Carolina Canners, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1974

213 N.L.R.B. 37 (N.L.R.B. 1974)

CAROLINA CANNERS, INC. 37
Carolina Canners , Inc. and Walter Glynn Caulder and
Arlee Gaddy . Cases 11-CA-5500-1 and 11-CA-
5500-2
August 26, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY,
AND PENELLO
state them, because they engaged in union and concerted
activities protected by the Act, and by various other acts of
interference with, restraint, and coercion of employees in
the exercise of rights guaranteed in Section 7 of the Act. The
Respondent filed an answer which denies the substantive
allegations of the consolidated complaint and the commis-
sion of unfair labor practices.
Upon the entire record, including my observation of the
witnesses and their demeanor , and after due consideration
of the brief filed by the General Counsel, I make the follow-
ing:
On April 30, 1974, Administrative Law Judge Sam-
uel Ross issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions I of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Carolina Canners, Inc.,
Cheraw, South Carolina, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
1 We would affirm the Administrative Law Judge 's conclusions that Re-
spondent was aware of employee Gaddy's organizational activities even with-
out relying on the presence of supervisors at the September 14 fish fry or the
fact that Cheraw, South Carolina, is small in size.
DECISION
STATEMENT OF THE CASE
SAMUEL Ross , Administrative Law Judge: This case was
tried before me in Bennettsville , South Carolina, on January
22 and 23, 1974, based on charges filed by Walter Glynn
Caulder and Arlee Gaddy on October 3, 1973, against Caro-
lina Canners, Inc. (herein called the Respondent or Compa-
ny), and on a consolidated complaint which issued against
the Respondent on November 30, 1973 . In substance the
complaint alleges that the Respondent engaged in unfair
labor practices within the meaning of Section 8 (a)(1) and (3)
and Section 2(6) and (7) of the Act by discharging Caulder
and Gaddy, and by thereafter failing and refusing to rein-
FINDINGS OF FACT
1. COMMERCE
The Respondent is a South Carolina corporation which
is engaged in the business of canning soft drinks at a plant
in Cheraw, South Carolina, and in distributing the said
products. The Respondent admittedly purchases products
valued in excess of $50,000 which are received by it in
Cheraw from places located outside the State of South Car-
olina , and it also concededly sells and ships goods valued
in excess of $50,000 from its plant in Cheraw to places
outside the State of South Carolina. On the foregoing admit-
ted facts, I find that it is engaged in commerce and in
operations affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I also find that Drivers, Chauffeurs,
Warehousemen and Helpers Local 71, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (herein called the
Union), is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Nature of the Respondent's Business and Personnel
The Respondent operates a plant in the town of Cheraw,
South Carolina (population 5627), where it bottles and cans
"Pepsi Cola and some kind of tea" which it delivers to Pesi
Cola distributors in North and South Carolina and in parts
of Georgia, including Augusta, Savannah, and occasionally
Atlanta. The distributors who receive the Respondent's
products are the owners of the Respondent Company.
The Respondent has about 120 employees, about 17 or 18
of whom are over-the-road truckdrivers who deliver its
products. Insofar as the record discloses, Respondent's em-
ployees have never been represented for collective bargain-
ing purposes by any labor organization.
B. The Conduct of the Respondent Upon Which the Com-
plaint Herein is Based
The Charging Party Walter Glynn Caulder was hired by
the Respondent in August 1972 and he was fired on Septem-
ber 25, 1973, shortly after he started to solicit support for
213 NLRB No. 2
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union among the Respondent's plant employees.
Caulder's initial hiring rate was $2.25, and his initial job was
"handling glass" on the Respondent's bottle line. During
the course of his employment by Respondent, Caulder was
progressively assigned to various other jobs, and eventually
was promoted to the position of parts clerk in the mainte-
nance department. On April 9, 1973, Caulder was recom-
mended by General Manager Thomas Hiles for a raise of
15 cents an hour, and on May 29, 1973, Hiles gave Caulder
a merit raise of 10 cents an hour which brought his hourly
rate to $2.75 per hour.
Arlee Gaddy, the other charging party in this case, was
hired by the Respondent on February 3, 1971, to be an
over-the-road truckdriver. On September 26, 1973, the day
after Caulder's termination and about 2 weeks after Gaddy
began to solicit support for the Union among the
Respondent's truckdrivers, he was fired by General Manag-
er Hiles as described infra. Prior to his termination, Gaddy
had never been criticized by the Respondent for the manner
in which he performed his duties or for any other reason.
Caulder and Gaddy were the only employees of the Re-
spondent who engaged in active solicitation of support for
representation by the Union. Gaddy's interest in such repre-
sentation dated back to March 1973. On March 23, 1973,'
Gaddy and three other truckdrivers employed by the Re-
spondent met at the home of one of them in Cheraw, South
Carolina, with Union President W. C. Barbee and Business
Agent J. D. Wright. One of the truckdrivers who partici-
pated in this meeting was Ross Johnson who subsequently
was promoted by the Respondent to the position of trans-
portation supervisor and dispatcher. At this meeting, the
Union officials discussed at length the procedures required
for getting an election to have the Union designated as their
collective-bargaining representative, and the truckdrivers
were advised that "to be successful," they should try to
organize a plant wide unit rather than a unit of drivers only.
They were also told to think the matter over, and if they
decided to pursue the matter further, to contact the Union .2
Following the meeting, Gaddy and the other drivers who
participated in this meeting decided against proceeding with
an organizing campaign, and they went instead to company
management and obtained some improvement in benefits.
During the week which commenced on August 20, Ware-
house Supervisor Johnny Hickey was temporarily assigned
to the job of ,dispatching the Respondent's truckdrivers
while Ross Johnson, who by then was transportation super-
visor, was on vacation. On August 23, 24, and 25, Gaddy
stayed out from work because of dissatisfaction with
Hickey's method of dispatching, and on each of those days,
he called in and reported that he was sick. On the following
Monday evening, August 27, all but one of the
Respondent's truckdrivers attended "a steak supper" meet-
ing at the Cabin Creek Restaurant in Cheraw which the
Company held in connection with the distribution of safe
driving awards. At this meeting, General Manager Thomas
Hiles said that the Company "had made a mistake in put-
ting Mr. Johnny Hickey as dispatcher for the week that Mr.
1 All dates hereinafter will refer to 1973 unless otherwise noted.
2 The Union's office is located in Charlotte , North Carolina, about 75 miles
from Cheraw.
