Woody's Truck Stops

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 705 (N.L.R.B. 1981)

WOODY'S TRUCK STOPS
Truck Stations, Inc., d/b/a Woody's Truck Stops
and International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 28-CA-
5517
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On July 28, 1980, Administrative Law Judge
James T. Barker issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in response to the General
Counsel's exceptions.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order, as modified herein.
The complaint alleges that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
the Union's principal employee organizer, Danny
Parsons, and fellow union supporter William Garri-
son and that certain statements by Respondent vio-
lated Section 8(a)(1) of the Act. The Administra-
tive Law Judge found that the discharges were
lawful, but that certain statements made by then-
Supervisor Joyce Williams violated Section 8(a)(1).
He did not find that other statements made by Re-
spondent's officials violated Section 8(a)(1).
However, we find merit in the General Counsel's
exceptions to the Administrative Law Judge's fail-
ure to find that additional statements made by Re-
spondent's general manager and vice president,
Bud Lake, and by Supervisor Shirley Miller, vio-
lated the Act, as well as his failure to find that the
record establishes Respondent's union animus.
On October 1, 1979,2 Bud Lake issued a repri-
mand to a former supervisor, Joyce Williams, who
then occupied the bargaining unit position of cash-
ier. At the time of the reprimand, however, Lake
told Williams not to worry about it and that he
was also issuing a warning to Marie Ellis, a
I We correct the following inadvertent errors of the Administrative
Law Judge. At sec. 111, BI par. 2, of his Decision, we note that it was
employee Parsons, not Williams, who went on vacation. We also note
that employee Garrison aided Parsons in substantially all of Parsons' or-
ganizing efforts. We also note that employee Daugherty learned of the
circumstances of Parsons' unauthorized repair of the wheelstuds from
Parsons himself rather than from other employees.
2 All dates are 1979 unless notified otherwise.
member of the bargaining unit. Lake futher ex-
plained to Williams that Ellis was "in the union"
while Williams was not, and that he was issuing the
warning notice to Williams to avoid the appear-
ance of harassment. In declining to find that Lake's
statement violated the Act, the Administrative Law
Judge reasoned that the warning to Ellis was not
necessarily discriminatory; that Lake may have
issued the warning to Williams only because the
warning to Ellis may have been "misconstrued" in
view of the issuance of the instant complaint 2 days
earlier; and that Lake may have acted out of
friendship towards Williams in telling her of his
motive.
In judging whether a statement violates Section
8(a)(1), the Board assesses the tendency of the
statement to coerce or restrain employees in the ex-
ercise of Section 7 rights. Here, Lake's statements
to Williams could reasonably be construed by Wil-
liams as evidencing Respondent's willingness both
to retaliate against employees for their selection of
the Union as their bargaining representative and to
engage in subterfuge to avoid legal scrutiny of its
actions. Because Williams was a unit employee
when this statement was made to her, we therefore
find that the statement violated Section 8(a)(1).
Similarly, we find that repeated statements by
Supervisor Shirley Miller to employees, including
Parsons and Garrison, that Parsons and Garrison
had been discharged for their union activities also
violated the Act.4 The credited testimony shows
that when Parsons and Garrison returned to Re-
spondent shortly after their discharge to claim their
paychecks, both spoke with Miller and accused her
of being responsible for their terminations. She
denied their accusation. Parsons also asked Miller if
she thought that he was fired for his union activity.
Miller stated that she did. Later in the day, another
employee, who had been present during the first
conversation, approached Miller with the question
again. Miller repeated her affirmative answer. Ap-
proximately I week later, Miller told another em-
ployee that Parsons and Garrison were fired be-
cause of their union activities.
We agree with the Administrative Law Judge
that Miller's statements do not establish that Par-
' The Administrative Law Judge also declined to find that Lake's
statement violated Sec. 8(a)I) because the statement was not alleged in
the original complaint or the complaint as amended at the hearing. How-
ever, this statement to Williams, as well as others made by Respondent.
was fully litigated at the hearing, and it was presented by the General
Counsel as an integral part of her attempt to show that Respondent's dis-
charge of Parsons and Garrison violated Sec. 8(aX3) of the Act. We
therefore find it proper to consider the legality of this statement.
While the Administrative Law Judge set forth the testimonyinvolved
in this issue, he did not pass on the legality of Miller's statements. For the
reasons set out at fn. 3, above, we find that this issue was fully litigated
and that we may decide it
258 NLRB No. 94
705
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sons and Garrison were, in fact, discharged because
of their union activities. However, we find that
Miller's repetitive statements that this was the
reason, in light of her status as a supervisor and the
consequent tendency of employees to believe that
the statements resulted from special knowledge of
Respondent's reason for firing Parsons and Garri-
son, violated Section 8(a)(1).
We also find that the record clearly demon-
strates Respondent's union animus. In addition to
the statements which we have found violated Sec-
tion 8(a)(1), several statements by Joyce Williams,
which the Administrative Law Judge found violat-
ed the Act, also lead us to this conclusion. Thus, in
late June, Williams, who was then assistant man-
ager, told employee John See that shift hours
would be shortened and that pay might conse-
quently be reduced if the Union won the election.
She also stated that she would terminate employees
if union activities continued. In early July, Wil-
liams told Parsons that, if she were Bud Lake, she
would fire him for "starting trouble." In dismissing
these statements as a basis for concluding that Re-
spondent harbored union animus, the Administra-
tive Law Judge also ignored the additional evi-
dence that Williams had frequent discussions with
Lake about employee organizing efforts at Re-
spondent during which both expressed mutual op-
position to the Union. While we agree with the
Administrative Law Judge that Williams' threats
are not sufficient to demonstrate that Respondent
actually was willing to terminate employees Par-
sons and Garrison for their union activity, we find
that these statements, both alone and in the context
of other statements which we have found were co-
ercive and showed opposition to employees' orga-
nizing efforts, clearly demonstrate Respondent's
union animus. 5 However, union animus notwith-
standing, we affirm the Adminstrative Law Judge's
conclusion, based in part on credibility resolutions,
that the reason Respondent discharged Garrison
and Parsons was not a proscribed one.
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-
5 However, we disavow the Administrative Law Judge's characteriza-
tion at fn. 20 of his Decision of a portion of the General Counsel's argu-
ment in this case Nor do we rely on the Administrative Law Judge's
comments (at "Conclusions," pars 9 and 11 of his Decision) concerning
Lake's comments about a "revote."
