Blue Bird Body Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1481 (N.L.R.B. 1980)

BLUE BIRD BODY COMPANY 1481
Blue Bird Body Company and UBC, Southern Coun-
cil of Industrial Workers, United Brotherhood
of Carpenters and Joiners of America, AFL-
CIO. Cases 10-CA-14588, 10-CA-14905, 10-
CA-14913, and 10-RC-11633
August 27, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDAI.E
On May 7, 1980, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief
to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,t find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
I The Respondent and the General Counsel have 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 credibility unless the clear preponderance of
all of Ite relevant evidence convinces us that the resolutions are incor-
rect. 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.
We also find totally without merit Respondent's allegations of bias and
prejudice on the part of the Administrative Law Judge. Upon our full
consideration of the record and the Administrative Law Judge's Deci-
sion, we perceive no evidence that the Administrative Law Judge pre-
judged the case, made prejudicial rulings, or demonstrated bias against
the Respondent in his conduct of the hearing or his analysis or discussion
of the evidence
2 In adopting the Administrative Law Judge's finding that the Re-
spondent engaged in objectionable conduct by its discriminatory enforce-
ment of a no-solicitation rule, we find it unnecessary o rely on the Ad-
ministrative Law Judge's rationale that prepetition conduct may be found
objectionable where the continuing effect of such conduct tends to de-
stroy the conditions of a free and untrammeled election, and the cases he
cites in support thereof Instead, we rely on the rationale that prepetition
conduct may be considered in determining whether a party has engaged
in objectionable conduct where such prepetition conduct lends "meaning
and dimension" to post-petition conduct, as stated in Dresser Industries
Inc., 242 NLRB 74 (1979), and Stevenson Equipment Company. 174 NLRB
865, 866, fn. 1 (1969). See also Warren W Parke. d/b/a Parke Coal Com-
pany, 219 NLRB 546, 547 (1975) In any event, we find that the conduct
which the record clarly shows occurred after the filing of the petition.
even without considering any prepetition conduct, is sufficient to support
a finding that the Respondent engaged in objectionable discriminatory en-
forcement of a no-solicitation rule
We note that the Administrative Law Judge inadvertently misstated
that General Manager Jack Taylor did not deny the substance of an al-
leged conversation of Taylor and Chassis Assembly Department Manager
Don Atkinson with leadman David Truett and employee Eddie Dixon in
March 1979, before the election The record shows, as the Respondent
correctly contends, that Taylor was not questioned at the hearing about
the substance of this conversation
251 NLRB No. 196
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 and
hereby orders that the Respondent, Blue Bird Body
Company, Fort Valley, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election in
Case 10-RC-1163, held on March 28, 1979, be, and
it hereby is, set aside, and that that case is hereby
remanded to the Regional Director for Region 10
for the purpose of scheduling and conducting a
second election at such time as he deems that cir-
cumstances permit a free choice on the issue of
representation.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: These
consolidated cases were heard at Macon, Georgia, on
December 3 and 4, 1979.' The charges in Cases 10-CA-
14588, 14905, and 14913 were filed on April 19 and on
August 9 and 13, respectively, by UBC, Southern Coun-
cil of Industrial Workers, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO (herein re-
ferred to as the Union). The consolidated complaints,
which issued on June 8 and September 17, respectively,
and were amended at the hearing, allege that Blue Bird
Body Company (herein referred to as Respondent or the
Company), violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended. The gravamen
of the complaints, as amended, is that the Company al-
legedly threatened its employees with plant closure if
they selected the Union as their bargaining representa-
tive; threatened its employees with discharge or other
reprisal if they engaged in union activity or because they
engaged in such activity; interrogated its employees con-
cerning union activity and attitudes; created the impres-
sion of surveillance of union activity; prohibited proun-
ion solicitation by employees on working time while per-
mitting antiunion solicitation by employees on working
time; and allegedly terminated employee Richard Robin-
son on July 16, because of his union activity. The Com-
pany's answers deny the commission of the alleged unfair
labor practices.
Pursuant to a Decision and Direction of Election
issued by the Regional Director for the Region 10, on
February 28 in Case 10-RC-11633, an election by secret
ballot was conducted on March 28, among the employ-
ees of the Company in an appropriate bargaining unit.2
i All dates herein refer to the period from September 21. 1978,
through September 20, 1979. unless otherwise indicated
2 The unit consists of
Continued
BLUE BIRD BODY COMPANY 481
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The tally of ballots showed that of approximately 1,117
eligible voters, 380 cast ballots for the Union, 677 cast
ballots against the Union, and I cast a void ballot. The
79 challenged ballots were insufficient in number to
affect the results of the election. The Union filed timely
objections to the election. On June 27, the Regional Di-
rector issued an order directing a hearing on Objections
3, 8, and 9 (Objections 1, 2, 4, 5, 6, and 7 having been
overruled). Objection 3 alleged in sum that the Company
showed a movie which attempted to cause a racial prob-
lem by threatening its Black employees with loss of jobs.
The Regional Director concluded that the script (actual-
ly that of an audio slide presentation) did not attempt "to
exacerbate racial tensions," but that it did "constitute
veiled and not-so-subtle threats to the job security and
continued employment of employees who have engaged
in union activities." Objection 8 alleges that the Compa-
ny threatened its employees with plant closure if the
Union won the election, and Objection 9 alleges that the
Company granted time to antiunion employees to cam-
paign on Company time, while denying such privileges
to prounion employees. The Regional Director found
that the objections raised substantial and material issues
of fact which could best be resolved through the
medium of a hearing. By orders dated June 27 and Sep-
tember 17, the Regional Director consolidated the unfair
labor practice and the representation cases for the pur-
poses of hearing, ruling, and decision by an administra-
tive law judge. The Regional Director also ordered that
after decision by an administrative law judge, the repre-
sentation case be transferred to and continued before the
Board. Respondent's motion to sever Cases 10-CA-
14588 and 10-RC-11633 from Cases 10-CA-14905 and
10-CA-14913 was denied by me at the opening of this
hearing.
All parties were afforded full opportunity to partici-
pate, to present relevant evidence, to argue orally and to
file briefs. General Counsel, the Union and the Company
each filed briefs. Upon the entire record in this case,3
and having considered the briefs submitted by the par-
ties, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a Georgia corporation, maintains an
office and place of business at Fort Valley, Georgia,
where it is engaged in the manufacture and sale of
school and transit buses and recreational vehicles. The
All production and maintenance employees employed by the Compa-
ny at its Fort Valley, Georgia, facility, including janitorial employ-
ees, Wanderlodge employees, tool and die employees, expeditors, in-
spectors, leadpersons, experimental department employees, schedul-
ers, local truck drivers, draftsmen, part-sales department employees.
inventory control clerks and shipping and receiving department em-
ployees, but excluding over-the-road truck drivers, bus drivers,
standards manual technicians, industrial engineering technicians,
graduate engineers, purchasing department employees. payroll clerks,
foremen, guards and supervisors as defined in the Act
3 By a separate order annexed to this Decision, I an) correcting the
official transcript of proceedings in certain minor or obvious respects,
and also correcting the spelling of the names of certain persons, as re-
quested by Respondent in its brief
latter are known by the trade name of "Wanderlodge."
