Great Dane Trailers Indiana

GREAT DANE TRAILERS INDIANA Great Dane Trailers Indiana, Inc. and International Union, United Automobile, Aerospace & Agri- cultural Implement Workers of America. Case 25-CA-10912 September 9, 1980 DECISION AND ORDER On June 5, 1980, Administrative Law Judge Phil W. Saunders issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and counsel for the General Counsel filed an answering brief. 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, to modify his remedy, 2 and to adopt his recommended Order,3 as modified herein. 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Great Dane Trailers Indiana, Inc., Brazil, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(a): "(a) Promulgating and issuing a no-distribution rule banning distribution of union literature on company property without the specific permission of management." 2. Substitute the following for paragraph l(i): "(i) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 3. Substitute the following for paragraph 2(a): Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 See Isis Plumbing d Heating Co., 138 NLRB 716 (1962) for rationale on interest payments. a In accordance with his dissent in Olympic Medical Corporation, 250 NLRB No. 11 (1980), Member Jenkins would award interest on the back- pay due based on the formula set forth therein. On the basis of Hickmott Foods, Inc., 242 NLRB 1357 (1979), the broad injunctive language in the Order recommended by the Administra- tive Law Judge is not warranted. Accordingly, we shall modify the rec- ommended Order in this respect. We also modify the Administrative Law Judge's recommended Order to include the full reinstatement language traditionally provided by the Board and modify the proposed notice to conform with the provisions of the recommended Order 252 NLRB No. 15 "(a) Offer Jay Hoffman immediate and full rein- statement to his former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered due to the discrimination practiced against him by paying him a sum equal to what he would have earned, less any net interim earnings, plus in- terest." 4. 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 oppor- tunity 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. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT promulgate or issue a no-dis- tribution rule banning distribution of union lit- erature on company property without the spe- cific permission of management. WE WILL NOT threaten employees with dis- charge because of their union activities. WE WILL NOT solicit our employees to wear company "vote no" stickers, nor interrogate them in relation to the same. WE WILL NOT prohibit our employees from engaging in union activities. WE WILL NOT threaten our employees with other reprisals because of union activities. WE WILL NOT interrogate our employees as to their union activities. WE WILL NOT lay off, discharge, issue writ- ten warnings, or otherwise discriminate against employees in violation of the rights guaranteed them under the Act. 67 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in In- ternational Union, United Automobile, Aero- space & Agricultural Implement Workers of America, or any other labor organization, by discriminating against our employees in regard to their hire and tenure of employment or any terms or conditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in their exercise of the rights guaranteed them under the Act. WE WILL offer to Jay Hoffman immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his senior- ity or other rights and privileges previously enjoyed, and make him whole for any loss of earnings or benefits suffered by reason of his unlawful discharge, plus interest. WE WILL expunge from our files any refer- ences to the disciplinary warning issued to Jay Hoffman on April 19, 1979, and to his subse- quent discharge, and notify him in writing that this has been done. GREAT DANE TRAILERS INDIANA, INC. DECISION STATEMENT OF THE CASE PHII. W. SAUNDERS, Administrative Law Judge: Based on a charge filed on May 10, 1979, by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, herein the Union or UAW, a complaint was issued on June 28, 1979, against Great Dane Trailers Indiana, Inc., herein the Company or Respondent, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Re- spondent filed an answer to the complaint denying it had engaged in the alleged matter. Both the General Counsel and Respondent filed briefs in this matter, but I have only considered those briefs filed on or before March 31, 1980. Upon the entire record in tne case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation with offices and principal place of business in Brazil, Indiana, and is en- gaged in the manufacture, sale, and distribution of freight-hauling trailers. Respondent, during the past 12 months, manufactured, sold, and shipped from the Brazil facility finished products valued in excess of $50,000 di- rectly to points outside Indiana, and during the same rep- resentative period the Respondent purchased and re- ceived at the facility goods valued in excess of $50,000 which were shipped directly from States other than the State of Indiana. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II1. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE A.LLGED UNFAIR LABOR PRACTICES The main issues in this case are as follows: Did Respondent violate Section 8(a)(3) of the Act by its conduct in issuing a written warning to Jay Hoffman on April 19, 1979, and by its subsequent conduct in dis- charging Jay Hoffman from its employ on April 30, 1979? Did Respondent violate Section 8(a)(1) of the Act by its conduct directed at employee Don Rose during the union organizational campaign? Did Respondent violate Section 8(a)(1) of the Act by promulgating and maintaining its regulation 12 found in its employees' handbook? Did Respondent violate Section 8(a)(1) of the Act by excluding employee-members of the UAW In-Plant Or- ganizing Committee from campaign meetings it held with its other employees during the period of the union orga- nizational campaign? The plant here in question was started up about 5 years ago and at which time it had only about 16 em- ployees, but the work force was eventually built up to the current employment complement of approximately 400 employees. The physical plant consists of about 375,000 square feet which is divided into several depart- ments, and during the period January through April 1979, Respondent produced 23 trailers a day-all of which were built by special orders from customers. Re- spondent also employs about 35 supervisors, and in addi- tion the plant has a managerial and supervisory structure consisting of a plant manager (Jim Rossiter), an assistant plant manager (Fred Nevils), and a plant superintendent (David English), and an assistant plant superintendent (Wayne Norris). William Charlebois is the present direc- tor of industrial relations, and Robert Edwards is the de- partment head for quality control. The record supports the supervisory status of all the individuals named above and including Vic Brown, a foreman in department 74. On February 3, 1979, approximately 25 of the Re- spondent's employees, including Jay Hoffman, held an organizational meeting for the Union at the Blue Bonnet Cafe in Brazil, and where organizational efforts were dis- cussed, and authorization and volunteer organizing com- mittee cards were distributed-Hoffman signed one of each, and on the next morning Hoffman and other em- ployees visited the lunchroom at the plant and com- menced passing out authorization cards and union but- tons. Present in the lunchroom that morning, in addition to the employees, were supervisors and foremen. On or about February 6, 1979, Respondent received a letter from the Union informing it of an organizational drive at its plant, and by mid-February 1979, Respondent 68 GREAT DANE TRAILERS INDIANA received another letter from the Union informing man- agement of those employees serving on the UAW In- Plant Organizing Committee-numbering 34 employees, and Jay Hoffman, the alleged discriminatee in this matter, was named as one of the 34.' It is alleged in the complaint that on several dates be- tween March 8, 1979, and April 12, 1979, Respondent held employee meetings at the plant, but excluded the (34) employee-members of the union organizing commit- tee from these meetings. In the course of the organizing campaign the Compa- ny held various meetings with its employees at which the Union was discussed, and all employees, including these on the Union's In-Plant Organizing Committee, were invited to attend the first series of such meetings notwithstanding the fact that their prounion sympathies were apparent to the Company. It appears that the first meetings were held shortly after Respondent received notice of the organizational drive on February 6, 1979, as aforestated, and the other two groups of meetings were held later on in the plant lunchroom. At these remaining two sets of meetings Respondent excluded the 34 em- ployees named in the February 13, 1979, letter from the Union to the Company listing those on the In-Plant Or- ganizing Committee. The Company points out and argues that after the em- ployees on the In-Plant Committee had attended the ini- tial meetings-it became rather obvious to management that these employees felt there should be a union in the plant and they intended to do what they could to get a union no matter what the Company might have to say on the subject-and on this basis management concluded that they had made up their minds; moreover, their at- tendance at the meetings might prove disruptive, so it was decided by the Respondent that no useful purpose would be served by having them come to any more meetings, as a result the 34 employee-members of the In- Plant Committee were excluded in the