In view of our conclusion that Respondent's union animus is insuffi-
cient to establish that the discharge of Parsons and Garrison was unlaw-
ful, we find it unnecessary to discuss the legality of certain statements
made by Respondent which the General Counsel has not specifically al-
leged nor argued violated Sec. 8(a)(1).
fled below, and hereby orders that the Respondent,
Truck Stations, Inc., d/b/a Woody's Truck Stops,
Tijeras, New Mexico, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
i. Add the following after paragraph (c):
"(d) Telling employees they are being disciplined
to avoid the appearance of harassing bargaining
unit members.
"(e) Telling employees that employees have been
discharged for engaging in union activities.
"(f) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their Section 7 rights."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT threaten our employees with
termination if they continue their union activi-
ties.
WE WILL NOT inform our employees that
the leaders of the union organizing effort
would be terminated for "starting trouble."
WE WILL NOT threaten a reduction in shift
hours and inform our employees that their
income might be reduced if they select a union
to represent them.
WE WILL NOT tell employees they are being
disciplined to avoid the appearance of harass-
ing bargaining unit members.
WE WILL NOT tell employees that employ-
ees have been discharged for engaging in
union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights protected under
Section 7 of the National Labor Relations Act,
as amended.
TRUCK STATIONS, INC., D/B/A
WOODY'S TRUCK STOPS
706
WOODY'S TRUCK STOPS
III. THE ALLEGED UNFAIR LABOR PRACTICES
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This
case was heard before me at Albuquerque, New Mexico,
on March 11, 1980, pursuant to a complaint and notice of
hearing issued on October 17, 1979, by the Regional Di-
rector of the National Labor Relations Board for Region
28.' The complaint, as amended at the hearing, is based
on a charge filed by International Association of Machin-
ists and Aerospace Workers, AFL-CIO, herein called
the Union, on September 18. The complaint, as amended,
alleges violations of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended, hereinafter
called the Act. The parties were provided full opportuni-
ty to make opening and closing statements, to examine
and cross-examine witnesses, to introduce relevant evi-
dence, and to file briefs with me. Counsel for the Gener-
al Counsel made an opening statement and briefs were
timely filed with me.2
Upon the basis of the entire record, my observation of
the witnesses, and the briefs of the parties, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent has been a
corporation organized under the laws of the State of
Texas, and at its office and place of business in Tijeras,
New Mexico, has been engaged in the business of selling
gasoline, diesel fuel, and related tractor and trailer truck
supplies.
During the 12-month period immediately preceding
the issuance of the complaint herein, Respondent, in the
normal course of its business operations, had a gross
volume of business which was in excess of $500,000, and
purchased goods and materials valued in excess of
$50,000 which were transported in interstate commerce
and delivered to Respondent's place of business in the
State of New Mexico directly from suppliers located in
States of the United States other than the State of New
Mexico.
It is admitted, and I find, upon the basis of the forego-
ing findings of fact that, at all times material herein, Re-
spondent has been an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, that at all times ma-
terial herein, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
' Unless otherwise specified, all dated herein refer to the calendar year
1979.
' Errors in the transcript are hereby noted and corrected A written
stipulation of the parties with respect to the August 21. 1979. court ap-
pearance of E. L. Lake on behalf of Danny W. Parsons is hereby re-
ceived in evidence as AL.J Exh 2.
A. The Issues
The principal issues in this proceeding are whether (I)
the termination of Danny Parsons and William Garrison
violated Section 8(a)(3) and (1) of the Act, and (2)
whether Respondent threatened employees with termina-
tion and loss of wages and hours of employment because
of their activities on behalf of the Union. Respondent
denies the commission of any unfair labor practices and
contends affirmatively that Parsons and Garrison were
terminated for appropriating money received from cus-
tomers for labor performed and belonging to Respondent
for services rendered by its employees. The General
Counsel contends that the funds in question were tips
which the employees were free to keep.
B. Pertinent Facts
1. Background facts
The truckstop facility of Respondent pertinent to the
instant proceeding is located approximately 20 miles east
of Albuquerque and consists of fuel isles, a motel, and a
cafe. Approximately 13 employees are employed on two
I-hour shifts, and fuel attendants and cashiers comprise
the principal rank-and-file job categories. General man-
agement of the operation is under the direction of E. L.
"Bud" Lake, who is also a vice president and secretary-
treasurer of the Respondent Company which assumed
operation of the truckstop in January 1978. L. A. Carl-
ton served as general manager of the operation at times
pertinent herein. Joyce Williams was assistant manager
until August 20, at which time she resigned to assume
the position of cashier, a rank-and-file position in which
she had previously served. Shirley Miller became assist-
ant manager on September 13.
Prior to June 1979, in the spring or early summer,
Danny Parsons contacted the Teamsters and received
material, including authorization cards, which he distrib-
uted to employees. Parsons also spoke to employees con-
cerning union representation. Williams went on vacation
and did not pursue the organizing effort through the
Teamsters. After returning from vacation, Parsons con-
tacted the Machinists and received authorization cards
and booklets which he distributed to the employees.
Meetings with union representatives were also arranged
by Parsons. William Garrison assisted Parsons in some of
these activities. In due course, a petition was filed in
Case 28-RC-3689 and, on August 28, an election was
held in which the Union received a unanimous vote. The
Union was certified on September 6. On September 11,
the Union dispatched a letter to E. L. Lake requesting a
meeting for the purposes of collective bargaining and,
inter alia, identifying Danny Parsons as the employee
member of the Union's negotiating and bargaining com-
mittee. 3
The foregoing findings are based on ia composite of the credited testi-
mony of E . L.ake. Joyce Williams, A Carlton. Danny Parsons, and
William (iarrison and documentar e idence of record
DECISION
707
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The alleged prescribed conduct
a. The alleged threats
(1) Williams speaks with See
In late June Joyce Williams engaged in a discussion
with John See, a fuel attendant employed on the night
shift. Travis Barnes, a fuel attendant and the husband of
Joyce Williams, was present during the conversation as
was the replacement cashier, a rank-and-file employee.
During the course of the discussion, Williams told See
that he thought the employees were a bunch of crybabies
for contacting the Union, asserting, in substance, that
they should have first spoken directly to management.