In the operation of its business, the Company annually
ships products valued in excess of $50,000 directly from
its Fort Valley facility to points outside of Georgia. The
Company is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE I.ABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND
TH. OBJECTIONS TO THE ELECTION
A. Alleged Disparate Application of the Company's
No-Solicitation Rule
In late September 1978, the Union began an organiza-
tional campaign among the Company's employees, and
on December 26 the Union filed the election petition
which resulted in the election which is a subject of this
proceeding. In October the Union formed an employee
organizing committee, which at that time consisted of
some 39 employees. Shortly thereafter some employees
who were opposed to unionization joined in a committee
known as True Blue. Both groups continued to actively
campaign until the election. The Company also actively
opposed unionization. Neither the complaint nor the
Union's objections allege that the Company either
formed, dominated, participated in, or campaigned
through the True Blue committee. However, the com-
plaint alleges that the Company "since on or about Octo-
ber 15, 1979, has prohibited employees from soliciting
fellow employees on behalf of the Union during their
working time, while permitting other employees to solic-
it fellow employees to be against the Union during their
working time." Union Objection 9, which is unencum-
bered by such an obviously erroneous date, alleges that
the Company interfered with the election by "grant[ing]
privileges to the so-called Blue Bird Committee to cam-
paign on Company time and/or payroll, while declining
such opportunity to petitioner's committee, who made
such request." The Company contends that the com-
plaint is fatally defective by reason of the erroneous date,
and further contends, with respect to the Union's objec-
tion, that evidence of disparate treatment prior to the
filing of the election petition, i.e., evidence predating De-
cember 26, cannot be considered. The first contention is
without merit. All parties clearly understood that the
period in litigation was that of the organizational and
election campaign, i.e., from October 1978, through
March 28, 1979. Indeed, the Company concedes that the
complaint date was an "obvious error." (The Company
did not object to the presentation by General Counsel of
evidence of disparate treatment prior to "October 15,
1979," and itself presented evidence on the allegation
with respect to the period from October 1978 through
March 1979. 1 find that the matter was fully and fairly
litigated, and that the complaint should be deemed, with-
out need for formal amendment, as alleging disparate
treatment since on or about October 15, 1978, as all par-
ties fully understood. I shall defer discussion of the Com-
_.
BLUE BIRD BODY COMPANY 1483
pany's second contention until after I have made my
findings on the substance of the allegations.
General Counsel's principal, but not only witness on
this matter was former employee Eddie Dixon. Dixon
was outspokenly opposed to the Union, and he partici-
pated in the True Blue committee, which fact was
known to his supervisor, General Foreman Jack Taylor.
Dixon worked in the All American chassis assembly de-
partment. Taylor was general foreman over the depart-
ment, which comprised about 70 employees. Production
Foreman Elmer Belcher functioned as Taylor's assistant.
In June 1979, more than 2 months after the election,
Dixon was discharged, in accordance with Company
policy, for twice being absent without leave during a 6-
month period. In fact, Dixon was continuously absent,
beginning about I week before a plant vacation shut-
down in May, and continuing after the vacation. Dixon
did not contact the Company during his absence, al-
though Foreman Taylor heard from another employee
that Dixon was sick. I credit Dixon's explanation that he
lost interest in working for the Company, and, therefore,
that he expected to be terminated and bore no ill will
against the Company by reason of his termination. How-
ever, after his termination Dixon had a change of heart,
and expressed interest in returning to work for the Com-
pany. Dixon was also angry because he believed that the
Company did not return all his tools to him. I credit the
testimony of the Company's witnesses to the effect that
when Foremen Taylor and Belcher were noncommittal
about Dixon's chances of returning to the Company,
Dixon vaguely suggested that if he was not rehired, he
would cooperate with the Union in the investigation of
its objections to the election. In particular, I have no
reason to disbelieve the testimony of Taylor's daughter,
Cheryl Gilcrest. Gilcrest testified that in late June,
Dixon called Taylor's house one evening when Taylor
was not home and left a message with Gilcrest that her
father should get in touch with him as soon as possible,
that Dixon had spoken to Bracken (the Union's repre-
sentative), and that Jack would understand. Even apart
from the testimony of Taylor and Belcher, it is difficult
to attribute any wholly innocent meaning to this mes-
sage. Dixon testified that Foreman Belcher asked him if
he wanted to return to the Company and that Dixon an-
swered that he had not yet decided. However, this ver-
sion is inconsistent with Dixon's testimony that he told
employee John Goodroe that he would talk to Bracken
"since I didn't have anything to lose."
I agree with the Company that in light of the forego-
ing circumstances, Dixon cannot be regarded as a disin-
terested witness, and that his testimony should be viewed
with considerable caution, particularly where it is uncor-
roborated and disputed by another witness. However, I
do not agree that Dixon's testimony should be entirely
discredited. The principal difficulty with this argument is
that much of Dixon's testimony, particularly with respect
to the matter of disparate treatment of solicitation on
working time, is either uncontroverted, or admitted by
Company witnesses, or corroborated or supported by
more reliable testimony, such as that of John Goodroe, a
leadman and long-time employee who was still in the
Company's employ at the time of this hearing. Thus,
Dixon testified without contradiction that in December
an employee-member of the True Blue committee asked
him to do a radio spot for the Company at 6:30 p.m.
Dixon, who normally left work at 5:30 p.m., said that he
would have to leave work early. Dixon informed Fore-
man Taylor of the situation, and Taylor told Dixon not
to "worry about knocking off early" because Taylor
"picked up the timecards that afternoon," i.e., that the
employees who participated in the radio spot would be
paid for a full day.4 Former employee James Wood, a
union adherent, testified without contradiction that one
morning during the campaign, he saw Inspector Mike
Scarbrough put up nonunion literature on the wall of the
dynamometer room during working time. On his lunch-
break, Wood tore the poster off the wall and threw it
into the trash. That afternoon, Wood was summoned to
Taylor's office, where Taylor asked him if he tore off
the poster. Wood admitted that he did because "it wasn't
supposed to be on there," Taylor stated that unless he
(Taylor) gave permission, Wood should keep his "fat
hands off." Wood protested that "If they can put it up
on Company time, why can't we?" Taylor responded: "I
won't give you permission to put up or tear down noth-
ing." In sum, Taylor made clear to Wood that antiunion
employees were free to put up posters on working time
on company property but that union adherents were pro-
hibited from doing so at any time. Eddie Dixon testified
without contradiction concerning certain conversations
which he had with Department Manager Don Atkinson,
who supervises the chassis assembly area. Atkinson was
not called as a witness, although there is no evidence
which would indicate his unavailability. Dixon testified
that Blue Bird emblems were distributed beginning about
the second week of the campaign.
At that time Atkinson told Dixon that he heard the
things that Dixon said to the union people and he asked
Dixon to get together with other employees and tell
them how he felt about the Union. Dixon also testified
that one afternoon, during working time, Atkinson said
that there were not enough Blue Bird emblems in the
makeup room. Atkinson asked Dixon to talk to the em-
ployees and to distribute some of the emblems. Dixon
further testified that on one occasion in November, At-
kinson asked if he had any Blue Bird emblems. Dixon an-
swered that he had given them all out. Atkinson said
that employee Hubert Wilson wanted one and he asked
Dixon to find an emblem. Dixon obtained an emblem
from another employee and gave it to Wilson. All of this
occurred on the employees' working time. In contrast to
the Company's tolerance and even encouragement of em-
ployee antiunion activity on working time, the Company
took a hard line toward solicitation by prounion employ-
ees. Employee John Goodroe testified without contradic-
tion that when he began wearing union insignia Foreman
Taylor told him that it was company policy that they
I As indicated, neither the complaint nor the Union's objections allege
that the True Blue committee acted as an agent of the Company More-
over, the Company offered to prove that on November 8 it posted a
notice to its employees to the effect that the committee was not author-
ized ito speak for the Company Therefore, he activities of True Blue and
other antiunion employees, whether or not on vsorktime, must be deemed
as employee rather than employer acivity
BLUE BIRD BODY COMPANY
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not be allowed to do any campaigning or solicit-
ing on "company time, but could only do so on break-
time," lunchtime, or before or after work.
As indicated, the Company eagerly encouraged and
solicited Eddie Dixon to campaign against the Union and
was fully aware that much of his activity took place on
his own working time and that of other employees. This
fact tends to shed light on other events or alleged events
as to which the facts are at least partially in dispute. The
events described above occurred prior to the filing of the
election petition on December 26, or as to some, the evi-
dence is inconclusive as to whether they occurred prior
to that date. However, testimony was adduced as to
other events which are at least partially in dispute and
some of which occurred after December 27. Dixon testi-
fied that in October he was working on the city busline
when Foreman Taylor came up to him. According to
Dixon, Taylor asked him to tell John Goodroe and other
union adherents how he felt about the Union. In particu-
lar, Taylor told Dixon to say something to Goodroe at
every opportunity when there were people present.