Ross Johnson was on vacation." Gaddy asked permission
"to say something," and after Hiles said, "go ahead," Gad-
dy told Hiles that on August 23, 24, and 25, he had called
in sick to protest "the way Johnny Hickey was dispatching
the trucks." Gaddy said, "I was not sick and that if I lost
my job on account of that, that was the reason I was out of
work." Hiles made no response to Gaddy's statement. Later
that evening, Gaddy encountered Hiles in the men's room
and made a further disparaging statement about Hickey,
and Hiles told Gaddy that if he had any complaints about
"the way things were run that I should come talk to him;
that his door was always open." 3
A few days after this meeting , Transportation Supervisor
Ross Johnson asked Gaddy whether he would like to "be
the next dispatcher." Gaddy answered that he "would take
the job" if Johnson would "ask the other drivers how they
feel about it, and if it was okay with them." Johnson asked
Gaddy, "Do you think you can do the job?" Gaddy replied,
"Yes, I think I can do the job." Johnson then said, "Well,
it's okay by me." That ended the conversation .4
On September 12, Gaddy telephoned Union President
Barbee in Charlotte and asked for a supply of union author-
ization cards. On September 14, Union Business Agent
Wright mailed Gaddy a supply of cards, and in his accom-
panying letter, he again advised Gaddy that he "would have
a better chance to succeed if the plant employees would be
included in this [organizational] effort." 5
On the evening of September 14, before Gaddy received
the Union's letter and authorization cards, he and a number
of Respondent's employees and supervisors attended a fish
fry for the Respondent's maintenance department at a cab-
in in nearby Wallace, South Carolina, owned by a Mr. Nub
Gray. Among the employees and supervisors who attended
this stag party were Caulder, Caulder's immediate boss,
Maintenance Supervisor William Harrington, Production
Manager Edward Sellers, Comptroller Clyde Cobb, and
others.6 While the party was in progress, and fish and beer
were being consumed, the Respondent's supervisors congre-
gated on the porch of the cabin and played poker, and the
employees, for the most part, stood about 15 to 20 feet away
and discussed the benefits that could be obtained through
representation by "the Teamsters Union." In the course of
that talk, Gaddy asked employee Leroy Mumford what
benefits he expected from Carolina Canners when "he got
old enough to retire," and Mumford said, "None."
The following day, Caulder reported for work at the
Respondent's bottling plant, and then drove the Company's
3 The quotes and findings above are based on Gaddy 's testimony which
I credit . Hiles, a witness for the Respondent , did not contradict Gaddy's
testimony regarding what transpired at the August 27 safety meeting at the
Cabin Creek Restaurant.
6 The findings above are based on Gaddy's credited testimony which was
not controverted by the Respondent. Johnson was not called by the Respon-
dent to testify , and no explanation was offered for the failure to do so. I infer
therefrom that if called , Johnson would have corroborated Gaddy's testimo-
ny in this regard . International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UA W) v. N. L. R. B ., 459 F.2d
1329 (C.A.D.C., 1972); 2 J. Wigmore, Evidence, Sec. 285 (3rd ed. 1940).
5 G.C. Exh. 2.
6 The party was sponsored for the Company's maintenance department by
one of the Respondent's suppliers . Caulder was instrumental in making the
arrangement for the party and the use of the cabin . Gaddy was invited to the
party by Caulder to help cook the fish.
CAROLINA CANNERS, INC. 39
pickup truck to Gray's cabin to clean up the mess and trash
created by the previous night's party. While Caulder was
there, his Supervisor Harrington and the latter's wife came
out to look for the car keys which Harrington had lost the
night before .7 Harrington asked Caulder what the men
,.were talking about in our group last night," and Caulder
replied, "There was some union talk, but it didn't amount
to much." Harrington did not admonish Caulder either for
cleaning up the cabin on Company working time, or for
having used the Company's pickup truck that morning with-
out his express permission to do so.8
Caulder's active solicitation of support for representation
by the Union began around the first of September when he
was advised by Gaddy that "he was in touch with the Union
and to see what people thought about it in the plant." Fol-
lowing this conversation, Caulder started to speak to
Respondent's employees in the plant during break periods
regarding the advantages of representation by the Union,
and in connection therewith, he showed employees check
stubs of employees at a union plant, which disclosed that
their wage rates "were considerably higher than ours."
Caulder spoke to about 15 or 20 employees in this manner
before he was fired on September 25.
On Saturday September 15, Gaddy received the supply of
authorization cards which he had requested, from the
Union, and on the following Monday, when he returned to
work, Gaddy told several of the drivers that he had the
cards. On Tuesday, September 18, Gaddy put a notice on
the door of the dispatcher's office which stated that the
Respondent's truckdrivers were invited to attend a ham-
burger steak supper on September 19 at the Cabin Creek
Restaurant in Cheraw. Gaddy's purpose for the invitation
which was known by some of the truckdrivers was to solicit
signatures to union authorization cards. However, in order
to insure greater attendance at the event, he told those who
inquired and did not know the reason for the invitation, that
it was to celebrate the impending birth of a child by his wife.
On September 19, before the "steak supper," Caulder, who
"had a feeling there was going to be some union talk going,"
asked Gaddy if he could "go with him" but Gaddy said, "it
was for the drivers only." That night, 14 of the Respondent's
drivers, including Gaddy, attended his party, and after they
ate, 12 of them signed union authorization cards for Gad-
dy .9
On the following day, Thursday September 20, when
Gaddy returned to the plant from his deliveries, Warehouse
Supervisor Lucas Miles followed him into the dispatcher's
office and said to Gaddy, "I hear you had a meeting last
night?" Gaddy answer, "Yes, sir." Miles asked, "How did
it go?" Gaddy replied, "12 out of 14 signed union authoriza-
tion cards." Miles said, "Dan Suggs didn't sign, did he?"
Gaddy responded, "No, sir, he didn't." Miles then asked,
"Dan Sellers didn' t sign, did he?" Gaddy answered, "No, he
didn't; neither did James Hedrix." 10
r By his own admission , Harrington had consumed "eight to ten" cans of
beer at the party , and he was driven home by Gaddy in Mumford's pickup
truck.
8 The findings above are based on the uncontroverted and credited testi-
mony of Gaddy and Caulder.
9 The findings above are based on Caulder 's and Gaddy 's credited testimo-
ny.
That evening, Caulder met Gaddy and signed a union
authorization card which he back dated to September 19
because, as he told Gaddy, "he wanted to get in on the
ground floor of this thing." Gaddy told Caulder "to ask
around," and to notify him if any "people in the plant .. .
wanted to sign a Union authorization card," and Caulder
agreed to do so. Gaddy continued thereafter to solicit
Respondent's drivers to sign union cards, and by Friday,
September 21, he had "five more drivers signed up."
On Saturday, September 22, in accordance with the ar-
rangements made by the Union with Gaddy in its letter
dated September 14," Gaddy and a group of the
Respondent's drivers met with Union President Barbee and
Business Agent Wright at the Chesterfield Motel in Cher-
aw.12 The Union officials explained to the employees the
procedures required to achieve representative status, and
they again said that the chances of success would be better
if the plant employees went "along with the drivers." Gaddy
told Barbee and Wright that Caulder "was already working
for us" in this endeavor. A booklet about the Teamsters
entitled "The Law and You" was distributed to all who
attended the meeting. That night, Gaddy met Caulder, told
him what transpired that afternoon, and gave him a copy of
the Union's booklet.
Caulder's job as parts clerk in the maintenance depart-
ment requires him to use the Respondent's pickup truck on
occasion to get parts needed by the mechanics. Prior to
September when Caulder began to solicit support for the
Union among the Respondent's plant employees, there were
no restrictions on Caulder's use of the truck, and he some-
times used it as many as four or five times a day to get parts.
During these trips from the plant, Caulder "once in a while"
stopped at his home for lunch. Although his Supervisor,
Harrington, knew that Caulder sometimes ate lunch at
home during his trips for parts, he admittedly never admon-
ished or reprimanded Caulder therefor, or tell him to stop
this practice. The Respondent admittedly acquired knowl-
10 The findings above are based on Gaddy's testimony which I credit in
these and most respects because I was favorably impressed with his deamea-
nor and candor, and because I regard his testimony as truthful and reliable.
