
that (1) the doctor never had office hours in the morning
and (2) the records showed no visits by any member of the
Sandifer family since April 1964, although if someone had
come in when the doctor was out, a record would have
been made of the call.
Sandifer came to work at noon on August 2, 1965, and
found his timecard missing from the rack. He went to see
Stewart, and Stewart told Sandifer that lie had written him
off as quit. He told Sandifer to come back at 2 p.m. for his
check. According to Sandifer, when he picked up his
check, Stewart told him never to set foot in the plant again.
Stewart denied saying this but testified that he did not
permit discharged employees to go back in the shop.
Sandifer could have misunderstood what Stewart said.
Stewart conceded that he had watched Sandifer until he
left the building, as he was accustomed to doing with
" Aganza also admitted using foul language in speaking of 877-878 (C A 8). N L R B v Isis Plumbing & Heating Co, 322
Stewart It is unnecessary to recount this F 2d 913 (C A 9), Baldwin Supply Company, 159 NLRB 745
"Fort Smith Broadcasting Co v NLRB, 341 F 2d 874, " N L B B v Comfort, Inc, 365 F 2d 867 (C A 8). Baldwin
Supply Co , supra
TRAVELEZE TRAILER COMPANY, INC.
discharged employees, because some people had missed
tools after employees had been discharged.
Sandifer testified that about 8 or 10 months earlier he
had been absent without calling in and that Stewart had
warned him to call in or he would write Sandifer off as quit
and that thereafter he had called in until the morning of
August 2, 1965. Stewart testified that he had several times
talked with Sandifer about calling in in the morning when
he did not come to work but that Sandifer never did call.
He testified that he had warned Sandifer repeatedly and
that in June 1965 he had told Sandifer that, if he missed
work one more time without calling in , he would be
terminated. Stewart testified that although Sandifer was
late a couple of times after that-he did not say how
late-he had not failed to appear until the day of his
discharge and that he had then told Sandifer that he had
gone as far as he could with him, that "I was fed up to my
neck with him." Stewart testified that he had checked
with the girl in the office and had checked his box for
messages before he had pulled Sandifer's card.
The burden of proving that the Respondent knew of the
dischargee's union activity is on the General Counsel.
Here he failed adequately to prove scienter. 36 But in any
event, I credit Stewart's testimony wherever it conflicted
with Sandifer's, and I find that Sandifer was discharged
for cause. If the Respondent had had an unlawful motive,
Stewart would be much more likely to have discharged
Sandifer in June, during the union campaign and before
the union election, but instead, at that time, Stewart
warned Sandifer and gave him one more chance. I
conclude on all the evidence that the Respondent did not
discriminate in regard to Sandifer's hire or tenure of
employment.
6. Discharge of Sebbo
Gaylord Sebbo was hired by the Respondent as a finish
molder on a piecework rate in 1958. In the winter of
1961-62, Stewart was transferred from the Burbank plant,
where he had been manager, to the Penrose plant, the
main plant, as production manager. Stewart did not like
the piecework rate because if he lightened Sebbo's work
by requiring installation of less molding, Sebbo wanted the
same piecerate pay, but if Stewart added more molding to
the job, Sebbo wanted extra pay. One day in 1963, Stewart
told Sebbo if the latter did not like the way Stewart was
doing things, Sebbo could always quit. Sebbo did. When
Sebbo returned for his check about a week later, he
learned that Stewart had eliminated all piecework, and he
asked for his job back. Stewart rehired him at $2.60 an
hour, a rate he received until the time of his termination.
When Sebbo would complete a molding job, he would be
put to use elsewhere. Stewart testified that Sebbo had
worked on about everything in the shop.
In 1965, for the first time, Sebbo was given an assistant,
Raoul Garcia, who would countersink nails and fill the
holes with putty. When the production line slowed down,
Garcia was given work elsewhere. Sebbo testified that his
helper was taken from him on August 2, the first workday
after the election. In July, General Manager Stahl told
1n See Winn-Dixie Stores, Inc ,128 NLRB 574, 580
17 The paper was originally cut and laid on the tile floor as soon
as the floor was laid to protect it against metal and other objects
that might gouge the floor tile Stewart testified that sometimes
this paper got torn while going through the production line This is
what Sebbo might have had to cut at the edge if it got in his way
New paper would be put down on the finish line only after all
other work was done Sebbo had never worked on the finish line
361
Stewart that Sebbo was not finishing his work (by
countersinking nails and puttying the holes). Stewart
spoke to Sebbo about this several times. Sometime,
thereafter, Sebbo would finish the work, but often left it to
be done by men on the finish line.