subsequent meet- ings. As pointed out, despite the clear indicia of support for the Union, Respondent, nevertheless, went ahead and in- vited the In-Plant Committee to their first meetings, and it was only after several of the committee members ex- pressed their views in the first round of meetings, that Respondent took action to exclude them. Thus, as argued by the General Counsel, it was apparent to all that the real reason Respondent chose to exclude the committee members from the remainder of their meet- ings was because they had engaged in the protected ac- tivity of expressing their views, and that this fact was made clear when Industrial Relations Director Charle- bois characterized their continued presence as possibly being disruptive. Moreover, as further contended, with the exception of making individual explanations to a few inquiring employees and to the employees at one of the group meetings, Respondent did not inform other em- ployees as to why it was excluding the members of the On March 8, 1979, the Union filed a petition with the Board in Case 25-RC-7138 seeking to represent a unit of all production and mainte- nance workers of Respondent, and on March 26, 1979, Respondent en- tered into a stipulation for an election to be held on April 12, 1979. The Union lost the election. In-Plant Committee from their subsequent meetings. Therefore, argues the General Counsel, many employees were left to guess at Respondent's motivations for ex- cluding the committee members, and as a result of exclu- sions from later meetings, Respondent gave a clear mes- sage that management would treat employees who saw fit to engage in union activities differently from those who chose not to. The Board has recognized for some time that even in the context of violations of Section 8(a)(1), an employer may exclude known union adherents from their employ- ee meetings held to present the employer's case for op- posing a union then engaged in seeking recognition. 2 I find no significant distinctions between the cases noted below and the situation in the instant case, and I shall therefore recommend dismissal of the complaint in this respect. It is alleged in the complaint that on or about Novem- ber 10, 1978, by issuing an employee manual, Respondent promulgated, and since the above date, has maintained a rule (regulation 12), which prohibits the sale or distribu- tion of articles on company property without the specific permission of management, and the preface to the regula- tion reads, "Any violation of the following rules will subject you to a reprimand, and/or layoff, or discharge." The General Counsel maintains that this regulation or rule is invalid on its face as applied to employees who may wish to distribute union literature on nonwork time in nonwork areas. Counsel for the Company argues that there is no testi- mony or other evidence in this record to indicate that anyone had any particular awareness of this rule so it is impossible to see how it could have created uncertainty in the mind of anyone involved in this situation, and ac- cording to the correspondence received from the Union, their people (including employee organizers) were aware of their rights under the Act, and as a result there was no uncertainty in their minds as to what they could and could not do in respect to organizing activities. More- over, the employee union supporters freely disseminated campaign literature on company property alongside their supervisors, so they felt no threat or inhibition because of the rule. It is well established law that organizational rights re- quire that employees have access to nonworking areas of the plant in the distribution of literature and other cam- paign material, and a broad rule banning such activity during nonworking time is presumptively invalid.3 The coercive effect of this rule was also evident in this campaign since the testimony showed that all distribu- tions of union literature by the employees were conduct- ed outside of the plant building itself-mainly in the parking lot. However, in the final analysis here, the broad no-solicitation rule maintained by Respondent, as aforestated, is presumptively invalid on its face, since its 2 See Mueller Brass (o., a Subhidiar of L' Indutries, Inc. 220( NLRH 1127, 1138. 1139 (1975), and other cases cited therein 3 See Stoddard-Quirk Manfacruring. Co., 138 NLRB 615 (1962) 69 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scope is all inclusive and is not limited to working time or to the working areas of the plant.4 It is alleged that on or about February 5, 1979, Re- spondent's supervisor, Victor Brown, threatened employ- ees with discharge because of union activities. Don Rose was employed at Respondent's plant as an assistant trailer builder in department 74 and was as- signed, along with about 20 other employees, to the rivet table where Victor Brown was his immediate supervisor. It appears that Rose attended the initial union meeting on February 3, 1979, and shortly after this meeting came to work wearing a UAW Organizing Committee button. Rose testified that, on the day when he came to work wearing the button, Supervisor Brown came over to where he worked, started shaking his head, and said that he could not believe he would do that. Moreover, when the buzzer for work sounded, Brown then called Rose over and told him not to talk to any of his employees or he would be fired, or would be out in the parking lot "shoveling rock." Rose stated that in the area where he was working, no one else was wearing any buttons. 5 Brown, in his testimony, admitted to shaking his head when he saw Rose wearing a union organizing button and to saying aloud to himself that he could not believe it, and further admitted calling Rose aside to speak with him, but claims telling Rose that since he (Rose) was in- volved in the union campaign, he could not talk to em- ployees during working hours about the Union, or any- thing like that, or he could be terminated. Counsel for the Company points out that Brown and Rose did more than just work together-that they were friends and socialized with one another away from work-played tennis together and also basketball or foot- ball, and that Rose had been fired by the Company prior to testifying at this hearing with the feeling that his dis- charge was not justified. I am in agreement with the General Counsel that Brown's version of this incident does not have the same right of plausibility as does Rose's account of the conver- sation, and I have credited Rose. However, regardless of whose version is credited, Respondent, through Brown, threatened employee Rose with discharge in violation of Section 8(a)(l) of the Act since Brown's proscription of Rose's solicitation activity under both versions was overly broad. It is alleged that on dates between March I and April 12, 1979, Respondent solicited its employees to wear its "Vote No" stickers. During the course of the union campaign Respondent supplied to its supervisors a quantity of "vote no" stick- ers. Rose testified that on several occasions during the union campaign Supervisor Brown spoke with him about the "vote no" stickers. He recalled that on one occasion Brown asked him where his "vote no" sticker was, and on another occasion Brown pointed at the "vote no" sticker on the hardhat of fellow employee Clyde Cad- 4 The status of Respondent's rule 10 is not in question here as the Gen- eral Counsel decided at the hearing not to allege this rule as a violation and, accordingly, I will strike this allegation from the amended com- plaint. 5 Rose was discharged by Respondent on May 10, 1979, but his termi- nation. as such, is not in question here. dell, and then asked Rose to "put one of these on." Brown admitted that the "vote no" stickers were availa- ble at the various desks of supervisors, but denied talking to Rose about wearing one of them. However, Brown admits that he did "joke around" some with Rose while they were at work, and may well have kidded him about why he did not wear a "vote no" sticker, but, when it came to the matter of giving out these stickers, Brown recalls that his instructions in this regard were very ex- plicit; i.e., "we were told that we could not hand them out. It was a rule. And all we did was lay them on our desks in our department. And if people wanted them they came and got them. It was as simple as that." It appears to me that the sequence of events and cir- cumstances as detailed by Rose is the reliable account of such remarks and statements here in question.6 More- over, the testimony of Herschel Walton to the effect that before the April 12 election Respondent's Supervisors Wilson and Dobson also queried him as to where his "vote no" sticker was and if he was wearing one, is also supportive of Rose's version. General Counsel contends, and I so find, that such statements are violative of Sec- tion 8(aX1) of the Act under the Board's decision in York Division, Borg-Warner Corporation, 229 NLRB 1149, 1151 (1977), where such conduct as in the instant case was found to "compel employees to make a choice or exhibit the depth of their pro- or antiunion feelings in front of management officials and thus constitute a subtle form of coercive interrogation." It is further alleged in the complaint, as amended, that in early February 1979, Respondent prohibited its em- ployees from engaging in union activities. The job that Don Rose normally performed in the plant was to punch holes in the side of steel rails before they were put to- gether or assembled, but during the week he first wore the UAW Organizing Committee button, as aforestated, he was assigned by Department Head Walter Bragg to carry triangular steel door plates, called gussetts, to a rack in the department, and these plates or gussetts were still wet from being painted. When Rose complained to Foreman Bragg that the plates were still wet with paint, Bragg merely responded "too bad" and "just do it." On one occasion Rose was at the rack stacking these wet plates when employee Darla Hayes asked him what he was doing, but about this time Supervisor Victor Brown came up and told Darla Hayes, "Don't be talking to him," and instructed Rose to get back to work. Rose tes- tified that Darla Hayes then told Brown that what Rose was being made to do was not fair because he was doing it as a punishment. 