Miles, a witness for the Respondent, denied that he at any time asked Gaddy
who signed union cards , or that he made any statements to Gaddy as to who
had or had not signed union cards . I do not credit Miles' denials because
unlike Gaddy, his demeanor impressed me as that of an unreliable and
evasive witness . For example, Miles was asked, "What was your information
as to the purpose of his [Gaddy's] hamburger dinner?," and he answered
unresponsively, "It didn't pertain to me; I was not one of the drivers ." Then,
when Miles was advised that his answer did not respond to the question he
had been asked, and the question was repeated , he answered , "None." I
regard the latter response as unworthy of credence in the light of the notice
of Gaddy's party which had been posted for a full day on the door to the
dispatcher's office, and the curiosity which this invitation quite obviously
must have aroused. In making the foregoing credibility resolutions, I have
given careful consideration to the contention of Respondent' s counsel that
Gaddy's testimony about his conversation with Miles should not be credited
because of the absence of any reference thereto in the affidavit which he
signed for a Board agent on November 12. Gaddy attributed this omission
to a lack of recollection at the time he was interviewed, and I believe him.
I note in this regard that Gaddy signed not one, but four , separate affidavits
for Board agents , and that he quite obviously must have later recalled and
related this conversation to one of them for the complaint in this case was
amended on January 3, 1974, prior to the hearing date, to specifically allege
in paragraph 8(e) that the Respondent violated the Act by Miles' interroga-
tion and statements.
11 G.C. Exh. 2.
12 Caulder did not attend this meeting because he was working at the time.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edge that Caulder was soliciting employees in the plant to
support the Union . This information was reported to Gen-
eral Manager Hiles by several employees.
In September, before the fish fry on September 14, Main-
tenance Supervisor Harrington assigned employee Jack
Dalrymple , a line mechanic , to assist Caulder with his work
as a parts clerk . At the same time , Harrington notified
Caulder and Dalrymple that the pickup truck was not to be
used for getting needed parts before 4 p .m. each day, unless
there was "an emergency," in which event they were "to
check" with Harrington before going."
As previously noted, shortly after Harrington issued his
instruction limiting the use of the pickup truck , Caulder
used it without Harrington's prior permission on Saturday,
September 15 during working time to go up to Nub Gray's
cabin in Wallace , South Carolina , to clean up the trash from
the previous evening's fish fry . As further found above,
although Harrington saw Caulder at the cabin , he did not
admonish Caulder, either for leaving the plant during work-
ing time , or for using the Company 's pick-up that morning
without his permission . Indeed , Harrington testified that
Caulder's conduct in these respects did not "violate any
instruction" that he had issued, and that he did not "disap-
prove" anything Caulder did that day. The following week,
Saturday , September 22, while Caulder was at work, he was
asked by a mechanic for a part which was not in stock, and
he was unable to find Harrington to obtain permission to
leave the plant and get the part . Caulder nevertheless went
to the parts' store in the Company's pickup truck, obtained
the part, and returned to the plant with it in about 15 to 20
minutes . Upon Caulder 's return , Harrington asked him
where he had been , and Caulder explained that he went to
pick up a part. Harrington asked Caulder why he had not
checked with him first , and Caulder replied that he had not
been able to find him. Harrington then merely told Caulder,
"in the future , check with me before you leave." 14
13 The findings above are based on Caulder's credited testimony which
except for the date of Dalrymple's transfer and the change in policy limiting
the use of the truck, was uncontroverted . Harrington testified that the change
in policy occurred on about August 1, and that Dalrymple was assigned to
assist Caulder a month later on about September 1. I regard Caulder's testi-
mony regarding the date as more reliable than that of Harrington for the
following reasons: ( 1) 1 am persuaded by the entire record that Dalrymple's
transfer and the change in policy regarding leaving the plant to get parts were
both motivated by the same considerations and occurred at the same time;
(2) Harrington 's testimony regarding dates admittedly was not reliable-he
conceded on several occasions that he could not recall dates , and he testified
that he was "not going to get pinned down" on dates ; (3) General Manager
Hiles' testimony regarding the date of the change in policy accorded more
with Caulder's testimony than with Harrington's-Hiles testified that this
event occurred in "the early part of September, if I remember correctly.
August, September, something like that . It was prior to his [Caulder's] dis-
charge [on September 25]." 1 therefore credit Caulder's testimony regarding
the date of this occurrence, notwithstanding that in respect to whether
Harrington 's permission to leave the plant was required in emergency situa-
tions, Caulder's testimony was inconsistent and confused. I nevertheless
regard his testimony in most respects as forthright and reliable . As Chief
Judge Learned Hand aptly said in N. L.R.B. v. Universal Camera Corporation.,
179 F.2d 749, 754 (C.A. 2), reversed and remanded on other grounds, 340
U.S. 474:
It is no reason for refusing to accept everything that a witness says,
because you do not believe all of it; nothing is more common in all kinds
of judicial decisions than to believe some and not all.
14 Except as otherwise noted , the findings in the foregoing paragraph are
On the following Monday, September 24 (the day before
Respondent fired Caulder), Harrington came into the parts
department , and asked employee Dalrymple and a mechan-
ic to leave. According to Caulder's credited testimony, Har-
rington then told him, "Glynn, I know there's been some
Union talk and all around the Company property. I don't
want you to have anymore Union talk on Company proper-
ty at any time. If you want to talk about the Union, leave
Company property." Harrington then asked Caulder what
he "thought [he] could get out of having a Union in the
plant," and whether Caulder realized that "to get a lot of
things that [he] might have to go on strike." Caulder told
Harrington that "some of the drivers had signed up union
authorization cards," and that he "thought that all of them
had signed." Harrington said, "No, that there was (sic) only
12 that had signed ." Harrington concluded the conversation
by repeating that "there would be no more talk of Union on
Company property. We'd have to leave Company property
after we punched out." IS That night after work Caulder
called the Union in Charlotte, North Carolina, and request-
ed a supply of union authorization cards to be sent to him,
and on September 25, the Union complied with Caulder's
request. 16
The following morning (September 25) when Caulder
came to work, he found that a pair of "couplings that were
needed by the canning line pretty bad" had arrived, and
after inspecting them, he found that the holes in the cou-
plings were too small, and need "boring out." Harrington
came by at about that time, and Caulder told him that the
couplings had arrived, that they required boring, and that
he intended to take them to a local macine shop to have the
work done when the Company's pickup truck returned to
the plant. Harrington said, "Good, we need them." The
pickup truck returned a short while later, and Dalrymple
helped Caulder take the couplings out to the truck . Before
Caulder left, he told Dalrymple that if Harrington looked
for him, "remind him that I went to get the couplings bored
based on Caulder's uncontroverted and credited testimony. According to
Harrington , the September 22 incident was Caulder 's "second" violation of
the instruction that he was not to leave the plant for parts before 4 p.m.
without Harrington's permission-a previous one having occurred about "a
week, [a] couple of weeks" after August 1, or about "a month , or better,
maybe six weeks" before Caulder's discharge on September 25. I place no
credence whatsoever in Harrington 's testimony regarding this prior alleged
violation of his instructions for several reasons, not the least of which is that,
as found above , there was no instruction restricting or limiting when Caulder
could leave the plant and use the truck to get parts at the time of this first
alleged transgression by Caulder. Moreover , in the light of the lack of specif-
icity of Harrington 's testimony regarding this alleged violation by Caulder,
the implausibility of much of Harrington 's testimony about other incidents,
and his professed lack of direct knowledge of Caulder's union activities
(which I do not credit ), and based also on his demeanor, I regard
Harrington 's testimony as generally unreliable and worthy of little credence.