The last time that Stewart spoke to Sebbo about
finishing his work was on the morning of August 9, 1965.
Sebbo then complained of extra work and said he needed a
helper. Stewart testified that, at that time, the Respondent
was getting only two trailers a day, whereas, when Sebbo
had had a helper, five or six trailers a day were being
produced. When Stewart spoke to Sebbo on August 9,
Sebbo told Stewart that cleaning up was not his job and he
said that he was going to see Vice President Ken Dixon
about all the extra work that he was being given.
According to Sebbo's account, on direct testimony, after
the election he had been assigned additional work such as
cleaning up the trailers, cutting the paper, and cleaning
the metal out. Stewart testified that the only cleaning that
Sebbo had to do was to sweep away the trash on the floor
before he put in his base shoe molding around the cabinets
and that the only paper Sebbo would have had to cut would
be torn paper on the floor that interfered with installation
of the base shoe molding.37 I deduce that Sebbo
exaggerated the amount of extra work he had been given.
When Sebbo said that he was going to see Dixon,
Stewart told him to go ahead, but meanwhile he was going
to put Sebbo on the line so he could keep an eye on him.
He transferred Sebbo to building rear curves in the
bathroom department, in which Hearne was leadman.38
Sebbo testified that Garcia, his former helper, was then
given the job of installing base shoe molding, Sebbo's
original job.
On August 10, 1965, Sebbo worked in the bathroom
department on rear curves. Part of the work involved the
use of contact cement to affix a piece of protective tile on
each frame after it was built. Contact cement has an odor.
Sebbo testified: "It is sticky and gooey and gets all over
you. Nobody likes the job because it dries out so quick
before you get your panel on."
At 3:35 p.m. on August 10, Stewart came to the
bathroom department. Sebbo was missing. He asked
Hearne where Sebbo was and Hearne said he was
probably in the bathroom. Stewart went there and was
able to detect that someone in a stall was smoking. He
waited outside until Sebbo came out. Then he asked
Sebbo if he had been smoking. Sebbo said that he had had
a few drags. Stewart told Sebbo that he knew no smoking
was allowed there and that Sebbo belonged out on the line
working on those bathroom curves where Stewart had put
him. Sebbo testified that everybody heard this. Sebbo
said, "O.K." and walked out.39
The following day, August 11, 1965, Sebbo did not show
up for work, and Stewart testified that there was no
telephone call from him. Sebbo testified, "I didn't feel
good the next morning after getting the bawling out the
night before." But he testified, "My boy called the plant at
about twelve o'clock in the afternoon and told them I was
sick." On cross-examination, Sebbo testified that the pay
telephone his son used for the call was about 40 feet from
" Sebbo testified that Hearne was not near him as he worked
and that Hearne had "Richard over here to supervise me and
guard me so I wouldn't leave my place He says, `If Sebbo leaves,
let me know ...
" Sebbo testified that there was a "no-smoking" sign over the
restroom door but that he and others smoked there Sebbo
testified that President Dixon who visited every Tuesday and
Thursday came through the plant smoking a cigarette "No one
says nothing to him He ain't no better than I am "
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where he lived, that he had given his son the telephone
number to call, and that he had gone out and stood there
while his son called, that he was not so ill that he could not
do this, that his stomach was upset from contact cement
and the bawling out Stewart had given him.
It is not difficult to conclude that Sebbo was nursing
injured feelings and that if he was well enough to get up to
watch his son call the plant, he was well enough to call for
himself. I credit Stewart's testimony that Sebbo did not
notify the Respondent of his ailment on August 11, 1965.
Sebbo was late for work on August 12, 1965. When he
arrived, he asked Stewart, "Am I still working or am I
fired?" Stewart who had already written up Sebbo's
termination slip on August 11,40 told him he was fired.
The General Counsel relies on Sebbo's testimony
related in section III, A, above, that he had first attended a
union meeting on July 23, that he had worn a union button
the next day, and that Stewart had told him to take it off,
as establishing knowledge of Sebbo's union affiliation, as
well as on the evidence of supposed added duties, transfer
to less desirable work, and changed attitude on Stewart's
part immediately after the union election. I have already
passed on Sebbo's credibility and credited Stewart's
denial of knowledge of Sebbo's union attitude.
