Erie Strayer Co.

National Labor Relations Board - Board Decisions

Sep 18, 1974

213 N.L.R.B. 344 (N.L.R.B. 1974)

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Erie Strayer Company and International Association of
Bridge , Structural and Ornamental Iron Workers,
Shopmen 's Local 642, AFL-CIO. Case 6-CA-6731
September 18, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On November 29, 1973, Administrative Law Judge
Benjamin A. Theeman issued the attached Decision
in this proceeding. Thereafter, General Counsel and
Respondent filed exceptions and supporting briefs.
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, findings,' and
conclusions 2 of the Administrative Law Judge only to
the extent consistent with this Decision and to adopt
his recommended Order.
1. We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(1) of the Act by
Traffic Manager Richard Higley's telling employee
Paul Fullerton and others present at an April 24, 1973,
meeting that he was against any of his truckdrivers
being a steward and that he would fire the three long-
distance drivers if they became too involved in the
Union. In addition, Member Jenkins, as set forth in
his separate opinion attached hereto, and Member
Penello find, contrary to the Administrative Law
Judge, that Respondent also violated Section 8(a)(1)
of the Act by Higley's acknowledgment of the April
24 statement at a subsequent union-management
meeting on May 8, 1973.
The May 8 meeting was attended by Higley and
Roger Strayer, vice president and plant superinten-
dent of Erie Strayer, and several representatives of the
Union. Fullerton joined the meeting when it was al-
ready in progress, and during a heated discussion that
developed thereafter Fullerton asked Higley to admit
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record
and find no basis for reversing his findings.
2 We agree with the Administrative Law Judge that we should not defer
to the arbitration procedure in the collective -bargaining agreement of Union
and Respondent , since no party requested such deferral at any time before
the Board . See MacDonald Engineering Co., 202 NLRB 748 (1973). Member
Jenkins agrees with the result in accordance with his dissent in Collyer Insu-
lated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971).
to all persons present in the room that he had told him
and others at the April 24 meeting that he would fire
Fullerton and the other drivers if they got involved
with the Union. The Administrative Law Judge found
that, in response, Higley said, "yes, don't get involved
because you're out on the road most of the time," 3 but
he did not repeat the precise words he had used in
April. Under those circumstances and because Full-
erton provoked the statement, the Administrative
Law Judge concluded that the statement was not to
be considered a threat.4
Although Fullerton, rather than Higley, initiated
the discussion regarding the April 24 threat and
Higley's response was provoked solely by Fullerton's
insistence on an answer, nevertheless Higley's May 8
acknowledgment of the earlier statement conveyed
again to employees present the same message as that
of April 24 and for this reason interfered with the
rights of employees guaranteed by Section 7 of the
Act. Thus, at the May 8 meeting, Higley did not indi-
cate that he erred in making the April 24 statement or
that he had since changed his position, and therefore
he never led the employees to believe that his response
was other than a reaffirmation of the earlier threat.
Accordingly, we find that Respondent thereby violat-
ed Section 8(a)(1) of the Act.
2. Members Kennedy and Penello agree with the
Administrative Law Judge that Fullerton was not dis-
charged in violation of the Act. Where the facts as
asserted by our dissenting colleague in his separate
opinion, we would be inclined to agree with his con-
clusion that Respondent's discharge of Fullerton vio-
lated Section 8(a)(3) and (1) of the Act. But such is not
the case. The basic premise of the dissent, as we un-
derstand it, is that, regardless of several other inci-
dents cited as contributing factors leading to the
decision to terminate Fullerton, he was in fact dis-
charged because of his position as steward of the traf-
fic department and for his participation in two
incidents involving protected, concerted activity; and
the true motive behind the discharge was revealed in
Higley's alleged comment of May 21, 1973, discussed
below. We cannot agree.
On the morning of May 8, 1973, Fullerton refused
to drive the trailer truck assigned to him because it
had bald tires, a condition about which he had com-
plained to Higley on May 4. Upon his refusal to drive
the truck, Higley instructed Fullerton to go to work in
the stockroom, but Fullerton instead returned shortly
thereafter with Chief Steward Leonhart who told Hig-
ley that Fullerton did not have to drive anything that
3 The Administrative Law Judge has quoted in his Decision the testimony
to this effect of witnesses Leonhart and Brnilovich , whom he credited.
For the reasons stated by the Administrative Law Judge , Member Ken-
nedy would find that Higley's response at the May 8 , 1973, management
meeting was not violative of Sec . 8(aXl) of the Act.
