Hercules Bumpers, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1980

248 N.L.R.B. 1047 (N.L.R.B. 1980)

HERCULES BUMPERS, INC. 1047
Hercules Bumpers, Inc. and United Automobile,
Aerospace & Agricultural Implement Workers
Of America (UAW). Case 10-CA-14301
April 8, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On October 3, 1979, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent and General
Counsel filed exceptions with supporting briefs,
and Charging Party filed an opposition to Respon-
dent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board had 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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
I We agree with the Administrative Law Judge's observation that theft
of company property by an employee clearly constitutes legitimate cause
for discharge. We further agree with the Administrative Law Judge that
the discharge of employee Calvin Jones violated Sec. 8(a)(3) of the Act.
Based on the record as a whole, we find in agreement with the Adminis-
trative Law Judge that Respondent's asserted reason for the discharge, an
alleged theft of company property, was pretextual and was designed to
mask Respondent's real motive, its discriminatory retaliation because of
Jones' involvement in union activity. In this regard we note that: Respon-
dent had knowledge of Jones' leading role in support of the Union; Re-
spondent had demonstrated animus against union activity; Jones sought
and received permission to take the scrap material; Jones openly took the
scrap material; other employees had taken scrap material without being
disciplined; Respondent had Jones arrested and then discharged Jones
without attempting to ascertain an explanation from him; Respondent
took no disciplinary action against two other employees involved in the
sale of the alleged stolen company property; and Respondent had previ-
ously discriminatorily restricted Jones to his work area because of Jones'
union activity.
We also agree with the Administrative Law Judge that Respondent un-
lawfully discriminated against Jones by restricting him to his immediate
work area prior to his discharge. In adopting this finding, we rely on the
following: On or about December 7, 1978, Jones solicited Leadman
Daughtry to sign a union card during the lunch breaks without success.
On the following day Jones spoke to Daughtry regarding a work prob-
lem and an argument ensued. Daughtry and Plant Superintendent Baggett
reported the incident to Company President Ray Council and Daughtry
also informed Council that Jones was attempting to get other employees
to sign authorization cards. Council then decided that Jones should be re-
stricted to his work area. Respondent failed to make a full investigation
of the incident to obtain Jones' version of the incident and no discipline
was imposed on Daughtry for his role in the confrontation. This, coupled
with Respondent's knowledge of Jones' leading role in the union cam-
paign, and Respondent's animus towards his union activities, in our view,
demonstrates that the alleged legitimate reason for restricting Jones was
used as a mere pretext for Respondent's real and unlawful purpose of
curtailing Jones' union activity.
248 NLRB No. 132
Judge and to adopt his recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Hercules Bumpers, Inc., Pelham, Georgia, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Insert the following as paragraph 1(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Unlawfully restricting the movement of our
employees to their immediate work areas because
they engage in union activities or protected con-
certed activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
a We have adopted the Administrative Law Judge's finding that Re-
spondent unlawfully discriminated against employee Calvin Jones by
placing restrictions upon him during his employment. The Administrative
Lasw Judge inadvertently fails to make any reference to this finding and
we hereby modify his recommended Order. In addition, we have modi-
fied the Administrative Law Judge's notice to conform with his recom-
mended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties had an op-
portunity to present evidence and cross-examine
witnesses, the National Labor Relations Board has
found that we violated the National Labor Rela-
tions Act, and has ordered us to post this notice.
We intend to abide by the following:
The National Labor Relations Act gives all
employees the right:
To organize themselves
To form, join or help unions
To bargain as a group through representa-
tives they choose
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT discriminate against employ-
ees in regard to hire or tenure of employment
or any term or condition of employment in
order to discourage membership in United
Automobile, Aerospace & Agricultural Imple-
HERCULES BUMPERS, INC.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment Workers of America (UAW), or any
other labor organization.
WE WILL NOT unlawfully restrict the move-
ment of our employees to their immediate
work areas because they engage in union ac-
tivities or protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed under
Section 7 of the Act.