I have not completely ruled out the possiblity that
Stewart, who testified that he had tried to give Sebbo
breaks because of personal problems, the nature of which
was not revealed, although having no "knowledge," might
have become suspicious that Sebbo had espoused the
union cause and, being prejudiced against him for this,
had lost sympathy with Sebbo. The timing of the discharge
of an employee (whose work had not been criticized and
who had been employed for 7 years) so soon after the union
election, along with the evidence of Stewart's open
hostility toward the Union, furnishes a basis for suspecting
that Stewart, who undoubtedly had some cause to
discharge Sebbo, would not have discharged Sebbo when
he did except for such a suspicion on Stewart's part that
Sebbo had become a union adherent. From the point of
view of an outsider, Sebbo's discharge appeared to be
rather abrupt and callous considering his ability and
length of service. However, Stewart testified that he had
become fed up with Sebbo, indicating, in effect, that
Sebbo's failure to show up on August 11 was the last straw
that broke the camel's back. I have, therefore, examined
the record carefully to discover whether or not there was a
basis for Stewart to become "fed up" aside from Sebbo's
union membership. Sebbo testified that he had previously
complained about having too much work to do, as when
someone had made a mistake and cut too large a hole for
an air-conditioner 41 or refrigerator and he had had to put
molding over the hole to cover it, or when they added base
shoes on the bathroom floor to his job, lightening the job of
the other molding man in April or May 1965, and when
they asked him to set staples along sidewalls on August 2,
1965, when his helper was taken away. His complaints
appear to have covered a number of years and appeared
mainly to be that he did not wish to do anything except
molding regardless of the number of trailers he had to
work on in a day because his "job was molding."
Sebbo testified that he had once, about 8 or 10 months
before August 11, 1965, been absent without calling in,
that Stewart had told him then to call in or he would write
Sebbo off as quit, but that after that he had called in until
August 2 (11?), 1965. Sebbo's testimony as to absences
was less than satisfactory. He testified that when he was
sick he would always say, "You go call." The inference
was that he was speaking to his son. On cross-examination
Sebbo conceded that he had been absent for sickness from
time to time although on direct examination he had
testified that the first time he had missed work because of
illness was on August 11, 1965. When the contradiction
was called to his attention, he testified that he had not
missed a day since he had his appendix out, presumably in
1964. His record showed that in 1965, before his discharge,
Sebbo had missed no less than 1 day in each of 11 weeks.
In 3 of these weeks, in June and July, he had missed 1-1/2,,
3, and 4 days, respectively. Stewart testified that Sebbo
did not always call in when he was absent, that he missed
more often than he would call, that when he did send word,
it would be by his wife or someone else, that when Sebbo
did not send word, he would ask Sebbo why he had not
called, that Sebbo would tell of his personal problems, and
that he would tell Sebbo that his job was more important
than anything else. It would appear, therefore, that Sebbo
had been not too reliable an employee and that there was
cause for Stewart's impatience, especially since Sebbo
had missed so much time in July-7 days.42
On all the evidence and my evaluation of it, as well as
from my observation of the witnesses, I conclude and find
that the Respondent did not, by discharging Sebbo on
August 11, 1965, discriminate in regard to his hire or
tenure of employment.
7. The layoff of Cuevas
Jose Cuevas worked for the Respondent in 1964 but quit
and worked elsewhere before returning to work for the
Respondent in February 1965, at which time Cuevas was
given a 30-cent-an-hour increase over his former pay. His
work was electrical. Cuevas attended union meetings and
signed an application card, but he did not otherwise
engage in union activities except to talk about the Union
with other employees at lunch time occasionally.