She added that they had not had the courage to ask out-
right for what they wanted. Williams stated that there
was a possibility the employees would lose some of their
vacation and possibly lose their hospitalization. She
added that, if they selected a union, the shift hours
would be reduced to 8 and this might result in a reduc-
tion in their income rather than an increase. Williams
stated also that, if they selected a union, there was a pos-
sibility that mandatory overtime would be imposed and
this would require them to work overtime upon request.
Williams asserted that if the employees continued their
union activities she would have to terminate them.
(2) Williams admonishes Parsons
In early July Williams engaged in a heated discussion
with Parsons concerning the organizing effort. Williams
told Parsons that, if she were Lake, she would terminate
the leaders of the organizing effort for "starting trouble."
She characterized these employees as "nothing but a
bunch of freaks."4
b. The terminations
Danny Parsons and William Garrison were employed
as fuel attendants at Respondent's facility on the day
shift. Their hours were 6 a.m. to 6 p.m. Until August 20,
Joyce Williams was employed on the same shift in the
capacity of assistant manager. After August 20, Williams
served on the day shift in the capacity of cashier, a rank-
and-file position. The principal duties of fuel attendants
were to pump fuel and to change and repair tires. They
had no fixed lunch or break times and took them only as
the demands of business permitted. A fee schedule
known by the cashier and posted in the truckstop was in
existence at all pertinent times and encompassed charges
for changing and repairing tires and other miscellaneous
4 The foregoing findings are based on a composite of the credited testi-
mony of Joyce Williams, John See, and Danny Parsons. I have placed
primary reliance on the testimony of Joyce Williams but, in most essen-
tials, the testimony of See and Parsons is corroborative of that of Wil-
liams with respect to the content of the separate conversations which
Williams had with See and Parsons, respectively. However, I credit the
testimony of See to the effect that, when he spoke with Williams, Wil-
liams held up the spectre of termination, as found above. Although in her
account of the conversation with See, Williams did not include any refer-
ences to termination of employees for involvement with the Union. she
was not, by her own accounting, reticent during the course of her con-
versation with Parsons to define termination as a justifiable recourse for
union activities. This consideration, in my view, lends plausibility to See's
attribution, and I credit him.
services, including brakes adjustments, application of
chains, service of air cleaners, charging batteries, check-
ing gear boxes, and greasing trucks and automobiles.
Labor was charged at the rate of $15 per hour under the
posted schedule. Respondent followed a practice of not
normally providing repair services to automobile custom-
ers and accorded priority to diesel rigs. During slow pe-
riods, or when a disabled automobile was impeding ve-
hicular circulation at the truckstop, fuel attendants were
permitted to attend to automobile traffic. Guy Purkiss
was on call to Respondent on pertinent times to perform
diesel mechanic work on rigs, but Purkiss limited his
work to rigs only and did not perform any of the duties
outlined in Respondent's posted pricelist. Purkiss billed
Respondent directly for his labor and was reimbursed for
all parts purchased out of pocket. Purkiss would refuse
to perform repair services for automobile customers. 5
Respondent's management maintained a policy requir-
ing cashiers to collect for all services described in the fee
schedule in accordance with the charges set forth there-
in. Fuel attendants were expected to limit their labor to
the functions set forth in the fee schedule with the ex-
ception that incidental services such as washing truck
windshields, tightening lugs, inflating truck tires, and
changing oil in rigs could also be formed. Fuel atten-
dants were expected to prepare a ticket describing the
work performed, and this ticket would be turned into the
cashier on duty who handled the actual transfer of
money from the customer. Management required that all
money received for fee schedule services go to the cash
register, and to preclude fuel attendants from performing
labor not described in the fee schedule, a labor charge of
$15 per hour is imposed. Under actual practice, manage-
ment would expect only Guy Purkiss, and not fuel atten-
dants, to perform labor other than that described in the
fee schedule.6
Management policy permitted fuel attendants to re-
ceive tips for exceptional service performed over and
above their job responsibilities. The practice of tipping
was common at Respondent's operation, and Joyce Wil-
liams was aware of the practice in her position as assist-
ant manager. Lake knew the practice was followed and
did not object so long as the "tip" was not an extraction
from money received for services defined on the fee
schedule.7
On September 17 Parsons and Garrison were terminat-
ed. Lake testified, in substance, that he terminated Par-
5 The foregoing findings are based on testimony which is essentially
undisputed. I have predicated my findings primarily on the testimony of
Joyce Williams and documentary evidence of record. I have also consid-
ered the testimony of L. A. Carlton, E. L. Lake, Danny Parsons, and
William Garrison. Although Parsons could not remember seeing the pri-
celist posted, I find, on the total record, that the pricelist which became
effective on July 23, 1979. was posted in the truckstop when the events
pertinent to the termination of Parsons and Garrison transpired.
6 The credited testimony of E. L. Lake, L. A. Carlton, and Joyce Wil-
liams establishes the foregoing. I have also considered the testimony of
John Daugherty in this connection.
' The credited testimony of E. L Lake establishes the foregoing. The
record testimony, generally, fully supports a conclusion that tips were re-
ceived on a frequent basis by fuel attendants during the course of their
duties. The credited testimony of Joyce Williams establishes her aware-
ness of this practice. I do not credit testimony of L. A. Carlton insofar as
it may suggest that the receipt of tips was not an ingrained practice.
708
WOODY'S TRUCK STOPS
sons and Garrison because they had not accounted for
money which they had received for performing repair
services during working hours, and which should have
been remitted directly to the cashier. Lake based his
action on reports of two separate incidents which had
been called to his attention.
In August 1979 a yellow underground cable company
truck pulled into the truckstop at approximately 11:30
a.m. while Parsons, Garrison, and Daugherty were on
duty. The driver of the truck requested that two tires
mounted on the truck be repaired. Parsons proceeded to
repair the tires. In the course of doing so, it became ap-
parent that the inside studs which secure the tires had
been damaged and needed replacing. The stud work in-
volved a mechanical procedure which is not performed
by fuel attendants. In Garrison's presence the driver
asked Parsons if he could replace the studs and stated
that he would give Parsons $20 for doing so. Parsons
agreed to perform the service and, using his own tools,
completed the work in approximately 30 to 45 minutes.
The driver remitted to the cashier the standard $23
charge for tire repairs and paid $20 directly to Parsons
for the work which he had done in replacing the studs.