WE WILL offer Calvin A. Jones immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and
WE WILL make him whole for any loss of
earnings he may have suffered by reason of
the discrimination against him, plus interest.
All of our employees are free to remain, or re-
frain from becoming or remaining, members of a
labor organization.
HERCULES BUMPERS, INC.
DECISION
STATEMENT OF THE CASE
RoBERr COHN, Administrative Law Judge: This pro-
ceeding, held pursuant to Section 10(b) of the National
Labor Relations Act, as amended, herein the Act, was
heard at Camilla, Georgia, on July 18-19, 1979, pursuant
to due notice. The issues raised by the pleadings' are, in
essence, whether Hercules Bumpers, Inc., herein the
Company or Respondent, interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of
the Act, and discriminated against its employee, Calvin
Albert Jones, in violation of Section 8(a)(3) of the Act,
by acts and conducts of its agents and supervisors, her-
einafter set forth.
Subsequent to the hearing, and within the time al-
lowed, helpful post-hearing briefs were filed by counsel
for all parties, which have been carefully considered.
Upon the entire record in the case, including my ob-
servation of the demeanor of the witnesses, 2 I make the
following:
FINDINGS AND CONCLUSIONS
I. THE ALLEGED UNFAIR LABOR PRACTICES3
A. Background
For approximately 5 years prior to the events giving
rise to the issues in this case, Respondent has been en-
' The original charge was filed on January 12, 1979; the complaint
issued February 21, 1979
Z Cf. Bishop and Malco., Inc.. d/b/a Walkers, 159 NLRB 1159. 111l
(1966).
3 There is no issue as to the Board's jurisdiction or the status of the
Charging Union as a labor organization. The complaint alleges sufficient
facts respecting te interstate operations of Respondent, which are ad-
gaged at Pelham, Georgia, in the business of manufacture
and sale of bumpers for pickup truck vehicles. In the
latter part of 1978, 4 Respondent's business had grown to
the point of employing approximately 109 employees
who worked in various departments of the plant includ-
ing cutting, painting, welding, and shipping, etc. The al-
leged discriminatee herein, Calvin Jones, had worked for
the Company for approximately 2-1/2 years, the latter 2
years of which he was a production welder in the weld-
ing department.
It appears that in October a dispute arose between the
Company and the welders.5 In an apparent effort to cut
down on the mistakes of the welders, the Company insti-
tuted a policy of charging the welders $5 for each mis-
take. Jones, along with some of the other welders, pro-
tested this policy, and ultimately reached an understand-
ing with the president of the Company (Ray Council) in
which it was agreed that the Company would charge the
men for improper welding only after the first five bump-
ers welded. The principal significance of recording these
events is that Jones was recognized as a leader among
the welders in the protest movement.
B. The Advent of the Union Campaign and its
Aftermath
Approximately the first week in November, one of the
welders, Cal Twitty, made an initial contact with a rep-
resentative of the Union, appparently indicating that the
employees of Respondent desired union representation.
However, shortly thereafter, Twitty moved out of the
State, and the union representative (Echols) contacted
Calvin Jones concerning the matter. On or about No-
vember 6, according to the testimony of Calvin Jones,
he, along wih his two sons, Tony and Mark (who also
work for the Company), and employee Thyron Smith
met with Echols in a motel in nearby Albany, Georgia,
at which time they all signed union-authorization cards.
Within the next couple of weeks, again according to the
testimony of Calvin Jones, two meetings were held at
the home of Calvin Jones in Camilla, Georgia (approxi-
mately 9 miles from the plant of the Company in
Pelham, Georgia), for the purpose of attempting to inter-
est the employees of Respondent in the Union. Approxi-
mately 30 employees attended these meetings at which
time union literature and authorization cards were dis-
tributed.
During the latter part of November, Calvin Jones had
two conversations with Plant Superintendent Wayne
Baggett, which were initiated by the latter, in which
Baggett offered Jones a promotion to a supervisory or
semi-supervisory position. The first such coversation
took place on or about November 15 in Baggett's office.
