Clark Equipment Co.

National Labor Relations Board - Board Decisions

Aug 1, 1980

250 N.L.R.B. 1333 (N.L.R.B. 1980)

CLARK EQUIPMENT COMPANY
Clark Equipment Company and United Steelworkers
of America, AFL-CIO. Cases 11-CA-7392 and
I -CA-7509
August 1, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDAL.E
On March 3, 1980, Administrative Law Judge
Robert C. Batson issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs, and Respondent filed a brief in partial sup-
port of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
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, Clark Equip-
ment Company, Rockingham, North Carolina, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order.
I General Counsel and Respondent have excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Stand-
ard 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 In reaching his decision, the Administrative Law Judge stated, inter
alia. that he did "not view Grant's conduct, on the facts here, to be pro-
tected because he was engaged in the exercise or Section 7 rights" To
the extent this statement implies that an employee who responds to an
employer's presentation during an antiunion campaign is not engaged in
protected activity, we disavow it. Further, we do not rely on the Admin-
istrative Law Judge's suggestion that use of profanity in a "friendly" con-
text is necessarily different than such conduct in another context. Howev-
er, we agree that in the circumstances of this case Respondent's suspen-
sion of Grant did not violate the Act
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge: This
consolidated proceeding under the National Labor Rela-
tions Act, as amended, 29 U.S.C. § 151, el seq. (herein
250 NLRB No. 178
called the Act), was heard before me at Rockingham,
North Carolina, based on a complaint issued on February
16, 1978, and a consolidated complaint dated April 28,
1978; and an amended consolidated complaint, dated
May 24, 1978, and the amendment to consolidated com-
plaint, dated June 30, 1978, arising out of charges filed
by United Steelworkers of America, AFL-CIO, in Case
I -CA-7392 on January 9, 1978, as amended on January
27, 1978, and in Case 11l-CA-7509 on March 13, 1978,
alleging that Clark Equipment Company (herein Re-
spondent, Employer, or Company). had violated Section
8(a)(l) and (3) of the Act in certain particulars. The
amended consolidated complaint and the amendment
thereto, alleges that between mid-October 1977 and Feb-
ruary 2, 1978, Respondent, by various supervisors threat-
ened its employees with various reprisals for supporting
the Union as their bargaining representative in violation
of Section 8(a)(l) of the Act, and that on January 4,
1978, Respondent suspended one Samuel K. Grant for 5
days, and on February 9, 1978, Respondent discharged
Grant in violation of Section 8(a)(3) and (1) of the Act.
Respondent's answer to the various complaints as further
amended at the hearing admits all material allegations of
the complaint except the acts alleged to constitute unfair
practices.
All parties were represented by counsel or other repre-
sentatives, and were afforded full opportunity to present
evidence and arguments, and to file post-hearing briefs.
Briefs have been received from counsel for the General
Counsel and Respondent.
Upon the entire record in this case, including my ob-
servations of the testimonial demeanor of the witnesses
testifying under oath, and consideration of helpful post-
hearing briefs filed by the parties, and upon substantial
reliable evidence, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Clark Equipment Company is a Delaware corporation
with a facility located at Rockingham, North Carolina,
where it is engaged in the manufacture of industrial
trucks and heavy-duty construction equipment. During
the 12 months preceding the issuance of the complaint
herein, which period is representative of all times materi-
al herein, Respondent received at its Rockingham, North
Carolina, plant goods and raw materials directly from
points located outside the State of North Carolina valued
in excess of $50,000. The complaint alleges, Respondent
admits, and I find that at all times material herein Re-
spondent was an employer as defined in Section 2(2) of
the Act, and engaged in commerce and in activities af-
fecting commerce as defined in Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
1333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. THIE AI I.i(,;tI) UNFAIR I AHOR P'RACI ICI S
Respondent's Rockingham operation commenced on
December 2, 1974, with the opening of a training center
for the purpose of training new employees for its soon to
be opened plant there. The Union commenced its cam-
paign to organize the Rockingham employees in July
1977,' and Respondent became aware of those activities
in early August, when the Union openly handbilled the
employees at the plant. As a result of the campaign, the
Union filed a petition for certification of representative
on November 25, in Case II1-RC-4447 and an election
was conducted on February 2, in the stipulated appropri-
ate unit. The Union filed objections to conduct affecting
the results of the election on February 9. A hearing on
the objections was held in April 1978, the Hearing Offi-
cer's Report on Objections issued July 28, and the matter
was, at the time of the hearing herein, pending before the
Board on Respondent's exception.
Respondent, since commencement of the operations at
the Rockingham plant, has held regular monthly depart-
mental meetings with its employees wherein they aired
their gripes and complaints. Throughout the campaign
these meetings continued and were more frequent than
prior to the campaign and Respondent admittedly uti-
lized these meetings to wage its campaign against the
Union. Moreover, Respondent admittedly had a policy
to oppose unions rather than to appease them. However,
Respondent is not alleged to have breached the Act by
its conduct at these departmental meetings. Instead, all of
the alleged 8(a)(1) violations are a one-on-one situation.