Dixon testified that he harassed Goodroe (who was a
friend of his) by making a remark to Goodroe about the
Union or Goodroe's union activity "just about every
time I'd go by." Foreman Taylor testified that he did not
give Dixon permission to campaign on company time.
According to Taylor, Dixon asked if he could "hassle"
or "russle" Goodroe. Taylor testified that he refused
such permission, saying that what Dixon did on his free
time was his own business, but if a fight broke out Dixon
could be fired even if the action occurred on breaktime.
I credit Dixon, because the uncontroverted testimony
discussed above indicates that as late as December, Su-
pervisors Taylor and Atkinson were allowing and en-
couraging Dixon to campaign against the Union on his
working time and that of other employees. Dixon further
testified that in March, prior to the election, and while
he was at work, he was summoned on the plant public
address system to report to Department Manager Atkin-
son's office. Taylor, Atkinson, and leadman David
Truett, also an antiunion employee, were present. Ac-
cording to Dixon, Taylor, and Atkinson asked the two
employees to "more or less stop any questions" by union
adherents Goodroe and Wood at a captive audience
meeting which the Company had scheduled for that
afternoon. Taylor, in his testimony, was somewhat equiv-
ocal about the matter. Taylor testified that he did not re-
member such a meeting, although it was possible that the
four were together in Atkinson's office, because he
(Taylor) frequently met with Atkinson to discuss prob-
lems, and leadmen and other personnel, including Dixon,
would look for him in Atkinson's office. Taylor testified
that he did not recall summoning Dixon to Atkinson's
office during the campaign. However, Taylor did not
deny the substance of the alleged conversation and, as in-
dicated, Atkinson was not presented as a witness. (David
Truett also did not testify.) I credit Dixon.
About February 1, True Blue employees circulated a
petition among the Company's employees for the pur-
pose of informing the Union that the employees did not
wish to receive literature from the Union. John Goodroe
and James Wood testified in sum, that they saw Eddie
Dixon and David Truett, during working hours, circulat-
ing the petition among employees who were at work.
However, Dixon did not testify concerning the matter. A
few days later Goodroe and Wood complained to Fore-
man Taylor about the matter. According to the employ-
ees, they asked him why union employees could not also
campaign on Company time. Taylor responded, in es-
sence, that he was not sure of the Company's policy and
would check. Goodroe testified that later that day
Taylor told him that he had checked, and that the Com-
pany's policy was that neither side was allowed to cam-
paign on company time, and if they did and he knew
about it, he would have it stopped. Taylor testified that
Goodroe and Wood asked for permission to campaign on
company time "like the True Blues before working
time." According to Taylor, he responded that they
were not allowed and could not interfere with the work
of other employees. Taylor testified that Goodroe men-
tioned a petition, and he answered that he knew of no
such petition and that it certainly would not be circulat-
ed if he were aware of it. Taylor further testified that he
investigated the matter, but was unable to establish that
the petition was circulated, or by whom it was circulat-
ed. However, Taylor admitted that other employees re-
ported circulation of the petition, and that he called to-
gether the persons he thought responsible, specifically
Truett, Dixon, and possibly other True Blue employees,
and cautioned them that such practices were prohibited.
Taylor testified that the petition was circulated in the fall
of 1978. In fact the petition in question was circulated
during the election campaign, although the True Blue
committee did circulate a petition in November which
called for the return or renunciation of signed union
cards. Taylor also admitted that except with respect to
alleged prounion solicitation by John Goodroe of em-
ployee Raymond Little, he was not aware of any solici-
tation on working time in the chassis assembly depart-
ment "that I could act upon." In view of Taylor's dem-
onstrated tolerance and encouragement of antiunion ac-
tivity on working time, the quoted language is suscepti-
ble of more than one meaning. Taylor and Production
Supervisor Elmer Belcher further testified, in sum, that
on the same day Goodroe and Wood complained to
Taylor, Goodroe approached the two foremen and again
complained about the matter. According to Taylor, Goo-
droe said that Belcher knew that the petition was circu-
lated in the presence of the foreman. However, accord-
ing to Belcher, Goodroe said that a supervisor whom he
did not wish to name, saw the petition going up the line;
whereupon Belcher asked if Goodroe was accusing him,
and Goodroe said he was not. The circulation as de-
scribed by Goodroe and Wood took place on the chassis
line, which together with the subassembly area were
under the immediate supervision of Belcher. However,
Belcher testified that he had no knowledge of campaign-
ing during working time, other than the fact that em-
ployees would suddenly stop conversations when he ap-
proached.
I credit Goodroe and Wood, and I further find, in the
circumstances, that the Company knew of and condoned
the activities of the True Blue committee in circulating
BL.UE IRD ODY COMPANY 1485
the antiunion petition on employees' working time. '
Indeed, Foreman Taylor virtually admitted that he
learned that the Blue Bird committee had circulated the
petition on working time. Nevertheless, he did not disci-
pline the employees involved, but he adamantly refused
to permit the union adherents to engage in solicitation on
working time. In view of the extent of the conduct in-
volved, specifically passing the petition down the assem-
bly line for employees to sign, I find it incredible that
Foreman Belcher, who was in immediate charge of the
line, was unaware of what was going on. Even if Belcher
was not physically present when the petition was circu-
lated, the evidence nevertheless indicates that the Com-
pany condoned such activity. As indicated, credible evi-
dence, much of it controverted, indicates that from the
inception of the True Blue committee's antiunion cam-
paign, Eddie Dixon and other employees were led to be-
lieve that they were free to engage in antiunion activity
on working time, and were encouraged to do so. There
is no credible evidence that this policy in fact changed
during the campaign. Therefore, the Company led its
employees, or at least those employees under the super-
vision of Taylor and his subordinates, to believe that
they could circulate the petition on working time and get
away with it. In fact, they did get away with it.
It is an unfair labor practice for an employer to main-
tain a discriminatory no-solicitation policy, or to apply a
no-solicitation policy in a discriminatory manner, e.g., as
here, by permitting and encouraging antiunion employees
to engage in campaigning on working time while inform-
ing union adherents that they have no right o engage in
solicitation on working time. Therefore, the Company
violated Section 8(a)(1) of the Act by engaging in such
conduct. It is immaterial that some union adherents
risked disciplinary action by violating that discriminatory
policy. Their antiunion counterparts, at least those in the
chassis assembly department, did not share the same risk.
It is also immaterial whether union adherents specifically
asked for permission to engage in union solicitation on
working time. In fact, the evidence discussed above indi-
cates that they did make such requests, but were uni-
formly rebuffed. It is also immaterial whether the union
adherents requested to engage in precisely the same form
of activity as that engaged in by the antiunion employ-
ees, e.g., circulating a petition. Furthermore, it is imma-
terial whether supervisors in some other departments ad-
ministered a no-solicitation policy in a nondiscriminatory
manner. However, as will be discussed, that factor may
be taken into consideration in determining whether the
election should be set aside. It is also immaterial that
union adherents could or did express their views at cap-
tive audience meetings which were conducted by the
Company on plant premises during working time and
which most employees were required to attend. Such
meetings are essentially propaganda forums for the em-
ployer. To the extent that union adherents are free to
speak up at such meetings, they must do so under the
watchful eye and control of management. In fact, as evi-
l Knowledge, like any other element of a case. may be proven by cir-
cumstantial evidence if the circumstances are such as to support a reason-
able inference. See Joseph Westr, d/b/a West Meat Compan, 244 NLRB
No. 123 (1979), and cases cited therein
denced by the Company's request that Dixon and Truett
block questions by Goodroe or Wood, they did not
always enjoy even this limited freedom. These meetings
are no substitute for the right of employees to engage in
electioneering without employer discrimination. Indeed,
it would be as logical, or illogical, for the Company to
argue that discrimination against antiunion employees
could be excused because those employees are free to
attend and speak up at union meetings.