Baggett called Jones into his office after working hours
mitted by answer, upon which I may and do hereby find that Respondent
is engaged in commerce within the meaning of Sec. 2(6) and (7) of the
Act. I also note that the Board asserted jurisdiction over Respondent in
Case 10-RC-11631 (January 31, 1979).
It is also alleged and admitted that the Charging Party is a labor orga-
nization within the meaning of Sec. 2(5) of the Act
4 All dates hereinafter refer to the calendar year 1978, unless otherwise
indicated.
' At that time there were approximately 21 welders in the welding de-
partment
HERCULES BUMPERS, INC. 1049
and offered him a promotion to a crew chief job which
involved overseeing the quality of the bumpers. Baggett
stated that the salary was $230 per week. Jones declined
the job because he was, at that time, making $300 per
week and stated that he had to "clear $265 to pay his
bills." Baggett responded that he could not offer $300
because that was more money than he (Baggett) made.
A second conversation was held between the two men
approximately a week later in which Baggett indicated
that the crew chief job had been filled, but that the Com-
pany was planning to open a new chrome department in
the future, and that this would provide a means for Jones
to definitely secure a supervisory position if he so de-
sired; however, the salary offered was the same. Jones
declined, stating, in addition to the lack of salary incen-
tive, that he did not think that higher management
would keep their promise to make him a supervisor. 6
The president of the Company, Ray Council, testified
that he first learned of the union campaign on December
5, when he and his brother were attending a business
meeting in Columbus, Georgia. During that meeting, he
received a telephone call from another brother, still at
the plant, who advised Ray Council to return to the
plant because it had been learned that "a union was in-
volved with our welding people, and that they were
having a meeting that night." The Council brothers com-
plied with this summons, but on reaching the plant that
evening, learned that the union meeting was not, in fact,
being held that evening-that it was scheduled to be
I Jones testified that in both conversations Baggett raised the issue of
the Union. indicating that he (Baggett) was aware that some of the em-
ployees were attempting to organize the Company, and that the manage-
ment would close the plant before they would have a union there; that
Baggett was also aware that Jones was a leader in the union movement
and that Baggett acknowledged that the purpose of the proffered promo-
tion to a supervisory position was to eliminate Jones' union activities
Baggett categorically denied that the Union was mentioned during these
conversations, or that he admitted that a reasotn for the offer was related
to Jones' activities in that regard
The credibility resolution here has been a difficult one. In addition to
demeanor, I have considered that each person has an obvious interest in
the outcome of the proceeding, but Baggett did not impress me as one
who, had the object of the proffered promotion been as Jones and the
General Counsel claimed it, would have so candidly revealed it. More-
over, as discussed infra, there was a good substantlial basis for the offer
Furthermore, there is no substantial evidence in the record other than
Jones' bare testimony (cf. F: W Woolworth. 204 NI.RB 396. 397 (1973)),
that Respondent was aware of the union activities prior to on or about
December 5, as discussed iner. (There is some testimoni by employee
Thyron Smith, on rebuttal, which tended to shou' that aggett was
aware of the union activities prior to that time, however Smith's testimo-
ny in this regard is discredited because: (a) a lack of corroboration by
other employees whom Smith identified as being with him when Baggett
made the damaging statements anid (b) his "sudden recollection" of these
events only a day after his direct testimony in the General Coulsel's case
in chief)
Based upon all of the foregoing, I discredit Jones' testimony to the
extent that he attributed antiunion stateenels to Bagget during the two
conversations, as well as to Baggett's asserted admission that the purpose
of the proffered promotion was to eliminate Jones from the union move-
ment I note in this connection that in the later representation case, Re-
spondent took the position that he crew chief job as properly includ-
able in the unit so hat a promotlion this position would not have ex-
cluded Jones from union participation. Under all circumstances, shall rec-
ommend that the complainlt he dtismissed insofar as it accuses aggelt of
engaging in 8(a)( I) iconduct