In my view they can best be set forth seriatim.
The earliest of the complaint allegations occurred in
mid-October. Tony Wilson was supervisor of Depart-
ment 210 on the first shift where about 24 employees
worked. On a Saturday morning he approached Arlis
Atkins, an A-Hobb machine operator, and looked direct-
ly at the pencil holder in Atkins' shirt pocket, which
bore the legend "GO STEELWORKERS," and said, "I
thought we were friends." It was breaktime and Wilson
told Atkins, "Well, we will get a cup of coffee and talk
about it if you want to." Atkins agreed, stating, "If I
won't get in any trouble that way." They proceeded up-
stairs to a meeting room where they talked for about 1-
1/2 hours. According to Atkins, during the course of the
discussion, Wilson told him "if the Union would come in
that in breaking my four A-Hobbs, they would put eight
A-Hobbs on me and show on paper that I could do more
A-Hobbs and do production." Atkins replied that Wilson
knew that would be harder on him, and Wilson stated
that he could put him to running four A-Hobbs and an-
other machine, called a flute mill. Atkins testified that he
had never operated more than four A-Hobbs in his 4
years of employment and that he did not know of any
other operator who had.
Wilson admits that in mid-October he took Atkins to
the foreman's office and talked with him for about an
hour trying to show him how he could operate more
than four A-Hobbs and make production. This, Wilson
testified was done at the request of Dean Meachum,
manager of manufacturing. He stated that he did not re-
' All months and dates hereafter are 1977 unless otherwise indicated.
member Atkins wearing a union badge until December,
and that the Union was not mentioned in the October
conversation.
According to Wilson, when Atkins refused to operate
more than four machines, he let the matter drop.
I credit Atkins' version of this conversation. In addi-
tion to his demeanor, he gave a more detailed and plausi-
ble account of the conversation. The union campaign
was in full swing by mid-October and many employees
were wearing either prounion or procompany badges. I
think it highly improbable that in this atmosphere Wilson
and Atkins could discuss the amount of work Wilson
should be doing for 1-1/2 hours without mention of the
Union.
Accordingly, I find that by Wilson's statement to
Atkins, set forth above, Respondent threatened its em-
ployees that their workloads would be increased if the
Union were selected.
Atkins testified credibly that about 2 days before
Thanksgiving, while he was trying to explain to Wilson
why his production was down that day, apparently be-
cause he could not get to the forklift to get parts, Wilson
reached toward the union badge he was wearing and
said "that was going to get me in trouble." Wilson then
told Atkins that if he could not get him on production he
would get him on something else. Wilson acknowledges
talking with Atkins about his production but denies tell-
ing him that he would "get him." As noted above, I
credit Atkins who testified in a straightforward and
forceful manner and impressed me as telling the truth.
The statements made by Wilson to Atkins constitute a
clear threat to discharge because of Atkins' union activi-
ty.
According to Warren Cox, a code drill operator in
Department 215, in early December Manufacturing Man-
ager Dean Meachum came to his work station and ob-
served that "there would be a lot of long faces after the
election." Cox, who was wearing a union badge reading
"volunteer organizer" at the time, replied, in substance,
that he would not cry about it one way or the other.
Meachum asked Cox his age and Cox told him that he
was 23, and Meachum said "no wonder you are so easy
to be led around." Meachum then pointed to the union
badge and said, "you are sticking your neck out," and
walked off. Cox evidently told someone that he was
angry about Meachum's statement concerning his being
easily led around and the message got back to Meachum.
The following day Meachum went to Cox and told him
he did not intend to make him mad the previous day, "it
is just that I don't want to see you stick your neck out."
The above testimony is not disputed. Respondent
argues that Meachum's telling Cox he was "sticking his
neck out" is not violative of the Act since it was merely
an expression of opinion that unionization could lead to
unpleasant situations such as having to pay union dues,
fees, fines, and assessments. In my view, Meachum's
comments to Cox constituted a thinly veiled threat of
work-related reprisals for supporting the Union. Consid-
ering all the circumstances of the conversation, including
Meachum's indicating the union badge Cox was wearing,
1334
CLARK EQUIPMENT COMPANY
he meant that it was by this act, the display of the union
badge, that Cox was sticking his neck out.
According to Department 235 employee Clyde Hunt,
in mid-December his foreman, Bobby Caulder, came to
his machine and started talking about the Union. During
the conversation Caulder told him that he had worked in
a union plant in Illinois and that they always wanted to
"work, work, work and never stopped and talked; if you
stopped and talked the man was on your ass." Caulder
continued, "Now you know if this union comes in you
are going to have to put out more parts than you are
putting out now." Hunt, who was wearing a union
badge, told Caulder that they did not have anything to
lose. Caulder told Hunt that he did not have any way of
knowing that.
Caulder admits to a conversation about the Union with
Hunt after Caulder heard that Hunt had said that he,
Caulder, had been treating Hunt differently. According
to Caulder, during the conversation Hunt expressed his
reasons for wanting the Union and Caulder admits telling
Hunt that he did not like the Union. In short, Caulder
denies that he told Hunt production quotas would in-
crease if the Union came in.