7 e It is also well established that it is no defense that a violative remark is committed or made in a friendly or joking manner. Conagra. Inc., 248 NLRB 609 (1980). 7 Brown testified that Rose's main job was punching and mashing rivets, but that in a typical week he could be doing two or three different jobs. Brown also testified that it was Bragg who assigned Rose the job of carrying the steel gussetts or plates. Bragg could not recall assigning Rose the particular job, but testified that it would not be extraordinary for Rose to receive such an assignment. However, despite Brown's claim that Rose could get several different assignments in a day, he admitted on cross-examination that weeks could go by where Rose would continue to do his regular job. Respondent presented no evidence to rebut Rose's as- Conlinued 70 GREAT DANE TRAILERS INDIANA The General Counsel contends that Brown's remark to Darla Hayes was an effort to restrain her and Rose from engaging in union activities. Supervisor Brown admitted that at the time of this incident in February, Rose was the only person in his department or area that he knew was for the Union. Although Brown denied telling Hayes not to talk to Rose on this occasion, he subse- quently admitted that, "Yes, I may have got onto her later about it." I am in agreement that the testimony by Rose as to this incident is the more reliable account of what actually took place. As indicated, Brown's testimo- ny on this matter was hesitant, evasive, and uncertain, and by admitting that he later "got onto" Hayes for talk- ing to Rose, there is little doubt, considering the overall circumstances, as to his purpose in doing so-to prohibit employees from engaging in union activities, and to keep Rose as the only adherent for the Union in the depart- ment openly displaying his support. It is also alleged that on various dates between March I and April 12, 1979, Respondent threatened employees with unspecified reprisals because of their union activi- ties. Rose testified that during the union campaign Vic Brown came up to him on occasions and said something about Jay Hoffman, that he did not like Hoffman very well, and asked what he (Rose) was doing "hanging around with a jerk like that," and "he'd like to see some- thing done to him"-and on at least one occasion when referring to Hoffman, Brown gritted his teeth and made a fist with his hand while making the comment. These statements, taken in context with the other remarks of Brown, as aforestated, and the fact that prior to the advent of the union campaign Brown had never made adverse comments to Rose about Hoffman are unmistak- ably threats of reprisal against Hoffman because of his union activities. Brown did not deny the above state- ments ascribed to him by Rose, and therefore they stand unrefuted. Rose testified that on April 11, 1979, the day before the election, Supervisor Brown again approached him at his work station and asked if his father had anything to do with him being on the union organizing committee, and if he (Rose) had changed his mind about voting for the Union. In testifying about this incident, Brown stated that this conversation was initiated by Rose, claiming Rose had approached him about his father not wanting him to vote for the Union, and was seeking advice as to what to do, and Brown also indicated that, prior to this conversation with Rose, he had been confronted by sev- eral employees telling him that Rose wanted to vote no against the Union. As pointed out, with this knowledge of the circumstances it would appear natural for Brown to confront Rose with what the other employees had told him." sertion that he had never been given this task nefore, except for Brown's assertion that it was "a good possibility" that he had Perhaps the signifi- cant thing about this particular assignment, as pointed out, was the fact that the gussetts were still wet with paint-an assertion of Rose's that Re- spondent did not refute except to the extent that Brown testified that em- ployees can wear gloves when such items are wet with paint a There is also a specific allegation in the complaint that on or about April 11, 1979, Respondent interrogated its employees about the Union The above incident is ample proof showing a violation of this allegation Rose also testified that on April II Brown informed him that the vote at the election on the next day could mean the difference between working "a little overtime" and "working a lot of overtime." While Brown denied making this statement, such a remark attributed to him by Rose gains credibility when considering that at this point in the campaign Brown was obviously making a last-ditch try to capitalize on what he considered was soft support for the Union, and evaluated in this light, as argued by the General Counsel, the remark served as a prod to convince an ambivalent voter that there were real dangers ahead if the Union were voted in. This must be deemed as another threat of reprisal for engaging in union activities, and I so find. 9 Turning now to the allegations that on April 19, 1978, Respondent issued Jay Hoffman an unwarranted written warning, and, on April 30, 1979, unlawfully discharged him. As indicated earlier herein, Hoffman was an active ad- herent for the Union and was one of the employees on the UAW In-Plant Organizing Committee, and the Com- pany had specific knowledge of this fact upon receiving the Union's letter in this respect. On April 7, 1979, the Union also sent a letter to the Board's Regional Office, with a copy to James Rossiter, Respondent's plant man- ager, informing management that employees Jeff Niewald and Jay Hoffman would serve as the Union's observers in the upcoming April 12, 1979, representation election. On April 12, 1979, the election in Case 25-RC- 7138 was conducted on Respondent's premises and Hoff- man did serve as one of the two observers for the Union in the election that day. This record further reveals that during the organizational campaign Hoffman passed out as many as 50 union authorization cards, and stated that he obtained signatures on 40 to 45 of these cards. On several occasions during the course of the campaign Hoffman also distributed union literature to employees at the plant, and it further appears that he and Jeff Niewald were the only employees to participate in the distribu- tions of such material on each occasion. Hoffman also wore a badge signifying his membership on the Union's In-Plant Organizing Committee, and despite the fact that almost all of the In-Plant Committee members initially wore such badges, the number of employees wearing these badges gradually dwindled to about seven as the campaign wore on. Similarly, whereas many of the other employees wore prounion badges, their numbers also de- creased as the campaign wore on. Moreover, Hoffman 9 Counsel for the Company argues that Rose was not an unbiased wit- ness, that he was a member of the union organizing committee and sup- ported the Union throughout. and he was also fired by the Company and does not feel his dismissal was justified. Therefore, what we have then is an open allegiance to the cause of the Union, and clearly less than a feel- ing of fondness for the Company. Moreover, it is equally improbable. argues the Company, that Brown would choose someone like Rose to threaten, and do whatever else the complaint alleges he did, since Rose was a member of the elite corps, the organizing committee, and is hardly a logical person upon whom to bestow threats, and the other statements attributed to him As indicated earlier herein, I have credited the testimo- ny of Rose on the basis that some of his testimony was corroborated by others-some admitted, and in several instances there was actually only a few words difference between the witnesses in what was said I think Rose supplied the correct details 71 DECISIONS OF NATIONAL LABOR RELATIONS BOARD furthered his efforts for the organizational efforts by walking through the plant during the lunch hour talking to employees about the Union. I am in agreement that when his activity is viewed in its totality, there is suffi- cient evidence showing his prominence at the forefront of the union campaign. 