held the following night. However, the next morning,
Ray Council contacted a labor attorney.'7
On or about December 7, during the lunchbreak at the
plant, Calvin Jones solicited leadman Hardy Daughtry to
sign a union card. Daughtry indicated that he wanted
time to think it over and did not take the card. The fol-
lowing day, during working hours, Jones had occasion
to approach Daughtry respecting a work problem. Jones
put his arm across Daughtry's shoulder, apparently, ac-
cording to Jones, in a friendly gesture. However,
Daughtry did not construe it as such, and testified that
Jones "jerked him around." This lead to some angry and
obscene language between the two men. However,
Daughtry walked away and reported the incident to
Plant Superintendent Baggett. Baggett determined that
the matter should be brought to the attention of Compa-
ny President Ray Council and the two men went into
Council's office. Baggett admitted that during that con-
versation Daughtry mentioned that Jones was attempting
to secure employees' signatures on union authorization
cards in the plant. After some discussion, Daughtry was
excused, leaving Council and Baggett to determine what,
if any, sanction should be imposed. According to Ray
Council's testimony, they considered that Daughtry was
a volatile individual, with a temper, and that if provoked
a fight could ensue; that, accordingly, "For the safety of
everyone concerned, we agreed it would be better if Mr.
Jones stayed in his own area and did not provoke or did
not go into other areas to provoke anybody." Accord-
ingly, Baggett instructed Calvin Jones that the latter was
restricted to his work area and this restriction remained
until Jones was discharged on December 14.
This restriction is alleged in the complaint as discrimi-
natory, in violation of Section 8(a)(3) of the Act, because
of Jones' union activities. Respondent contends that the
restriction was imposed as a safety precaution, as indicat-
ed, and, in any event, there was no occasion for Jones to
move about the plant in the course of his duties as a
welder. I am not persuaded by Respondent's contention.
It is apparent from the record that Respondent was anti-
pathetic towards the union campaign, and Ray Council,
who made the decision to restrict, admittedly knew that
Calvin Jones was one of the leaders.8 It is significant, in
my view, that at no time prior to the imposition of the
sanction did Ray Council contact Calvin Jones to hear
his side of the story of the incident with Daughtry, nor,
of course, did Respondent ever impose any restriction,
warning, or other disciplinary action upon Daughtry for
his part in the incident. Accordingly, I am convinced
Ont cross-examination. Ray Council reaffirmed the testimony that he
hadl not been aware, prior to December 5. of any meetings of Hercules'
employees at Calvin Jones' house to discuss a union:
Q. It is your testimony that prior to December 5, of last year, you
were not aware that there had been meetings of Hercules employees
at Mr. Jones' house to discuss a Union?
A hat is correct. I was not aware of any Union-the word.
Union. had never come up. I would have been most concerned if it
had, ad would have taken action, immediately. I promise you that.
it I had knorn.
Council testified that he knew that Calvil Jones was a leader of the
welders. and that the locus of the union movement was in the welding
departmejnt Accordingly, it may be reasonlably inferred that he conclud-
ed that iCtal ,iii J iones ar a leader ill the iioi movement
HERCULES BUMPERS, INC.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent's motive in imposing the restriction was
prompted, at least in part, as an effort to insulate Jones
from contact with other employees in the plant, and
thereby, to that extent, diminish the likelihood of union
solicitation.
C. Events Leading to the Discharge of Calvin Jones
As a byproduct of the manufacture of bumpers, the
Company accumulates scrap metal of various types and
sizes which is stored in a pile outside the plant. The prin-
cipal types of metal which are accumulated in the scrap
pile are "slugs," which are a result of the stamping pro-
cess; draw bars which are 4-inch pieces of metal approxi-
mately 40 inches long and a quarter of an inch thick; and
step plates which are thin metal plates at the top of the
bumper. The Company sells this scrap material to junk
yards in the area through a hauler named Bill Alexander,
who picks up the materials approximately once a week
and is paid a certain stipend for his services in that
regard. President Ray Council estimated that the Compa-
ny receives approximately $15,000 annually from the sale
of the scrap material.