Parsons did not account for this money to the cashier
but split the proceeds with Garrison. 8
Subsequently, on September 13 the driver of a Winne-
bago driven by a German pulled into the tirechanging
area of the truckstop. The Winnebago was overheating,
and the driver spoke with Williams, Parsons, and Garri-
son. He had difficultly in communicating his needs be-
cause he spoke with a thick accent and was not profi-
cient in the English language. He communicated to Wil-
liams a request for the assistance of a mechanic, and she
responded that no mechanic was on duty. The Winne-
bago was essentially immobile, and it was determined
that the fan belt had to be replaced. This was a mechani-
cal procedure not normally performed by fuel attendants.
It was agreed that Parsons would change the fan belt.
Williams placed a telephone call to Daugherty who was
at the suppliers and directed him to obtain a fan belt for
the Winnebago. Daugherty delivered the fan belt and
Parsons installed it in the Winnebago. A remittance was
made by the driver of the Winnebago for the cost of the
fan belt but no labor charges were remitted to the cash-
ier. The driver paid Parsons $5 for replacing the fan belt,
and Parsons split the money with Garrison. No portion
of this money was paid Respondent. 9
A few days later, Daugherty initiated a meeting with
Lake. He disclosed to Lake information pertaining to the
Winnebago and the yellow truck incidents. As a result,
Lake checked the shift reports which revealed only that
a $23 charge had been assessed against the underground
' The foregoing is based upon a careful consideration of the testimony
of Danny Parsons. I credit the testimony of William Garrison only to the
extent that it is consistent with the foregoing. Specifically, upon an evalu-
ation of Parsons' testimony both on direct and cross-examination relating
to the conversation which he had with the driver of the yellow truck
concerning the replacement of the studs, I find, contrary to the testimony
of Garrison, that no conversation transpired with respect to obtaining the
services of a mechanic to perform the work of replacing the studs.
9 The credited testimony of Danny Parsons. Joyce Williams. and Wil-
liam Garrison establishes the foregoing. I have also considered the testi-
mony of John Daugherty.
cable company account for changing inside and outside
tires, a procedure integral to the repair of tires. No entry
had been made relating to the Winnebago. Information
conveyed to Lake by Daugherty had led Lake to believe
that Parsons and Garrison had received $20 in connec-
tion with the underground cable company work and $5
for services performed on the Winnebago. He consulted
with Carlton, and they reached a decision to meet with
Garrison and Parsons. Prior to the meeting, Lake con-
tacted Carter, representative of the Union. He informed
Carter of his intention to meet with Garrison and Par-
sons, and outlined the nature of the intended meeting. He
told Carter also that the meeting might result in the ter-
mination of Garrison and Parsons. Carter told Lake he
would attend the meeting but requested Lake to delay
the meeting in order to permit him to attend.
Lake and Carlton proceeded to meet with Garrison
before Carter arrived. They called Garrison to the office,
and at the outset Lake asked Garrison about the Winne-
bago. Garrison explained the circumstances under which
the repairs to the Winnebago were made. He stated that
Parsons had performed the installation of the fan belt
while he, Garrison, manned the service isles. Garrison
stated that the installation of the fan belt required ap-
proximately 5 minutes. He admitted that Parsons was
paid $5 for installing the fan belt and that Parsons had
given him $2.50. Lake then focused his attention on the
repair of the cable company truck, and Garrison ac-
knowledged that work had been performed after Parsons
negotiated with the driver prior to performing the re-
pairs. Garrison confirmed that $20 had been paid to Par-
sons for the work, and Parsons had split the money with
him. Garrison offered to return the $25, and Lake re-
sponded that he did not want the money at that time.
Thereupon, Carlton left the meeting and directed Par-
sons to go to the office for the purpose of meeting with
Lake. Carlton remained outside. Parsons went to Lake's
office and met with Lake. Garrison was also present.
Lake told Parsons that he wished to speak to him con-
cerning the $5 charge for the Winnebago. Parsons re-
sponded that he did not remember such a charge, and
Garrison jogged Parsons' memory, referring to the na-
tionality of the driver. Lake then asked Parsons about
the $20 payment received for work performed on a
truck. Again, Parsons asserted that he had no recollec-
tion of such a payment. Garrison interjected, identifying
the truck as an underground cable company truck. Par-
sons then stated that he did recall the incident and had
performed the work on his lunch hour. Lake responded
that fuel attendants were accorded no formal lunch hour
but were paid for a 12-hour shift and were expected to
take their breaks and their lunch as the flow of work
permitted. Parsons answered that the money which he
received had been a tip. Lake disputed this and asserted
that they had pocketed labor dollars which were right-
fully those of the Company and he would not tolerate it.
Parsons asked if this meant they were being terminated,
and Lake asked Garrison if he had been led into this.
Garrison answered in the negative, and Lake stated that
he had no alternative but to terminate both of them. He
709
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
added that he had contacted Jack Carter who was on his
way over, and he would speak to Carter. °
Carter soon arrived, and he met with Lake, Parsons,
and Garrison in Lake's office. Carter asked Lake to re-
consider his decision and put Parsons and Garrison back
to work. Lake responded that he could not because he
considered their action in receiving the money to consti-
tute a "theft of service." As the meeting was in progress,
Lake twice approached Williams as she worked at the
cash register in the outer office and asked her if she con-
doned employees pocketing money. On both occasions,
Williams answered in the negative. She stated on the
second occasion that she had no knowledge that anyone
had done so. Lake then invited Williams to join the
meeting, and she did so. In the presence of Carter, Par-
sons, and Garrison, Lake asked Williams again if she
condoned people pocketing money. She again answered
in the negative. Lake then asked Williams about the Win-
nebago incident involving $5. Williams gave a brief out-
line of the circumstance of that repair and stated that this
was a "different story" from pocketing money. She
stated that this work had been performed by Parsons at a
time when all other work had been accomplished and
the service area was "dead slow." Williams left the meet-
ing after offering this explanation, and Carter asked Lake
if he would consider suspension of Parsons and Garrison
as alternative punishment. Lake stated that he would not
for this "type of offense." Thereupon, Parsons and Garri-
son left the meeting and filled out their timecards. Lake
continued to meet with Carter, and the meeting lasted
for an additional 30 minutes. The decision to terminate
Parsons and Garrison was not amended." Lake told
Garrison he could work something out with him but not
with Parsons. He added that he could not terminate one
of them without terminating both of them. Before Par-
sons left the premises, Carlton asked him if he thought
his termination would lead to a strike called by the
Union. 12
After their termination, Parsons and Garrison returned
to the truckstop to claim their paychecks. They spoke
with Shirley Miller who had assumed the position of as-
sistant manager. Patsy Johnson, a cashier, was present
"o The foregoing is based on a composite of the credited testimony of
E, L. Lake, William Garrison, L. A. Carlton, John Daugherty, and
Danny Parsons. I credit each witness only to the extent their testimony is
consistent with the foregoing findings. Specifically, I credit the testimony
of Lake to the effect that Parsons first indicated a lack of recollection of
the details of the two incidents involved in the interview. I consider
Lake's testimony with respect to this aspect of the interview to be entire-
ly credible and I find no refutation in the testimony of either Garrison or
Parsons. In this regard, it must be noted that Parsons' testimony with re-
spect to the content and substance of the interview which he had with
Lake in Garrison's presence was both terse and lacking in detail. In those
incidents wherein Parsons' testimony is in conflict with that of Lake con-
cerning his termination interview, I credit Lake. I find, in accordance
with Garrison's testimony, that during the meeting which Lake and Carl-
ton had with him prior to his termination, inquiry was made into other
facets of Parsons' conduct at the truck stop, but I conclude that this bears
no relevance to the issues implicit in this proceeding.