Hunt's testimony in this regard had a ring of truth. On
cross-examination Caulder admitted that he had worked
at a union plant in Illinois, but neither admits nor denies
that he discussed this with Hunt on the day in question. I
believe that he did tell Hunt that at the union plant they
had to "work, work, work," and could not stop and talk.
I am also convinced that Caulder told Hunt that if the
Union came in he would have to produce more parts.
The threat that greater production would be required if
the Union came in violated the Act.
In mid-December, Bobby Caulder approached Henry
Pratt, who displayed no procompany or union badges,
and asked him how he felt about the Union. Caulder did
not remember talking to Pratt about the Union. Caulder
admitted that he was instructed by Meachum to try to
ascertain who in the department was for and who was
against the Union and also those who were undecided.
Many employees wore procompany or union badges
which indicated their sympathies. However, Pratt did
not wear any. Caulder was instructed to concentrate on
the undecided employees and try to get them to support
the Company. He further admitted that he talked to em-
ployees about the Union two or three times a day. I find
that Caulder interrogated Pratt as alleged.
Doris Gerald, an employee in Department 210, testi-
fied that about a month before the election her supervi-
sor, Tony Wilson, came to her work station and told her
that he had heard that her husband was a union pusher
and he thought she could get him to change his mind be-
cause they wanted to get rid of "those kind of people."
Gerald denied that her husband was a union pusher and
observed that the prounion people and the procompany
people wore badges indicating their views, and those
who did not wear any were undecided. Wilson named an
employee who he said was not for the Union but did not
wear any badge.
About a week before the election Doris Gerald told
Wilson that just because she talked to people who wore
"yes" buttons was no sign that she was going to vote for
the Union. Wilson told her they were keeping a list of
the people for, against, and undecided, and it would be
better if he knew how she was going to vote.
Gerald further testified that the day before the election
Wilson came up behind her and told her, "If you vote
no, every thing will work out, but if you vote yes it's
going to be hell from now on."
Wilson, while admitting several conversations with
Gerald, denied telling her the Company was going to get
rid of the union pushers; that it would be better if he
knew how she was going to vote; and that if she voted
yes, it would be hell working there from now on. As
noted above, Respondent's campaign plan, in fact, was to
have its supervisors try to find out which of their em-
ployees were for and which were against the Union and
to work harder on the "undecideds." I credit Doris Ger-
ald's version of these events.
As the General Counsel argues, in view of Respond-
ent's campaign throughout the organizing drive to ascer-
tain the identity of the union supporters and those op-
posed as well as the undecideds, I find it improbable that
Wilson did not speak to Gerald, who displayed no insig-
nia, about the Union until a week before the election.
Accordingly, I find the above conduct of Wilson consti-
tutes a threat of reprisals and interrogations in violation
of Section 8(a)(l) of the Act.
The Suspension and Discharge of Samuel Grant
Sam Grant was among the first group of employees
hired by Respondent and he commenced training on De-
cember 2, 1974. Grant was a setup man in Department
210 under the supervision of Tony Wilson. Grant was
acknowledged to be a good employee and it appears that
in 1976 he was offered a supervisory position, which he
declined. In July or August, shortly after the union cam-
paign commenced, Grant proclaimed to Wilson and
Meachum that he was a union organizer and he was
going to do everything that he could to get the Steel-
workers into Clark Equipment Company. Grant operates
a restaurant and tavern in the town of Hamlet, North
Carolina, a short distance from Rockingham. During the
course of the campaign, on 35 to 40 occasions, Grant's
place of business was used for union meetings. This fact
was well known throughout the Company. Grant also
participated in handbilling employees at the plant with
union literature and obtained signed authorization cards
from about 30 employees.
The events leading up to Grant's 5-day suspension oc-
curred on January 4 at a departmental meeting presided
over by Bob Morton, assistant employee relations man-
ager, which was characterized as an antiunion meeting.
Morton stated that he was going to show slides and read
an accompanying script designed to show the employees
why they did not need a union. Apparently the slides
dealt with violence and salaries of union representatives.
During the course of the presentation Morton made a
statement to the effect that the employees did not have
to vote for the Union even though they went to all the
beer parties. Grant, who was seated at the opposite end
of the table, about 20 feet away, rose from his chair and
told Morton, in substance, that he had better stop talking
1 3 5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about his place of business and making remarks about
beer parties. Grant told Morton that some day he,
Morton, might be in the street. Morton told Grant that if
Grant did not like what he was saying he could leave.