The Company's disparate application of the no-solicita-
tion rule constituted both an unfair labor practice and
objectionable conduct which constituted improper inter-
ference with the election. Indeed, the Board has specifi-
cally held that conduct violative of Section 8(a)(1) which
occurs during the critical period is a fortiori conduct
which interferes with the exercise of a free and untram-
meled choice in the election, unless the violations are
such that it is virtually impossible to conclude that they
could have affected the results of the election. Super
Thrift Markets. Inc. d/b/a Enola Super Thrift, 233 NLRB
409 (1977). I further find that in determining the merits
of the Union's objection, I may properly take into con-
sideration the discriminatory conduct which took place
prior to the filing of the election petition. Here, the evi-
dence indicates that the disparate application which took
place after December 26 was simply the continuation of
a discriminatory policy which began in October, when
the True Blue committee began its activities. The antiun-
ion employees who were permitted to openly engage in
working time solicitation were not told on or before De-
cember 26 that they were required to cease such activity.
Conversely, the union adherents were not told that they
were now free to engage in such activity. Moreover,
there is no way of telling how many employees were dis-
couraged from supporting the Union, or encouraged to
actively oppose the Union, by reason of the Company's
discriminatory conduct during the period of October
through March 28. The Board has held that an election
may be set aside on the basis of improper conduct which
occurred substantially or even wholly prior to the filing
of the election petition, where the continuing effect of
such conduct tends to destroy the conditions for a free
and untrammeled election. See, Lyons Restaurants a
wholly-owned subsidiary of Consolidated Foods Company,
234 NLRB 178 (1978); Willis Shaw Frozen Express, Inc.,
209 NLRB 267, 268 (1974); Weather Seal Incorporated,
161 NLRB 1226, 1228-29 (1966). A fortiori, if prepetition
conduct may warrant setting aside an election, then a
continuing pattern of unlawful conduct which extends
well into the post-petition campaign may properly be
considered as conduct which tends to interfere with the
election.
The evidence presented by General Counsel and the
Union concerned the actions of General Foreman Jack
Taylor and his subordinate supervisors in the chassis as-
sembly department which, as indicated, comprises about
70 employees. The Company presented uncontroverted
evidence that some foremen in other departments en-
forced or attempted to enforce the prohibition against
working time solicitation in an even-handed manner. The
Company has a total of some 50 to 60 foremen and no
B L U E B I R D B O D Y C O M P A N Y 1 4 8 5~
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence was presented as to the practice followed by
most of them. The chassis department employees, viewed
in isolation, would not be sufficient in number to affect
the results of the election. However, they cannot be
viewed in isolation, for the unlawful conduct of Taylor
and his subordinates could well have had an impact
which extended beyond their department. Thus, by per-
mitting True Blue employees to engage in antiunion ac-
tivity on their working time, the Company enabled them
to participate in a radio spot which could reach all of the
Company's employees. The antiunion petition which was
distributed on working time during the election cam-
paign, and which requested the Union not to send litera-
ture to the employees, was a particularly serious matter.
Having precluded the union adherents from engaging in
solicitation on working time, the Company's discrimina-
tory conduct enabled the antiunion employees to utilize
working time as a means of cutting off or discouraging
union communication with employees away from the
plant premises. There is no way of telling how many em-
ployees were discouraged from supporting the Union,
either actively or passively, by the Company's discrimi-
natory conduct. Therefore, as the unlawful conduct may
have affected the results of the election, I find that
Union Objection 9 has been sustained by the evidence.
B. Company Vice President Luce's Speech and the
Slide Presentation
The parties stipulated that on or about March 26,
Company Vice President George Luce gave a prepared
speech at the Fort Valley facility to all eligible voters.
The parties further stipulated in evidence pages 12, 14,
and 15 of the 15-page text of Luce's speech and agreed
that no other portions of the speech were relevant to the
allegations in this proceeding. The portions of Luce's
speech which were stipulated in evidence are as follows:
We do intend to continue to operate during any
strike. We will protect every person who wants to
come to work even if we have to get four SWAT
teams. We owe that to our employees who want to
work.
As I have said Blue Bird and Wanderlodge mean
a lot to me and my brothers. Our dad started it-
and he turned it over to us to carry out his vision
for a great company.
It means a lot to many of you because of your
part in it.
We all have too much of our lives invested in it
to ever agree to anything that is not in the best in-
terest of the Company, to our employees as a
whole.
No Union will force us, by pulling you out on
strike, to do anything we don't feel is in our (The
Company's) best interest-or the best interest of the
employees as a whole.
I'm getting too old to run-but I'm not too old
to stand and fight.
The last two talks which I have had with you
have been hard for me to make. They aren't the
kind of talks I like to make to our Blue Bird folks.
Well, fortunately it is pretty clear that the Union
is not going to win the election. From what we
hear the overwhelming majority of you have seen
through Bracken's lies and tricks and realize that
this would not be to your advantage. I want to
thank you for your help and support.
It means a lot to me personally.
Frankly, I'd [sic] like to see a 100% vote against
the Union so that we can all get back together and
work together, to build our future-to build a solid
future for all of us. To solve our problems togeth-
er-without lawyers or outsiders meddling. In my
opinion that only makes things worse.
So what am I asking you to do today. Let's
defeat the Union-let's dissolve the strife and ten-
sion that goes with it.
Let's make the days and years ahead of us the
best days we have ever known.
There is an old, old story of a young man who
went up to a very wise old man with his fist
clenched.
He said, old man I have a bird in my hand. Is it
dead or alive?
The old man thought for a moment and he rea-
soned like this. If I say the bird is dead he will open
his hand and the bird will fly away, but if I say he
is alive he will crush it and then show me a dead
bird.
After a moment of thought he said to the young
man, it is up to you. You hold the bird in your
hand-and you ask me if it is dead or alive. I say to
you-it is as you will-it is up to you. Today the
Blue Bird is well and strong. It can fly for many
years and bring happiness and security and opportu-
nity for all of us, or--well let's don't even think
about that.
We need to win big on Wednesday. It is up to
you.
The parties further stipulated that on or about March
27, the Company showed a film, or more accurately an
audio slide presentation to all eligible voters at the Fort
Valley facility. A recording of the sound track (not audi-
ble) and the script of the presentation were stipulated
into evidence.' That script consisted of a simulated con-
versation among three company employees. As indicated
by the script, "Tim" has actively supported the Union,
"Joe" is apparently opposed to the Union, and "Strider"
does not indicate his views on the election. The script is
as follows:
The Company argues in sum, in that the actors placed no special or
sinister emphasis on statements which General Counsel contends are evi-
dence of or constitute a threat I am assuming that this is true
BLUE BIRD BODY COMPANY 1487
Joe: You don't have to vote for the union, Tim.
Nobody's ever gonna know how you voted, the
union or the company.
Strider: But what about his job? Everybody
knows he's been a pusher. If the union wins, O.K. If
the union don't win, the Luces' gonna fire him.
Joe: No they ain't-they can't.
Tim: Whatta you mean-the Luces can't fire me?
They own the company.
Joe: I know two reasons they can't fire you or
anyone else that's been working for the union.
Tim: Yeah, like what?
Strider: Well I know one. It's the law and the
law says no one can get fired for trying to bring in
a union.
Tim: Is that right, Joe? Is that one of your rea-
sons?
Joe: Yeah, that's right. The law protects you
even after the union loses. They can't dump you
just for being for a union.
Strider: What's the other reason, Joe?
Joe: The Luces themselves-now everybody
knows they are good folks.
Tim: Yeah they are-but what's that got to do
with firing me?