IS Harrington admitted that on a date which he could not remember, he
told Caulder "that while he was on the clock that he could not participate
in any union function trying to get people to join it and it was hindering his
work." According to Harrington , Caulder responded "that he could do this
on breaks ," and that he, Harrington , then said, "I don't know about the rules
and regulations , I'm not that familiar with it. If you can on your breaks do
it if this is legal and by the law." Harrington did not deny asking Caulder
what he expected to get out of the Union, but he did deny that he told any
employee "that twelve employees had signed a card ." As previously noted,
I regard Harrington's testimony as generally unworthy of reliance, and I
credit his version of this conversation only to the extent that it accords with
that of Caulder as found above.
16 See G .C. Exh. 5.
CAROLINA CANNERS, INC. 41
out." Caulder then left the plant , drove to the "bus station
enroute to pick up a part that was there ," then went to the
machine shop, and returned to the plant in about 20 min-
utes . A short while later , Caulder heard an announcement
on the Respondent's loudspeaker system that he was to
report "to the front office ." He complied with that instruc-
tion and met Harrington who had "a paper folded up in his
hand ." They walked together to the conference room, sat
down , and Harrington said, "I 'm sorry to do this , I'm going
to have to let you go. You were warned about leaving the
plant without permission ." Caulder asked Harrington,
"what did he mean warned?" Harrington replied that on the
previous Saturday , Caulder left the plant without permis-
sion to pick up some parts , and that "today , you did it
again ." Caulder responded , "Bill, you know where I was
going, I told you when the pick-up come (sic) back I was
going to take the parts to Quicks Machine Works ." Harring-
ton said , "Yes, I know you were going, but you didn't have
my permission" He then gave Caulder the paper he had
been holding , a termination notice (G.C. Exh. 11) which
stated that the reason for Caulder 's termination was "failure
to comply with supervisors (sic) instructions-leaving plant
without permission." 17
During the week commencing Monday September 24,
Transportation Supervisor Ross Johnson attended a
supervisor's school in Columbia, South Carolina, and Olin
Lee, one of the Respondent 's truckdrivers , was assigned to
do the dispatching of drivers during Johnson 's absence. In
preparation for this assignment, Lee worked in the office
and received training from Johnson for 2 weeks preceding
September 24. The Respondent 's dispatcher is the person
whom its drivers are required to call if they are not going
to work because of illness, or other reasons , or if they run
into problems during their delivery rounds. The
Respondent 's drivers received no instructions to do any-
thing differently during the week that Lee did the dispatch-
ing.
In the early morning hours of September 24, Gaddy's wife
began to have labor pains , and at 6:15 a.m., Gaddy tele-
phoned Lee who , in addition to being the dispatcher that
week , also was Gaddy's friend and had signed a union
17 The findings above are based on Caulder' s credited testimony . Harring-
ton denied that he had any conversation with Caulder on the morning of
September 25, other than to perhaps say "good-morning." Harrington also
denied being told by Caulder that morning that some parts had arrived, and
he further denied giving permission to Caulder to leave the plant. According
to Harrington, he participated in a meeting with General Manager Hiles that
morning which started "between 7: 30 and 8 : 00," and when he came out, he
went to the machine shop and asked where Caulder was, and he was told that
"he'd gone . Where, nobody knows." Harrington testified that Caulder re-
turned "10 or 20 minutes" later , and that he then notified Caulder that he
was "going to have to let [him] go." I have already indicated that I regard
Harrington's testimony as generally unreliable, and I so consider his denials
and vague testimony about the events of September 25 which preceded
Caulder's summary dismissal. When Harrington was asked when he discov-
ered that Caulder had left the plant , he answered , "Between 9 :30 and 10:00,
or 10 and 10 :30, you know. It was say, mid-morning or shortly before noon."
In addition to this vacillating recital of when he allegedly missed Caulder,
Harrington 's testimony also failed to specify whom he asked regarding
Caulder's whereabouts, and whether or not he asked Dalrymple, the employ-
ee whom he had assigned to help Caulder. In the light of his vague testimony,
and my general lack of regard for its reliability, I credit Harrington 's version
of the events of September 25 preceding Caulder's dismissal only to the
extent that it accords with that of Caulder credited above.
authorization card. Gaddy notified Lee of his wife's condi-
tion and asked to speak to Lee's wife who is a registered
nurse . Mrs. Lee advised Gaddy to take his wife to the hospi-
tal at once, and he asked her, and she agreed, to take his son
to kindergarten for him. Gaddy accordingly brought his son
over to Lee's house, and then took his wife to the hospital.
She gave birth to a baby without incident a few hours later,
and Gaddy stayed at the hospital with his wife until about
11:45 a.m. He then picked up his son from kindergarten,
they both had lunch, and he and his son went to
Respondent's plant at about 12:45 p.m. There, Gaddy told
the office girls, and then Lee, that his wife had given birth,
and that she and the baby were both doing well. Lee told
Gaddy that his load was still "sitting in the yard." Gaddy
responded, "It will be three days before Betty gets home
[from the hospital], I'll call you Wednesday afternoon when
I get my wife and baby home." Lee said, "okay." is
In accordance with his statement to Lee on September 24,
Gaddy called the Respondent's plant on Wednesday Sep-
tember 26 at about 2:30 p.m., and he told Lee that he had
brought his wife and baby home and he was "ready to go
back to work." Lee responded that he had a load for Gaddy,
but that he had been told by General Manager Hiles that
Gaddy would have to see Hiles before he could take his
truck out. Gaddy accordingly went to the Respondent's
plant to speak to Hiles , but could not do so because Hiles
had gone to Charlotte, North Carolina. Later that af-
ternoon, after Lee spoke to Gaddy, Hiles told Lee to tell
Gaddy to check his mail before he came to see Hiles. That
night, Lee met Gaddy at a local tavern and told him, "After
you get your mail on Thursday morning, you might not
want to talk to Mr. Hiles." 19
The following morning (September 27), Gaddy received
in the mail the following letter:20
September 26, 1973
Mr. Arlee Gaddy
Route 2 Box 290
Cheraw, South Carolina
Dear Mr. Gaddy:
Because of your absence from the plant and lack
of communication with the management we have
18 The findings above are based on Gaddy's testimony which I regard as
reliable and credit . Lee, a witness for the Respondent, testified that when he
told Gaddy that his load was still in the yard, Gaddy said, " If I don 't go out,
I'll give you a call." Lee's testimony in this regard suggests that Gaddy still
contemplated making a round trip of about 380 miles to Ashville, North
Carolina, and back, notwithstanding that his wife was in the hospital and he
had a son of kindergarten age to take care of while she was incapacitated.
I consider such a response from Gaddy as implausible , and 1 do not credit
Lee in this respect.
19 The findings above are based on the credited testimony of Gaddy, and
that of Lee which I credit in this respect . N.L.R.B. v. Universal Camera Corp.,
supra. Contrary to Respondent 's witness Lee, General Manager Hiles testi-
fied that he did not tell Lee to tell Gaddy to see him before Gaddy went out
on a delivery. I regard Lee's testimony in this respect as more reliable than
that of Hiles, for as found above, Lee transmitted that instruction to Gaddy,
and based thereon , Gaddy went out to the plant on Wednesday afternoon
(September 25) to see Hiles. I therefore do not credit Hiles' denial that he
so instructed Lee.
30 G.C. Exh. 7.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been forced to serve your termination via the mail
service. Please read the attached Termination Notice.