10 As pointed out, this record reveals several examples of Respondent's hostility toward the Union. Hoffman and former Supervisor Arthur Smith testified to being ques- tioned about their feelings in regard to unions at the time of their employment interviews. During the campaign here in question there was also posted on one of the plant bulletin boards, a picture of employee Mindy Price's damaged automobile with a caption on it to the effect that the damage was the result of unions attempt- ing to organize. Moreover, Supervisor Victor Brown then parlayed this damaged vehicle into a condemnation of Hoffman. Brown, in the presence of employees Mindy Price and Don Rose, pointed at Rose saying, "There's probably the one that did it, him and Hoffman." So in this instance we have a supervisor accusing two employ- ees of a destructive act merely because of their open as- sociation with the Union, and Brown's singling out of Rose as one of the perpetrators was obviously based on the fact that Rose was the only person, out of the 20 or so employees he supervised, who wore a badge support- ing the Union, as aforestated, and Brown's singling out of Hoffman in the same breath further shows the degree to which Respondent held him responsible for the Union efforts. Jay Hoffman was hired by Respondent on December 15, 1975. He started as an assistant trailer builder in de- partment 74, becoming a trailer builder by February 1976, and a trailer builder specialist by July 1976. In De- cember 1976, he was transferred to department 72, jigs and fixtures, and was made a maintenance mechanic and where he stayed until September 14, 1978, when he was promoted to an inspector in the quality control depart- ment. Robert Edwards became the head of the quality control department on August 15, 1978. On April 19, 1979, Hoffman was called into Foreman Edwards' office in the morning and given a written warning for not checking or inspecting components of the trailers in his inspection area up to expectation of management. The warning record indicates that a rear frame with the wrong serial number stamped on it had caused confusion and delay of other employees. The General Counsel contends that this written reprimand was unwarranted, and was issued for the sole purpose of implementing Respondent's scheme to rid itself of Hoff- man shortly after the Union lost the April 12 election. The Company maintains that Hoffman had not been other than an average employee even before his promo- tion to inspection. Hoffman had previously worked in the "body drop" operation, and as Plant Superintendent David English testified, he was not particularly effective there, and this became apparent to management as the 'o There is also testimony in this record showing that on certain occa- sions during the campaign supervisors followed Hoffman around the plant at lunchtime, and by the day of the election, April 12, Respondent increased its surveillance of Hoffman to the extent of having his foreman, Robert Edwards, trail him that entire morning. operation grew, and Hoffman was unable to keep up with the work. However, as English stated, despite the less than outstanding record, Hoffman got the promotion to inspector because of the Company's policy of trying to reward for seniority, and in spite of all else Hoffman was also one of the early hires, but it was apparent to management that he was not going to become a supervi- sor as originally hoped-and accordingly, on September 14, 1978, he was promoted to the job of inspector in quality control. Hoffman's supervisor, Robert Edwards, was called as a witness and related the various items which Hoffman did not inspect or did not inspect properly, and which prompted the various notations in his work record. ' Supervisor Edwards testified that the principal difficul- ty he was having with Hoffman was that he was not checking or inspecting component parts by the "spec sheets," a document which tells what it is that is sup- posed to be built-if it is not the right component part for the trailer in question, or if it is not fabricated prop- erly, it was Hoffman's job as an inspector in quality con- trol to catch the mistake and to do so before the part left his inspection area. There was also testimony that if it is not fabricated properly or, worse yet, if it is the wrong part altogther, this tends to generate problems, and sometimes rather serious problems when the main line as- sembly tries to fit the pieces together to make a complet- ed trailer. 1 2 On or about April 19, 1979, a rear frame component part passed through Hoffman's inspection area or depart- ment which was the wrong one-the specific trailer being built called for a swing type door, but a roll-up type door frame went through-and when it got to the main line assembly it would not fit because it belonged on a different trailer, and the resulting confusion caused delays. Respondent maintains that there was simply no excuse for this because Hoffman had at his disposal all the infor- mation needed to avoid a glaring and costly mistake like the above-that there is a daily production schedule which lists the trailers to be built on a particular day and in the order in which they are going to be built, and that each numbered trailer on the daily production schedule has a specific sheet for that trailer, and the spec sheet also clearly reflects what type of door and rear frame that particular trailer is to have-and for this shortcom- ing Hoffman received the written reprimand. '3 The Company maintains that what made this latest (April 19) incident especially serious in the eyes of Edwards, the supervisor who gave him this warning, is that Hoffman " See G.C. Exhs. 12 and 13. It appears that, in the later months of 1978, Hoffman was spoken to on two occasions about not checking trail- er components. In 1979, he was "talked to" on three occasions about cer- tain components not being checked properly, and he was also given a verbal warning in that he was not performing his job up to expectations, and then on April 19, 1979, Hoffman was given a written warning, as aforestated, and on April 27, 1979, it is noted that he did not check a component part properly, as will be detailed later herein. 12 There are two basic types of rear frames which the Company in- stalls on its trailers, one will accommodate a swing type door and the other a roll-up type. The frames, like the doors themselves, are quite dif- ferent from one another. '3 See G.C. Exh. 20. 72 GREAT DANE TRAILERS INDIANA had checked off the wrong frame, or in the alternative, that he could not have checked it at all because the two types of frames have such obvious differences that anyone could tell that this was the wrong one for that specific trailer. Respondent points out that it was then only a little more than a week later, on April 27, 1979, when Hoff- man again failed to do his inspecting job properly, and let a rear frame go by with the receiving angle or attach- ment welded about a half-inch too high-that the "spec sheets" indicate where this angle or attachment is to be positioned by stating the distance it should be from the bottom of the frame, and it is part of the inspector's job (Hoffman in this case) to check the distance with a tape measure-if the angle is too low the frame will still fit into the trailer and the angle can be rewelded at that point without holding up production on the main line- but if the angle is too high, as it was on this occasion, it is a different matter altogether-in this instance the rear frame will not go into the trailer and it will have to be cut off and rewelded before anything else is done, and such causes delay on the main assembly line, and this is precisely what happened when, on April 27, Hoffman failed to catch the fact that a receiving angle was welded too high, and that it did hold up production on the main line with about 25 people being idled for approximately a half hour in the fabrication area where the frame was constructed and would have been taken if Hoffman had been doing his job. Edwards testified that each time he talked to Hoffman about the problems they were having, the only thing Hoffman would say was that he did not have enough time, but that Hoffman's predecessor did not have a problem with the time requirements, nor for that matter has his successor. Edwards stated that he had seen Hoff- man standing around drinking soft drinks and talking when he should have been working and this sort of thing was going on during the times when components went by without being properly inspected, and he felt the problem was that Hoffman just was not checking items by the spec sheets and this was just not tolerable, and as a result he recommended to English that Hoffman be dis- charged. Jay Hoffman testified that on April 19, 1979, Supervi- sor Edwards informed him that he was getting a written reprimand because a rear frame with the wrong serial number on it had caused confusion and delays. Hoffman stated that he responded as follows: I told him that I felt that since I was getting that one and I didn't deserve it, that the way I had been followed around through the plant, and the attitude I felt the company had towards me, he might as well write out another one right there and date it for the next week because I looked to get one next week. Hoffman testified that he had inspected the rear frames here in question on the night before, at the end of the workday, and further stated: It means-it was a case where there were two rear frames, and in the serial numbers there was a 9. And the numbers are stamped on there with steel stamps. And the 9 had been mistaken for a 6 on the two different rear frames, and they had gotten turned upside down. The one that had the 9 on it was supposed to have been a 6, and the one that had the 6 was supposed to have been a 9. Hoffman also explained that Edwards had talked to him about some side door problems about 3 weeks before this April 19 incident, and on this prior occasion he in- formed Edwards that Superintendent English had previ- ously told him to watch the "king pins" more closely and that he was to pay less attention to minor things like the side doors. Hoffman said that Edwards at this time also had a reprimand slip with him, but he was given no written reprimand on this occasion. On April 27, 1979, Hoffman was called into the office and testified that in the presence of English, Edwards, and Nevils the following conversation took place: I was told that they had a rear frame with the at- tachments a half-inch too high on it, and that I was going to be sent home. They didn't know what to do about it as far as discipline. And I was told that they were going to send me home, and for me to come back the following Monday at 9:00 o'clock and they'd let me know. David English said he'd let me know what they had decided then. Q. Can you recall anything else that was said at that meeting? A. He told me he felt-David English said that he felt that I wasn't doing my job, for some reason it looked to him like I had my mind on something other than my job, and that I had held up produc- tion with that particular rear frame, and from what he had heard from Robert he was under the impres- sion that I didn't care about my job. Q. Did you respond in any way? A. I asked him-I asked Robert what I had said, or done that gave him the impression that I didn't care about my job. And he said that it was what I had said in his office the day that I received the reprimand about I expected to get another one within a week or so. Q. So what did you say then? A. I said that I didn't mean that to that effect, that what I meant when I said that was that what I had said was exactly what I meant, was that I felt the way I was being badgered and harassed that they were trying to get rid of me. Hoffman then returned to the plant the following Monday, April 30, and testified as follows: Q. And where did yod go when you returned? A. To the personnel office. Q. And who was present there in that office? A. The secretary, and myself, and if I remember correctly Mr. Charlebois was in his office, Mr. Eng- lish came in, and then we went into Mr. Charlebois' office. 