" The foregoing is based on a composite of the credited testimony of
Joyce Williams, E. L. Lake, Danny Parsons, and William Garrison I
credit the testimony of Williams with respect to her participation in the
meeting. Her testimony was both reliable and unrefuted.
" The undisputed testimony of William Garrison and Danny l'arsons
establishes the foregoing.
during the conversation. In speaking with Miller, Par-
sons and Garrison asserted that it was Miller's fault that
they had lost their job. She denied this, and Parsons
asked Miller if she thought that his termination resulted
from his involvement with the Union. Miller answered in
the affirmative. Later in the day, Johnson again ap-
proached Miller and asked Miller if she did, in fact, think
the reason Parsons and Garrison were terminated was
because of the Union. Again, Miller answered in the af-
firmative. 3 At approximately this same point in time in
the presence of Joni Rydecki, a cashier, Miller again ex-
pressed the opinion that the union activities of Parsons
and Garrison were "really the reason" they were termi-
nated. Earlier, Carlton had told Rydecki that Parsons
and Garrison had been laid off and subsequently expand-
ed on this to say that they had been terminated because
of theft. 4
Lake credibly testified that he has followed a consist-
ent policy of terminating employees who pocket money
other than tips for labor performed on company premises
during working hours. Lake further credibly testified
that, prior to the termination of Parsons and Garrison, he
had terminated one employee for pocketing money. Sub-
sequent to September 17, Lake terminated other employ-
ees for work deficiencies, including an employee who
was terminated for shortages and one who was terminat-
ed for stealing green stamps.
In the meantime, the day following the termination of
Parsons and Garrison, Carlton approached Travis
Barnes, a fuel attendant, and stated that he had informa-
tion to the effect that Barnes had kept road service call
money and tire repair proceeds. Barnes threatened to
leave, protesting the accusation. Carlton quickly recanted
and during the conversation offered Barnes a 25-cent-
per-hour raise and the opportunity to do maintenance
work at the truckstop premises during his day off. Carl-
ton told Barnes that he was one of his best employees
and that he did not have to worry about being terminat-
ed. Barnes credibily testified that he had received tips on
the order of $1 or $2 and defined a tip as money given
by customer "over and above what they have to pay
. . . in exchange for doing something extra fast or put-
ting a little bit more elbow grease in getting their win-
dows perfectly clean." Barnes further credibly testified
that he had never received a tip in the magnitude of
$20. '5
Prior to September 17. Lake knew that Parsons was
"involved" with the Union and was aware that Garrison
" The foregoing is based uponl the credited testimony of Patsy John-
son. I have also considered the testimony of Danny Parsons and William
(Garrison and I credit that testimony only to the extent that it is consist-
ert with Johnson's accounting of the incident I am convinced that Mill-
er's statement on the occasion in question was not as declarative as the
testimony of either Parsotns or Garrison would suggest. I conclude that
Johrlson's testimony with respect to this incident is the most reliable.
" The credited and undisputed testimony of Joni Rydecki supports the
foregoing findings.
" I have colnsidered the testimony of Joyce Williams. the wife of
Travis Barnes, concerning this conversation hetweel arnes and Carltotn
anid I place no reliance onl her teStinony. Barnes testilied that nlo lone lse
was present during the conversationl nd, accordingly, Williams relied n
hearsay reports as the lifoudation for her estoinuony Carltoil did not tes-
tify concerning this conrversation
710
WOODY'S TRUCK STOPS
was close to Parsons, both in terms of work time associ-
ation and as a brother-in-law. Further, Lake and Carlton
were present on the day of the representation election
and observed the employees who cast ballots herein. The
employees voted unanimously for the Union. Lake and
Carlton deny that the termination of either Parsons or
Garrison was predicated upon union considerations.
Lake testified that he was not happy that the employ-
ees had selected the Union. Carlton testified that he ac-
cepted the fact that the Union had been selected.
Prior to August 21, Parsons and John and Raymond
See, employees at the truckstop, had received some traf-
fic citations and a bench warrant was issued. They were
apprehended on the basis of the bench warrant, and Par-
sons and the See brothers were jailed. Lake posted bail
for them and appeared at their trial on August 21 as a
character witness. He testified that they were good em-
ployees and had worked for him a long time. The em-
ployees were released. The following day, Williams
called Lake's attention to the fact that Parsons and Gar-
rison were wearing IAM buttons. Lake retorted, "Damn,
you know, after what I did, I don't believe it."
Lake called Parsons aside 3 or 4 days prior to the elec-
tion and stated that he did not think the Union would
prevail and expressed the opinion that he did not think
the employees were really in favor of the Union. Subse-
quently, after the balloting in the representation election
on August 28, Carlton spoke to Parsons in a raised tone
of voice and with animation said that he hoped Parsons
was happy.
Following the termination of Parsons and Garrison, re-
placements were obtained. The cashier, Patsy Johnson,
overheard Carlton speaking with the new employees.