The evidence is vague as to where Cuevas was working
at specific dates in July and August 1965. According to
Stewart, Cuevas was transferred from the Penrose plant to
the Tuxford plant after the period when the plants were
closed for vacation in early July.43 Following that time,
Stewart testified, orders picked up at Tuxford while they
were falling off at Penrose and, instead of laying
employees off, Stewart, following a conversation with
Ronald Dixon, manager of the Tuxford plant,44 transferred
eight or nine45 employees, including Cuevas, to the
Tuxford plant. R. Dixon, however, testified that Cuevas
was not at the Tuxford plant on the date of the union
election-July 30, 1965-so his transfer must have been in
August. The Penrose plant laid off a group of employees
on August 13, 1965, while the Tuxford plant laid off a
group on August 17. It is possible, therefore, that Cuevas
4" The termination slip stated three reasons for termination
"(1) Failure to call in or notify co on missing work (2) Not doing
jobs assigned to him (3) Smoking in a no-smoking area
Air-conditioning was added in 1964
This does not count the time everyone was off because the
plant closed for the July 4 week
" Tuxford had been closed for 2 weeks and Penrose for only I
week then
" R Dixon had the title of vice president in charge of labor and
production, but his duties were then confined to the Tuxford
plant
'' R Dixon testified that six to eight employees were
transferred Dixon put the time of his conversation with Stewart
as before the vacation
TRAVELEZE TRAILER COMPANY, INC. 363
was at the Tuxford plant only for the few intervening days.
Payroll records of Cuevas were not called for by the
General Counsel to fix the date.
On August 17, 1965, the Respondent laid off from 6 to 10
employees at the Tuxford plant. R. Dixon testified that he
selected the employees to be laid off on the basis of plant
seniority. At quitting time that day, R. Dixon stationed
himself at the timeclock with paychecks ready to deliver
them as the men came up to punch out. Dixon's memory
was vague as to who was laid off besides Cuevas. He could
remember only one other name-Herrera.46 Dixon
testified that he had told the men laid off that the layoff
was for lack of work and that if things picked up he would
bring them back, but he could not remember whether he
told this to the laid-off men as a group or individually. He
remembered that some asked why they were laid off, and
he testified to what he answered, without remembering
who asked. His memory of his answer appeared to be
based on what he would have answered to anyone who
asked. He had, apparently, no specific memory. He did not
remember that Cuevas had asked why he was laid off, but
testified that, if Cuevas had asked, his answer would have
been the same as given the others.
Cuevas' testimony was that as he came to the timeclock
to punch out, Dixon said, "Don't look for your card,
because I make it up today." On cross-examination he
quoted the last phrase as "I make layoff today." Cuevas
testified that he asked, "Why?" and that Dixon replied,
"Because you work for the Union." Then Cuevas testified:
"I say, `Are you sure?' He say, `Yes, I am sure.' I say,
`Okay."' After this testimony was read back by the
reporter at the request of Respondent's counsel, the
General Counsel again asked Cuevas what Dixon had said
"when you asked him why you were being laid off." This
time Cuevas quoted Dixon as saying , "Because you vote
for the union , the election." I am of the opinion that the
reporter had misunderstood Cuevas the first time when he
recorded the word as "work" instead of "vote." Cuevas'
command of English was less than perfect, although he
appeared to understand English reasonably well. Dixon
denied making the quoted statement.
On direct examination, Dixon defined seniority as plant
seniority relative to the position the employee was in; i.e.,
in this case, electrician. On cross-examination by the
General Counsel he confirmed this definition but, when
asked whether the plant seniority was applied when a man
was transferred from another plant, he replied, "It is
handled individually at the time of the situation involved."
On cross-examination by the Union's counsel, Dixon
testified that if anyone from the Tuxford plant was, at a
given time, on layoff, the man laid off from the Tuxford
plant would have seniority over anyone from the Penrose
plant, but he could not remember if there were men on
layoff status when Cuevas was transferred. However, on
redirect examination , in response to leading questions by
Respondent's counsel, Dixon testified that the Respondent
does not give a new date of hire to a employee such as
Cuevas who is transferred from the Penrose plant to the
Tuxford plant and that the date of hire is the date he goes
by when he is looking down his list to determine what
employees to lay off. Such testimony appears to contain
contradictions. It leaves open a suspicion that Cuevas
might have been transferred from the Penrose plant to the
Tuxford plant in order to keep employees with less
seniority at the Penrose plant with the object of making
him compete with electricians at the Tuxford plant who
had been at that plant or with the Respondent longer than
Cuevas had. However, no evidence was adduced to show
the hiring dates of all electricians at both the Tuxford and
Penrose plants who were in Respondent 's employ in July
and August 1965; so it is impossible to ascertain whether
or not the Respondent had an ulterior purpose in
transferring certain employees, including Cuevas. In any
event, the General Counsel's contention as to
discrimination against Cuevas is based on Cuevas'
testimony of what Dixon told Cuevas when he laid him off.
It is not contended that a layoff was not necessary on
August 17, 1965.