73 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Who was present then in Mr. Charlebois' office? A. Myself, Mr. Charlebois, Mr. English. Q. Could you tell us what took place in Mr. Charlebois' office. A. He had my records on his desk, and he told me that he had been going through them, looking them over, and that from what he had seen on my record and from what he had heard from Robert and David that he felt I wasn't doing my job. He said he didn't really know what my job involved, but from what he had seen that he felt I wasn't doing it, and he didn't know what the problem was, but based on my records, the situation, he was going to have to terminate my services with the company on those grounds. If I remember correctly, I was asked how I felt about it, and I responded by saying that I felt like they felt they had a problem with me as an inspec- tor, and one of the main problems that they had wasn't me, it was the fact that they had a lot of people in the plant that didn't care about their jobs, they didn't care whether they were being built right, that I had people that were slipping jobs out past me, covering up things that were wrong on the jobs, that there were times when people would take a piece of soapstone and write O.K. on a particular item like a rear frame, or a fifth wheel thinking that I would glance at it, I am assuming, and think that I ,had okayed it, or something to that effect. And I was told that one of my biggest problems was that I was always worried too much about trying to be a boss and not doing my own job. Q. Who told you that? A. Mr. Charlebois. Respondent maintains that no final decision to termi- nate Hoffman had been made prior to Monday morning, April 30, but Respondent's director of industrial rela- tions, Charlebois, testified that the decision to discharge Hoffman was then made. Charlebois stated the following: Q. Just explain for the Judge what occurred? This is the morning of April 30, 1979, the morning of Mr. Hoffman's discharge. A. Well, as I recall Mr. Hoffman was to report to the plant at 9:00 and he did report at or about that time. And David English and , the plant superin- tendent, were talking in my office about another matter. And the secretary came in and informed us that Mr. Hoffman was there. We concluded talking about the other matter which was in a matter of minutes, and asked Jay to come into the office. He sat down and I told him that-and he was aware of what he was there for- that we had this problem, and that we had looked at his record and speht a lot of time discussing it and discussing him as an individual. And his activities as it applied towards his job, and the performance of his job. And that we had come to the conclusion that we were at the parting of the ways. We were going to have to terminate his employment unless there was some redeeming features, unless there was something that he could say that would change our mind as to why he was acting and performing the way he was, or convince us that the problem could be solved, and as far as he was concerned that we would have a good em- ployee. But as of right then he was not a good em- ployee and we were going to terminate him. Basically Jay blamed everybody other than him- self for the predicament he found himself in. He talked about that he was spending all of his time out there babysitting with the employees out there. That they didn't give a darn as to what kind of quality they produced, what kind of trailer they produced, and that we should be thankful that we have somebody out there like him who was interest- ed and concerned with his job. And he said that he was tired of babysitting with these guys. And he couldn't do his job as long as we let those other people produce at will or what- ever kind of product that they wanted to produce. And he stated that he didn't have enough time to do the job that he wanted done. He talked about the fact that he inspected the important things and didn't inspect the things that weren't as important. And when asked you know who determined what the important things were and the unimpor- tant things were he said that he had to decide that. That he was checking the kingpins and that David told him to inspect that. And then I advised him that he was also told that he was supposed to in- spect everything. And he said he didn't have time. And part of our conversation or discussion lead- ing up to this meeting involved the fact that he had been told that he was not to state that he inspected something that he hadn't inspected. And that he was continuing to do that. And he said that he didn't have time to do it all. And I said you know you just don't take the re- sponsibility and say you inspected it if you didn't in- spect it. And you were told not to do that. He al- luded to the fact, again, that he knew what was im- portant and he was going to decide. And I told him at that point that he wasn't going to decide. That we were going to decide what was going to be done and how it was going to be done. And that he had to do it that way. As as we were talking he sat there with a kind of a smirk on his face you know. And quite frankly I had the opinion that he felt this was kind of a joke and we weren't going to be able to do anything about the situation that he found himself in. And I told him you know that I had trouble buying his story. And that he had been previously talked to. He had gotten a written warning. And he knew a second written warning meant discharge. That anybody with the intelligence that he had would know that you have got to shape up your act or you are going to be gone. And that if he had any questions or any prob- lems, if he was concerned about his job at all, he would have sought out somebody to help him with 74 GREAT DANE TRAILERS INDIANA the problems that he was having because he knew he was going to lose his job if he got another writ- ten warning. And the conversation was basically that. And I told Jay you know that we saw no reason to contin- ue his employment. That basically his attitude was such and his response and his whole approach to the problems that we were having didn't fit into the way that we wanted to run that company. And that we were going to run that company. He wasn't going to do it. And that therefore we were going to terminate him. And he said okay. Q. Let me back up to a statement you made earli- er. You said that Mr. Hoffman told you on this oc- casion that he wasn't anything but a babysitter for I think you used the expression "those guys out there." Do you know what he had reference to? A. Well, he was talking about the people who were producing the product, the rear frame and the products in that area, the component parts in that area. Q. About how many employees was he talking about? A. Probably about twenty people or something like that. And he said he had to babysit for them be- cause he had to catch all of their mistakes and go back and tell them you know they did this wrong or they did that wrong. And that they didn't care how they did it. Q. Let me ask you this, Mr. Charlebois, what is your understanding of the inspectors job or func- tion? What is he there for? A. Well, he is there to catch any mistakes or any poor quality and tell the people where the mistakes are and try to get them changed. And if he can't get them changed that way then he goes to the su- pervisor in the area or his supervisor. He is an audi- tor. He has got to be sure that the product coming out of there is meeting quality standards. If it doesn't then he should let somebody know and not pass it. Q. Are you and Mr. Hoffman about the only ones in there talking that morning? A. Basically, yes, I would say so. Q. At anytime during that conversation did Mr. Hoffman deny he had let things go through without inspecting them, or let the wrong thing go through, or any of the things that appeared on his record? Did you reveal his record? A. Well, not point by point. We talked about the things that he had received or had been talked to. And he had this written warning. And that he was still persisting to perform in the same way that he was before he got the written warning. Q. All right. Did you point these things out to him? A. Yes, I did. Q. Did he deny that he persisted in doing things the same way? Did he deny your statement in other words? A. No, he didn't deny it. He didn't agree with it either. Q. He said nothing at all? A. Other than to-you know he blamed other people. He blamed the way we were running things. And he also said you know-one of the other things he said was the fact that a lot of worse things had gotten out of the plant than we were talking to him