It appears that Calvin Jones is a collector of old, used
scrap materials, and has a pile of the "stuff" in the back-
yard of his home. He testified that during the several
years of his employment with the Company, he did,
from time to time, with the permission of his immediate
supervisors (Wayne Baggett and/or Speedy Shiver), take
some scrap materials from the plant to his home for the
purpose of using them in the construction of certain edi-
fices such as a spiral staircase in his house. He further
testified that the materials were taken on at least 10 occa-
sions during the 2-1/2 years he worked at the plant; that
they were taken openly-not surreptitiously-usually at
the close of his workday which was around the noon
hour. Indeed, the record reflects that on one such occa-
sion Jones was assisted by the operator of the forklift
truck in the plant, and that Wayne Baggett was clearly
aware of the incident because the forklift operator
became stuck in the parking lot where Jones was loading
the materials into the truck of his car. Baggett, on that
occasion, "chewed out" the operator for negligence in
the operation of his machine, but did not criticize Jones.
Other employees testified that they too had, during their
employment with the Company and prior to Jones' dis-
charge, either taken small quantities of scrap materials
from the plant or utilized such materials at the plant in
making small items for their personal use such as and-
irons or flower pots. It is apparent from the record that,
prior to Jones' discharge, Respondent had no clear cut
policy respecting the removal of small amounts of scrap
material from the plant by employees, and condoned it.
On or about December 8, Jones determined to sell
some of the scrap material which had been accumulated
in his yard.9 Jones testified that he asked fellow employ-
ee Henry Ross to come by his house with his pickup
truck; that Ross did so; whereupon Jones, Ross, and
Jones' son Tony loaded the truck and a van and pro-
" According to Jones' testimony, this was prompted by two consider-
ations: (I) his wife's desire to have some of the material removed from
the yard, and (2) the desire to secure some money due to the approach of
the Christmas season.
ceeded to a nearby junk yard. The record reflects that
Jones was paid $64.60 for 3,230 pounds of steel (paid at a
flat rate of 2 cents per pound). Of this amount, Ross was
paid $15 for the use of his truck, and the Joneses kept
the remainder.
It appears that at the time of the foregoing transaction,
a friend of Bill Alexander (scrap hauler for the Compa-
ny) was in the junk yard and recognized the scrap mate-
rial as being from Hercules. He so informed Alexander
who, in turn, on December 12, reported the same to Ray
Council. Council testified that he told Alexander that if
the material was sold by any one except him (Alexan-
der), it was taken without permission. Accordingly,
Council went by the junk yard that afternoon and spoke
with its owner, a Mr. Dawkins. Dawkins confirmed that
on December 8 he had paid Calvin Jones $64.60 for
some scrap material. Dawkins also advised that Jones
was accompained by two other persons. Council then
telephoned the sheriffs department in the county, report-
ed the incident, and stated that he would like "an investi-
gation of the theft." The following morning an investiga-
tor of the sheriff's department (Williams) contacted
Council and, after investigation, apparently confirmed
the information that Jones had sold some of the scrap
material from Hercules to the junk dealer.'0 Williams
asked Ray Council what he wanted to do, and Council
responded as follows:
I said, well, it's an obvious case to me of theft, be-
cause nobody is supposed to have that material
except Mr. Bill Alexander. So, he said, do you want
to swear out a warrant; and, I said, yes, sir, I do.
Accordingly, on December 13, Ray Council swore out
a warrant for the arrest of Calvin Jones on account of
theft. Jones testified that when he went home from work
on December 13 at or about 12:20 p.m., the sheriff was
waiting for him there with the warrant. Jones was obvi-
ously surprised, stating to the sheriff that "you got to be
kidding, I got a bunch of it still out in my back yard,
they give me this scrap metal." However, the sheriff in-
dicated that Council had sworn out the warrant and that
he was required to take Jones into his office where he
could post bond, which was done. "
The following morning, December 14, Calvin Jones
reported to work at the usual time, 5 a.m. However, he
was met by Baggett who had his paycheck and gave it
to Jones stating, "you were expecting that, weren't you";
Jones acknowledged that he was. However, Jones pro-
tested his innocence at the time and told Baggett that he
did not steal anything and Baggett knew it. Baggett re-
sponded that he would see Jones in court and asked
Jones to leave the premises.