Carlton told the employees that he felt they should make
certain that the Union was what they wanted. Carlton
suggested that, if they did not want the Union, they
should get in touch with Jack Carter and inquire into a
"revote." Carlton left and the new employees asked
Johnson for Carter's telephone number. Subsequently,
during a discussion of contract matters with Joyce Wil-
liams, Travis Barnes, and another employee, Lake stated
that if the employees thought there was sufficient opposi-
tion to the Union they could take a "revote." Later,
Lake discussed with Williams a warning notice which
had been given another cashier concerning her job per-
formance. He told Williams that she, too, would receive
a warning notice but that she should not worry about it.
Lake added that the other employee was "in the union"
while Williams was not, and he was issuing the warning
notice to Williams to avoid the appearance of harass-
ment. 16
IV. CONCLUSIONS
A. The Terminations
I find, contrary to the General Counsel, that Danny
Parsons and William Garrison were terminated for cause
and not because of their involvement in union or con-
certed activities. I conclude that their termination arose
16 The foregoing findings are based on the credited lestimon of
Danny Parsons, Patsy Johnson Joyce Williams, and Trasis Barnes heir
testimony with respect to the separate incidences is not disputed
solely because they relegated to their own use money re-
ceived or labor performed during working hours and ap-
propriately payable to their employer. This conclusion is
based on the further finding, which I make, that the sums
received by Parsons for his work on the underground
cable truck and the Winnebago were not tips and were
clearly distinguishable in nature and amount from the
voluntary, spontaneous, "exceptional service" remunera-
tion frequently and routinely received by service atten-
dants from customers. I conclude further that the nature
of Respondent's enterprise justifies and dictates a strin-
gent policy for accounting for funds, and liability consid-
erations necessitate a high degree of control over the
performance of skilled repair procedures on company
premises by company employees. The record establishes
a policy on the part of management to circumscribe the
type and complexity of repair work to be performed by
fuel attendants and, in implementation and furtherance of
this restrictive policy, a fixed hourly labor cost prevails,
applicable both to authorized and unauthorized labor.
Practice and prolog at the truckstop had both served to
instruct Parsons and Garrison prior to September 17 that
they were on the clock receiving wages for a full 12
hours during their shift, and that the ebb and flow of
customer traffic accelerated and abated according to no
immutable pattern. They knew also that the nature of the
business was such that they took their breaks and lunch
when customer demand ebbed and not according to a
fixed schedule. The record establishes no precedent or
basis for the assumption, implicit in Parsons' conduct, to
the effect that he was free to contract to perform unau-
thorized repairs during his shift for ultra vires compensa-
tion. It is in this context that Parsons negotiated a $20
stipend for agreeing to change the studs on the wheels
on the cable company truck in August.
In agreeing to perform the repairs, Parsons knew that
the work was not in the category of work he was au-
thorized to perform. He was aware that Respondent did
not possess the tools necessary to accomplish the work.
He knew also that the type of work involved was nor-
mally done by a trained mechanic with whom Respond-
ent had an ongoing arrangement. It may well be that,
from a functional, economy-of-effort point of view, the
procedures involved in replacing the worn wheel studs
were so integrally related to the tire repair task, which
Parsons was called upon to do, as to render prudent a
decision to attend at the same time to the problem of the
worn wheel studs. However, the record accords no
credible basis for concluding that Parsons endeavored to
obtain a mechanic authorized to perform the wheel stud
repair work before agreeing to the $20 stipend for fixing
the studs. Moreover, the record clearly reveals that,
when the entire transaction was completed, the customer
remitted the appropriate charge for the tire repairs to the
cashier, but no accounting was made to the cash register
for the $20 paid Parsons for the repair of the wheel
studs. In my view of the record, this repair was clearly
subject to and encompassed within the hourly labor
charge prescribed by the posted fee schedule and was
subject to remittance in an appropriate amount to the
cashier on duty for cash register deposit. More signifi-
711
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cantly, it was entirely reasonable for Lake and Carlton to
have indulged just such an interpretation and to have
considered Parsons' relegation of funds inappropriate and
impermissible.
The General Counsel stresses the point that the hourly
labor charge was seldom used, conceding, however, that
it had been applied in at least one instance prior to Sep-
tember 17. The infrequency of resort to the charge re-
veals, of course, that the very existence of the charge
had had its intended, restrictive prophylactic effect. In-
terestingly, the General Counsel developed no evidence
revealing that, prior to September 17, Respondent had
acquiesced in the receipt of funds by fuel attendants for
performance of unauthorized repair services of other
than an incidental, insubstantial nature. Moreover, the
General Counsel developed no credible evidence that
management had tolerated receipt of money by fuel at-
tendants for repairs approaching the magnitude of com-
pensation for time expenditure involved in Parsons' un-
dertaking with the underground cable truck. Daugherty's
receipt of $10 for using his own vehicle on a service call
presents no analogy. 17
In sum, I find that the failure of Parsons to follow the
dictates and limitations of established policy concerning
labor charges and performance of unauthorized labor
during shift time, and the involvement of Garrison in re-
ceiving his share of the proceeds generated by Parsons'
duty time replacement of the wheel studs on the under-
ground cable truck, placed both Parsons and Garrison in
violation of a reasonable, established company policy and
practice.
The Winnebago incident involved a similar relegation
of funds and violation of policy. Like the work per-
formed on the underground cable truck, the fan belt
work was not work which fuel attendants were author-
ized to perform. Is However, unlike the underground
cable truck, exigencies permitted Parsons to proceed
with the work in order to clear the tire-changing area of
the disabled vehicle by coming to the aid of the Winne-
bago driver. On the other hand, nothing in practice or
policy permitted Parsons to circumvent the cash register
by keeping for his own use the money paid by the cus-
tomer for the installation of the fan belt. Parsons' self-
serving testimony to the effect that he had installed fan
belts previously and had imposed no labor charge for
doing so does not change things. Initially, there is no evi-
dence to reveal that management knew of this practice,
and Parsons' testimony does not suggest that he received
any remuneration on the magnitude of $5 for performing
this work. On the other hand, the Winnebago incident
was featured by Daugherty's involvement in the acquisi-
tion of the fan belt for installation, and I here find, as a
consequence of his involvement, Daugherty gained in-
sight into the incident which conflicted with his own
precepts of the proprieties of fuel stop practice. I further
" It is parenthetically significant that the devotion of much record tes-
timony on the part of witnesses called by counsel for the General Coun-
sel concerning the receipt of tip money succeeded in developing no clear
analogy to the circumstance involved in the underground cable truck in-
cident.