ERIE STRAYER COMPANY
was not safe. Higley then said there was no problem
and that he would talk to them in the afternoon. Later
that day, Roger Strayer initiated a conversation with
Higley in which Strayer mentioned customer com-
plaints which had been lodged against Fullerton and
about which Fullerton had been warned in late March
and again in late April. Strayer inquired whether Full-
erton was a probationary employee and then stated,
"we ought to get rid of him [Fullerton]." It appears
that during this same coversation Higley reported that
Fullerton had refused to drive the truck because of the
bald tires, to which Strayer commented that Fullerton
was not an Erie Strayer driver and that Higley should
do something about it.
We agree with our dissenting colleague that
Fullerton's complaint about the unsafe condition of
the tires, whether made in his capacity as steward or
on his own behalf, was concerted and protected activ-
ity, in that the complaint, which had relevance and
significance to the interests of all of Respondent's
drivers, in effect sought application of a clause in the
collective-bargaining agreement requiring the Em-
ployer to make provisions for the safety and health of
its employees.'
It is apparent that the lodging of this safety-related
complaint and the subsequent refusal to drive the
truck, which we have determined to be protected, con-
certed activity, was one of the incidents upon which
the decision to discharge Fullerton was based; and
had it been established that this was a substantial
factor in Fullerton's termination, e.g., if he were dis-
charged immediately after that incident and the relat-
ed conversation between Roger Strayer and Higley,
we would have no trouble whatsoever finding that this
discharge was illegally motivated and violative of the
Act. Yet, in spite of the demonstrated disenchantment
with Fullerton on May 8, he was not immediately
discharged, but rather he continued to work for an-
other 10 days and was given a termination slip only
after other incidents involving misconduct by him had
occurred. The nature of the May 8 episode makes our
decision herein very difficult, but the hiatus between
the bald tire incident and Fullerton's actual discharge,
coupled with the other incidents which include the
March and April customer complaints, lead us to con-
clude that Fullerton was discharged for cause and
that neither the May 8 bald tire incident nor his role
as steward of the transportation department was the
precipitating factor which triggered his termination.
In late March, a customer reported to Respondent
that Fullerton asked him what was the longest route
back to Erie, Pennsylvania, since the drivers are paid
5 C & I Air Conditioning, Inc., 193 NLRB 911 (1971). Also see H. O. Seiffert
Company, 199 NLRB 960 (1972); Interboro Contractors , Inc., 157 NLRB 1295
(1966).
345
by the mile. Although Fullerton, in admitting that he
had made the comment, claimed he did so in jest, the
customer must have interpreted it otherwise since he
considered the nature of the statement serious enough
to relate it to Respondent. Higley subsequently cau-
tioned Fullerton about this incident. About April 30,
Higley again admonished Fullerton regarding a cus-
tomer complaint that a driver (whom the customer
did not identify) had been sarcastic, had been out of
line, and had caused some hard feelings. Higley
warned Fullerton not to "offer any comments to them
[customers] one way or the other."
The dissent suggests that Fullerton was engaging in
protected activity when, on May 9, he refused to con-
tinue driving a truck while out on the road (even
though he had informed Higley by phone that he
would continue) upon learning that a strike at the
plant had occurred. Although Leonhart testified that
the 2-day strike was motivated by threats made to
Fullerton as well as by violations of the overtime pro-
visions of the contract, neither the General Counsel
nor the Charging Party contended that the strike was
other than unauthorized. As a result of the walkout,
Leonhart was suspended for 3 weeks, but there is no
indication that the suspension was grieved or contest-
ed on the grounds that his activity was protected be-
cause the walkout was in part an unfair labor practice
strike. Furthermore, there is no evidence, other than
Leonhart's testimony, that one of the reasons for the
strike was the threat made to Fullerton, and the Ad-
ministrative Law Judge made no finding based there-
on. The reason this testimony was uncontradicted is
clear; no party ever alleged there had been an unfair
labor practice strike, and therefore it was not a rele-
vant issue in this case. Hence, the suggestion of the
dissenting opinion that this was an unfair labor prac-
tice strike is unwarranted, as is its finding that the
related activity of Fullerton was protected.
In any event, Fullerton, upon learning of the walk-
out, had no right to curtail his trip, thereby leaving the
truck unprotected and Respondent without access to
the vehicle.6 Respondent was justifiably upset with
Fullerton's disregard on May 9 and 10 of his obliga-
tion to carry the load to its destination, especially as
it caused great inconvenience to both Respondent
and the customer, who was further irritated by the
delay in delivery. This was compounded by the fact
that after Fullerton left the truck at the truck stop on
the highway on May 10, he returned to Erie with the
keys and the wide-road permits necessary for travel in
various States, but rather than dropping them off at
the plant, he instead kept them until he reported to
work the next day. Consequently, the customer had to
send its own truck to pick up the shipment, and in
6 Cf. River Falls Co-Operative Creamery, 90 NLRB 257 (1950).
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order for Respondent to move the truck, new keys had
to be made and new permits had to be secured.'
On May 11, Fullerton took a truck out on an assign-
ment but forgot to get a cash advance as instructed,
so the money had to be wired to him. On May 14, he
was involved in an accident where he hit another trail-
er truck. On May 17, Fullerton failed to show up for
work at the 7 a.m. starting time. Although his wife
called at 7:50 a.m. to report that Fullerton was ill, a
plant rule required that absences be reported within
20 minutes of starting time . Fullerton was given his
discharge notice on May 18, after Strayer met with
Higley, who reported all of the previous incidents in-
volving Fullerton.
As Roger Strayer testified, his decision to discharge
Fullerton on May 18 ultimately turned on the latter's
overall poor attitude, which in our opinion is amply
supported by the series of incidents which must be
viewed in totality rather than individually. As in Mc-
Donnell Douglas Corporation (Douglas Aircraft Com-
pany Division), 189 NLRB 87 (1971), the discharge
was not based on a single, isolated incident, but rather
the action was taken in view of a series of incidents
of which only one had any apparent relevance to con-
certed activity.8 In cases such as that before us, one
must answer the questions posed by the Board in
Norge Division, Borg-Warner Corporation, 155 NLRB
1087, 1089 (1965):
Were the employees terminated because they en-
gaged in concerted activity? Or were they termi-
nated for some other and legitimate reason that
would have impelled the Respondent to take
such action even independently of their concert-
ed activity?
Unlike our dissenting colleague we are compelled by
the record to answer the second question in the affir-
mative?
Our dissenting colleague further suggests that the
proof of a discriminatory motive for Fullerton's dis-
charge was reinforced by uncontroverted testimony
that, on the Monday following Fullerton's discharge,
Higley told him that he was dismissed because he
7 Contrary to the assertion of the dissent , the effect of the above conduct
was raised by Respondent and was fully litigated at the hearing.
Old. at 91.
9 See, e .g., P. G. Berland Paint City, Inc., 199 NLRB 927 (1972); Mare Holt
Company, 161 NLRB 1606, 1612 (1966). In our view the dissent has mistated
Board precedent. We have long held that even where an employer may want
to rid himself of an employee whose union activities have made him persona
non grata, "if the employee himself obliges his employer by providing a valid
independent reason for discharge-i.e., by engaging in conduct for which he
would have been discharged anyway-his discharge cannot properly be la-
beled a pretext and ruled unlawful ." P. G. Berland Paint City, Inc., supra, at
next to last paragraph of the text . See also McDonnell Douglas Corporation,
supra at 91 , in which Member Jenkins participated.
became too involved with union activities. From the
record, we do not find the interpretation of Higley's
statement to be as clear and as uncontroverted as the
dissenting opinion would have us believe. Employee
Grantham testified that, when he accompanied Full-
erton to the plant on Monday, May 21, Higley told
Fullerton "that [he] shouldn't have gotten so involved,
that if he had played his cards right or straight, things
might have been different or would have been differ-
ent, that he couldn't read the writing on the wall
.... " There was no mention of the words "union"
or "union activities." Nevertheless, if Higley had in
fact said that Fullerton should not have gotten "so
involved," a strong suspicion that he was referring to
union activities would be raised. But in Fullerton's
own account of the conversation, he testified that
Higley only said he (Fullerton) could not read the
handwriting on the wall and should have known bet-
ter. He makes no reference to the phrase "shouldn't
have gotten so involved." In the absence of this
phrase, Higley's statement could easily have referred
to the warnings Fullerton had received about his poor
work attitude. This latter interpretation comports
with Higley's statement to Fullerton on the day of the
discharge in which he told Fullerton that he did not
want to have to discharge him, but that he had been
forewarned regarding customer complaints and other
incidents. In view of the above, the record does not
support a conclusion that Higley expressed a discrimi-
natory motive for Fullerton's discharge.
Accordingly, in agreement with the Administrative
Law Judge's Decision, we find that Respondent did
not discharge Fullerton in violation of Section 8(a)(3)
and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Erie Strayer Company,
Erie, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
MEMBER JENKINS , dissenting in part:
I join in finding that Respondent violated Section
8(a)(1) of the Act by Traffic Manager Higley's threats
conveyed on April 24 and May 8, 1973, that Fullerton
would be discharged if he became "too involved" with
the Union. However, I do not agree with my col-
leagues and the Administrative Law Judge that
Fullerton's discharge pursuant to these threats was
permissible under the Act.
ERIE STRAYER COMPANY
Fullerton was hired by Traffic Manager Higley as
a driver-mechanic on February 28, 1973,10 and joined
the Union shortly after he commenced his employ-
ment with Respondent. On April 22 he was elected as
a steward for the traffic department, and by April 24
Higley was advised of Fullerton's stewardship. Based
on the credited testimony, the Administrative Law
Judge found that on April 24 Higley told Fullerton
and employee Gentile in effect that he was opposed
to one of his long-distance truckdrivers' becoming a
union steward and that he would fire them if they
became too involved in union activities. Higley ac-
knowledged the April 24 objection to the drivers'
being a union steward at a subsequent union-manage-
ment meeting on May 8. Both statements, of course,
violated Section 8(a)(1) of the Act.
On May 4, Fullerton told Higley there were bald
tires on the tractor-trailer, and on May 8 Fullerton
refused to drive the trailer because of the unsafe con-
dition of the tires. Higley then reported the conversa-
tion to Plant Superintendent Roger Strayer, who,
according to Higley, commented that "he was not an
Erie Strayer truck driver . . . and I should do some-
thing about it." Higley testified that Strayer said, "I
think he said we ought to get rid of him."
On May 9, the union employees at the plant began
a 2-day strike precipitated in part by the foregoing
threats. Fullerton was on the road when he learned of
the walkout and participated in the walkout by ceas-
ing to drive. When Fullerton informed Higley that he
was not driving because of the strike, Higley told him
to secure the trailer, park it at the truck stop, leave the
keys with the manager of the truck stop, and return
to Erie. Fullerton attempted to carry out Higley's in-
structions, but the truck stop manager refused to ac-
cept the keys. Higley then telephoned the plant and
told a secretary that he was keeping the keys.
On May 18, following a discussion between Strayer
and Higley, Strayer decided to discharge Fullerton.
Both Strayer and Higley signed the discharge slip,
which stated that Fullerton was "not suitable for Erie
Strayer employee." When Fullerton returned to the
plant on May 21, Higley told him that he "shouldn't
have gotten so involved, that if he played his cards
right or straight, things might have been different or
would have been different, that he couldn't read the
writing on the wall. . .
10 All dates are 1973.
11 This is based on the uncontradicted testimony of Billy Grantham, who
accompanied Fullerton on May 21 . Fullerton testified that Higley said, "I
told you and you couldn ' t read the handwriting on the wall ." Although
Grantham 's recollection was obviously more complete than Fullerton's, and
not inconsistent with Fullerton 's, my colleagues apparently choose to discre-
dit his testimony even though it was undenied by Higley. Under the circum-
stances, the interpretation suggested by my colleagues seems strained. But in
any event , Higley had previously repeatedly and unlawfully warned Full-
347
From the above, it is evident that Higley twice
warned Fullerton not to get involved in union activi-
ties or he would fire him. Fullerton became a union
steward, actively protested unsafe working condi-
tions, and fulfilled his other responsibilities as stew-
ard. Fullerton was then discharged, without prior
warning, and was informed by Higley that he was
dismissed because he became too involved with union
activities, precisely as Higley had unlawfully threat-
ened to do earlier.
The only conclusion possible from these uncontro-
verted facts is that Fullerton's discharge was in retali-
ation for his union activity, and thus violative of
Section 8(a)(3) and (1) of the Act. The Administrative
Law Judge's reliance on Respondent's long union as-
sociation is misplaced, since Respondent's threats of
discharge for union activity hardly indicate harmoni-
ous labor relations; Higley had no experience in deal-
ing with unions; and, whatever Respondent's attitude
toward other union matters may have been, it was
plainly hostile to Fullerton's acting as steward and
openly. and specifically so stated.
Respondent's asserted reasons for Fullerton's dis-
charge do not withstand scrutiny. Fullerton's "long
way home" remark, which on its face perhaps indi-
cates a desire to increase unnecessarily his mileage
pay, seems to have been a jest, but in any event did
not, contrary to the Administrative Law Judge, follow
Higley's April 24 warning, but actually took place
sometime in March, some weeks before the warning
and Fullerton's election as steward, and caused no
reprimand to Fullerton.
Fullerton's refusal to drive with unsafe tires is clear-
ly protected activity within the meaning of the Act,12
even if, contrary to the facts here, such refusal were
not connected with his position of steward for the
traffic department. Fullerton's complaint about the
unsafe tires and his refusal to drive on the tires related
to the matter of safety on the job-a matter of con-
cern to all of Respondent's employees and the subject
of a specific provision of the collective-bargaining
agreement. The currently effective contract between
Respondent and the Charging Party provided in sec-
tion 24, entitled "Safety and Health," in part as fol-
lows:
(A) The parties hereto recognize the impor-
tance of safety provisions in the plant for the
welfare of the employees and the protection of
the Company's property. The Company agrees to
make reasonable provisions for the safety and
erton not to become involved with the Union and to read the "handwriting
on the wall" as excluding any reference to this portion of Respondent's
attitude toward Fullerton as untenable.
17 N. L. R. B. v. Washington Aluminum Co., 370 U.S. 9 (1962).
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
health of its employees during the hours of their
employment. There shall be a permanent Safety
Committee consisting of not to exceed two (2)
persons, who shall be employees of the Compa-
ny, selected by the Union, and an equal number
of persons selected by the Company. This Com-
mittee shall investigate, discuss and submit rec-
ommendations calculated to relieve any unsafe
or unhealthy condition that may exist. These rec-
ommendations are to be submitted to the Com-
pany and it agrees to make reasonable efforts to
improve any safety defect or unhealthy condition
which the Committee may call to its attention.
Fullerton's complaint concerning bald tires and his
refusal to drive when the unsafe condition was not
corrected is clearly a safety matter, covered by the
contract, and enforcement by a single employee, with
or without the assistance of a union steward, is con-
cerned, protected activity.13 Moreover, the record re-
veals that at the time of Fullerton's refusal to drive,
he was the traffic steward and his complaints about
the tires and other unsafe conditions involving other
drivers indicate that his protest was in the perfor-
mance of his duties as steward. The fact that Fullerton
immediately obtained the support of Chief Steward
Leonhart, who told Higley that Fullerton didn't have
to operate a vehicle that was unsafe, removes any
doubt that Fullerton's protest was concerted. The ma-
jority concedes that Fullerton's refusal to drive a
truck with bald tires was protected and concerted
activity and that this refusal was one of the incidents
upon which "the decision to discharge" him was
based. It is well established that where a discharge is
in part based on protected and concerted activity, the
discharge is unlawful even though that activity may
not have been the principal or major reason for the
discharge. My colleagues are therefore rejecting ex-
isting Board law on this point.
My colleagues speculate that Strayer's statement of
May 8 that "we ought to get rid of him [Fullerton]"
may have been partially motivated by his anger over
the customer complaints also discussed in the same
aforementioned conversation with Higley. Strayer
could have so testified, but failed to do so. Even if I
were to accept such conjecture, I find the warnings
directed at Fullerton regarding customer complaints
are less than conclusive. The record reveals that Full-
erton was cautioned on two occasions about his atti-
tude toward customers. However, at the time of the
first warning, Higley admitted to Fullerton that he
didn't know whether Fullerton had made the state-
C & I Air Conditioning, Inc., 193 NLRB 911 (1971).
ment . With respect to the second incident, the Admin-
istrative Law Judge specifically made no finding that
Fullerton was the driver involved in a dispute with a
customer.
At any rate, it is clear from the record that Higley's
response was motivated at least in part by Fullerton's
concerted activities. In addition that same day Higley
repeated his unlawful threat to Fullerton not to get
involved with the union.
Another reason asserted by Respondent for
Fullerton's discharge is his failure to drive on May 9
while the walkout was in progress. It is undisputed
that one of the purposes of the walkout was to protest
the unlawful threats to Fullerton, and thus the walk-
out was protected under the Act. It is well settled that
a strike that is caused in whole or in part by an
employer's unfair labor practices is an unfair labor
practice strike." The fact that the walkout may have
been "unauthorized" does not affect the nature of it
or convert it to something other than an unfair labor
practice strike. My colleagues, however, state that in
any event, Fullerton had no right to curtail his trip,
thereby leaving his truck unprotected and Respon-
dent without access to the vehicle." The only case
cited by my colleagues for this proposition concerns
an employee who cut off the power from a boiler
stoker preparatory to his going on strike. The employ-
ee was admittedly aware of the dangers which might
have been caused by a sudden drop in steam pressure.