Analysis and Concluding Findings
In N.L.R.B. v. Standard Container Company,'2 the
United States Court of Appeals for the Fifth Circuit
stated the rule in an 8(a)(3) case to be that once a prima
'O Testimony of Ray Council; no person from the sheriff's department
testified at the hearing.
' The criminal proceeding was still pending in the state court at the
time of the hearing herein.
'2 428 F.2d 793 (1970).
HERCULES BUMPERS, INC. 1051
facie case of possible discrimination has been established
by the General Counsel, the company has the burden of
coming forward with an adequate explanation for the
discharge (citing N.L.R.B. v. Great Dane Trailers, Inc.,
388 U.S. 26 (1967). In the case at bar, the General Coun-
sel proved a prima facie case of discrimination by show-
ing that Calvin Jones, an acknowledged productive and
competent employee, was known to be a leader in the
union campaign which the Company opposed, and was
shortly thereafter restricted to his work area and termi-
nated under circumstances which may properly be
viewed as suspicious. To be sure, theft of company mate-
rials by an employee would provide a clearly legitimate
reason for the discharge of that employee. However, the
question to be resolved is whether such was the "real
motive," 3 or merely a pretext to becloud the Employ-
er's true purpose. Stated another way, the issue is wheth-
er Jones would have been discharged, in the circum-
stances in this case, but for his union activities.' 4 I am
convinced, for the reasons set forth below, that he would
not.
We start out with the acknowledged fact that Jones, a
relatively long term employee with the Company, was
regarded as a competent, industrious, and productive
worker, with leadership qualities. Indeed, the Company
only recently recognized these attributes when it offered
him, on two occasions, a supervisory position. It is not
likely that a prudent business man would quickly rid
himself of such an employee. 5 Secondly, as set forth,
above the record establishes that employees, not infre-
quently, removed small quantities of scrap material from
the Company's premises with apparent permission and
condonation of Respondent. At no time prior to the
advent of the union campaign were such practices criti-
cized or viewed as occasions for discipline by Respon-
dent.'6 Calvin Jones' activities in this regard were open
and notorious both with respect to the removal of such
items from the plant as well as the storage of the items in
a stockpile in his backyard. At no time prior to his ac-
tivities on behalf of the Union did Respondent intimate
that such conduct was wrongful or unlawful. That Jones
did not so regard them is indicated by the surprise which
he expressed on December 13 when the sheriff showed
him the warrant for his arrest.
Most significant in my view, as indicative of a dis-
criminatory intent, is the manner in which Ray Council
seized upon the incident as providing an excuse for the
summary discharge of Jones. Thus, after learning from
Alexander of the sale of the materials, and finding out
the name of the employee involved from the junk dealer,
Ray Council immediately contacted the police officers
and swore out the warrant without bothering to first
13 The Radio Officers' Union of the Commercial Telegraphers Union,
AFL, A. H. Bull Steamship Companyl v. NL.R.B., 347 U.S. 17, 43
(1954).
'' Sweeney & Company. Inc. v. .L.R.B.. 437 F.2d 1127, 1133 (5th Cir
1971).
t As the Court of Appeals for the District of Columbia Circuit put it
in a slightly different context: "Such action on the part of an employer is
not natural." E. Anthony & Sons v. N.L.R.B., 163 F.2d 22, 26-27 (1947).