It is self-explanatory. If you have any questions
please feel free to contact your supervisor.
Please sign and return one copy of the Termina-
tion Notice (self addressed envelope enclosed). Keep
one copy for your files. Your final paycheck will be
mailed to you.
I wish you the best of luck in your future ventures.
Yours very truly,
CAROLINA CANNERS,
INC.
T. M. Hiles
General Manager
The termination notice attached to the letter signed by Hiles
stated the reason for Gaddy's termination as follows:21
... gross insubordination to the General Manager at
a Company provided function (Date 8/27/73/)* See
below
s $ • s
As further expression of his insubordination the em-
ployee failed to advise management that he would not
be at work on 9/25 and 9/26/73 without notifying the
Company Management. As of 11:00 A.M. Wednesday
the Company had no sommunication (sic) with this
employee regarding his absence since Tuesday morn-
ing 9/25/73.
After receiving the letter, Gaddy telephoned the plant and
told Lee that he was coming out to retrieve some personal
belongings in his truck. Later that day, Gaddy and Caulder
went together to the Respondent's plant, Gaddy, to get his
things, and Caulder, to pick up his check. They were
stopped at the gate by the security guard who told them that
they were "not allowed on Company property by orders of
Mr. Hiles." They told the guard the reasons for their visit.
He then made a phone call and told them that their "needs
would be taken care of ." A few minutes later, Lee and
Warehouse Supervisor Lucas Miles brought Gaddy's per-
sonal belongings to Gaddy's car outside the gate , and Gad-
dy filled out his log books on the back of his car and gave
them to Lee.22
That same afternoon , General Manager Hiles assembled
the Respondent's first and second shift employees and de-
livered a speech in which he expressed the Respondent's
opposition to their representation by the Union. In the
course of that speech, according to the credited testimony
of four employees,23 two of whom still work for the Respon-
dent, Hiles said that "he didn't want us carrying on Union
activities or explaining Union cards while we were at Caroli-
21 G.C. Exh. 8
22 The findings above are based on Gaddy' s and Caulder 's uncontroverted
and credited testimony.
23 Johnny P. Hayes, James Carl English , William F . Coats, and Bobby R.
Driggers.
na Canners," and that anyone who was caught engaging in
such activity "would be discharged from Carolina Can-
ners." 24
C. Concluding Findings
1. Interference, restraint, and coercion of employees
As found above, on September 20, when Gaddy returned
to work after signing up Respondent's drivers to union au-
thorization cards the night before, Warehouse Supervisor
Lucas Miles said to him, "I hear you had a meeting last
night," and he asked Gaddy, "How did it go?" Then, when
Gaddy naively told Miles that 12 out of 14 of the
Respondent's drivers had signed union cards, Miles in-
quired and accurately indicated that he knew the names of
two drivers who had not signed cards. The interrogation of
Gaddy by Miles as to the identity of union card signers, and
as to what transpired at the meeting clearly trenched on
rights guaranteed to employees by Section 7 of the Act. In
addition, Miles' interrogation and statements indicated that
he knew the purpose of, and what had transpired at,
Gaddy's meeting with the drivers, and thus conveyed the
impression that the employees' union activities were being
subjected to surveillance. I therefore find that by Miles'
interrogation, and by his statements which conveyed the
impression that the union activities of the employees were
being subjected to surveillance, the Respondent interfered
with, restrained, and coerced employees in the exercise of
their rights under the Act, and that it thereby engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
As further found above, on September 24, Maintenance
Supervisor William Harrington notified employee Walter
Glynn Caulder that he was not to talk about the Union on
company property. The right of employees to engage in
union activities on company property during break periods,
lunch periods, and other nonwork time is, by now, well
24 Hiles denied that he made the statement and threat attributed to him by
the above-named witnesses . According to Hiles, he read a prepared speech
(Resp. Exh. 5) verbatim and did not depart from its text . I have no doubt
that Hiles read from Resp. Exh. 5, but I do not credit his testimony that he
did not depart from its text. Several of the employees admitted on cross-
examination that Hiles had a paper in his hand while he was making the
speech , and one (Hayes) stated in his affidavit to the Board that Hiles "read
it word-for-word." Nevertheless, despite the able cross-examination of
Respondent's counsel , all four of the employees, when permitted to state
what Hiles said in their own words, steadfastly maintained that he said,
"anybody talking union or giving union cards on company property wouldn't
be with Carolina Canners anymore." I credit them in this respect. I note in
this regard that the document from which Hiles made his speech, obviously
prepared by counsel, is entitled "Suggestions for Mr. Hiles' Talk to Employ-
ees at Carolina Canners, Inc.," and that it contains no admonition against
departing from its text . Moreover, I do not regard Hiles as a witness whose
testimony I consider to be generally reliable . For example, he contradicted
the testimony of Lee, his own witness, regarding the instruction to have
Gaddy see him before he went out on a delivery. (See In . 19, supra ). He also
contradicted his own testimony. Thus , when asked why Gaddy's absence on
Monday September 24 was not included as a ground for his discharge in the
Termination Notice, Hiles testified, "I have no idea." He later admitted,
contrary to that response , that Gaddy's absence on that day was "for a
legitament (sic) reason ." I regard Hiles ' testimony in other respects to be
implausible . I was not favorably impressed either by content, or his demean-
or, that Hiles's testimony is worthy of much reliance.
CAROLINA CANNERS, INC. 43
established.25 Inasmuch as Harrington's prohibition on
Caulder's engaging in union activities was not limited to
working time, I find that the Respondent thereby further
interfered with, restrained and coerced employees in the
exercise of rights guaranteed by the Act and violated Sec-
tion 8(a)(1).
In the same conversation with Caulder, Harrington asked
him what he "thought [he] could get out of having a union
in the plant," and whether Caulder realized that he "might
have to go on strike" to get improvements in his wages and
working conditions. Harrington also indicated to Caulder
that he knew the number of drivers that had signed union
cards. Harrington's interrogation of Caulder as to his mo-
tives for supporting the Union clearly constituted further
transgression upon employees' Section 7 rights.
Harrington's statement which indicated he knew the num-
ber of drivers who had signed union cards also conveyed the
impression that Respondent was engaging in surveillance of
the union activities of its employees. I find that by both
these means, the Respondent engaged in further unfair la-
bor practices within the meaning of Section 8(a)(1) of the
Act.
As noted above, Harrington also told Caulder that he
might have to go on strike to get benefits from the Compa-
ny. Relying on, and quoting from, N.L.R.B. v. Gissel Pack-
ing Co.,26 the General Counsel contends that Harrington's
statement exceeded the free speech privileges of Section 8(c)
of the Act, and violated Section 8(a)(1). I regard the Gissel
case as inapposite, and the contention of the General Coun-
sel as devoid of merit. This single, isolated statement of
opinion by Harrington can hardly be equated with a state-
ment of policy by the Respondent that it would not engage
in meaningful bargaining with the Union and that employ-
ees would be forced to strike to achieve any benefits through
the Union. I therefore will recommend dismissal of para-
graph 8(d) of the complaint which apparently is based on
this contention.
As finally found above, on September 27, the day follow-
ing Gaddy's discharge by mail, General Manager Hiles, in
a speech to assembled employees, forbade them from talk-
ing about the Union or distributing union cards on compa-
ny property, and threatened that violators of the prohibition
would not be with Carolina Canners anymore. Hiles' prohi-
bition clearly impinged on the rights of employees under the
Act, and violated Section 8(a)(1). His threat to discharge
employees for engaging in union activities protected by the
Act obviously further interfered with, restrained and
coerced employees, and the Respondent thereby engaged in
further unfair labor practices within the meaning of Section
8(a)(1) of the Act.