Joe: Well, if they fire you and everybody else
that went for the union at first, it would cost a for-
tune and you know the Luces are too tight for that.
Now think of all the retraining cost.
Tim: I don't know, some of the things I said I-
I-
Strider: You saying you would fire anybody that
done and said what you did.
Tim: Yeah-Yeah I sure as hell would.
Joe: I don't think they are going to run your butt
off Tim-not right now anyway.
Strider: But look a here you keep coming in late
you know-late 7 times in 6 months and your butt
is gone-union or no union.
Tim: Yeah, they do stick to the rules and I guess
they are fair and maybe I think I better vote no. I
got to pay for that boat.
Joe: Come on Strider, we gotta go to work. You
coming Tim?
Tim: Nah-not for a minute, I want to sit here
and think for a while.
We'll see you.
General Counsel now contends and the Regional Di-
rector so opined in his report on objections that the story
of the bird in Luce's speech constituted a threat of plant
closure if the employees selected the union as their bar-
gaining representative. General Counsel further contends
and the Regional Director so opined in his report that
the slide presentation constituted a threat or contained
threats of discharge of union adherents. 7 Inexplicably,
the Regional Director concluded in his report that both
7 The Union's initial contention that the presentation threatened black
employees with loss of jobs, apparently derived from the fact that one of
the three actors was black. However, the Union has abandoned this con-
tention and is now in substantial agreement with the arguments advanced
by the General Counsel.
the speech and the slide presentation raised "substantial
and material issues . . . which may be more appropriate-
ly resolved by record testimony at a hearing." At the
present hearing General Counsel was unable to explain
just what additional evidence, if any, warranted "record
testimony." The Company presented evidence, and of-
fered to present further evidence (which offers were re-
jected by me), for the purpose of showing the back-
ground or context in which the Company made its
speech and slide presentation. However, such evidence
could easily have been adduced in the course of the Re-
gional Director's investigation without the necessity of a
formal hearing on these matters. In any event, the matter
is now before me for decision, both with respect to the
complaint and the Union's objections, and I am not
bound by the opinions expressed by the Regional Direc-
tor, either as to the merits, or as to the unexplained sug-
gestion that record testimony is warranted. Nevertheless,
on consideration of the speech and script, the back-
ground material presented by the Company, and the ar-
guments advanced by the parties, I am in agreement with
the Regional Director that the bird story was an implied
threat of plant closure, and that the slide presentation,
whether viewed as a whole or with regard to specific
statements, constituted "veiled and not-so-subtle threats
to the job security and contained employment of em-
ployees who have engaged in union activities."
With respect to the speech, the Company strenuously
argues that Luce did not threaten the employees with
plant closure. The Company argues that in "context"
Luce was "telling the employees that they possessed sole
control over whether they wanted a union, but that if
they selected representation, he would nevertheless fight
for the good of the Company," and specifically, "that
the Company intended to operate even through a strike,"
The principal difficulty with this thesis is the inescapable
symbolism of the bird as the Company, i.e., "Blue Bird."
Luce was well known as a storyteller, particularly of sto-
ries with a point. Therefore, Luce must have anticipated
that the employees would pay particular attention to his
story, which was the concluding portion of his speech.
The thrust of the story is simple and direct; i.e., the way
that the employees vote will determine whether the bird,
meaning Blue Bird, lives or dies. If Luce were simply re-
iterating the point which he made earlier in his speech,
that he was "not too old to stand and fight," and would
continue to operate during any strike, then he would be
indicating that the striking employees and not the "bird"
would suffer. Instead, Luce impliedly equated a union
victory with the death of the bird.
The Company proffered evidence that the Company,
in addition to its assembly line, also maintains a fabrica-
tion department at the Fort Valley facility which fabri-
cates and ships parts to the Company's five other plants
at various other locations in North America, that oper-
ation of those plants is dependent on the fabrication de-
partment, and that the employees were aware of these
facts. Therefore, the Company argues that the employees
could not reasonably believe that the Company would
close the Fort Valley facility if the employees chose the
Union as their representative. A statement which tends
BLUE BIRD BODY COMPANY 87
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to convey a threat of plant closure is no less unlawful
simply because extrinsic evidence suggests that it is un-
likely that the employer would in fact close its plant.
Anything, even the unexpected, is possible, as recent de-
velopments in the automobile industry make clear. Em-
ployees might view with skepticism a threat of plant clo-
sure by a low level supervisor. However, employees
cannot help but take seriously an intimation of plant clo-
sure by a high-level official who is a member of the
family which owns the firm, and who is known to
convey his messages through the medium of story tell-
ing. Similarly, the fact that the Company has a collec-
tive-bargaining contract covering employees at its plant
in Quebec, Canada, is irrelevant to the question of
whether Luce threatened plant closure at Fort Valley,
Georgia.
The Company correctly argues that Luce's statement
that "I'm getting too old to run-but I'm not too old to
stand and fight," is reasonably susceptible of an interpre-
tation that the Company intended to remain and win any
struggle against unionization. However, that statement,
unlike the bird story, was made in the context of a dis-
cussion of continued operations during a strike. The bird
story was separated from that discussion by two pages of
text which the parties agree was irrelevant to the issue
presented. An employer might continue its operations
during a strike and, yet, eventually close or move all or a
part of its operations. As the Supreme Court pointed out
in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 617-620
(1969), employees, because of their economic dependence
on the employer, tend "to pick up intended implications
of the latter that might be more readily dismissed by a
more disinterested ear," and are "particularly sensitive to
rumors of plant closings." Therefore, the employer's
statements as to the consequences of unionization must
be "carefully phrased on the basis of objective fact" and
he must "make his views known without engaging in
brinkmanship" when it becomes all too easy to "overstep
and tumble over the brink." Gissel, supra. In sum, the
employer must bear the responsibility for any misleading
ambiguity on his part. Here, Luce overstepped the line
of permissibility by closing his speech, at a crucial time
in the campaign, with a pointed story which could rea-
sonably be interpreted by the employees as a threat of
plant closure or removal in the event of unionization.
Assuming, arguendo, that the bird story was addressed to
the matter of strikes, Luce's closing remarks would nev-
ertheless be unlawful. By describing the employees'
choice in the election as a matter of life or death for the
"bird" Luce would in effect be implying that a strike or
strikes would be inevitable if the employees voted for a
union and, therefore, without any stated basis in objec-
tive fact, rejecting the concept of collective bargaining.
See Louis Gallet, Inc., 247 NLRB No. 13, fn. 1 (1980),
citing Amerace Corporation, ESNA Division, 217 NLRB
850, 852 (1975) (also cited by the Company in its brief). I
find that the Company, through Luce's speech, violated
Section 8(a)(l) of the Act by impliedly threatening its
employees with plant closure or removal if they chose
the Union as their bargaining representative, and thereby
interfered with employee freedom of choice in the elec-
tion.
With respect to the slide presentation, the Company
contends that the presentation had a twofold purpose of:
(1) countering union propaganda which sought to equate
job security with unionization, by making clear that
work rules would continue to be enforced, with or with-
out a union; and (2) countering union "scare tactics" by
assuring employees that no employee would be fired be-
cause of union activity. In support of the first assertion,
the Company presented several union handbills in evi-
dence. Two of the handbills purported to summarize em-
ployee rights during an organizational campaign, i.e.,
rights protected by Sections 7 and 8(a)(l) and (3) of the
Act. The other two handbills, insofar as arguably perti-
nent, dealt with the asserted advantages of a contractual
seniority system. At no point in the literature did the
Union argue or even intimate that a union contract
would immunize employees from discharge or lesser dis-
cipline for misconduct or poor performance, such as tar-
diness, which is the only lawful ground for termination
discussed in the slide presentation. Rather, the thrust of
the union literature was that employees had a lawful
right to join a Union and that a seniority system had cer-
tain advantages, which the Union listed in one of the
handbills. The union argued that under a contractual se-
niority system "if work becomes slack, workers with the
greater seniority are laid off last and called back first."