about. He didn't talk about Jay Hoffman and his per- formance and his approach to the job at all. It was always somebody else. Q. Did you have any idea what he was talking about when he said worse things had gone out of here? A. Not really, I don't. And I don't know whether anybody else does. But personally I don't. Q. All right. Have you told me everything you can recall that was said that morning? A. I think so. Q. At any point in that conversation did Mr. Hoffman say that was sorry for the mistakes he made? A. No. Q. That he was sorry for anything that hap- pened? A. No. Q. Did Mr. Hoffman indicate that he felt if he had another chance that he could do a better job? A. No, he told me he couldn't do any better than he was doing. You know I am doing the best I can and I can't change and I can't do it any better than I am doing it. And that was part of the conversa- tion we were having. And I told him we were going to tell him how he was going to do the job. And that he wasn't going to tell us how he was going to do the job. In the final analysis, Respondent argues that just be- cause Hoffman happened to receive the reprimand on April 19 after he got started on his union activity, it is a coincidence which only he could control-that the Com- pany did not send the wrong rear frame down the line, Hoffman did it-nor is this one of those situations where an employer had expressed complete satisfaction with an employee's performance prior to his involvement in union activities-Hoffman's total work experience was clearly one of being a "hanger on" who managed to progress, not on merit, but rather on the basis and with the aid of a company policy of trying to move its older employees along as much as it could. Moreover, as fur- ther argued, the incident leading to the reprimand on April 19 was not simply a matter of the wrong serial number-it was an altogether wrong frame and it caused havoc on the assembly line, so that it required a great deal more than just a few minutes to straighten the matter out, and the fault was not that of someone who stamped the number on the frame, it was Hoffman's fault entirely because it was part of his job to see that the right frame goes on to the main line for assembly. Fur- thermore, Hoffman's next foulup resulted rather closely on the heels of the one just discussed-the improperly 75 DECISIONS OF NATIONAL LABOR RELATIONS BOARD welded receiving angle caused about the same problems and delay as the earlier "wrong door frame" incident, and again there was absolutely no excuse and this time Hoffman's supervisor had had all he could take. Final Conclusions as to Hoffman Respondent presented evidence attempting to show that Hoffman's omission of April 19, 1979, was a major as opposed to a minor error. Plant Superintendent Eng- lish distinguished major errors from minor ones on the basis of whether they held up production on the line, but, nevertheless, identified the notations of 11/10/78, 3/15/79, 4/19/79, and 4/27/79 on Hoffman's records (G.C. Exhs. 12 and 13) as errors that were major ones. 14 The General Counsel raises the question of what was it about Hoffman's failure to catch the wrong serial number on a rear frame on April 19, 1979, that caused the confusion and delay on the main line, and maintains that when the pertinent evidence is properly analyzed, it becomes apparent that the delay in production because of this problem was quite by accident. The General Counsel points first to the testimony of Jerry Shepherd, a specialist building rear frames. Shep- herd testified that when a frame with the wrong number gets by an inspector they would usually catch it in the paint area and then notify the boss who would, in turn, come back and get one of the builders of the frame and they would go up with the correct numbers and restamp it over the wrong numbers. Shepherd further testified that he had put the wrong serial numbers on rear frames quite a few times, and though none of them had ever gotten by Hoffman, they had gotten by other inspectors who had worked in this department. Shepherd added that production had not been held up on any of the occa- sions when one of his wrong serial numbers had gotten by the inspector in his department. Shepherd classified Hoffman as one of the better inspectors in the plant, and that he checked more than most of them. The General Counsel maintains and argues that the problem in Hoffman's case on April 19 was that the number on the rear frame was not "wrong enough." Hoffman testified that it was a case where one of two rear frames was supposed to have a nine in its serial number, but instead had a six, and the other rear frame was to have a six, but had a nine, as aforestated, and with this being the situation, the error would not be as obvious as when the number sequence was completely wrong, since, in that case, both rear frames would appear on the production schedule for the next day because they were both correct numbers for that day, but just on the wrong frame-so the chances that this particular rear frame would reach the main line and halt production were enhanced by the unusual nature of the discrepancy, and it was this fortuitous circumstance that caused the delay. Furthermore, argues the General Counsel, and I am in agreement, there was evidence that Hoffman did not even have the opportunity to inspect the rear frames with incorrect serial numbers on them before they went "4 Edwards added the notations of 4/10/79 and 4/11/79 on Hoffman's record as also being major errors, but then agreed that the general dis- tinction between major and minor errors were whether they held up other employees. to the main line. Hoffman gave reliable testimony that on the evening of April 18 some of the employees con- structing rear frames worked overtime but he did not, and that there were two rear frames being finished up on April 18 which he had inspected up to the finishing touches, but the serial numbers had not as yet been stamped, and by the time he was able to get over to the area where the rear frames were built on the morning of April 19, the frames here in question, that had been fin- ished on overtime the evening before, had by now been sent out of his area and as a result he then checked them off his production schedule as being inspected. Hoffman testified that he had done this on two or three previous occasions, but the first time he brought it to Edwards' attention was on April 19 while receiving his written warning, and at which time Edwards told him he should not be doing this since this practice would confuse man- agement as to whether or not he had inspected the item. The General Counsel points out that the above cir- cumstances demonstrate that Respondent jumped on a relatively minor error, which according to Shepherd happened on a regular basis, to give Hoffman a written warning-that there was nothing else wrong with the rear frame in question as it was properly built other- wise-it just had the wrong number on it, and therefore the written warning issued to Hoffman on April 19 was entirely unwarranted, but with the union election safely aside Respondent took the opportunity to commence its retaliation against Hoffman for his leadership in the orga- nizational campaign. Moreover, if this incident was such a major production holdup, then certainly management would have looked to all inspectors, directly or indirect- ly responsible, to share the blame. It appears to me that there is ample evidence in this record to show that Hoffman would not have received his written reprimand or warning on April 19 had it not been for his extensive union activities. First of all, there is credited evidence that it was not something new, or altogether unheard of, for wrong numbers to be put on rear frames-it had happened "quite a few times." More- over, there were certainly very unusual and extenuating circumstances involved in the mixup of the frames be- cause of the overtime put in by some of the employees on the evening of April 18, as aforestated, and on the next morning Edwards was fully advised of these fortu- itous conditions by Hoffman. Furthermore, on cross-ex- amination, Edwards admitted that the first time an in- spector misses or makes a major error-that inspector is not given a written reprimand. There is also evidence that in deciding if the mistake is a major or minor error-such is determined on the basis of whether such mistake held up production. Therefore, even giving full recognition for the Respondent's contentions that the wrong serial numbers on two different frames caused delays in production on the morning of April 19-this still would be Hoffman's first major error which caused a production holdup and under ordinary circumstances, he would not have received a written reprimand. The General Counsel contends that the discharge of Hoffman was inconsistent with Respondent's prior prac- tice. This record shows that Hoffman's discharge draws 76 GREAT DANE TRAILERS INDIANA immediate suspicion when one considers that during the period of January 1, 1977, to December 12, 1979, only 6 of the approximate 100 employees terminated were dis- charged for the reason of poor work performance, and that there had never been an inspection employee termi- nated for the reason that Hoffman was discharged. In fact, the record shows that only one inspection employee had ever been discharged by Respondent before Hoff- man. With this background, as pointed out, one can see that discharge for poor workmanship was a somewhat rare occurrence at Respondent's plant, and was almost unheard of in the inspection department. Indeed, as will be discussed below, other employees with poor records for workmanship only received written and verbal warn- ings. Furthermore, as also indicated, except for Hoffman, other inspection employees were given the opportunity to do other