About 2 weeks after his layoff, Cuevas testified, he
returned to the plant to see some of his friends. He quoted
Stewart as then saying: "Hey, you. What is the matter with
you? Are you working now?" When Cuevas answered,
"No," Stewart said, according to Cuevas, "What
happened with the union promise?" Stewart was not
asked about this, and it was not further explained. Later
Dave Stahl telephoned Cuevas to come in. Cuevas went to
the Penrose plant on the evening of September 15, 1965,
and saw Stewart and Stahl, who were together. One of the
two asked Cuevas if he wanted to work. I infer from
Cuevas' testimony that Stahl asked the question because
Cuevas then quoted Stewart as saying, "He don't need to
work because you [he] got the nice clothes and the union
pay you?"47 Then Stewart or Stahl said , "Come to work
tomorrow, 7:30." Cuevas returned to work on
September 16, 1965, and was still employed at the time of
the hearing.
Cuevas appeared to me to be an earnest young man of
high caliber. I have no doubt of his good faith. He
appeared to understand English fairly well and appeared
to be capable of answering questions in slightly broken
English. I believe it possible that he might have some
difficulty understanding idiomatic English. Dixon denied
knowledge of Cuevas' union activities or sentiments.
I am persuaded that, when Cuevas was laid off, Dixon
did make a statement which Cuevas understood to be what
he testified to. As quoted by Cuevas, however, the
statement suggests that Dixon had invaded the privacy of
the ballot. Cuevas may have so taken it, because he said,
"Are you sure?" It is incredible that Dixon would have
known how Cuevas voted. If Dixon did make a remark
similar to the one quoted by Cuevas, he would more
probably have been using the word "you" in the second
person plural than in the second person singular. But even
if Dixon had sought to make Cuevas believe that the layoff
was brought about because the employees had voted the
union in , I do not believe that Cuevas was laid off for that
reason. The Respondent's slack season had started. Total
hours worked were less during that week. Although
Cuevas testified that there was still plenty of work, I do not
believe he was in the best position to know how long the
work would last or how many employees would be needed
to keep up with orders, and I find his testimony
insufficient to overcome the evidence that the layoff was
economically motivated. Even if Dixon had made the
remark attributed to him (and I believe it was
misunderstood), I should find that, although the remark
might have been a violation of Section 8(a)(1) of the Act, it
did not convert a layoff economically necessitated into a
violation of Section 8(a)(3) of the Act.48 Accordingly, I find
that the Respondent did not discriminate in regard to
" Herrera was one of the employees who had been transferred
to the Tuxfurd plant at the same time as Cuevas
17 Stewart admitted making a remark about Cuevas' dress
clothes He said nothing about the rest of this quotation
41 See Standard Trucking Company, 134 NLRB 371,385
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cuevas' hire and tenure of employment by laying him off
on August 17, 1965.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union as a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in Section 7
of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The Respondent has not discouraged membership in
a labor organization by discriminating in regard to hire and
tenure of its employees in violation of Section 8(a)(3) of the
Act.
5. The unfair labor practices herein found are unfair
labor practices within the meaning of Section 2(6) and (7)
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
I recommend that the Respondent, Traveleze Trailer
Company, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from interfering with, restraining,
or coercing employees in the exercise of the right of self-
organization , to form labor organizations, to join or assist
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America,
UAW-AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized in Section
8(a)(3) of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Post at its plant at Sun Valley, California, copies of
the attached notice marked "Appendix."49 Copies of said
notice, to be furnished by the Regional Director for Region
'" In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
31, after being duly signed by the authorized
representative, shall be posted by the Respondent,
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Decision, what
steps have been taken to comply herewith.so
IT IS FURTHER RECOMMENDED that the complaint be
dismissed except to the extent of the unfair labor practices
herein found.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT interfere with, restrain , or coerce our
employees in the exercise of their right to self-
organization , to form labor organizations, to join or
assist International Union, United Automobile,
Aerospace & Agricultural Implement Workers of
America, UAW-AFL-CIO, or any other labor
organization , to bargain collectively through
representatives of their own choosing, and to engage
in any other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America,
UAW-AFL-CIO, or any labor organization. ,
TRAVELEZE TRAILER
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with provisions, they may communicate
directly with_ the Board's Regional Office, 10th Floor,
Bartlett Building, 215 West Seventh Street, Los Angeles,
California 90014, Telephone 688-5840.
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
"' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "