Great Dane Trailers, Inc.

GREAT DANE TRAILERS, INC. 537 If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, P.O. Box 11007, Fernandez Juncos Station , Santurce, Puerto Rico 00910, Telephone 724-7171. Great Dane Trailers, Inc. and Truck Drivers and Helpers Local Union No. 728. Case 10-CA-6203. June 16,1966 DECISION AND ORDER On March 9, 1966, Trial Examiner Robert Cohn issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. There- after the General Counsel and the Respondent filed exceptions to certain portions of the Trial Examiner's Decision and the General Counsel filed a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and finds merit in certain exceptions of the Gen- eral Counsel. Accordingly, the Board adopts the findings, conclu- sions, and recommendations of the Trial Examiner, with the modi- fication noted hereafter. 1. We find merit in the General Counsel's assertion that the Trial Examiner erred when he failed to find that Randall Thompson was discharged by the Respondent because of his union activities. 2. On July 23, 1965, the Respondent interrogated Thompson about the Union and at that time threatened to close the plant. On Mon- day, July 26, Thompson attended a union meeting and signed a union authorization card. He also secured a number of union cards and union literature and distributed the same to employees after working hours during the next several days, on the parking lot adjacent to the plant. On the morning following the union meeting, Leadman Burnett, a supervisor, asked Thompson how the union meeting went. During this conversation, Burnett named to Thomp- son the employees who attended the union meeting. Later in the 159 NLRB No. 39. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day, Burnett called Thompson out of the trailer where he was work- ing and advised that he did not want Thompson discussing the Union with him or anyone else in the plant, and that if Thompson persisted, Burnett would "buck" him in any way he could. The next day, July 28, employee James Lyons, the leading union adher- ent, was discharged. For the reasons stated by the Trial Examiner, we agree that such discharge violated Section 8(a) (3) of the Act. On July 29, while Thompson and his three-man crew were taking a Coke break, Leadman Beasley, Thompson's immediate supervisor, criticized Thompson for allowing the whole crew to take a break at the same time.' Later that day, Thompson, in a conversation with Leadman Burnett, said that Beasley had "chewed [him] out because he stopped for a coke break." Thompson was critical of Beasley on this occasion, as detailed by the Trial Examiner. Shortly after this incident Thompson was called to the personnel office where Person- nel Director Eaton and Foreman Turner were present. Leadman Beasley came into the- office and engaged in conversation with Tur- ner, while Eaton asked Thompson if the latter knew anything about any union activity.2 Thompson denied that he did.$ Turner then related to Eaton what had occurred with respect to Thompson and the latter's conversation with Beasley and later comment to Burnett. Eaton asked Thompson if he had made such remark and, when Thompson admitted it, he was discharged. Thompson was active in the Union and Respondent knew it. He was threatened, interrogated, and prohibited from discussing the Union at any time while in the plant. It also appears that Lead- man Beasley unjustifiably criticized Thompson for permitting his crew to take a Coke break, when they had completed as much work as the material present permitted and Coke breaks were allowed in such circumstances. Moreover, when Eaton sent for Thompson to come into his office, he interrogated Thompson concerning the extent of his knowledge about union activity and, after that interrogation, Eaton was told about Thompson's remark relating to Beasley. Clearly, Thompson was called into Eaton's office, not because of the remark about Beasley, but in order to be interrogated about the union activities in the plant, and, under all the circumstances, we believe that Respondent proceeded to discharge Thompson because of his union activity which was known to Respondent when Thomp- son was called to Eaton's office and was, obviously, the reason for i Thompson's explanation , which was not controverted , was that they had run out of materials and that no definite time was set aside for breaks. $ The Trial Examiner found the interrogation under these circumstances constituted a violation of Section 8(a) (1) of the Act. $ As already indicated , Respondent then knew of the union activity and of Thompson's role therein. PURITANA MANUFACTURING CORPORATION 539 his being summoned there. The matter of Thompson's alleged in- subordination arose only after Thompson was again interrogated about union activity and, plainly, was seized upon as a pretext for the discharge. We find that the discharge violated Section 8(a) (3) of the Act. [The Board adopted the Trial' Examiner's Recommended Order with the following modifications : [1. Add the following as paragraph 1(c) and relettered those fol- lowing consecutively. [" (c) Warning employees that they cannot discuss union matters or solicit on behalf of a labor organization at any time on the Com- pany's property." [2. Delete paragraphs 2(a) and 2(b) and substitute the following paragraphs: ["(a) Offer James H. Lyons and Randall E. Thompson immedi- ate and full reinstatement to their former or equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them, in the manner set forth in the section of the Trial Examiner's Decision entitled `The Remedy.' Notify the said Lyons and Randall if they are presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." P (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to analyze the amount of backpay due James H. Lyons and Randall E. Thompson under the terms of this Order." [3. Delete the sixth paragraph of the Appendix and substitute the following paragraph : [WE WILL offer James H. Lyons and Randall E. Thompson immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, and will make them whole for any loss they may have suffered by reason of the discrimination against them. [4. Add to the note below the signature line of the Appendix following the name James H. Lyons the words "and Randall E. Thompson."] <, 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, under Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), with all parties represented, was heard before Trial Examiner Robert Cohn at Savannah, Georgia, on November 16, 1965,1 upon a complaint of the General Counsel of the National Labor Relations Board (herein called the Board), dated September 9.2 The complaint alleges, in substance, that Great Dane Trailers, Inc. (herein called Respondent or Company), violated Section 8(a)(1) and (3) of the Act by engaging in certain described conduct, more fully detailed herein. By its duly filed answer, Respondent admitted the jurisdictional allegations in the complaint, but generally denied the commission of any unfair labor practices. At the hearing, all parties were given full opportunity to present evidence, to examine and cross-examine the witnesses, to argue orally, and to file briefs.3 The parties waived oral argument. Subsequent to the hearing, helpful briefs were filed by counsel for the General Counsel and by counsel for the Respondent. Having considered the record as a whole, the briefs, and upon my observation of the demeanor of the witnesses while testifying, I make the following: FINDING AND CONCLUSIONS 4 1. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and statement of the issues The Respondent is engaged in the manufacture and sale of large truck trailers at its plant located in Savannah, Georgia, employing approximately 700 to 800 employ- ees. An organizational campaign on behalf of the Union commenced at Respond- ent's operation in July, the first union meeting taking place after first shift working hours on the afternoon of Monday, July 26, at the union hall in Savannah. Shortly thereafter (during that week), the complaint, as amended, alleges that Respondent discharged two employees for engaging in activities on behalf of the Union, and also committed, during the immediate period, several independent violations of Section 8(a) (1) of the Act by making interrogations and threats relating to union activities which constituted interference with, restraint of, and coercion of employees' rights protected by Section 7 of the Act. Respondent, at the hearing, contended, and presented evidence tending to show, that the two alleged discriminatees were terminated for cause and not for any rea- son connected with their alleged union or concerted activities. Indeed, Respondent contended that at the time of the terminations, it had no knowledge of the asserted union activities of the two men involved The Respondent's supervisors generally denied engaging in the acts and conduct independently violative of Section 8(a)(1), attributed to them. General Counsel's witnesses, on the substantive aspects of the case, consisted solely of the two alleged discriminatees; 5 Respondent's witnesses consisted solely of the supervisory personnel directly involved in causing the terminations and mak- ing the allegedly coercive remarks attributed to them. Accordingly, as both coun- sel recognized, this case presents me with the awesome task of making credibility resolutions as a prelude to fulfilling my statutory obligation of making factual find- i All dates hereinafter refer to 1965 unless otherwise designated 2 The original charge upon which the complaint is based was filed July 30 by Truck Drivers and Helpers Local Union No 728 (herein called the Union), and later amended on August 10 s At the hearing, counsel for the General Counsel moved to amend the complaint to delete the name of Richard C. Anderson, an alleged discriminatee, therefrom, assertedly because he failed to appear at the hearing. Without objection, the motion was granted. The transcript of proceedings (page 76, line 21) Is hereby corrected by changing "meter- man" to "leaderman " d There is no issue as to the Board's jurisdiction or labor organization The complaint alleges sufficient facts, duly admitted by answer, upon which I may, and do hereby, find that Respondent is engaged in commerce, and the Union Is a labor organization, within the meaning of the Act 5A third witness, the Union's business agent, testified solely with respect to efforts made to locate two corroborating witnesses, of which more anon. GREAT DANE TRAILERS, INC. 541 ings and legal conclusions upon the substantive issues in the case. As previously noted, I have made such credibility findings upon my observation of the witnesses and their demeanor while testifying, and upon substantial, reliable evidence "con- sidered along with the consistency and inherent probability of testimony." 6 With the foregoing factors and circumstances in mind, I proceed to set forth and analyze the relevant evidence respecting the issues in the matter. B. The alleged discriminatory discharge of James H. Lyons This employee's first period of employment with the Company was from August 1962, until May 1963, at which time he went on strike at the call of the Boilermakers' Union. He did not return until March 1, 1964, when he was reem- ployed as a new employee and assigned as a helper in the finishing department (department 86) headed by Foreman Irving (Pete) Turner. He worked con- tinuously in that department until approximately 2 months prior to his discharge (in July 1965), during which time he received three promotions and his rate of pay rose from $1.52 to $2.40 per hour. Apparently because of some previous experience in welding, Lyons was assigned, about May, to work in department 46 as an operator of an automatic welding machine designed and built by the foreman of that department, William H. Lind- ner.7 The machine is described as a double arc welding machine, having two flames, whose function is to automatically weld two steel crossmembers forming part of the base of the truck trailers which Respondent manufactures.8 At the hear- ing, it was substantially agreed by both Lyons and Lindner that the machine, being relatively new, did not have all of the imperfections and "bugs" worked out, and that as a result the end product was subject to having errors in it. For example, the controversy in the instant case arose because the weld was not made at the required locations, but was several inches high. Under such circumstances, the crossmembers had to be rewelded by hand at the location desired. However, Respondent does not assertedly base its decision to discharge Lyons on the faulty workmanship occurring on the day before his discharge, but rather upon Lyons' failure to observe the defective welds and separate them from the satisfactory ones. That is to say, it was the duty of the operator of this machine (and the evidence discloses that Lyons was the sole operator during the last 2 months of his employment) to place the material in the machine, push a button which automatically welds the crossmembers together, take the welded material from the machine and inspect it, lay it on one pile if satisfactory and on another pile if rejected. On Tuesday afternoon, July 27, at approximately 3 p.m. (one-half hour before quitting time), according to Lindner's testimony, he passed by the automatic weld- ing machine and noticed that there were some crossmembers which had faulty welds in them stacked on the "satisfactory " piles. He called this to Lyons' atten- tion, but the latter offered no excuse or explanation. As it was at the end of the workday, Lindner testified that he had the faulty crossmembers-some 35 in num- ber-reworked by other employees at overtime rates that day.9 The following day, Wednesday, July 28, Lyons reported for work at the usual time 7 a.m. However Lindner refused to let him start up the machine, and criticized him severely con- cerning the crossmembers being placed in the wrong stack. He asked Lyons if the latter wished to continue running the machine and Lyons replied in the negative- that he preferred another job, but that he would not refuse to operate the auto- matic machine. However, Lindner responded that if Lyons did not want to run 6 Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496. 7 Lindner also had the title of superintendent of methods. 8 It goes without saying, although there was some testimony to the effect, that it was most important that the welding of the crossmembers be accurate and in the right loca- tion because such crossmembers support the weight of the truckload. 8 Lyons denies that Lindner called the matter to his attention on the afternoon of July 27, or that he noticed them that day. He acknowledged that Lindner did call the matter to his attention prior to his commencement of work the next morning and that he observed such faulty workmanship for the first time. It was possible for him to make this observation even though the faulty crossmembers had been reworked, since the re- welding is performed on the opposite side of the crossmember from which the automatic welding machine places its weld. Lyons admitted that the automatic machine placed its weld approximately 2 or 3 inches "too high." 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the machine he (Lindner) did not want him to "fool with it," and that another employee had been secured to operate it. At that point, Lindner considered that Lyons had been discharged, although he did not specifically so advise Lyons.'° Contrary to Lindner, Lyons did not conclude from the colloquy that he had been discharged-only that he had been relieved from his duties on the automatic welding machine. He secured his toolbox and went over to the other side of the building near his former place of employment, department 46, and stood there for almost 2 hours before he saw Foreman Turner. He explained to Turner what had occurred and the latter promised to investigate the situation. Meanwhile, he instructed Lyons to start work in a trailer, which Lyons commenced to do. How- ever, before he actually began work, a leadman,ii H. 0. Beasley, came by and advised Lyons that he was wanted in the personnel department. In the personnel department, Lyons was interviewed by Personnel Director Eaton. Both expressed surprise that Lyons had been terminated. Lyons related his earlier conversation with Lindner that day and expressed the conviction that Lindner was a "hard man to get along with" and that he did not wish to operate the machine if Lindner did not want him to; however, it was apparent that he did not conclude therefrom that he had been terminated.12 With respect to his union activities, Lyons' testified that he first heard of the Union in February, but that the activities at Respondent's plant did not actually commence until the latter part of July. At that time, Lyons spoke to approximately 75 to 100 employees concerning joining the Teamsters' Union, and arranged a meeting at the union hall in Savannah to take place after work on Monday, July 26. At approximately 2 p.m. that day (Monday), Lyons testified that Foreman Turner (from department 86) came over to his machine and asked if he knew about a union meeting. Lyons replied yes-that it was going to be at the Teamsters' hall. That concluded the conversation.is 10 The foregoing findings are made upon the testimony of Lyons and Lindner which is es- sentially, mutually corroborative The significant difference between their versions of the conversations is that Lyons testified that Lindner accused him of deliberately "messing up" the 35 crossmembers, which Lindner denied. Lyons, continuing his testimony, denied that he had deliberately placed the faulty crossmembers in the satisfactory stack, but acknowl- edged that he might have done so because his eyes were burning at the time from observation of the welding process. Lindner agrees that welding, including that per- formed on the automatic machine, can and does sometimes cause a burning sensation in the eyes. However, Lindner testified that at no time did Lyons offer an explanation for the incorrect placement of the faulty crossmembers. I am unable to accept this testimony for several reasons: (1) It would be highly unusual for an employee accused of misfeasance not to attempt an explanation, however flimsy it might be ; (2) to believe otherwise would, in effect, be to conclude that Lyons was deliberately seeking a discharge or an excuse for the Re- spondent to discharge him. Yet this does not comport with his subsequent behavior, more detailed in a moment, where he sought work in another department of the Company. Thus, to the extent that the versions differ, I would credit Lyons. 11 Sometimes referred to as a leaderman. is Lyons testified that at the exit interview he was given no reason for the discharge, but that he later received a form from the State Department of Labor which explained that the reason was "unsatisfactory work and disinterest." On the other hand, Eaton testified that he had instructed Lyons that the latter was terminated for "poor workman- ship and for disinterest in his job" at that interview. For purposes of deciding the ultimate issue of discrimination, I deem it unnecessary to resolve this particular difference in versions. 13 At one point in his testimony on cross-examination, Lyons testified that he told Turner that he was going to the meeting However, later, when he was asked to sum up the whole conversation, he omitted this part and, on the basis of his entire testimony, I am not inclined to believe that he so advised Turner. Turner denied that any such con- versation took place. However, I do not credit this denial for the reasons that: (1) Lyons did not impress me as one who would fabricate such testimony, (2) evidence in the record, discussed in more detail, anfra, convinces me of Respondent's extreme interest in the union campaign and of its desire to learn about the progress thereof. Respondent urges that it is highly unlikely that Foreman Turner would go into another department to make such an inquiry of an employee However, it is to be recalled that Lyons formerly worked in Turner's department and, as Turner acknowledged, he con- GREAT DANE TRAILERS, INC. 543 I find that the foregoing interrogation, seeking information concerning union activities which could be used to take action against individual employees, coupled with a failure to explain its purpose or give assurance against retaliation constitutes a violation of Section 8(a)(1).14 The union meeting was, in fact, held at the time and place mentioned, but only five employees of Respondent attended. The following morning (Tuesday), before work commenced at the plant, Lyons met Turner in the latter's department as Lyons was going through to his department. He indicated to Turner that he had attended the union meeting the preceding after- noon. According to Lyons, Turner asked what was said, and Lyons advised that the employees had been informed that it would take 51 percent of the men to carry the Union or to "get a vote." Turner acknowledged that he had a conversation with Lyons concerning the union meeting, but placed the conversation before work on the following day-Wednesday, July 28. He said that Lyons called him between two trailers and advised that he had attended the union meeting but the Company did not have anything to worry about because there would not be a union there. This because the union man had told them that if 51 percent of the men did not join, the Union would not mess with it. Turner said that he thanked Lyons and walked on.15 The foregoing constitutes the extent of Lyons' union activities prior to his discharge. C. The alleged discriminatory discharge of Randall E. Thompson This employee began employment at the Company on October 9, 1963, as a helper in the finishing department, i.e., department 86 headed by Foreman Turner, previously discussed. In addition to the foreman, there were two leadmen in the department named H. O. Beasley and Acey Burnett. Thompson rose from a helper at $1.52 per hour rate to an "A journeyman" at $2.40 per hour by May 1965; how- ever, as will be more fully discussed infra, he received a demotion at that time and was reduced to an "A assembler" with a rate of $2.03 per hour. In July about the time of his discharge his job was, with the assistance of three or four helpers, to •line the inside of the trailers and install refrigeration units. On Friday, July 23, Thompson testified that he was called to Foreman Turner's desk where the latter asked him if he knew anything about a union trying to come into the plant. At that time Thompson had no knowledge of the Union and so advised Turner. Whereupon, the latter stated that, "Well, the man upstairs would close the doors before he would let the Teamsters come in." 16 Such interrogation and threat are clearly interference, restraint, and cocercion of employees' Section 7 rights within the meaning of Section 8(a)(1). I so find. The following Monday, Thompson did learn about the union activity in the plant and attended the union meeting after work that day. There he secured a union authorization card and signed it following the meeting. In addition, he secured a substantial number of union cards and union literature and distributed the same to employees after working hours on the parking lot adjacent to the plant during the next several days. The morning following the union meeting, Tuesday, July 27, Leadman Burnett asked Thompson how the union meeting went. Thompson was alone with Burnett sidered Lyons a friend. Considering all the circumstances, including instructions in labor relations matters which Respondent 's attorney had given all supervisors, it is certainly probable that Foreman Turner would exercise a high degree of caution and discretion in determining the particular person to whom such an inquiry could safely be made while, at the same time, being reasonably sure that the person to whom the inquiry was to be made had knowledge of the subject matter thereof. 14 N.L.R.B. v. Cameo, Inc., 340 F.2d 803 (C.A. 5). u In the light of credibility factors previously discussed, I credit Lyons' version of the time and contents of the foregoing conversation to the extent that it differs from Turner's 10 The foregoing finding is based upon the testimony of Thompson who impressed me as a credible witness. As will be more fully described hereinafter , he candidly acknowledged making statements which were clearly contrary to his interests ; moreover, I am unable to believe that the witness would fabricate this testimony out of the whole cloth . ( Turner denied discussing the Union with Thompson at any time ) Finally, the conversation is consistent with Lyons ' testimony respecting Turner's inquisitiveness concerning union activity at the plant. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the time and responded that he did not know anything about it. However, about that time one of Thompson's helpers, an employee named Sikes, passed by and Thompson called him over. Thompson then admitted to Burnett that they had had a good meeting.17 About this time two other of Thompson's helpers, whose names were Quick and Morgan, came by and he called them over. A discussion concerning the Union fol- lowed in which Burnett stated that he wagered he could name everyone that was at the union meeting. Thompson responded that he doubted that. Burnett proceeded to name James Lyons, R. C. Anderson, Ed Bumgartner, Carl Quackenbush, and Thompson. These employees were, in fact, the only ones who had attended the union meeting. Thompson inquired how Burnett knew about the meeting, and the latter responded that "Pete" Turner had told him about it and that "Pete" probably knew about it 3 or 4 hours before the participants did. At that point, Burnett uttered an obscene phrase which would not bear repeating in this Decision. The import of it was an advise to Thompson that the latter should eschew at the earliest possible time the noxious odor of the organization with which he was associating unless he, too, wished to become contaminated with it. Burnett denied having any conversation whatsoever with Thompson concerning the Union. For reasons discussed previously, I would credit Thompson and find that the discussion took place substantially as testified to by him.18 The statements of Burnett disclose an impression of surveillance of union activities which clearly consti- tutes interference , restraint, and coercion with Section 7 rights, thereby violating Section 8(a) (1). I so find. Later in the day Burnett called Thompson out of the trailer where he was work- ing and advised that he did not want Thompson discussing the Union with him or anyone else in the plant, and that if Thompson persisted, Burnett would "buck" him in any way he could. General Counsel, in his complaint, alleges that the foregoing constitutes promulgation of a rule by Respondent "prohibiting its employees from engaging in solicitation in behalf of the Union at any time on Respondent 's prem- ises." Such direction by Burnett to Thompson, coupled with an implied threat, clearly constitutes, in my opinion, restraint and coercion of Section 7 rights in viola- tion of Section 8 (a) (1) ; however, without more, I cannot equate this single conver- sation to creation of a pervasive no-solicitation rule applied to all employees. Accordingly, while I find the direction and threat implicit in the conversation to con- stitute a violation of Section 8(a)(1), I do not find that, thereby, Respondent pro- mulgated and enforced an illegal no -solicitation rule in the plant. On Thursday, July 29, Thompson commenced work as usual with his three-man crew, finishing the inside of a trailer. His undenied testimony is that material was somewhat short that day, and that they completed as much as they could, utilizing the material they had, when they stopped for a Coca-Cola break. About this time, Leadman Beasley came by and criticized Thompson for allowing the whole crew to take a break at the same time. Thompson retorted that they had been doing it that way since he had been there, and he did know that there was anything wrong with it. Beasley reported the incident to Foreman Turner. Later that day, Thompson, in a conversation with Leadman Burnett, near the trailer, asked, "What is the matter with Beasley today?" Burnett replied nothing that 17 Thompson explained that this conduct was prompted by advice from Union Business Agent Mathis to the effect that employees not admit engaging in union activities to supervision without a witness present. 18 In this connection, some testimony and discussion appear on the record respecting the lack of testimony by the other persons who were assertedly present during the conversa- tion. Sikes has since been drafted into the armed services, and his whereabouts are unknown. Also, efforts to locate Quick and Morgan were without success Although there was some Intimation by Respondent's counsel that Morgan still worked for Respond- ent, neither party called him as a witness While I generally do not regard such failure to call a witness (not an agent of either party) as bearing on credibility [Vol. II, Wigmore Evidence §§ 285, 288 ( 3d ed. )], I believe that, under the particular circumstances here, Respondent's failure to call Morgan (who, as an employee, was available to it) lends credence to Thompson . That is to say that if Thompson was fabricating the conversa- tion, be would have been more likely to assert that no one was present except he and Burnett, since, In that situation , it would have been his word against Burnett 's as to the contents thereof. By naming three other participants to the conversation, Thompson was, of course , taking a much more substantial risk of possible refutation since he could not have known definitely that neither would appear to testify. GREAT DANE TRAILERS, INC. 545 he knew about. Whereupon, Thompson responded that Beasley had "chewed [him] out because he stopped for a Coke break." Burnett advised that employees are not usually criticized for taking a Coke break but they are for stopping operations. Thompson, obviously irritated, advised Burnett that if Beasley did not like it, the latter could kiss him in the posterior part of his anatomy and take the job and "jam" it.19 Very shortly thereafter, Thompson was called to the personnel office. When he arrived, Personnel Director Eaton and Foreman Turner were there; within a few minutes Leadman Beasley came in. According to Thompson, during the first few minutes in the office, Turner was in conversation with Beasley, at which time Eaton asked Thompson if the latter knew anything about any union activity. Thompson denied that he did. Eaton continued the discussion of unions in derogatory terms, mentioning the Boilermaker's strike and the fact that unions were, in general, not a good influence.29 At that point Turner related to Eaton what had occurred with respect to Thomp- son and the latter's conversation with Beasley and later with Burnett, as set forth above. Eaton asked Thompson if it were true, and Thompson answered by relating his version of the incident which, in substance, was an acknowledgment of the facts as related by Turner. Thompson was then advised that the Company could not tolerate an employee working for it with that type of attitude toward its supervisors and he was, at that point, discharged. The record discloses that approximately 2 months prior to the discharge, Thomp- son received a written warning for having allowed faulty work to be done by per- sons under his direction in a trailer (see Respondent's Exhibit 1). At that time he was demoted from an "A journeyman" to an "A assembler" with a reduction of wage rate from $2.40 to $2.03 per hour, and advised that he was not being terminated but was being given an opportunity to do a better job. Thompson explained that the practical effect of the asserted demotion was merely a cut in pay-that, in effect, his duties on the job remained the same. Analysis and Concluding Findings The issue of discrimination in this case boils down to the question of whether or not Lyons and Thompson were terminated because of their union activities, as con- tended by General Counsel, or "for cause" as claimed by the Respondent. In deter- mining this question, it is, of course, well established that the burden of proof is imposed upon and remains on the General Counsel to establish and sustain the alle- gations of his complaint by preponderance of the relevant evidence. In order to prove a prima facie case, General Counsel must show that the alleged discriminatees engaged in activities protected by Section 7 of the Act, that the Respondent knew they engaged in such conduct prior to discharge, and that they were terminated as a result of having engaged in such activities. Once a prima facie case of discrimina- tion in violation of Section 8(a)(3) has been established, it becomes incumbent upon Respondent to come forward with evidence which would reasonably explain its conduct, i.e., to show that its "true purpose" or "real motive" was economically rather than discriminatorily induced 21 In this connection it should be pointed out that the mere existence of a justifiable ground for dismissal is no defense if it is a pretext and not the moving cause.22 As the Court of Appeals for the Seventh Circuit put it: Mere existence of valid grounds for discharge is no defense to charge that dis- charge was unlawful unless discharge was predicated solely on those grounds ' The foregoing is based upon the testimony of Thompson and Burnett which, in essence, is mutually corroborative. ' The foregoing finding is based upon Thompson's testimony which was undenied by Eaton. I find the interrogation, under these circumstances, to constitute a violation of Section 8(a) (1) of the Act Neither Turner nor Beasley were interrogated concerning this particular aspect of the events in the personnel office 21 Radio Officers' Union (A. H. Bull Steamship Company) v. N L R B , 347 U S. 17, 43-44; Local 357, Teamsters (Loa Angeles-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667, 675. 22 See N.L.R.B. v. Solo Cup Company, 237 F 2d 521, 525 (C A. 8) ; N.L.R.B. v. Associated Naval Architects, Inc., 355 F.2d 788 (C.A. 4). 243-084-67-vol. 159-36 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and not by desire to discourage union activity . N.L.R.B. v. Symons Manufac- turing Co., 328 F.2d 835 (C.A. 7).23 Since direct evidence of a purpose to violate the Act is rarely obtainable [Hartsell Mills Company v. N.L.R.B., 111 F.2d 291 , 293 (C.A. 4)] it devolves upon the trier of the facts to determine the "real reason" for the terminations from a consideration of all of the conflicting evidence in the record, and the reasonable inferences that may be drawn therefrom , all in the light of the foregoing legal principles. Applying such principles to the facts in the instant matter, I find, based upon credited testimony , that the General Counsel proved a prima facie case with respect to both alleged discriminatees . Thus, the evidence shows that both Lyons and Thompson engaged in activities on behalf of the Union by signing union cards, attending the union meeting, and soliciting other employees to membership in the organization . That knowledge of such activities quickly came to the attention of Respondent's supervisors is shown by the conversations between Lyons and Turner and between Thompson and Burnett, all of which occurred prior to the terminations. Thus, I cannot accept Respondent's contention that it had no knowledge of the dis- criminatees' union activities prior to their discharges ; indeed, were it necessary, Tur- ner, by his own testimony, conceded knowledge of Lyons' activities prior to the dis- charge, and it has been held that knowledge of a supervisor constitutes knowledge to the Respondent.24 Accordingly, as above noted , I conclude that by discharging Lyons and Thompson so quickly after they engaged in activities protected by Section 7, General Counsel has sustained his burden of proving a prima facie case of dis- crimination . There remains the question of whether or not the countervailing evi- dence, tending to show that Respondent 's real purpose in effecting the terminations was prompted by the discriminatees' derelictions, constituted the compelling reasons for the discharges, and therefore was the preponderating factor. With respect to Lyons there is no question but that he was recognized by Respond- ent, prior to the incident giving rise to his termination , as a competent, skilled employee. During his last tenure as an employee , his wage rate had risen from a $1.52 to $2.40 per hour, and he had received three promotions . His last assignment, which occurred approximately 2 months before the dischaige , was at the Company's- not his volition, and was apparently in recognition of his skill as an employee, since it involved working on an admittedly complicated and difficult machine. Thus, conceding, as Lyons did, his dislike of operating the new machine under Lindner's direction and his (Lyons' ) failure to observe the faulty crossmembers on the occa- sion of his discharge, it would not seem in accord with either commonsense or pru- dent business management for Respondent to rid itself of such a valued employee were not other considerations present, particularly where it is shown that his work was exemplary elsewhere in the plant . In this connection, I note that Foreman Turner still recognized Lyons' competency as an employee by directing him to return to work in his (Turner's) department on the day of the discharge. But more impor- tantly, I view Respondent's failure to comply with its own rules as revealing its true motive for the termination. Thus, Leadman Beasley testified that Respondent's dis- ciplinary procedures required that, with the exception of a new employee during the trial period, regular employees be given a written reprimand or warning , like the one given Thompson, before being terminated . That is to say, that if an employee got two warnings for the same misfeasance or malfeasance during a 6-month period, "he could be discharged," and that Beasley did not "know of a man being discharged in our department without being given this reprimand or warning ." Of course, it could not be expected that this system would apply to such grave offenses as fighting on company property, stealing , and the like; however, Beasley had never known an employee being discharged for errors in work without first getting a written reprimand. Lyons had received no such written warning for any infraction of rules or poor work prior to his being summarily discharged, yet Respondent offered no reason for departing from its procedures in this respect. Accordingly, I find that the motivat- ing reason that it did so depart was because of its demonstrated union bias and hostility which impelled a desire to rid itself quickly of this leading union adherent. av See also N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F.2d 352 (C.A. 2) enfg. 133 NLRB 911 ; N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003 (C.A. 5) ; N.L R B. v. Jamestown Sterling Corp., 211 F.2d 725 (C.A. 2). a' See The Bama Company, 145 NLRB 1141, 1152, and cases cited therein. GREAT DANE TRAILERS, INC. 547 Like the court in Jamestown Sterling, I find that this was "part of a deliberate effort by the [Respondent] to scotch the lawful measures of the employees before they had progressed too far towards fruition." 25 I therefore find and conclude that Respondent terminated Lyons in order to dis- courage membership in the Union in violation of Section 8(a)(3) and (1) of the Act 26 Resolution of the issue in Thompson's case is more difficult. While his wage rate, too, had risen during his tenure of employment from $1.52 to $2.03 per hour, the fact is that only 2 months prior to his discharge he received a disciplinary warn- ing and demotion. This, of course, occurred substantially before union activity began in the plant. Thus, it may be said that at the time of the events leading up to his termination, Thompson was in a somewhat vulnerable position. The record is not altogether clear as to the exact status of the circumstances which led to the Thompson-Beasley incident during the morning of his discharge. That is to say, Thompson's position that he and his men took a Coke break only after they had reached a natural pause in production due to lack of sufficient mate- rials is undenied on the record. Nevertheless, Beasley may well have validly and truthfully felt that such a Coke break, indulged in by all of the crew at the same time under the particular circumstances respecting production that day, was not warranted.27 In any event, we are not called upon to evaluate whether or not Beasley was entirely justified in "chewing out" Thompson for taking the Coke break; rather the issue is whether Respondent's motivating reason for discharging Thomp- son was actuated by Thompson's subsequent outburst to Burnett respecting Beasley's comments. It may well be that Thompson considered Beasley's remarks unjustified based upon the circumstances as viewed in the light of past practices. However, his remark to Burnett that if Beasley (his immediate supervisor) did not like his (Thompson's) conduct, he could take the job and "jam it," is clearly impudent and insubordinate and certainly did not constitute a proper manner to resolve the griev- ance. I therefore find that there existed good cause for Respondent to discharge Thompson under the circumstances; the question remains whether or not such cause was the compelling reason behind the termination. I think that it was. Although suspicions are aroused because the circumstances, arose in context of Respondent's antipathy toward the Union and the timing of the discharge, it is elemental that an employer is entitled to command the respect and submission to direction of employees to its supervisors. Certainly chaos would result if employees had the right to conduct themselves on the job according to their own standards of behavior rather than that of the Company. There are, of course, cases where the circumstances show a pattern of harassment and taunting of an employee to the point where an exclamation of the nature described here can be expected . Under those circumstances , where the employer seizes upon such excla- mation as a pretext to discriminate because of union activities, the trier of the fact is clearly justified in finding that the asserted explanation was not the real reason for the employer's conduct 28 However, in my opinion, the record in the instant case does not justify such a finding. Here there was no series or pattern of clearly unjustifiable admonitions or corrections imposed upon the employee by supervision, but only one incident, the legitimacy of which is ambiguous on this record. More- over, Thompson impressed me as being a rather glib and outspoken person who may, indeed, have been taunting the employer to commit some action, having been imbued, perhaps, with the notion that his involvement in union activities placed him beyond the reach of appropriate discipline. In this correction, I note that, at the exit interview, Thompson did not attempt to minimize the import of his conduct, or apologize for it, or otherwise contend that his statement should be considered in other than a serious vein. It is, of course, well established that involvement in Section 7 conduct does not immunize an employee from appropriate discipline. (Metals Engineering Corpora- tion, 148 NLRB 88.) As in the cited case, it was the employee-and not Respond- ent-who by his deliberate choice of language turned the admonition incident into 25 N.L.R.B. v. Jamestown Sterling Corp., supra, 726. °N.L.R.B. v. Texas Bolt Company, 313 F.2d 761 , 763 (C.A. 5) ; N.L.R.B. v. WTVJ, Inc., 268 F.2d 346, 347-348 (C.A. 5). 2Y Neither of Thompson's helpers was called as a witness by either party. ' See e .g. Leggett's Department Store of Princeton , West Virginia, Inc., 137 NLRB 403, 416, and cases cited therein. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a cause celebre and a challenge to management's authority. "As a result he created a situation where Respondent either had to discipline him or in effect acquiesce in his insubordination . . . ." Id. at page 89). Accordingly, I find that Respondent terminated Thompson because of his insubordination and not because of his union activities. I shall therefore recommend that the complaint be dismissed as to him. II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section I, above, occurring in con- nection with the business operations of the Respondent hereinabove described, have a close, intimate, and substantial relation to trade; traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. III. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated against James H. Lyons, by dis- charging him on July 28, 1965, I shall recommend that Respondent be ordered to offer him immediate and full reinstatement to his former or substantial 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, by payment to him of a sum of money equal to the amount he nor- mally would have earned from the date of the discrimination to the date of the offer of reinstatement, less his net earnings, to which shall be added interest at the rate of 6 percent per annum in the manner established by the Board in the F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 136 NLRB 716, cases. It having been found that Respondent discriminated against an employee for exer- cising his rights protected by the Act, and otherwise invaded those rights, I am of the opinion that there exists the danger of commission of further unfair labor prac- tices by the Respondent, and I shall accordingly recommend a broad provision that the Respondent cease and desist from in any manner infringing upon rights guaran- teed employees in Section 7 of the Act 29 On the basis of the foregoing findings and the entire record, I hereby make the following: CONCLUSIONS OF LAW 1. Great Dane Trailers, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers and Helpers Local Union No. 728, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees concerning their union membership and activities; by threatening employees that Respondent would close its plant should the employees select the Union to represent them as collective-bargaining representative; by warning its employees not to engage in solicitation on behalf of the Union at any time *on Respondent's premises; and by creating an impression of surveillance of employees' union activities, Respondent interfered with, restrained, and coerced the employees in the exercise of rights under Section 7 of the Act thereby violating Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of James H. Lyons, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. v In this connection, I have considered that the Board has previously found this Re- spondent to have committed unfair labor practices in Great Dane Trailers, Inc, 150 NLRB 438. GREAT DANE TRAILERS, INC. 549 5. The above-described unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings and conclusions, and upon the entire record, I recommend that Great Dane Trailers, Inc., Savannah, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union sympathies, mem- bership, and activities. (b) Threatening employees with closing the plant, or with other economic reprisals, should they select the Union as their representative for collective bargain- ing, or otherwise engage in activities on behalf of the Union. (c) Creating an impression of surveillance of employees' union activities. (d) Discouraging membership in and activity on behalf of Truck Drivers and Helpers Local Union No. 728, or any other labor organization, by discharging employees or by discriminating against them in any other manner. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist Truck Drivers and Helpers Local Union No. 728, or any other labor organization, to bar- gain collectively through representatives of their own choosing, or to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activity. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer James H. Lyons immediate and full reinstatement to his former or equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the section above entitled "The Remedy." Notify the said Lyons if he is presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with,the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (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 records relevant and necessary to analyze the amount of backpay due James H. Lyons under the terms of this Recommended Order. (c) Post at its Savannah, Georgia, plant, copies of the attached notice marked "Appendix." 30 Copies of said notice, to be furnished by the Regional Director for Region 10, shall, after having been duly signed by Respondent's authorized repre- sentative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith." IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. '*In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words, "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." 31 If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 10, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT coercively interrogate employees concerning their member- ship in and activities on behalf of Truck Drivers and Helpers Local Union No. 728, or any other labor organization. WE WILL NOT threaten our employees that the plant will close should they engage in activities on behalf of labor organization. WE WILL NOT warn our employees that they cannot discuss union matters or solicit on behalf of a labor organization at any time on the Company's property. WE WILL NOT discharge or otherwise discriminate against employees because of their membership in or activity on behalf of Truck Drivers and Helpers Local Union No. 728, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights of self-organization, to form, join, or assist Truck Drivers and Helpers Local No. 728, or any other organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective-bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer James H. Lyons immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and will make him whole for any loss he may have suffered by reason of the discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization. GREAT DANE TRAILERS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify James H. Lyons if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia 30323, Telephone 526-5741. Lathers Local Union No. 252, AFL-CIO ; and Electric Workers Local Union No. 477, AFL-CIO (I. C. Minium) and Interstate Employers Association ; and I. C. Minium Electrical Workers Local Union No. 477, AFL-CIO and Electric Air Conditioning Company. Cases 31-CC-11 (formerly Case 21-CC-826) and 12 (formerly Case 01-CC-836). June 16, 1966 DECISION AND ORDER On December 15, 1965, Trial Examiner Howard Myers issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices 159 NLRB No. 42.