Grant walked to the door and turned around and said in
a loud voice, "bastard." Although Employee Relations
Manager Jerry Thomas, who was present in the room,
called to Grant to wait, Grant left the room.2
After the meeting concluded, Thomas directed Grant's
supervisor, Tony Wilson, to bring Grant back to the
conference room. When Wilson informed Grant that
Thomas wanted him back in the conference room, Grant
told Wilson, "Shorty, don't get involved in this or you
are going to get stepped on." 3 On the way to the confer-
ence room they encountered Meachum, to whom Grant
stated, "If they want to get nasty about this thing, we
can get nasty too." 4 Thomas told Grant that he did not
appreciate his conduct in the meeting that day and that
he viewed his remarks to Morton as a threat. Grant
countered with the statement that he was tired of Mor-
ton's references to him and his place of business. Grant
asked Thomas if he was through and Thomas told him,
"That is all for now."
After this meeting Thomas and Meachum talked to
other employees who had been present at the meeting,
and others to whom Grant had spoken after the meeting.
Employee Bobby King testified that, when Grant came
back to the production floor from the first meeting, he
told him that he would "whip [Bob Morton's] ass if he
caught him on the street." King reported this statement
to Jerry Thomas. Employee Walter Bullard testified that
he heard Grant ask a group of employees in a loud
voice, "Who else do you know who works for Clark
that ever called Bob Morton a bastard and got away
with it?" This, Bullard reported to Thomas. Upon re-
ceiving these reports and learning of the remark Grant
made to Wilson concerning his getting "stepped on,"
Thomas and Meachum consulted with Plant Manager
Smith concerning any disciplinary action to be taken
against Grant.
Near the end of the shift Smith had Grant summoned
to the office where he was permitted to give his version
of what occurred at the meeting as well as the remarks
he had made on the plant floor and to Wilson. Grant's
version at least partially corroborated the supervisors'.
Smith then told Grant he was suspended indefinitely.
After further investigation in the form of taking state-
ments from various employees, Meachum, Thomas, and
Smith apparently decided that Grant's conduct warrant-
ed discharge. However, after consulting with the Com-
pany's legal department, it was concluded that Grant
I Both the General Counsel and Respondent adduced testimony from
several witnesses concerning the January 4 meeting discussed above The
findings of fact are not in dispute except whether Grant said "bastard" as
he and several other witnesses testified, or whether he said "you bastard"
as Thomas, Morton, and others testified I find it unnecessary to resolve
this credibility conflict. Whether grant said "bastard" or "you bastard" is
of little moment, for it is clear from the context that the epithet was di-
rected to Morton
3 Wilson is of small stature and Grant and others frequently called him
Shorty
4 This finding is based on the credited testimony of Meachum which is
not specifically denied by Grant
should be given a 5-day suspension for his conduct. The
following day, January 5, Thomas attempted to convey
this decision to Grant by telephone, and when he was
unable to reach him mailed him a written notice of the
layoff and the reasons therefor.5
The General Counsel contends that Respondent was
unlawfully motivated in suspending Grant for 5 days for
his conduct discussed above, much of which is not in dis-
pute. He argues that cursing and characterization of su-
pervisors in departmental meetings in "less than flatter-
ing terms" had been condoned by Respondent; that Re-
spondent's investigation was not a full and fair investiga-
tion, and, finally, that Grant was engaged in the exercise
of his Section 7 rights when he called Morton a "bas-
tard" at the departmental meeting where the Company
was opposing the Union.
There is undisputed testimony in the record that some
supervisors and some employees used profanity frequent-
ly and sometimes referred to each other in terms similar
to that used by Grant to Morton on January 4. Howev-
er, it is clear that in all the instances described by various
witnesses the profanity and uncomplimentary character-
izations were made in a friendly manner, even the one
wherein Meachum alledgedly stated to a group of em-
ployees with whom he was discussing a job evaluation
system, "You f- can't be satisfied with anything." There
is no evidence that any employee, in anger as Grant ad-
mittedly was, ever called a supervisor a bastard in con-
junction with a statement which was easily susceptible of
being interpreted as a threat. Thus, the General Counsel
has not established that Respondent's treatment of Grant
was different than its treatment of other employees for
similar conduct, for it has not been shown that conduct
analogous to Grant's had ever occurred.
With respect to his contention that Respondent's inves-
tigation of this matter was not full and fair, it appears
that the General Counsel argues that the fact that Re-
spondent made any investigation, aside from the reports
of its own supervisors who were present at the meeting,
is indicative of the fact that its investigation was not fair.
I agree with the General Counsel to a point. In my opin-
ion Grant's conduct at the January 4 meeting, including
the epithet and reasonably implied threat to Morton, pro-
vided Respondent with a legitimate reason to take disci-
The Memorandum reads:
To: -- Sam Grant
FROM: -- Jerry Thomas
Rli: -- Disciplinary Layoff-Warning Notice
This is to notify you that following a complete investigation of
your conduct toward Mr. Robert Morton and Mr. Tony Wilson on 4
January 1978 you will be given a disciplinary layoff commencing at
I:00 P.M. on 4 January through 10 January 1978.
The Company considers the intimidating statements and cursing
which you directed to Mr. Morton and your later intimidation of
Mr. Wilson, together with your boasts about that conduct on the
plant floor, as serious infractions of plant policies. However, because
these are your first violations of plant policies and because we be-
lieve that the penalty being given you should be sufficient to demon-
strate to you that the Company will not tolerate a breakdown of dis-
cipline within the plant, no greater penalty is being assessed in this
case If you fail to correct your conduct within the plant and to
obey Company policies. you will be given more serious discipline or
you will be discharged, as the circumstances dictate.
1336
CLARK EQUIPMENT COMPANY
plinary action against Grant, without further investiga-
tion. Here, the investigation adduced evidence that
Grant made a statement to his supervisor, Wilson, which
could reasonably be construed as a threat; that he stated
that he would whip Morton's "ass," and that he boasted
of having called Morton a "bastard" and gotten away
with it. Not only do I credit that such reports were
made to management, but I do not credit Grant's denial
that he made such statements. In short I find nothing in
Respondent's investigation of this to suggest that it was
less than full and fair. As the General Counsel acknowl-
edges, much of the evidence adduced by the investiga-
tion was not denied. The fact that the investigation oc-
curred during the "peak of the Employer's campaign" is
hardly a basis for finding that such investigation was not
fair, for it was not the Employer who timed the investi-
gation at the peak of its campaign, but Grant's conduct
determined when the investigation occurred.
Finally, the General Counsel argues that Grant's con-
duct "constituted permissible behavior" because it oc-
curred during a meeting in which the Employer was
campaigning against the Union and, thus, was protected
activity. He contends that the Board has viewed such re-
marks with tolerance and that employees calling an em-
ployer representative an offensive or vulgar name and
"opprobrious" remarks while engaged in protected activ-
ity is "part of the recognized res gestae" and are not so
egregious as to warrant retaliation. I do not view Grant's
conduct, on the facts here, to be protected because he
was engaged in the exercise of Section 7 rights. It is true
as argued by the General Counsel that, when employees
are engaged in negotiations or the presentation of griev-
ances with the employer, the Board has placed the em-
ployees on an equal level with the employer and employ-
er retaliation for conduct during the course of such
meetings is scrutinized closely. The cases cited by the
General Counsel supports this view. In Dreis & Krump
Manufacturing, Inc., 221 NLRB 309 (1975), the Board
held that an employee was engaged in protected activity
when he prepared and distributed copies of a statement
to other employees concerning a grievance he had pend-
ing, and that his discharge for such violated the Act. In
Hawaiian Hauling Service, Ltd., 219 NLRB 767 (1975),
also cited by the General Counsel, the Board held the
discharge of an employee who called a management rep-
resentative a "liar" during the course of a grievance
meeting was unlawful. See also Crown Central Petroleum
Corporation, 177 NLRB 322 (1969), enfd. 430 F.2d 724
(5th Cir. 1970). I view these cases as inapposite on the
facts.
Accordingly, I find that Grant was suspended for
cause and the General Counsel has failed to sustain his
burden of proof that Grant's known union activities
played any role in the Employer's decision to suspend
him.
Grant returned to work following his suspension on
January 10. Grant was discharged on February 10, ac-
cording to Respondent, for an incident occurring on
February 8 on the parking lot where Grant is alleged to
have struck the chief of plant security, a Lieutenant
Linker, in the chest with the mirror on the side of his
truck, and for threatening to "get" Linker the following
day.
Grant drove a 1976 Ford pickup truck to work on
February 8. The standard rearview mirror mounted on
the left side of the truck had been replaced by an mirror,
commonly known as a West Coast mirror, and appears
to protrude a couple of inches beyond the fender and
body line of the truck. There is a sharp conflict in the
testimony as to whether Grant, as he was leaving the
parking lot, swerved the truck toward Lt. Linker, a Pin-
kerton security guard who was directing traffic, striking
Linker in the chest with the mirror.
Linker's duties included the direction of traffic into
and out of the parking lot during shift change. In so
doing he stood near the entrance to the company parking
lot in the middle of the street where he could direct both
incoming and outgoing vehicles. On February 8, at the
3:30 p.m. shift change, Linker was in his usual position.
According to Linker he first observed Grant's vehicle
that day some 50 or 60 feet away where Grant's was the
third vehicle in the eastbound lane No. 2 trying to get
into the main access road. His attention was drawn to
the vehicle by Grant's horn blowing. Employee Bert
McKenzie stopped his vehicle to permit the two vehicles
in front of Grant, and Grant, to move into the main out-
going traffic lane. According to Linker, Grant made a
sharper than necessary left turn into the traffic; and
moving at about 15 miles per hour swerved toward
Linker striking him a glancing blow to the chest with
the mirror on the left side of the truck.
Employee Darrell Simmons, who was standing to
Linker's left side a few feet away at the time, substantial-
ly corroborated Linker's version of the incident. Accord-
ing to Simmons, Grant was traveling at 7 or 8 miles per
hour and as Grant approached he saw him swerve
toward Linker and himself at which time he, Simmons,
stepped back. He testified that he heard, rather than saw,
the mirror strike Linker a brushing blow. Simmons ex-
claimed, "My God, what's wrong with him," or some-
thing to that effect. He testified that he saw Grant laugh-
ing through the rearview mirror as he drove by. Accord-
ing to Simmons, Linker's reaction was to say, "That's
O.K. old boy, I'll get you."
Grant denied totally the above incident and testified
that on that day he moved into the line about 5 miles per
hour and proceeded past Linker directly behind the vehi-
cle in front of him and did not swerve toward Linker at
all. Of the three General Counsel witnesses and two Re-
spondent witnesses giving probative testimony as to this
incident, Grant is the only one to maintain that he did
not swerve toward Linker on that occasion. 6
McKenzie, who was in his car with a passenger,
Wendy Wilkerson, directly behind Grant, testified that
Grant may have made a sharper left turn into the line of
traffic than the cars in front of him. Initially, he testified
that Grant proceeded on past Linker without incident.
However, upon more searching examination, McKenzie
" Grant admitted that on many occasions he had "played" "ith "Bll"'
Linker in the parking lot by turning his steering wheel slightl) tosard
Linker as he passed him Bert McKenzie and Alill.ii Viggin, 3also testi-
fied to "horseplay" betveen themselves and Linker in the parking lot
1337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Grant came so close to Linker that he
(McKenzie) exclaimed to Wendy Wilkerson, who was
his passenger, "Damn, Sam liked to [almost] hit the
guard." McKenzie testified that he did not see the mirror
hit Linker. Notwithstanding McKenzie's testimony, this
exclamation by him to his passenger persuades me that
Grant, at the least, came hazardously close to striking
Linker, and tends to corroborate Linker's version rather
than Grant's. McKenzie admits that from his view he
could not rule out the possibility that the mirror on
Grant's truck struck Linker.
Allison Wiggins, who was in his vehicle directly
behind McKenzie, was also called by the General Coun-
sel. He testified that Grant made a sharper than neces-
sary left turn into the traffic, and, although not admitting
that Grant swerved toward Linker, states that he
thought to himself "Well, Sam is playing with him."
Wiggins testified that he then proceeded past Linker
swerving slightly towards him. Wiggins also admitted
that he could not observe whether the mirror on Grant's
truck actually struck Linker. As in the case of McKen-
zie, Wiggins testimony tends to support Linker's version
of the events rather than that of Grant who insisted that
he proceeded out of the parking lot directly behind the
vehicle in front of him.
As I observed at the hearing, the question presented
here is not whether Grant actually drove his vehicle in a
reckless manner and struck Linker, but whether Re-
spondent, after a full and fair investigation, reasonably
believed that he did and discharged him for that reason.
A preponderance of the evidence presented here, which
is essentially the evidence that Respondent had at the
time it terminated Grant, persuades me that Grant did
not leave the parking lot in the manner he described.
The testimony of McKenzie and Wiggins, both General
Counsel witnesses offered to corroborate Grant, con-
vinces me that Grant drove past Linker in a hazardous
manner and came far too close to Linker for comfort.
Moreover, neither witness was in a position to observe
whether or not the mirror actually struck Linker.7
Be that as it may, Linker completed his traffic duties
and made his rounds before reporting the incident to
Jerry Thomas and Bob Morton in the employee relations
office. Linker told Thomas and Morton what had hap-
pened and stated that Grant had tried to run over him.
Thomas asked Linker if there might be witnesses to the
incident and Linker advised him that Simmons had been
standing beside him. Thomas unsuccessfully attempted to
telephone Simmons at that time. He then had Linker
relate the incident to Plant Manager Smith, who directed
a full investigation. Thomas again tried to telephone Sim-
mons, and left a message for Simmons to call him.
Thomas asked Linker for the names of any other wit-
7 On Febuary 10. I.inker took warrants for Grant charging him with
assault with a deadly weapon and with uttering a "threat" to Linker
based on an incident on the morning of February 9 Grant was acquitted
of the assault with a deadly weapon charge in a nonjury proceeding in
the Richmond County District Court, but was found guilty of the threat
On his appeal to the Richmond County Superior Court in a jury trial he
as.i acquitted of that offense also Also, on February 10, Linker went to
the emergency room of the Richmond Memorial Hospital. X-rays of his
chest were negative Apparently based on his complaint of soreness in
the chest, the physician prescribed aspirin, heat and liniment.
nesses and Linker told him that McKenzie had been di-
rectly behind Grant and Wiggins behind McKenzie. That
evening Simmons called Thomas and Thomas asked if he
had seen anything occur in the parking lot that day. Sim-
mons replied "yes" that the mirror on Grant's truck had
hit Linker a glancing blow on the shoulder or chest.
The following morning, Thomas talked with Linker
and Simmons again and had written statements prepared.
Linker signed his, Simmons' statement was unsigned.
Thomas talked with several other employees including
McKenzie and Randy Wilkerson who told him they did
not see anything. Wiggins' signed statement given to
Thomas on February 9 is essentially the same as his testi-
mony at the hearing.
According to Linker, on the morning of February 9 he
had started into the maintenance office when Grant ap-
proached from the direction of his department and
within 4 or 5 feet of him pointed his finger at him and
said, "I will get your damn ass this afternoon." He imme-
diately returned to the employee relations office and re-
ported this incident to Thomas and Morton.