However the Union did not argue or suggest that union-
ized employees are immune from economic layoffs. In
any event, that subject was not even mentioned in the
Company's presentation. As to the Company's assertion
regarding "scare tactics," the Company was permitted to
present evidence that union adherents threatened that the
Company would discharge all union sympathizers. The
Company attempted but failed to elicit such evidence
through cross-examination of the General Counsel's wit-
ness, John Goodroe. Thereafter, the Company made no
further effort to present evidence along this line. The
present record is devoid of any evidence that the Union
or union adherents made such threats.
The slide presentation begins with an attempt by "Joe"
to persuade union activist "Tim" to vote against the
Union. The presentation ends with an indication that
"Tim" has been persuaded to do so because "I got to
pay for that boat." The presentation also indicates that
"Tim" has a record of tardiness and that the Company
rigidly adheres to its policy of terminating employees
who are late seven times within a 6-month period.
(Indeed, the Company offered to prove that it does in
fact strictly adhere to that policy.) In these circum-
stances it is unlikely that the Company expected the au-
dience of employees to believe that "Tim" was persuad-
ed to change sides because he favored the Company's
tardiness policy. Rather, the Company's presentation was
permeated with repeated implications that the Company
would use its tardiness policy as a pretext to eventually
rid itself of union adherents. In this regard, the state-
ments made by "Joe," who opposed the Union, are sig-
nificant, for the audience of employees would reasonably
be expected to look to his arguments as being most re-
flective of the Company's position. Initially, "Joe" states
that "they can't fire you or anyone else that's been work-
-------
BLUE BIRD BODY COMPANY 1489
ing for the union." However, the reasons which he ad-
vances in support of this generalization are considerably
qualified. At three points Joe intimates that "Tim's"
union activity could well result in his termination. First,
"Joe" tells "Tim" that the Company "can't dump you
just for being for a union" (Emphasis supplied). Joe next
adds that it would be too expensive "if they fire you and
everybody else that went for the union at first" (empha-
sis supplied). Finally, "Joe's" last remark, which is made
prior to any discussion of tardiness and at a point in the
script when the only discussion of "Tim's" discharge re-
lates to his union activity, is: "I don't think they are
going to run your butt off Tim-not right now anyway"
(Emphasis supplied). At this point, "Strider" raises the
subject of tardiness. The implication is clear: if "Tim"
persists in his union activity, the Company may use his
tardiness as a pretext to get rid of him. "Tim" is persuad-
ed, and decides to abandon the union in order to save his
job and thereby keep up payments on his boat. At the
least, the Company's presentation was reasonably suscep-
tible to such an interpretation, particularly by employees
who are highly sensitive to such rumors of reprisal, and
constitutes the kind of brinkmanship which was con-
demned by the Supreme Court in Gissel, supra. I find
that the Company, through its slide presentation, violat-
ed Section 8(a)(l) of the Act by impliedly threatening
that union adherents would eventually be discharged for
pretextural reasons. By such conduct, the Company also
interfered with employee freedom of choice in the elec-
tion. I further find that the slide presentation may prop-
erly be considered as evidence with respect to the dis-
charge of Richard Robinson, which matter will be dis-
cussed, infra. See, Air Express International Corporation,
245 NLRB No. 69, fn. 10 (1979), citing Steves Sash and
Door Company v. N.L.R.B., 401 F.2d 676, 678 (5th Cir.
1968).
C. Additional Allegations Involving Supervisors Taylor
and Atkinson in Cases 10-CA-14905 and 10-CA-
14913
Eddie Dixon testified that about 2 weeks before the
election, Foreman Taylor approached him while he was
at work. According to Dixon, Taylor said he heard that
employee Tommy Jones (known as T.J.) signed a union
card and attended union meetings. Dixon said he had not
heard this and Taylor asked him to talk to Jones and see
where Jones stood with the Union. Dixon said he would.
Dixon further testified that 2 or 3 days later Taylor
asked him if he had spoken to Jones. Dixon had not be-
cause the two employees had an argument on the job.
According to Dixon, Taylor then said that since he did
not know where Jones stood, "it might be easier to elimi-
nate him." General Counsel contends that by the forego-
ing conversations the Company interrogated its employ-
ees concerning union activities and threatened that union
adherents would be discharged. Taylor testified that
Dixon approached him, saying that he learned that Jones
was attending union meetings, probably signed a union
card, and might be working for the Union. Taylor an-
swered, in sum, that he already knew about this because
he knew that Jones had been pressured into signing a
union card. Taylor testified that in October Jones told
him about being pressured into signing a union card. Ac-
cording to Taylor, he told Dixon that not every person
who signed a union card necessarily supported the
Union. However, Taylor added that: "it would be pretty
wise of us not to say anything around him that could
hurt us, just eliminate him from our conversations."
Taylor, in his testimony, denied threatening to fire Jones.
I credit Taylor's version of their discussion about Jones.
It is possible that a supervisor might threaten to dis-
charge a known and active union adherent. However, it
is unlikely that Taylor would threaten discharge of an
employee simply because Taylor was not sure which
way the employee was leaning. Therefore, I am recom-
mending that the allegations of paragraphs 7 and 8 of the
complaint be dismissed.
Eddie Dixon further testified that shortly after the
election Taylor told him that John Goodroe had a ner-
vous stomach, that they were going to play on that, and
that anybody with good sense would quit. According to
Dixon, Taylor also said that they would make things un-
pleasant for Goodroe at Blue Bird. Taylor in his testimo-
ny denied making these alleged statements. According to
Taylor, Dixon said that "it looks like old John's going to
have a tough time." Taylor answered: "Yeah, he's going
to have a tough time for a while until he gets used to the
new environment and the new set of problems that he's
working on." Goodroe had just been assigned to deal
with problems in the rail punch area, where there was no
leadman, although Goodroe's assignment involved lead
responsibilities. There is no allegation that the Company
gave this assignment to Goodroe for discriminatory rea-
sons. As of the time of this hearing, Goodroe had re-
turned to his position as a crew leader. It is more likely
than not that Dixon and Taylor were talking about Goo-
droe's new assignment. I credit Taylor. Therefore, I am
recommending that the allegations of paragraphs 11 and
12 of the complaint be dismissed.
Dixon testified without contradiction that the morning
after the election, employee Tony Ganous told him that
he had been to union meetings, participated in them, and
then reported back to Department Manager Atkinson in
his office, what Ganous saw and heard at the meetings.
Dixon repeated this conversation to Atkinson, who an-
swered that "Tony had done a very good job for Blue
Bird and that we should all thank him" for that. The
complaint alleges that by this statement the Company
"disclosed to its employees that it had engaged in sur-
veillance of its employees' union meetings and union ac-
tivities." In its brief, General Counsel argues that the
Company, through Atkinson, created the impression of
surveillance of union meetings. The Company argues
that the allegation should be dismissed because it is not
clear from the evidence whether Ganous voluntarily fur-
nished evidence to the Company or acted on behalf of
and as a company agent. The Company's argument
would have merit if we were here dealing with an alle-
gation of actual surveillance. I agree that Dixon's testi-
mony, which is the only evidence on this matter, falls
short of proving an admission by Atkinson that the Com-
pany, as distinguished from Ganous as an individual,
maintained surveillance of union meetings. However, At-
BLUE~ ~ ~ ~ . BIR BOYCMAY.8
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
kinson's statement was at least susceptible of a reasonable
interpretation that the Company was engaging in surveil-
lance. Atkinson never said or implied to Dixon that
Ganous was acting on his own. Ganous' description of
systematic reporting (which Dixon repeated to Atkin-
son), coupled with Atkinson's assertion that Ganous did
"a very good job for Blue Bird," could reasonably lead
Dixon to believe that Ganous acted on behalf of the
Company. Therefore, I find that the Company, through
Atkinson, violated Section 8(a)(1) of the Act by creating
the impression of Company surveillance of union meet-
ings.