" Joyce Williams credibly testified that replacing fan belts "wasn't
something that we normally did .. it wasn't a normal procedure.
conclude that, through rumor, Daugherty had learned of
the transaction involving the underground cable truck,
and this combination of information caused him to dis-
cuss both the Winnebago and the cable truck incidents
with Lake. Lake consulted Carlton, and they viewed
Parsons' actions as a theft of service. They so advised
Jack Carter, the union representative, and hinted at ter-
mination. The terminations resulted after interviews, first
with Garrison and then with Parsons.
In my view of the record, the "theft of service" char-
acterization is not an unreasonable one when viewed in
context of the nature of Respondent's operation, with
attendant opportunity for misappropriation of funds re-
quiring integrity in accounting for collections. While
there is much in the record to suggest that the Winne-
bago incident would not, alone, have justified so strin-
gent a disciplinary action as was taken, it seems apparent
that the combination of the two incidents, together with
Parsons' dissembling attitude during the course of his in-
terview, gave rise to the strong managerial action that
did result. Thus, after receiving Daugherty's information,
Lake checked the underground cable accounts and found
no entry for labor services coinciding with the informa-
tion at hand. Likewise, no accounting under appropriate
date had been made for services to the Winnebago. The
intelligence information which led Lake and Carlton to
meet with Garrison proved accurate, with Garrison con-
ceding as much. The subsequent meeting with Parsons
was featured by Parsons' evasive attempts and justifying
protestations, which may well have persuaded, and did
not dissuade, Lake from his conviction that Parsons had
been guilty of a "theft of service." In short, it seems ap-
parent, and I find, that the absence of record entries es-
tablishing cash receipts for the work, together with Gar-
rison's concessions that the labor had been performed
and money had been received, led both Carlton and
Lake to the conclusion that Parsons had acted improper-
ly and had perpetrated a violation of company policy
and truckstop practice that could not be countenanced.
It is apparent, also, that they felt their case to be a strong
one which fell within the ambit of management preroga-
tive requiring no approval from the Union. 9
Against this justification, the General Counsel has mar-
shaled a prima facie case based on an amalgam of frag-
ments and suppositions calculated to show disparate
treatment of Parsons and antiunion hostility on the part
of Lake and Carlton. I find that Respondent's explana-
tion for the termination of Parsons and Garrison prevails
against the General Counsel's prima facie showing, and
the evidence clearly preponderates in favor of a dismissal
herein.
Initially, the General Counsel contends Parsons was
terminated because of his prominent role in the union or-
ganizing campaign and as a designated steward for the
Union, and that Garrison's termination resulted from the
need for Respondent to act consistently in an effort to
"' I credit the testimony of Lake to the effect hat. retrospectively, he
would have gore to arbitration on the matter. but when Lake acted on
September 17. he had no experience in the subtleties and nuances of labor
relations.
712
WOODY'S TRUCK STOPS
cloak its discriminatory motivation. I reject these conten-
tions.
At the outset, it is sufficiently clear from the record
that Lake and Carlton were aware that Parsons favored
the Union, and I invoke the inference that they knew he
was a leading proponent thereof. The employee contin-
gent was small, the workplace compact, the organizing
activities not carefully disguised, and a letter of designa-
tion from the Union had preceded Parsons' termination.
However, support for the Union among the rank-and-file
had been unanimous and, although Lake and Carlton did
not welcome the Union, there is no justification (sepa-
rate, arguendo from Parsons' termination) to suggest that
either Lake or Carlton was so opposed to the Union as
to warrant the assumption they would act aggressively
to remove the Union from the picture. The threats to
employees by Williams, as discussed below, were indeed
attributable legally to Respondent, but her expressions
were her own and not shown to have reflected hostilities
harbored by her superiors in management. That Lake
and Carlton would have preferred to operate without the
interposition of the Union is clear, and Lake openly ex-
pressed a hope for a "revote" by the employees on the
question. The record is noteworthy, however, for the ab-
sence of efforts, overt or subtle, on the part of either
Lake or Carlton to intrude into the selection process
prior to the election, or to complicate materially the
transition into a collective-bargaining relationship after
the election. Fragments of purported expressions by
Lake relating to part-time work, wage income, and con-
tinuity of benefits are more than neutralized, in the sense
of assessing antiunion motivation, by Lake's concern ex-
pressed openly to unit employees that the wage and em-
ployment of the employees be protected in negotiations
with the Union. Again, in assessing the presence or ab-
sence of antiunion motivation, Lake's expression of
dismay that Parsons and the See brothers would display
their IAM badge the day after he had intervened to
assist them in their court proceeding was the spontane-
ous response of an unsophisticated employer harboring
paternalistic attitudes, but was hardly the staff and sub-
stance of antiunionism. To be certain, Lake's remarks
denote a sensitivity on his part to the perceived ingrati-
tude of Parsons and the See brothers, but it is a quantum
jump to the conclusion that this would lead Lake to
search for a pretext for terminating Parsons.
The General Counsel's case finds its greatest support,
in my view, from the coincidence of timing between
Garrison's termination and the receipt of the Union's
letter advising management of Parsons' selection as a
member of the Union's negotiating and bargaining com-
mittee. However, I conclude from the record as a whole
that this information added nothing to the knowledge
which Lake and Carlton already possessed concerning
Parsons' active involvement and interest in the Union.
Moreover, I find no basis in the record for assuming that
the information coming to Lake's attention concerning
the Winnebago and underground cable incidents was the
byproduct of any initiative on Respondent's part. I do
specifically find that Daugherty volunteered the informa-
tion to Respondent without prompting. Further, the un-
disputed evidence reveals that Parsons did perform the
services and receive the remuneration in accordance
with the information conveyed to Lake by Daugherty.
Through a reasonable process of confirmation and inter-
view, Respondent's managing agents concluded that Par-
sons had acted with impropriety in the circumstances
and his termination was justified on basis of sound princi-
ple and policy without regard to the amount of money in-
volved.20 This conclusion on the part of management ap-
pears to this trier of fact to have been a reasonable one,
and it is immaterial that management proceeded with the
terminations without awaiting the acquiescence or ratifi-
cation of the Union. Because Garrison was allied with
Parsons in these episodes, management considered itself
compelled to assess the same quantum of discipline to
each. The wisdom of propriety of this is not a matter for
proper scrutiny in a context, as here, wherein no legally
improper motive is involved. Lake's expression of a
desire to treat Garrison differently from Parsons, over-
come by his perception that he could not terminate one
of them without terminating the other, is not, as the
General Counsel contends, indicative of hostility toward
Parsons as a principal union proponent. Rather, in my
view, it constituted nothing more than a recognition on
Lake's part that Garrison's role in the "theft of service"
had been a passive one but none the less clearly allied to
Parsons' impermissible activity.