About 2:30 p.m., on February 9 Thomas had Grant
brought to his office where he asked him what occurred
in the parking lot the day before. Grant replied, "Noth-
ing, why? Was something supposed to have happened?"
Thomas told Grant that it had been "reported by a
number of sources" that the mirror on his truck had
struck Linker the day before as he left the parking lot.
Grant stated that was "news to him." Grant denied that
he had told Linker that morning that he would get his
"ass" and stated that he had seen Linker, but had merely
said "good morning." Thomas told Grant he was sus-
pended pending further investigation.
On February 10, Thomas mailed Grant his termination
notice.8
The General Counsel argues that Linker's testimony of
this incident should not be credited since Linker's rela-
tionship to Respondent went beyond merely providing
security service to Respondent since he reported directly
to Thomas, and Respondent could reject any security
personnel Pinkerton sent it. He further argues that
The notice reads:
Dear Sam:
Because we were unable to reach you by telephone today, this is
to notify you of our determination with respect to the incidents in-
volving you and Lt. Linker, the chief of the plant security force,
which we discussed with you yesterday.
Following a complete investigation into the matter, including your
denials that anything occurred, we have concluded that on Wednes-
day afternoon, 8 February 1978. you deliberately drove your truck
at Lt. Linker, striking him with the side mirror, and that yesterday
morning you directly threatened that you would "get" Lt. Linker in
the afternoon. These very serious violations only one month after the
disciplinary layoff and warning which you had in the first part of
January, leave us no alternative but to terminate your services.
Therefore, this is to notify you that you have been discharged from
your job with Clark Equipment Company effective as of the time
when you were suspended yesterday. 2:35 p.m.
The pay due you is available in Employee Relations including pay
for 1978 vacation not taken You may pick up the checks or we will
mail them to you, whichever you desire
Sincerely,
Jerry Thomas, Mgr
Employee Relations
1338
CLARK EQUIPMENT COMPANY
Linker reported to management any unusual activity and
that he considered union activity to be unusual. And, fi-
nally the fact that Linker had originated a security plan
for Respondent which was known only to him demon-
strates that he was working in cooperation with Re-
spondent to get rid of Grant because of his union activi-
ties.
Linker denied that he was asked to report, or that he
reported on union activities to the management of Clark.
The only suggestion to the contrary is the testimony of
Security Guard Hines who testified that in November
Linker instructed him to report orally to him anything
concerning the Union and not to put anything in writing.
That Linker was working in collaboration with Re-
spondent to get something on Grant in order to dis-
charge him because of his union activities is mere specu-
lation. As noted above, I need not determine whether
Grant's vehicle actually struck Linker on February 8. It
is clear that Linker reported to Thomas that Grant had
swerved toward him and the mirror had struck him in
the chest. Because such conduct is clearly inherently
dangerous and greatly enhances the possibility of person-
al injuries which might subject Respondent to liability,
Thomas immediately began an investigation.9 Simmons,
who was in the best position to verify Linker's report,
since he was standing next to Linker, was immediately
contacted and he told Thomas that the mirror on the
truck had struck Linker.'° Thomas talked with several
other employees who were in the parking lot, most of
whom professed to him that they did not see anything.
However, Allison Wiggins, who testified for the General
Counsel here, gave Thomas a statement that Grant came
very close to Linker instead of swinging away from him.
From Thomas' interviews with the witnesses to the
parking lot incident it is clear that both Simmons and
Wiggins statements tended to corroborate Linker and
cast grave doubts on Grant's contention that he left the
parking lot without incident. It cannot be said that Re-
spondent's choice to believe Linker's version of this inci-
dent as partially corroborated was unreasonable. Accord-
ingly, I find Respondent had a reasonably based good-
faith belief that Grant had driven his truck hazardously
in the parking lot and that the mirror struck Linker.
Additionally, I credit Linker's testimony that on Feb-
ruary 9 Grant threatened that he would "get him." More
significant than my crediting Linker that Grant threat-
ened him, is that this is what Linker reported to Re-
' There is testimony in the record by Grant, McKenzie, Wiggins, and
others that such "horseplay" was commonplace in the parking lot. How-
ever, there is no evidence that management was aware of this type of
conduct. From the reaction of both McKenzie and Wiggins. as indicated
by their spontaneous comments and thoughts as they observed Grant pass
Linker, it is evident that Grant swerved closer to Linker than the normal
"horseplay" they both admitted having engaged in themselves.
10 The counsel for the General Counsel argues that at no time. either
in his statement to Thomas or at the hearing, did Simmons state that he
saw the truck mirror hit Linker and. thus. Respondent was not warranted
in relying on his statement that Linker was struck in the chest or shoul-
der by the mirror. At the hearing Simmons testified that he heard, rather
than saw, the mirror strike Linker In his statement to Thomas he merely
stated that the mirror of Grant's truck struck Linker on the chest or
shoulder and did not say whether he saw, heard. or by what means he
knew this I am convinced that. while Simmons did not actually see the
mirror of the truck strike Linker. he is certain, In his own mind. that it
did based on his sense of hearing
spondent. Thomas and Morton knew from their investi-
gation of the parking lot incident based on statements
from Simmons and Wiggins that Grant was less than
truthful about his conduct in the parking lot on February
9. Respondent was justified in believing Linker over
Grant's denial that he threatened Linker.