2. The Respondent's discharge of Arlee Gaddy and Wal-
ter Glynn Caulder
Gaddy and Caulder were the only employees of the Re-
spondent who actively solicited the support of its employees
for union representation. Gaddy worked for the Respon-
dent 2 1/2 years. Insofar as the record discloses, he was a
25 Walton Manufacturing Company, 126 NLRB 697 ( 1960), enfd . 289 F.2d
177 (C.A. 5, 1961)
26 395 U.S. 575, 618 ( 1969).
satisfactory employee. On September 12, Gaddy com-
menced to solicit support for the Union among the
Respondent's truckdrivers. Two weeks later (on September
26), the Respondent fired him for "gross insubordination"
to General Manager Hiles which Gaddy allegedly engaged
in a month before, and for his asserted continued insubordi-
nation in failing to work on September 25 and 26 while his
wife was in the hospital after giving birth to -a baby on
September 24. Caulder was hired by the Respondent in
August 1972 and worked for it for about 13 months. He
admittedly was regarded by the Respondent "as a good
employee," and received a number of promotions and raises
in pay. On about September 1, Caulder began to solicit the
support of the Respondent's plant employees in representa-
tion by the Union. Caulder's union activity admittedly was
reported to General Manager Hiles by several employees.
On September 24, Caulder was told by his supervisor, acting
pursuant to instructions from Hiles, that he was not to talk
about the Union on the Respondent's property. On the
following day (September 25), the Respondent fired Cauld-
er, assertedly for being away from the plant for 20 minutes
on company business without the express permission of his
supervisor. The Respondent undisputedly opposes the rep-
resentation of its employees by any labor organization, and
by firing Caulder and Gaddy on successive days within a
short time after they began to organize for the Union, the
Respondent eliminated the only two union ringleaders from
its plant.
The complaint in this case alleges that the termination of
these two employees was motivated by their activities on
behalf of the Union and that it thereby violated Section
8(a)(3) and (1) of the Act. The Respondent contends that it
had no knowledge of Gaddy's involvement with the Union,
and that it fired both these employees for cause, and not
because of their union activities. As indicated below, I place
no credence whatsoever in the testimony of General Man-
ager Hiles (who fired Gaddy) that he had no knowledge of
Gaddy's involvement with the Union, I consider the reasons
asserted for both Gaddy's and Caulder's discharge as pre-
texts to conceal the real reason therefor, and I find that their
terminations were motivated by antiunion considerations to
discourage membership in the Union.
a. The Respondent's knowledge of Gaddy's union activities
On September 14, at a fish fry attended by Respondent's
employees and at least five supervisors, Gaddy openly es-
poused the benefits of union representation within earshot
of the supervisors. The Respondent called only one of these
supervisors, Harrington, to testify, and he professed that he
did not hear what the employees discussed. No explanation
was offered by the Respondent for its failure to call the
other four supervisors who undisputedly attended the fish
fry and were within earshot of Gaddy's espousal of the
Union. I infer therefrom that their testimony, if called,
would not have supported the Respondent's contention of
lack of knowledge of Gaddy's involvement with the
Union.27
27 International Union, United Automobile, Aerospace and Agricultural Im-
Continued
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 19, Gaddy sponsored a hamburger steak
dinner at the Cabin Creek Restaurant, a public restaurant
in Cheraw, South Carolina (population 5627), to which he
openly invited the Respondent's truckdrivers by a notice
posted on the door to the dispatcher's office. At that dinner,
Gaddy solicited and secured the signatures to union author-
ization cards from 12 of the 14 drivers who attended. On the
following day, in response to interrogation by Respondent's
Warehouse Supervisor Lucas Miles , Gaddy naively dis-
closed that practically all of the truckdrivers who attended
his dinner had signed union cards, and Miles indicated by
his questions that he knew the identity of those who had not
signed. During the rest of that week, Gaddy solicited and
secured the signatures of five more of the Respondent's
truckdrivers to union authorization cards, and thereby
achieved complete, or almost complete, organization of the
Respondent's drivers.28 On Saturday September 22, Gaddy
and a number of the Respondent's truckdrivers attended a
union meeting at the Chesterfield Motel in Cheraw which
Gaddy had arranged with Union President Barbee and
Business Agent Wright from Charlotte, North Carolina.
It strains one's credulity beyond belief that Gaddy could
have engaged in these activities in a small town like Cheraw,
and in public places like the Cabin Creek Restaurant and
the Chesterfield Motel, without word of his conduct getting
back to Hiles. I do not believe Hiles' testimony that it did
not.29 I note in this regard that Caulder's union activities
admittedly were reported to Hiles by several of the
Respondent's employees, and I am convinced by the entire
record, including the sequence of events, that contrary to
Hiles ' testimony, he received like reports about Gaddy's
union activities . In any event, the knowledge of Warehouse
Supervisor Lucas Miles of Gaddy' s union activities clearly
is imputable to the Respondent. 1c
b. The pretextual reasons asserted for Gaddy's termination
According to the termination notice sent by the Respon-
dent to Gaddy by mail, one of the reasons for his discharge
was Gaddy's "gross insubordination" to Hiles at the
Company's safety meeting on August 27 . It is true that at
that meeting in the Cabin Creek Restaurant , Gaddy public-
ly told Hiles that in protest over "the way [Warehouse Su-
pervisor] Johnny Hickey was dispatching the trucks," he
had called in sick on August 23, 24 and 25 when in fact he
was not sick. However, Hiles did not then, or at anytime
later, either publicly or privately, reprimand Gaddy for
plement Workers of America, (UAW) v. N.L.R.B., 459 F.2d 1329 (C.A.D.C.,
1972); 2 J. Wigmore, Evidence, Sec. 285 (3rd ed. 1940)
28 As previously noted, the Respondent employed 17 or 18 truckdrivers.
29 In my view, the words of Judge Learned Hand in Dyer v. MacDougall,
201 F.2d 265, 269 (C.A. 2), quoted with approval by the Supreme Court in
N. L. R. B. v. Walton Manufacturing Company., 369 U.S. 404, 408 (1962), apply
to Hiles' testimony . The judge there said: For the demeanor of a witness
.. may satisfy the tribunal , not only that the witness ' testimony is not
true , but that the truth is the opposite of his story ; for the denial of one, who
has a motive to deny, may be uttered with such hesitation , discomfort,
arrogance or defiance , as to give assurance that he is fabricating and that, if
he is, there is no alternative but to assume the truth of what he denied."
30N.L.R.B. v. Abbott Worsted Mills, Inc., 127 F.2d 438, 440 (C.A. I);
Northern Virginia Steel Corp. v. N.L.R.B., 300 F.2d 168, 173-174 (C.A. 4,
1962).
making this statement or for falsely reporting the reason for
his absence on those 3 days. Indeed, Hiles' only reaction to
Gaddy's statement and disclosure was to tell him later that
evening in the men's washroom, "If you have any com-
plaints come talk to me about it." Moreover, Hiles not only
did not reprimand Gaddy for his statement and disclosure,
but a few days after the safety meeting, Transportation
Supervisor Ross Johnson offered him a promotion to the
position of dispatcher. It is obvious from the foregoing, and
I find, that Gaddy's conduct at the August 27 safety meeting
was not regarded as insubordination when it occurred, and
that its later characterization by Hiles a month later as
"gross insubordination" is a patently transparent after-
thought and pretext to conceal the true reason for Gaddy's
discharge.