work when their inspection work did not measure up to Respondent's standards. ' The General Counsel argues that Respondent's failure to discharge another inspection employee, Chris Simon- son, casts considerable doubt on the legitimacy of Re- spondent's discharge here in question, and shows a dispa- rate treatment of Hoffman. Simonson was employed by Respondent as an inspec- tor at the beginning of their main production line, and had responsibility for checking certain items in his imme- diate area, and reinspecting items coming from depart- ment 74 and department 75. In March 1977, he received a written warning for absenteeism and tardiness, and by March 1978 Simonson had received another written rep- rimand for not coming to work on time and disinterest in his job, and on this occasion was also told of the impor- tance of his job and warned of impending release if the problem was not alleviated. Then on October 10, 1978, Simonson received another written reprimand for not checking jobs by shop order, and this was followed 8 days later with verbal discussion between Simonson and Foreman Edwards and Plant Superintendent David Eng- lish where Simonson was again rebuked about not check- ing jobs by shop order. Moreover, on November 8, 1978, English and Edwards sat down with Simonson yet an- other time to discuss his failure to check jobs by shop order. At the hearing before me, Plant Superintendent Eng- lish took the initial position that there were no employ- ees in the inspection department, during the period run- ning from the fall of 1978, until the beginning of the Union's campaign, that Respondent was more dissatisfied with than Hoffman, but when actually confronted with Simonson's work record, English then agreed that man- agement had talked to Simonson on two occasions as to a' Though Personnel Director Charlebois admitted that poor work- manship was the principal reason for Hoffman's discharge, he also insist- ed that Hoffman's attitude played an important part in the final decision, and at one point asserted that Hoffman would have been retained if he had admitted he was wrong and would do a better job. However, there is no mention of attitude on Hoffman's discharge slip or his discharge notice to the payroll department. Yet in the case of employees Brinkman and Miller, attitude was clearly assigned as a reason for their respective discharges in addition to poor work Certainly, if attitude had played such a critical role in Hoffman's discharge, Respondent would have so stated on its records. his work performance, and that Simonson had more problems in this period than Hoffman. t The above shows that in Simonson's case Respondent had some real problems, and yet management never took the ultimate step of discharging him. Unlike Simonson, who received two verbal discussion sessions immediately after his written warning of October 10, 1978, Hoffman was discharged at the first opportunity after his April 19 warning. As pointed out, such disparateness in the han- dling of similar problems of employees in the same classi- fication has all the earmarks of unlawful discriminatory motivation, and it readily appears that the only differ- ence between the two employees that could explain such disparate application of Respondent's disciplinary system, is the leading role Hoffman took in the union campaign. Herschel Walton became a quality control inspector for about 6 months back in early 1979, and his work record in this period shows several notations for missing defects which he was responsible for inspecting, and this culminated in a verbal warning on June 21, 1979. 7 However, on August 29, 1979, Walton transferred back to his old position which he held prior to his promotion to inspector. On that date Walton was called to meet with management and was informed that he was not doing his job good enough, but the Company was giving him a choice of staying on as an inspector and receiving a written reprimand, or going back to his old job. Walton chose his old job and returned to it. However, Hoffman was not given such an option at either his dis- charge interview or at the time he received his written warning, and when confronted with the fact that Hoff- man was not presented with a similar option at his April 30 discharge interview, Charlebois attempted to say that management could have done the same for Hoffman if Hoffman had given them some reason for doing so. However, as pointed out, it is indeed questionable that Respondent in any way intended to grant Hoffman such an option since he was then facing his second written warning, and this fact is made all the more clear by Re- spondent's failure to make such an offer to him at the time of his April 19 written warning-that meeting was strictly between Hoffman and Edwards-and no attempt '^ See G.C. Exhs. 14 and 17. Respondent also attempted to place some of the blame for Simonson's difficulties in the fall of 1978 on Hoffman. Foreman Edwards testified that the verbal discussions Simonson received on October 18 and November 9, 1978, were for defects he missed that had first been missed by Hoffman. However, the overall evidence in this record reveals that Respondent expected later inspectors to catch defects missed by earlier inspectors, therefore, the fact that Hoffman made the initial error in regard to matters Simonson received a notation on, does not lessen the seriousness of Simonson's omissions. Certainly, Respondent felt this way or it would not have held the meetings with Simonson on October 18 and November 9, 1978. But more serious, as also indicated, is the failure of Respondent to make any notations in the file of Simonson on April 19 and 27, 1979. The wrong serial number of April 19 and the high receiving angles of April 27 (these formed the basis of Hoffman's written reprimand and discharge, respectively) could have been caught by Simonson before they delayed production on the main line. In regard to the wrong serial number, all Simonson would have had to do was to check the number with his copy of the shop order and he would have immediately known that the rear frame in question was not for the proper type of doors, and Respondent's failure to spread the blame to other inspectors, as had been their practice, again reveals that it was Hoffman and Hoffman alone that Respondent desired to punish. " See GC. Exh 21 77 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was made, as in the case of Herschel Walton, to call in Charlebois and salvage this employee. Moreover, Charle- bois admitted that it was not unusual for him to be called in by supervisors and discuss problems with an employee and that he had sat down with other employees in the past. As detailed by the General Counsel-if Walton were the only inspection employee with poor perform- ance for which Respondent had allowed to transfer in order to avoid discharge, one could argue that this was a one of a kind phenomenom, but Simonson was permitted to transfer from inspection to another department, as aforestated, and then Walton was permitted to return to his old job-there can be no doubt that Respondent judged inspection employees Simonson and Walton on a different basis than it did Hoffman. There is also little doubt that prior to his transfer to inspection in September 1978 Hoffman had been an above average employee. Though his initial year of work with Respondent showed minor difficulty with some as- pects of his work, he, nevertheless, was steadily ad- vanced from assistant trailer builder to trailer builder, to trailer builder specialist, and then to maintenance me- chanic. In 1978 half of his ratings were in the above- average category.' 8 Moreover, Hoffman's testimony that prior to his April 19 written reprimand he had not re- ceived a written warning, was uncontradicted, and even substantiated by Respondent's own records. Hoffman fur- ther testified that if he had received a verbal warning he was never informed of it. Respondent's records only reveal the one verbal warning of March 15, 1979. When Hoffman was promoted to inspector, he was informed by Edwards and English that with his experience with the Company in subassembly and welding in the Jigs and Fixture department, they felt he could handle the job. This record also reveals that Hoffman had been a good employee while in the inspection department. Em- ployee Thomas Smith described Hoffman as "picky" in the sense that he always made workers bring jobs back even if there was a "little bit of splatter on the welds." Employee Jerry Shepherd testified that Hoffman was "real good"-stated that he had gone through every in- spector they had in rear frames and Hoffman was one of the better inspectors. Shepherd then described former In- spector Butts as a joke teller, and described former In- spectors Mullinex and Wilson as being about the same, but testified that Hoffman was usually there, and that parts did not get out unless he okayed them because Hoffman started a system of marking "ok" on everything he inspected. Moreover, in a similar vein, it was Hoff- man who requested that he be given spec sheets, rather than shop orders, so as to enable him to perform his duties better. Management also produced considerable testimony in efforts to establish that Hoffman's promotion to inspector was based strictly on seniority. English spoke of a system of giving early hires special consideration in promotions, and a distinction was drawn between early hires with su- pervisory ability and those without it. Hoffman was la- beled as not having supervisory ability, but employees like him were to be promoted as far up the line as possi- 18 See Resp. Exh. 12, and also G.C. Exh. 12. ble without getting into supervisory positions. However, English testified that they had problems building trailers and that was why they had inspectors and supervisors, and they