The General Counsel correctly argues that "Motiva-
tion, not justification, determines whether an action is
discriminatory," citing Electric-Flex Co. v. N.L.R.B., 570
F.2d 1327 (7th Cir. 1978). However, in determining moti-
vation for an alleged unlawful act, all the circumstances
of each case must be weighed, and where the employer
had "good ground for the discharge of an employ-
ee .... " the Board must "find an affirmative and per-
suasive reason why the employer rejected the good
cause and chose a bad one." The Firestone Tire and
Rubber Company v. N.L.R.B., 539 F.2d 1335 (4th Cir.
1976). It is true that Respondent had knowledge of
Grant's outspoken union activity and had been aware of
such activity for about 6 months at the time of his dis-
charge. It has not been shown that Respondent treated
other employees differently in like, or similar, situations
for it has not been shown that the Employer was aware
of reckless driving in the parking lot or of threats made
by employees to other employees. During the campaign,
spanning about 6 months, Respondent actively and ag-
gressively opposed unionization. However, the only un-
lawful interference, restraint, or coercion found herein
was directed to only 5 out of more than 600 employees
by 3 supervisors. While this conduct is not to be con-
doned, it is insufficient to establish that Respondent
merely seized upon the good cause it had to discharge
Grant, and instead discharged him to discourage union
activity. Although Grant was a leader of the organizing
campaign and the Employer was opposed to such orga-
nization, he was not thereby insulated from discharge for
a nondiscriminatory reason even if it were shown Re-
spondent welcomed the opportunity to get rid of him for
his union activities. Klate Holt Company, 161 NLRB
1606, 1612 (1966).
Here, after a full and fair investigation into reports of
Grant's alleged misconduct, Respondent was warranted
in believing Grant guilty of such misconduct and it ter-
minated him for that reason. The complaint should be
dismissed as to this allegation.
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By telling its employees their workload will be in-
creased if they selected the Union to represent them, that
they were sticking their necks out by wearing union
badges, that the Company was going to get rid of the
union "pushers," that it would be "hell" to work there if
they voted for the Union, and telling its employees it
would find a reason to discharge them because of their
union activity, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
3. Respondent has not otherwise violated the Act.
1339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Inasmuch as Respondent has been found guilty of vio-
lations of Section 8(a)(l) of the Act, which conduct in-
terfered with, restrained, and coerced its employees in
the exercise of their rights guaranteed to them by Sec-
tion 7 of the Act, I conclude from the totality of such
unlawful conduct that Respondent should be required to
cease and desist from such and any like or related con-
duct, and take certain affirmative actions in effectuation
of the policies of the Act. Such affirmative action of Re-
spondent shall be that it post the usual notice.
Upon the foregoing findings of fact, conclusions of
law, and the entire record,' and pursuant to Section
10(c) of the Act, I hereby issue the following:
ORDER 2
Respondent, Clark Equipment Company, Rockingham,
North Carolina, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union activities.
(b) Threatening its employees their workload would be
increased if the Union were selected to represent them.
(c) Telling its employees that they were sticking their
necks out by wearing union badges.
(d) Telling its employees the Company was going to
get rid of the union "pushers."
(e) Telling its employees it would be "hell" to work at
Respondent if they voted for the Union.
(f) Threatening its employees that it would find a
reason to discharge them because of their union activity.
(g) In any like or related manner interfering with, re-
straining, and coercing its employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its Rockingham, North Carolina, plant
copies of the attached notice marked "Appendix."13
Copies of said notice on forms duly provided by the Re-
gional Director for Region II11, after being duly signed by
I The counsel for the General Counsel's notion to correct the official
transcript of these proceedings is hereby granted except as to the correc-
tion proposed at p. 139, . 10.
12 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.
Is In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
Respondent's representative, shall be posted by Respond-
ent immediately upon receipt thereof, and be maintained
by it for a period of 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 11, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint, in-
sofar as it alleges violations not found above, be dis-
missed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employ-
ees these rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT interrogate our employees con-
cerning thier union activities.
WE WILL NOT threaten our employees that their
workload will increase if the Union is selected.
WE WILL NOT tell our employees that they stick
their necks out by wearing union badges.
WE WILL NOT tell our employees the Company
will get rid of the union "pushers."
WE WILL NOT tell our employees it would be
"hell" to work for us if they vote for the Union.
WE WILL NOT tell our employees that we will
find a reason to discharge them because of their
union activity.
WE WILL NOT in any like or related manner in-
terfere with, restrain, and coerce our employees in
the exercise of their rights guaranteed by Section 7
of the Act.
CLARK EQUIPMEN T COMPANY
1340