The second reason for Gaddy's discharge according to his
termination notice was Gaddy's "further expression of in-
subordination" as evidenced by his alleged failure "to ad-
vise management that he would not be at work on 9/25 and
9/26/73." In respect to this reason for Gaddy's termination,
Hiles testified that he considered "failure to report to work"
and "insubordination" as "both the same ," and that
Gaddy's "continued failure to report to work . . . was a
continuance of his insubordination." Hiles further testified
that he made his decision to fire Gaddy only "after review-
ing his personnel record" and discovering that "he had been
out II out of 60 working days."
I place no credence in Hiles' testimony regarding any of
these alleged reasons for Gaddy's termination. The
Respondent's notice to Gaddy regarding the reasons for his
termination contains no reference to excessive absences.
Hiles was unable to state whether Gaddy missed any work
between August 27, the date of the safety meeting, and
September 24 when Gaddy's wife had her baby. The Re-
spondent produced no records of Gaddy's attendance, and
it offered no explanation for the failure to do so . I infer
therefrom that the records, if produced would not have
supported Hiles' testimony regarding Gaddy's allegedly ex-
cessive absences.31 I find that this asserted reason for
Gaddy's discharge is clearly another afterthought on the
part of Hiles, and unworthy of credence.
Hiles knew that Gaddy's wife gave birth to a baby on
September 24 and that that was the reason he did not work
that day. He undoubtedly also knew that Gaddy would not
be at work on September 25 and 26 while his wife was in
the hospital, for as found above, on September 24, after his
baby was born, Gaddy, accompanied by his son of kinder-
garten age , visited the Respondent's plant and notified Dis-
patcher Olin Lee that he would not be available to drive
until after his wife returned home from the hospital on
Wednesday September 26 32 That knowledge undoubtedly
was the reason that the Respondent made no effort to con-
tact Gaddy on September 25 and 26, notwithstanding that
it was short of drivers on both the said days, and had trucks
loaded with its products waiting for delivery to customers.
I conclude from all the foregoing that Hiles had no rational
basis for regarding Gaddy's absence on September 25 and
26 while his wife was in the hospital as a "further expression
71 See fn.27, supra.
32 Lee, the dispatcher for that week, quite clearly was the person to whom
the drivers were required to give notice of contemplated absences.
CAROLINA CANNERS, INC. 45
of insubordination ," and that the assertion of this reason for
Gaddy's discharge is a pretextual devise to mask the real
reason therefor.
c. Concluding findings in respect to Gaddy's termination
As found above, the Respondent has asserted a plethora
of reasons for its termination of the employment of Arlee
Gaddy on September 26, all of which I regard as unworthy
of credence and as pretexts. In Shattuck Denn Mining Cor-
poration v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966), the
court of appeals aptly stated the following in respect to the
assignment of pretextual reasons for discharge:
Nor is the trier of the fact-here the trial examiner-
required to be more naif than is a judge. If he finds that
the stated motive for a discharge is false , he certainly
can infer that there is another motive. More than that,
he can infer that the motive is one that the employer
desires to conceal-an unlawful motive-at least
where, as in this case, the surrounding facts tend to
reinforce that inference.
The real reason for Gaddy's discharge is quite apparent
from this record. The Respondent undisputedly opposes the
representation of its employees by any labor organization.
It knew that Gaddy was the principal advocate of the Union
among its truckdrivers, and that he had signed up most, if
not all, of them to union authorization cards. To keep the
Union out, it was necessary to bar Gaddy from further
access to its employees and to discourage the latter from
continuing to support the Union. Both of these objectives
were realized by the Respondent when it fired Gaddy by
mail, and when it thereafter refused him access to its prem-
ises when he sought to retrieve his personal belongings from
his truck. And, to be sure that the Respondent's employees
got the message, on the day following Gaddy's discharge,
General Manager Hiles forbade them from engaging in
union activity on company property, and threatened that
violators of his prohibition would be fired. All of the fore-
going persuade me that antiunion considerations, and not
the pretextual reasons in its termination notice, were the
Respondent's motives for discharging Gaddy, and I there-
fore find that it thereby engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
d. The pretextual reason asserted for Caulder's termination
As noted above, on September 25, the day after Caulder
was unlawfully warned by his supervisor, Harrington, that
he was not to engage in union organizing activity on the
Respondent's property, he was fired by Harrington because
he left the plant for 20 minutes-undisputedly on company
business-to have parts reworked by a machine shop. On
his return to the plant from this errand, Caulder was given
a termination notice by Harrington (obviously prepared
before his return) which read:
That the reason for termination was failure to comply
out permission.
As indicated below, I regard the reason asserted by the
Respondent for Caulder's discharge as a pretext by which
it sought to conceal its true antiunion motive for his termi-
nation-the removal from its premises and from contact
with its employees of the sole union organizer among its
in-plant personnel.
Until Caulder began to solicit the interest of
Respondent's plant employees in representation by the
Union, he undisputedly was regarded by General Manager
Hiles as "a good employee," he was allowed to use the
Respondent's station wagon for a vacation trip of one week,
and he was given successive raises in the short span of less
than one year which brought his initial starting rate of pay
of $2.25 up to $2.75 an hour. Caulder's last promotion was
to the job of parts clerk in the maintenance department, a
position which permitted him the use of the Respondent's
pickup truck to get parts needed by the maintenance me-
chanics. Prior to September when Caulder began to solicit
support for the Union among the Respondent's plant em-
ployees, there were no restrictions on Caulder's use of this
truck, and although he sometimes made as many as four or
five trips in a day to get parts, and "once in a while" stopped
at home for lunch, he concededly was never criticized for
stopping at home for lunch by Harrington, his boss who
knew of this practice, and he was never accused of being
away from the plant on personal business.
Caulder's standing in the Respondent's good graces ter-
minated at the same time that General Manager Hiles re-
ceived reports from several employees that Caulder was
soliciting support for the Union. He then suddenly ceased
to be regarded by Hiles as a good employee, the Respondent
then assigned employee Dalrymple, who later became
Caulder's replacement, to assist Caulder with his work as
parts clerk, and Harrington issued instructions that the
pickup truck was not to be used to get parts before 4 p.m.
except in an emergency, in which event, they were "to
check" with him first 33 Viewed in the light of its timing and
the Respondent's undisputed opposition to the representa-
tion of its employees by any labor organization, I am per-
suaded and find that Caulder's sudden fall from grace, the
assignment of an employee to assist him (and thus learn to
become his replacement), and the restrictions placed on
Caulder's parts procurement activities, were all motivated
by his activities on behalf of the Union.