I conclude that the "theft of service" consideration
was the sole motivating factor leading to the termination
of Parsons and Garrison and that this motive did not co-
exist with any discriminatory motive grounded in the
union or concerted activities of either Parsons or Garri-
son. I further conclude that, absent any involvement in
union or protected concerted activities, Respondent
would have effectuated the termination of Parsons and
Garrison, as found. I closely observed the demeanor of
Lake and of Carlton as they appeared before me at the
hearing and neither impressed me as being vindictive by
nature or aggressively inclined. The impression that did
result was of fair, firm, somewhat paternalistic managers
who enjoyed a good rapport with the employees with
whom they worked in a relationship approaching a peer
involvement. These impressions on the part of this trier
of fact who, alone in the decisional process, has heard
and observed the witness, have contributed to the find-
ings and conclusions reached. In suggesting to some em-
ployees the possibility of a revote Lake was proceeding
from a naive misapprehension of the dichotomy which
the law imposes between supervision and the rank-and-
file, and from a further belief that the long-term wage
and benefits interests of employees could best be protect-
ed free from the perceived limitations resulting from
union standards. Nothing, however, suggests that in
order to maintain existing terms of employment Lake
would terminate employees instrumental in bringing the
Union in. I find that, in terminating Parsons and Garri-
20 In my view. contemporary ethical standards have not become so
amorphous and the right to manage so ephemeral as to validate the Gen-
eral Counsel's contention that Respondent was "in no way harmed" by
the relegation of funds because. in any event, had Purkiss, Respondent's
independent contractor performed the service. Respondent would have
received no proceeds
713
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son, Lake and Carlton acted out of ethical conviction
and not recrimination.
Moreover, I find no validity in the General Counsel's
contention that the verbal speculation of Shirley Miller
to employees following the termination of Parsons and
Garrison as to the existence of a union-based motive on
the part of management in effectuating the terminations
is probative in any manner of the actual existence of such
a motive. The credited version of Miller's actual com-
ments shows that she was engaging in pure speculation
evolving from no authoritative source or basis. Indeed,
her comments were cast in terms of mere speculation
and, as such, could not reasonably be viewed as having a
coercive or threatening effect.
B. The Threats
On the other hand, I find, in agreement with the Gen-
eral Counsel, that the statement of Joyce Williams to
John See in late June, threatening termination if the em-
ployees continued their union activities and a reduction
in shift hours if the Union were selected by the employ-
ees, violated Section 8(a)(1) of the Act. Moreover, I con-
clude also that Williams similarly violated Section 8(a)(l)
of the act in telling Parsons in early July that, if she
were Lake, she would terminate the leaders of the orga-
nizing effort for "starting trouble." At the time of these
utterances, Williams served in the capacity of assistant
manager and, as such, her remarks were legally attributa-
ble to Respondent, even though they were clearly pro-
jections of her own potential action and concepts and
not reflections of the likely conduct of either Lake or
Carlton.
However, I specifically reject the contention of the
counsel for the General Counsel, raised initially in her
pretrial brief, that conduct violative of Section 8(a)(1) of
the Act derives from Lake's advisory to Joyce Williams
on October 1 that he had on that date issued a warning
notice to Williams, whom Lake perceived to be "not in
the union," in order to avoid the appearance of harass-
ment based on the issuance of a warning notice just
issued to Marie Ellis, a member of the bargaining unit.
The record establishes that on October 19, 1979, Ellis
was terminated for misconduct, thus diluting the infer-
ence articulated in the brief of counsel for the General
Counsel that the October I warning notice to Ellis was
somehow tainted and that Lake's considerate treatment
of Williams disclosed a willingness on Lake's part to
engage "in devious conduct to work [his] retaliation
against the Union." Lake may have acted through per-
sonal friendship to Williams and because he felt that in
view of the complaint herein, which had issued just 2
days earlier, his actions in issuing a warning to a unit em-
ployee might be misconstrued, but it does not disclose
"retaliation against the Union," or a willingness to so act.
But beyond this, counsel for the General Counsel did not
allege in the complaint this statement by Lake to have
constituted a violation of Section 8(a)(l) of the Act and
no request was made during the course of the hearing to
amend the complaint to encompass this conduct. In the
total circumstance of record, I decline to find a violation
of Section 8(a)(1) of the Act arising from this statement.
Cf. Victor Miceli and Sam Miceli d/b/a Riverside Produce
Company, 242 NLRB 615 (1979); Kux Manufacturing
Corporation and Continental Marketing Corporation: a
joint employer, 233 NLRB 317 (1977).
Upon the foregoing findings of fact, and upon the
entire record in this proceeding, I make the following:
CONCI.USIONS OF LAW
1. Truck Stations, Inc., d/b/a Woody's Truck Stops, is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By threatening employees with termination if they
continued their union activities; by informing employees
that the leaders of the organizing effort would be termi-
nated for starting trouble; and by threatening a reduction
in shift hours and a possible reduction in income to result
from the selection of the Union by the employees, Re-
spondent engaged in conduct in violation of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
5. Respondent did not engage in conduct in violation
of Section 8(a)(3) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, I
hereby issue the following recommended:
ORDER 21
The Respondent, Truck Stations, Inc., d/b/a Woody's
Truck Stops, Tijeras, New Mexico, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to terminate employees if they contin-
ue their union activities.
(b) Threatening to terminate the leaders of the orga-
nizing effort for "starting trouble."
(c) Threatening a reduction in shift hours which might
result in a reduction of income, resulting from the selec-
tion of a bargaining representative by employees.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Post at its Tijeras, New Mexico, truckstop and
place of business copies of the attached notice marked
21 In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board. tile
findings, conclusions, and recommenlded Order herein shall, as provided
in Sec 102.48 of the Rules and Rcgulation,s, he adopted h) the Board and
become its findings. conclusions. and Order. and all objections thereto
shall he deemed waived for all purposcs
714
WOODY'S TRUCK STOPS
"Appendix. 2"' Copies of said notice, on forms provided
by the Regional Director for Region 28, after being duly
signed by Respondent's authorized representative, shall
be posted by Respondent immediately upon receipt
22 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."
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
715