1s It is noteworthy that, following Jones' discharge, Respondent pro-
mulgated a definitive rule requiring written permission from a supervisor
prior to removal by an employee of scrap material from the plant
contact Jones and hear his side of the story. 7 This has
been held to be evidence of discriminatory intent. 8
In sum, I am convinced, based upon a consideration of
all the evidence in the record, that had it not been for
Calvin Jones' preeminence in the union campaign, which
Ray Council clearly opposed, the latter would have
reacted quite differently upon learning of the December
8 incident involving Jones. I believe it to be a reasonable
inference that Ray Council would not have discharged
him had it not been for such union activities. L9 Accord-
ingly, I conclude and find the discharge of Calvin Jones
on December 14, to be discriminatory and in violation of
Section 8(a)(3) of the Act. 20
II1. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occuring
in connection with the interstate operations of Respon-
dent, 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 ob-
structing commerce and the free flow thereof.
Upon the basis of the foregoing findings of fact, and
upon the record as a whole, I make the following:
CONCLUSIONS OF LAW
1. Hercules Bumpers, Inc., Respondent herein, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Automobile, Aerospace & Agricultural Im-
plement Workers of America (UAW), is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By discriminating against an employee in order to
discourage union membership among its employees, Re-
i7 There is nothing in the record to indicate that Jones had any previ-
ous history of criminal conduct.
18 See N..L.R.B. v. Standard Container Company, supra, see also United
States Rubber Company v. N.LRB., 384 F.2d 602, 662 (5th Cir. 1967),
where the court stated:
Perhaps most damning is the fact that both [discriminatees] were
summarily discharged after reports of their misconduct . without
being given any opportunity to explain or give their versions of the
incidents.
I note, in this regard, Ray Council's testimony that he took the trouble to
ascertain from his supervisory personnel whether they gave Jones permis-
sion to take the material and apparently received a negative response.
However, as indicated, he admittedly did not question Jones on this
point. Moreover, Ray Council interviewed Henry Ross to ascertain what
part he played in the incident and learned that Jones had simply utilized
his truck for a fee Thus, if the sole purpose of Ray Council in disciplin-
ing Calvin Jones was for engaging in a theft, one would suppose that he
would have also meted out some disciplinary action to Ross and Tony
Jones, who were admitted accessories.
9 As the United States Court of Appeals for the Ninth Circuit stated
in Shattuck Denn Mining Corporation (Iron King Branch) v N.L.R.B., 362
F.2d 466, 470 (9th Cir. 1966):
If he [the trier of the fact] finds that the stated motive for a dis-
charge 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 the in-
stant case, the surrounding facts tend to reinforce that inference
20 See, e.g., L.R.B. v. Hanes Hosiery Division, Hanes Corporation. 413
F.2d 457, 458 (4th Cir 1969), where the court stated:
And if a desire to stifle protected activity is a factor in the employer's
decision, the discharge is discriminatory.
HERCULES BUMPERS, INC.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that 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 Respondent discriminated against
Calvin A. Jones by placing certain restrictions upon him
during his employment, and by terminating his employ-
ment because he engaged in union and concerted activi-
ties protected by the Act, I will recommend that Re-
spondent be ordered to offer him immediate reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniorty or other rights and
privileges, and make him whole for any loss of earnings
he may have suffered by reason of the discrimination
against him. Any backpay found to be due shall be com-
puted in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977). 21
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 22
The Respondent, Hercules Bumpers, Inc., Pelham,
Georgia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discriminating against employees in regard to hire
or tenure of employment of any term or condition of em-
ployment in order to discourage membership in United
Automobile, Aerospace & Agricultural Implement
Workers of America (UAW), or any other labor organi-
zation.
2' See, generally, Ivis Plumbing & Ilealng Co., 138 NLRB 716 (1962).
22 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.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
right to self-organization, to form labor organizations, to
join or assist the above-named Union, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities.23
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Calvin A. Jones immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him in the manner
set forth in the section of this Decision entitled "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, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(c) Post at its Pelham, Georgia, plant, copies of the at-
tached notice marked "Appendix." 24 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by the Company's au-
thorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the said Regional Director, in writing,
within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
2': In my view, the record herein is devoid of any facts which require
a broader remedy See, e.g., lickmotrr Foods. Inc., 242 NLRB No. 177,
101 L.RRM 1342 (June 21, 1979).
24 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."