As found above, shortly thereafter Caulder failed twice to
observe the new restrictions on his activities, and received
no reprimands therefor. As previously described, the first
such infraction occurred on September 15 when during
working time, without Harrington's permission or instruc-
tion, Caulder drove the Company's pickup truck to Nub
Gray's cabin in Wallace to clean up the mess left by the fish
fry. Although Harrington observed Caulder at the cabin, he
admittedly did not admonish Caulder, either for leaving the
33 Harrington testified that the reason for the change in policy was that
Caulder was "spending more time running errands downtown than he was
working," and "that he was spending a lot of time at home ..." In the light
of the absence of prior criticism of Caulder's conduct by Harrington, I place
with supervisors (sic) instructions-leaving plant with- no credence in this testimony.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant during working time, or for using the Company's pick-
up without his permission. To the contrary, Harrington ap-
proved Caulder's absence from the plant, albeit it was
without his permission and not pursuant to his instruction,
because, as he testified, "this [the fish fry] was a Company
function," and "we [the Company] didn't want it [the cabin]
messed up." 34 A week later, Caulder, unable to find Har-
rington, left the plant to pick up a part for one of the
Respondent's mechanics, and when he returned a short time
later and explained these circumstances to Harrington, the
latter merely said, "in the future, check with me before you
leave." Harrington's mild response hardly can be regarded
as a reprimand, and clearly was not a warning that a recur-
rence would result in discharge.
The Respondent's previous tolerance of Caulder's parts
procuring activities suddenly changed on September 24
when Harrington, in violation of Section 8(a)(1) of the Act,
warned Caulder that he was not to engage in union activities
on the Company's premises. Thus, on the very next day
(September 25), notwithstanding that Caulder notified Har-
rington that he intended to leave the plant to have some
couplings reworked, and had Harrington's tacit approval to
do so, and despite the fact that Caulder engaged only in
company business on this trip, on his return to the plant, a
short time later, he was peremptorily fired assertedly for
leaving the plant without Harrington' s express permission.
In the light of the absence of any prior warning that a
repetition of Caulder's parts procuring practices might re-
sult in disciplinary action against him, I regard the assertion
that Caulder was discharged for his short absence from the
plant on company business on September 25, notwithstand-
ing Harrington's tacit prior approval, as a pretext devised by
the Respondent to conceal its real motivation for his termi-
nation. I note in this regard that on the very next day, when
Caulder went out to the Respondent's plant to get his pay-
check, he was denied entrance by Hiles' orders to the prem-
ises , and thus was barred from access to the Respondent's
employees. As previously noted, that same day, in a speech
to the Respondent's employees, Hiles threatened that any
employee who engaged in union activities on the
Respondent's premises would be fired.
I am persuaded by all of the foregoing and find that the
real reason for Caulder' s termination was his union activi-
ties and the Respondent's opposition to union representa-
tion for its employees. I therefore find that by discharging
Caulder because he engaged in union acitivites, the Respon-
dent engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
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 operations of the
Respondent described in section I, above, have a close,
intimate and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
34 Harrington also testified that this incident occurred "prior" to his re-
striction on the use of the truck by Caulder. Harrington's testimony in this
respect contradicts his earlier testimony that he issued the restrictions on
Caulder's use of the truck on about August 1. (See fn. 13, supra ).
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Respondent terminated the em-
ployment of Walter Glynn Caulder and Arlee Gaddy and
thereafter failed and refused to reemploy them because they
engaged in union and concerted activities protected by the
Act, I will recommend that the Respondent be ordered to
offer them immediate reinstatement to their former posi-
tions, or, if they no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of earn-
ings they may have suffered by reason of the discrimination
against them by the payment to them of a sum of money
equal to the amount they normally would have earned from
the date of their termination to the date of reinstatement,
less their net earnings during said period, with backpay
computed on a quarterly basis in the manner established by
the Board.35
I will also recommend that the Respondent preserve and,
upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports,
and all other records necessary to analyze and determine
the amounts of backpay due under the terms of this recom-
mended remedy.
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. Respondent, Carolina Canners, Inc., is an employer
engaged in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Drivers, Chauffeurs, Warehousemen and Helpers Lo-
cal 71, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By terminating the employment of Walter Glynn
Caulder and Arlee Gaddy because they engaged in union
and concerted activities for mutal aid or protection guaran-
teed to employees by the Act, and by thereafter failing and
refusing to reemploy them, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
4. By the foregoing conduct, by coercively interrogating
employees regarding their union activities and sympathies,
by conveying to employees the impression that their union
activities were subject to surveillance, and by prohibiting
employees from engaging in protected union activities in the
Respondent's plant during nonworking time and threaten-
35 F. W. Woolworth Company, 90 NLRB 289 (1950); backpay shall include
the payment of interest at the rate of 6 percent per annum to be computed
in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
CAROLINA CANNERS, INC.
ing to discharge employees for engaging in such acitivities,
the Respondent has interfered with, restrained, and coerced
its employees in the exercise of their rights guaranteed by
Section 7 of the Act, and has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case, I
hereby issue the following recommended:
ORDER36
Respondent , Carolina Canners , Inc., its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee in regard to hire or tenure of employment or any
term or condition of employment for engaging in any activi-
ty protected by Section 7 of the Act.
(b) Coercively interrogating employees regarding their
union membership, activities, or desires.
(c) Conveying to employees by conduct or statements the
impression that their union activities are subject to surveil-
lance.
(d) Prohibiting employees from engaging in union or
other protected concerted activities during nonworking
time, and from threatening employees with discharge or
other reprisals for engaging in such activities.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
Drivers, Chauffeurs, Warehousemen and Helpers Local 71,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, 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 bar-
gaining or other mutual aid or protection, or to refrain from
engaging in such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer Walter Glynn Caulder and Arlee Gaddy imme-
diate and full reinstatement to their former jobs or, if they
no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges
enjoyed, and make them whole for any loss of pay they may
have suffered as a result of the discrimination against them
in the manner provided in the section of this Decision enti-
tled "The Remedy."
(b) Preserve, and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze and determine the amounts of backpay due under
the terms of this Order.
(c) Post at its office and warehouse in Cheraw, South
Carolina, copies of the notice marked "Appendix." 37 Cop-
ies of said notice, on forms provided by the Regional Direc-
47
tor for Region 11, after being duly signed by Respondent,
shall be posted by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 11, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps have been taken to comply herewith.
I FURTHER ORDER that the complaint herein be dismissed
insofar as it alleges violations of the Act other than those
found above.
36 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
37 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to present
their evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act,
and has ordered us to post this notice and we intend to carry
out the Order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection and
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL NOT discharge or otherwise discriminate
against any employee in regard to hire or tenure of
employment or any term or condition of employment
for engaging in any activity protected by the Act.
WE WILL NOT coercively interrogate you regarding
your union membership, activities, or desires.
WE WILL NOT engage in conduct or make statements
which convey the impression that we are subjecting
your union activities to surveillance.
WE WILL NOT prohibit you from engaging in union
activities on our premises during nonworking time, and
WE WILL NOT threaten you with discharge or other repri-
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sals for engaging in such activities during nonworking
time.
Since it was decided that we violated the Act by
terminating the employment of Walter Glynn Caulder
and Arlee Gaddy , WE WILL offer them reinstatement to
their former jobs, and WE WILL reimburse them for the
losses they suffered as a result of our discrimination
against them.
WE WILL respect your rights to self-organization, to
form, join or assist any labor organization , or to bar-
gain collectively in respect to terms or conditions of
employment through Drivers , Chauffeurs, Warehouse-
men and Helpers Local 71 , affiliated with the Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , or any repre-
sentative of your choice , or to refrain from such activi-
ty, and WE WILL NOT interfere with , restrain, or coerce
our employees in the exercise of these rights.
You and all our employees are free to become members
of any labor organization , or to refrain from doing so.
Dated By
CAROLINA CANNERS, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office, 1624 Wachovia Building, 301
North Main Street, Winston-Salem, North Carolina 27101,
Telephone 919-723-2300.