As indicated, I am recommending that the allegations
discussed in this section be dismissed, with one exception
involving conduct which occurred after the election.
The remaining allegations of the complaint, which relate
to the discharge of Richard Robinson, and will be dis-
cussed in the next section, all involved matters which oc-
curred or are alleged to have occurred after the election.
Therefore, it is unnecessary to consider the Company's
argument that none of the allegations of the complaint in
Cases 10-CA-14905 and 10-CA-14913 can be considered
ered in connection with the election, because they are
not encompassed by Union Objections 3, 8, and 9 which
are before me for decision.
D. The Discharge of Richard Robinson
Richard Robinson was employed by the Company
from March 2, 1977, until his discharge on Monday, July
16, 1979. Robinson worked as a "troubleshooter" who
was responsible for checking 12 and 110 volt wire, and
all parts or installations connected thereto on the Wan-
derlodge line, and correcting any electrical difficulties
either himself or by referring the problem back to the
line crew. Brent West was Robinson's foreman and Law-
rence Mangano was his leadman. Robinson was an active
union adherent during the organizational and election
campaign. By mailgram dated October 25, the Union no-
tified the Company of the names of its approximately 39
volunteer employee organizers, including Robinson.
Robinson testified that he signed a union authorization
card, attended all union meetings, wore union buttons
and shirts at work, distributed union cards and literature
at the plant, and obtained about 75 signed cards. In sum,
Robinson was a leading and active union adherent, and
the Company was aware of that fact. However, after the
March 28 election union activity was substantially dor-
mant, except as a topic of conversation for a few days.
One Friday afternoon in mid-May, Foreman West,
Robinson, and employee Cole Gardner were eating and
drinking beer at a restaurant near the plant. (The Compa-
ny operated on a 4-day week and Friday normally was
not a working day.) According to Robinson, West said
that he had been told by his bosses to put pressure on the
ones that were supporting the Union, but that as long as
they were doing their job he would not do it, because he
did not think it was fair. West in his testimony denied
making the alleged statement. Gardner, who was also
presented as a company witness, also denied that Gard-
ner made the alleged statement and further denied that to
his knowledge, West even discussed the union after the
election. During the Board investigation of the present
charges, both West and Gardner declined to give state-
ments to the Board. West, who was at the time applying
for a position with another firm (which he subsequently
obtained), told the Board's field attorney that he would
wait and see what type of recommendation the Company
gave him. Gardner told the field attorney that he was
afraid of losing his job. I agree with General Counsel
that, in light of these admitted statements, the testimony
of West and Gardner (like that of Eddie Dixon) should
be viewed with caution. However, I am not persuaded
that they should be discredited solely on the basis of
their refusals to furnish statements to the Board. I am
also not persuaded that Robinson is a wholly reliable
witness. As will be discussed, Robinson gave contradic-
tory testimony on a matter which is of particular impor-
tance to the circumstances surrounding his discharge. On
balance, the evidence fails to indicate that it is more
probable than not that West made the alleged statement.
I find that General Counsel has not shown by a prepon-
derance of the credible evidence that West made the al-
leged threat. Therefore, I am recommending that the al-
legation of paragraph 10 of the complaint in Cases 10-
CA-14905 and 10-CA-14913 be dismissed.
Foreman West testified that in early summer, his su-
pervisor, General Foreman Roy Hill, told him that the
work was falling down, that too many people were run-
ning around the plant out of their work areas, that the
quality of work was down, and improvement was
needed. West then called together his leadmen, including
Mangano, who had recently been promoted to that posi-
tion. Mangano then called together his crew, including
Robinson, Mangano, and employee Cole Gardner (also a
member of the crew), said that Mangano told them that
they had to tighten up, that they were to stay in their
work areas, that they were not to leave their work area
because it took too much time, and that if they needed
Mangano they should telephone him on the intraplant
phone system or have him paged. Mangano testified that
all of the crew complied with his instruction except Rob-
inson, who tended to leave his work area without per-
mission, and that Mangano cautioned Robinson about
such infractions and reported him to Foreman West on
several occasions. West testified that on two occasions in
June or early July he observed Robinson away from his
work area, and that he admonished Robinson on one of
these occasions. Robinson testified that he was not given
any instruction not to leave his work area until after he
admittedly left his work area on the afternoon of Thurs-
day, July 12, which was his last work day before his dis-
charge. However, in a proceeding before the Georgia
Employment Security Agency on his claim for unem-
ployment compensation, Robinson testified that he was
out of his work area on July 12 after being instructed not
to do so. Robinson testified in that proceeding that he
was looking for his foreman and that when he could not
locate his foreman he went ahead and performed a job
outside of his work area. I credit the testimony of the
company witnesses. In fact, in the unlikely event that
Robinson had forgotten Mangano's instruction, he and
the other Wanderlodge employees were reminded of the
Company's policy by top level management on the very
BLUE BIRD BODY COMPANY 1491
day of the events which the Company alleges, led to
Robinson's discharge. At 11:30 a.m., on July 12, Compa-
ny Vice President and General Manager John Harris ad-
dressed assembled Wanderlodge supervisors and employ-
ees, including Robinson. Harris asked the employees to
help in improving efficiency and quality and asserted
that the Company would not tolerate any "goofing off."
Harris specifically stated that employees should remain
in their own work areas and should not roam around and
waste time. Harris testified that the Company was par-
ticularly concerned about improved efficiency during
this period of time. As a result of the acute gasoline
shortage during the spring and early summer of 1979. the
recreational vehicle market was, as Harris put it, "in a
state of chaos." In mid-June the Company stopped hiring
new employees and sought instead to improve efficiency.
It is unlikely that Harris made his speech for the purpose
of furnishing a pretext for the discharge of one union ad-
herent in a unit of some 1100 employees. I credit Harris'
explanation, and I find that he meant what he said.
Wanderlodge Production Manager Joe Regan testified
that, shortly after the lunchbreak on July 12, he observed
Robinson out of his work area laughing and talking to
employee Jeffrey Criss, who was at his work station and
apparently trying to continue his work. Regan did not
speak directly to Robinson, but instead reported the
matter to Foreman West and later to General Foreman
Hill and Manufacturing Manager Alston Willette. Regan
spoke to Willette at about 5 p.m., or approximately 3-1/2
hours after the incident allegedly occurred. In the mean-
time Robinson was observed out of his work area on a
second occasion. Robinson testified as to the second oc-
casion. However, he did not testify concerning the inci-
dent allegedly observed by Regan, nor was Robinson
called as a rebuttal witness. I credit Regan.8
Robinson normally worked near the end of a horse-
shoe-shaped assembly line. He testified that early on the
afternoon of July 12, two employees from Bobby Pope's
crew, who installed generators, told Robinson that they
had to move a bus to Pope's area, which was about 100
feet up the line from Robinson's normal work station.
Robinson testified that he looked for Foreman West and
could not find him, but that he located Leadman Man-
gano, who told him to go down to Pope's crew and
work. Robinson further testified that he moved the bus
to Pope's area, performed his work there, and returned
to his normal work station at or about 4 p.m., where-
upon Mangano asked him what he was doing outside his
work area. According to Robinson, he explained that he
was looking for West because Pope's crew wanted to
move the bus and Mangano answered that "from now
on" Robinson should stay in his work area and if he
needed anything he should use the telephone. Robinson's
story makes no sense. If Mangano previously gave per-
mission to Robinson to leave his normal work area and
go to the area where Pope's crew worked, then logically
Robinson would have reminded him of that fact. Howev-
' In view of the fact that Leadman Mangano had no personal knowl-
edge of the incident observed by Regan, and did not receive an official
report of the matter, I am not inclined to attach significance to Man-
gano's testimony that Robinson violated the outstanding instruction on
only one occasion after General Manager Harris gave his speech
er, Robinson's version of the conversation at 4 p.m.. indi-
cates that he did not have such permission. Moreover
Robinson's version of these events is contradicted by his
testimony before the Georgia Employment Security
Agency. Manufacturing Manager Willette testified that
at or about 3:30 p.m., on July 12, he was in the produc-
tion area when he saw Robinson at station 6 on the as-
sembly line. Station 6 is about midway on the line, i.e.,
about as far away from Robinson's station as he could
get, and well beyond the area where Pope's crew
worked. Willette asked Leadman Mangano what Robin-
son was doing there. Mangano testified that he checked
with Robinson and confirmed that he was at Station 6.