were called " key people." Though Respondent would not admit that the inspection position was neces- sarily a step toward supervision, the evidence showed that of the three inspectors holding Hoffman's position before him, two of them, Butts and Wilson, had become supervisors, and the other, Mullinex, was now inspector over all welding. As pointed out, Respondent would not fill a position solely on seniority where supervisory po- tential could be cultivated with a person they did not feel could become a supervisor. Furthermore, such a system is totally inconsistent with Respondent's employ- ee handbook which states, "The primary reason for your promotion to a higher paying job will be your ability, service record and experience. '9 Respondent, in basing its decision to terminate Hoff- man for poor work performance, ultimately relied on Hoffman's failure on April 27 to discover that the receiv- ing angles on a particular rear frame were a half-inch too high, as aforestated. English testified that Hoffman's error on this occasion was a major one because it held up production and both English and Edwards made a distinction between the effect of a receiving angle being too low and one being too high-that if a receiving angle has been welded too low it can be redone without halting production to any significant degree, but if it is welded too high, then production on the main line is stopped until the attachments can be taken off and welded in the proper lower position-and what made Hoffman's error a major one on this occasion, as op- posed to a minor one, is the happenstance that the at- tachment was welded too high instead of too low. How- ever, English agreed that the odds of an attachment being built too high as opposed to too low were about the same, and it was only the results of such an error that differed. When asked if it was just the same error by the inspector whether he missed an angle that was too high or too low, he remarked that the inspector would realize the importance of not letting it be too high "off the top of his head," and not let it be too high or else a trailer cannot be built. Thomas Smith testified that he had welded receiving angles too high or too low in the past and that they had gotten by the inspector, although it was not Hoffman. He indicated that it would take about a half hour to make repairs in rush situations, but he had never been written up for it. Employee Jerry Shepherd testified that although there was only one occasion in which a wrong type of receiving angle welded by him had gotten by an inspector (Mullinex being the inspector on that occa- sion), he knew of quite a few occasions on which receiv- ing angles had been welded too high or too low, and in these circumstances had gotten by the inspector a couple of times. Shepherd stated that it took 20 to 30 minutes to correct the wrong attachment he had placed on the rear frame, and that the only real holdup in production was '9 See G.C. Exh. 2, p 14, 78 GREAT DANE TRAILERS INDIANA created by his being out of his own area and not per- forming his normal work. From all of the above, it appears to me that Respond- ent attempted to somewhat embellish the seriousness of an error that does happen in the rear frame assembly area now and then, but under normal circumstances the mistake is then corrected when eventually detected, and very little else happens to the employees and inspectors involved As noted, Respondent's defense does not rest solely on the errors made by Hoffman on April 19 and 27, but pre- sumably is supported by the errors noted on Hoffman's record of situations beginning on March 15, 1979. In this regard the timing and nature of the March 15 warning becomes immediately suspect. As pointed out, the Union filed its petition for a representation election on Thurs- day, March 8, 1979, and with the exception of the two previously mentioned notations in Hoffman's record of situations in October and November 1978, Hoffman's file is void of any suggestion that Respondent was in any way dissatisified with his work from November 9, 1978, until March 15, 1979. Moreover, there can be no doubt that by March 15, 1979, Respondent was well aware of the key role that Hoffman was playing in the cam- paign. 2 0 In the final analysis, the Company then attempted to base Hoffman's discharge on his attitude. However, de- spite Respondent's assertions as to what it meant by Hoffman's bad attitude, the evidence shows that the "bad attitude" of Hoffman was nothing more than his expres- sion of resentment toward Respondent over how they were treating him because he had supported the Union. Hoffman testified that, at the April 30 meeting, Charle- bois told him that he did not feel he (Hoffman) was doing his job and he did not feel he (Hoffman) cared about his job, but by now it was clear to Hoffman, if it had not been before, that Respondent's mind was made up and the meeting in which he found himself was a mere formality, as aforestated, but Respondent's conten- tion that Hoffman revealed himself at the meeting on April 30 as an uncaring, unrepentive employee cannot be supported when all the circumstances are evaluated. I have found that the April 19, 1979, written repri- mand, and the discharge on April 30, 1979, were both motivated or triggered as a result of Hoffman's leader- 20 As also indicated, the seriousness of the March 15 warning to Hoff- man is open to question. English described the six rear doors with the vent in the wrong door as a fairly serious error, but testified that 12 em- ployees would build 6 rear frames at a time and then go on to other ones. Edwards testified that Hoffman would generally inspect a finished com- ponent and would only inspect the separate components, while they were being made, if he had time. He further stated that, while Hoffman had the right to check rear doors as they were being built, he would general- ly check them when they were completed. Since Respondent did not re- quire Hoffman to inspect components as they were being built, it would be normal for Hoffman not to discover that a set of six doors correspond- ing to six rear frames had the wrong vent in them until after they had been built. Therefore, as pointed out, when the six sets were discovered with the vent in the wrong door, the damage was already done, and Re- spondent, in essence, was then reprimanding Hoffman for not catching the errors in the components (the doors) as they were built, something Edwards admitted Hoffman only had to do if he had time. Thus it p- pears that on or about March 15, 1979, management began building a case for the ultimate discharge of Hoffman ship activities for the Union, and therefore violative 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. It having been found that the Respondent discrimina- torily discharged Jay Hoffman, I shall recommend that Respondent offer him immediate and full reinstatement to his former or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or other rights and privileges previously employed, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment of a sum of money equal to that which he would have normally earned from the date of his dis- charge, less net earnings, during said period. All backpay provided herein shall be computed with interest on a quarterly basis, in the manner described by the Board in F W. Woolworth Company, 90 NLRB 289 (1950), and with interest thereon computed in the manner and amount prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). CONCL USIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By engaging in conduct described in section III, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 t The Respondent, Great Dane Trailers Indiana, Inc., Brazil, Indiana, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Promulgating and issuing a no-distribution rule ban- ning distribution of union literature during nonworking time in nonworking areas. (b) Threatening employees with discharge because of their union activities. (c) Soliciting its employees to wear Company "vote no" stickers, and interrogations in relation to the same. (d) Prohibiting its employees from engaging in union activities. 2 In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Threatening employees with other reprisals (harm to Hoffman and less overtime) because of their union ac- tivities. (f) Interrogating employees as to their union activities. (g) Laying off, discharging, issuing written warnings to, or otherwise discriminating against employees be- cause of their union or concerted activities. (h) Discouraging membership in the Union, or any other labor organization of its employees, by discriminat- ing against them in regard to their hire and tenure of em- ployment or any terms and conditions of employment. (i) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Jay Hoffman immediate and full reinstate- ment to his former job or, if such job no longer exists, to a substantially equivalent position, and make him whole for any loss of pay and other benefits in the manner set forth in the section of this Decision entitled "The Remedy." (b) Expunge from its files any references to the disci- plinary warnings issued to Hoffman on April 19, 1979, and to his subsequent discharge, and notify Hoffman in writing that this has been done. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Decision. (d) Post at its place of business in Brazil, Indiana, copies of the attached notice marked "Appendix." 22 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Re- spondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Decision, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that all allegations in the amended complaint not found herein to be violative of the Act, be, and the same are, hereby dismissed. 22 In the event 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." 80