According to Mangano, Robinson said that he was look-
ing for Mangano. although Mangano had no reason to be
near Station 6. I credit the testimony of Willette and
Mangano. In light of their testimony, and that of the
credited testimony of Joe Regan, previously discussed, it
is evident that on the afternoon of July 12 Robinson was
away from his work station for a substantial period of
time, for reasons unrelated to the performance of his job.
It is further evident that Robinson was in Harris' words,
"goofing off' by wandering around the plant and at-
tempting to socialize, almost immediately after the em-
ployees had been warned against such conduct by no less
an authority than the plant manager. Even assuming that
Robinson spent part of the afternoon working in the area
of Pope's crew, such action was unauthorized, and Rob-
inson knew that it was unauthorized. Robinson normally
worked near the end of the assembly line, in an area
about 35 feet long and adjacent to two work stations.
Occasionally Robinson was called upon to work farther
up the line. Indeed, it was sometimes more efficient for
him to do so. However, Robinson had no authority to
make that decision himself. Rather, as he was fully
aware, he had to obtain authorization from his foreman
or leadman.
Manufacturing Manager Willette testified that the next
day (Friday), when most of the employees were off
work, he checked into Robinson's record, and learned
that he had previously been admonished on several occa-
sions about leaving his work area. Willette further testi-
fied that Leadman Mangano told him that Robinson was
a slow starter, that much of his work had to be redone,
and that he was probably the poorest performer in his
crew. Willette recommended that Robinson be dis-
charged and Plant Manager Harris, General Foreman
Hill, and the personnel office concurred in his decision.
Willette was aware that Robinson had never been given
a written disciplinary warning. However, Willette testi-
fied, in sum, that he believed that such fact was immate-
rial in view of Harris' speech, Robinson's "total disre-
gard" of Harris' instructions, "the gravity of the situa-
tion," and the need to increase productivity and quality
in the Wanderlodge area. When Robinson returned to
work on Monday, July 16, he was summoned to the
front office. Robinson testified that General Foreman
Hill told him he was discharged for goofing off and for a
bad attitude which was causing him to do poor quality
work. Foreman West, who was present at the termina-
tion interview, testified that Hill said that Robinson was
BLUE BIRD BODY COMPANY
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminated for not following instructions and because his
work was "falling off a little." Hill was not presented as
a witness. Subsequentiy, Robinson received a separation
notice which indicated that he was discharged for wast-
ing time, failure to follow instructions, and poor quality
work.
I do not credit Willette's assertion that Robinson was
terminated in part because of poor quality work. Wil-
lette's assertion in this regard was not corroborated by
Mangano, who was allegedly his source of information.
As indicated, Mangano testified, in sum, that Robinson
had a history of leaving his work area without permis-
sion. However, Mangano did not testify that Robinson
performed poor quality work. Indeed, Mangano admitted
that he was "shocked" when Robinson was discharged.
Michael Skipper, who preceeded Mangano as leadman,
testified that Robinson was a hard worker who did good
quality work. If deteriorating workmanship were the
principal factor involved then it is unlikely that Robinson
would have been terminated without any prior verbal or
written warning. However, Robinson's behavior on the
afternoon of July 12, which according to Willette was
the principal factor in the Company's decision, falls into
a different category. In the circumstances at that time,
Robinson's patent "goofing off" could well be regarded
by the Company as gross insubordination. In the face of
Plant Manager Harris' speech, Robinson promptly went
out and did precisely what Harris told the employees not
to do.9 On the same day that Robinson was terminated,
employee John Bennett, also under West's supervision,
was discharged for not wearing safety glasses and for
smoking inside the coaches. Bennett had not previously
been given any written warnings; however, General
Counsel does not contend that he was discriminatorily
discharged. I credit the explanation of Harris and Wil-
lette that in June 1979 the Company embarked on a
policy of tightening up in order to improve efficiency
and, therefore, for economic rather than discriminatory
reasons was less tolerant than it had been in the past of
employee deficiencies. I find that Robinson's alleged
poor workmanship was an added rationalization without
basis in fact, but that the motivating factor in Robinson's
discharge was his "goofing off' and repeated disregard
of instructions to remain in his work area. I further find
that the General Counsel has failed to prove by a pre-
ponderance of the credible evidence that Robinson's dis-
charge was motivated in whole or part by his union ac-
tivity. Therefore, I am recommending that this allegation
of the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Company 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 interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act, the Company has engaged, and is
As indicated, Mangano expressed "shock" at Robinson's discharge
However, Mangano did not have personal knowledge of the extent of
Robinson's wanderings on that day.
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The Company did not violate the Act by terminat-
ing Richard Robinson.
5. Union Objections 3, 8, and 9 in Case 10-RC-11633
have been sustained by the evidence and the Company
thereby interfered with the Board election held on
March 28, 1979.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(1) of the Act, I shall recommend
that it be required to cease and desist therefrom and to
post appropriate notices. As the Company unlawfully in-
terfered with the conduct of the election on March 28,
1979, I shall recommend that the election be set aside
and that a new election be directed as such time as the
Regional Director deems appropriate.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER' o
The Respondent, Blue Bird Body Company, its offi-
cers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with plant closure or re-
moval if they choose UBC, Southern Council of Indus-
trial Workers, or any other labor organization as their
bargaining representative.
(b) Threatening employees with discharge or other
reprisal because of their union activities.
(c) Prohibiting employees from soliciting fellow em-
ployees on behalf of said Union or any other labor orga-
nization during their working time, while permitting
other employees to solicit fellow employees to be against
the Union during their working time.
(d) Creating the impression of surveillance of union ac-
tivity by informing employees that it received reports
about union meetings.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to organize, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing, 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 activi-
ties.
2. Take the following affirmative action which is
found necessary to effectuate the policies of the Act:
lu In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
BLUE BIRD ODY COMPANY 1490
(a) Post at its place of business in Fort Valley, Geor-
gia, copies of the attached notice marked "Appendix."''
Copies of said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by Re-
spondent's authorized 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.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
3. The election previously conducted on March 28,
1979, is hereby set aside and a new election shall be di-
rected at such time as the Regional Director for Region
10 deems appropriate.
" In the event this Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE TO EMPL.OYF.ES
POS I ED BY ORD)R OF I HE
NATIONAI. LABOR RELATIONS BOARI)
An Agency of the United States Government
WE Wilt. NOT threaten you with plant closure or
removal if you choose UBC, Southern Council of
Industrial Workers, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, or any
other labor organization as your bargaining repre-
sentative.
WE WILL NOT threaten employees with discharge
or other reprisal because of their union activities.
WE WtL.L. NOT prohibit employees from soliciting
fellow employees on behalf of UBC, Southern
Council of Industrial Workers, United Brotherhood
of Industrial Workers, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, or any
other union during their working time, while per-
mitting other employees to solicit fellow employees
to be against the Union during their working time.
WE Will. NOT create the impression of suirveil-
lance of union activity by informing employees that
we received reports about union meetings.
WE Wll 1 NOT in any like or related manner in-
terfere with your right to engage in union or con-
certed activities or to refrain therefrom.
All our employees are free to become. remain or
refuse to become or remain, members of UBC, Southern
Council of Industrial Workers, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, or any
other labor organization.
Bl UE BIRD BODY COMPANY
BLUE BIRD BODY COMPAN 3