The Board found that the employee' s act was not a
concerted activity. The act of sabotage in that case is
hardly comparable to Fullerton's actions during the
course of the walkout. Moreover, the only disciplinary
action taken by Respondent at the time of the walkout
was directed at the leader of the strike, Leonhart, who
was suspended for 3 weeks. Therefore, to the extent
the protected walkout and the refusal to drive unsafe
equipment caused Fullerton's discharge, as asserted
by Respondent, the discharge for such reasons also
violates the Act.
This leaves the following incidents, asserted by Re-
spondent, as reasons for the discharge. On May 11
Fullerton forgot to get an advance from Respondent's
treasurer and Higley telegraphed the money to Full-
erton at a cost to Respondent of approximately $4.
Fullerton was involved in an accident on May 14, but
he immediately reported the accident to Higley and
received no reprimand. Fullerton' s final transgression
occurred on May 17, when his wife called Higley 30
minutes late to inform Respondent that Fullerton was
14 N.L.R.B. v. Pecheur Lozenge Co., Inc., 209 F.2d 393 (C.A. 2, 1953).
15 This was not alleged as a justification for Fullerton 's discharge . In fact,
the record reveals that Strayer conceded that he considered Fullerton 's fail-
ure to "drive on for two hours until sunset" as one of the reasons for the
discharge . In any event , as heretofore described Fullerton attempted to com-
ply with Higley 's instructions with respect to the trailer.
ERIE STRAYER COMPANY
not coming to work that day. All of these asserted
reasons for Fullerton's discharge involve conduct that
occurred subsequent to May 8, the date on which
Strayer stated that Respondent should get rid of Full-
erton, and on which Higley acknowledged his warn-
ing about the consequences of union activity. Thus
these reasons can hardly be regarded as the sole and
independent causes of Fullerton's discharge.
In sum, Respondent threatened to discharge Full-
erton if he became a union steward, Fullerton did so,
and was fired by Respondent who told him that this
was indeed the reason for firing him. Two of the addi-
tional reasons Respondent asserted for the discharge,
(1) Fullerton's participation in the walkout and (2) his
concern over and refusal to operate unsafe equipment
were concerted and protected activities, so that his
discharge for these reasons likewise violated the Act.
I would so find, and remedy Fullerton's unlawful dis-
charge.
DECISION
STATEMENT OF THE CASE
BENJAMIN A. THEEMAN, Administrative Law Judge: The
complaint I in this case alleged that Erie Strayer Company
(Respondent) in April and May 1973 engaged in and is
engaging in unfair labor practices affecting commerce with-
in the meaning of Sections 8(a)(1)(3) and 2(6) and (7) of the
National Labor Relations Act, as amended, 29 USC § 151
et seq. (the Act) by (a) Higley, the traffic manager, threaten-
ing employees with loss of employment if they engaged in
union activities, and (b) discharging employee Paul Full-
erton because of his union activities . In its answer , Respon-
dent admitted certain jurisdictional facts, denied that it
committed any unfair labor practices, and affirmatively
pleaded that Fullerton was a probationary employee whose
work did not measure up to the standards necessary to keep
employees beyond the probationary period.
Pursuant to notice , the hearing in this case was held in
Erie, Pennsylvania, on August 29 and 30, 1973.2 All parties
appeared and were represented by counsel. They were given
full opportunity to participate, adduce evidence, examine
and cross-examine witnesses , and present oral argument.
Briefs were submitted that have been read and considered.
Upon the entire record and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
Respondent, a Pennsylvania corporation with its princi-
pal office located in Erie, Pennsylvania, is engaged in the
manufacture of cement batch bins and buckets. During the
1 Issued on July 31 , 1973, based on a charge filed May 21 , 1973, and an
amended charge filed on June 6, 1973.
2 All dates hereafter mentioned are 1973 unless otherwise indicated.
349
past 12-month period , the Respondent purchased goods
and materials valued in excess of $50 ,000 directly from
outside the Commonwealth of Pennsylvania for use at its
Erie facility . During this same period , Respondent shipped
and sold goods valued in excess of $50 ,000 from its Erie
facility directly to points outside the Commonwealth of
Pennsylvania.
It is found , as admitted , that Respondent is now, and at
all times material herein has been , an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
11. THE LABOR ORGANIZATION
It is found , as admitted, that International Association of
Bridge , Structural and Ornamental Iron Workers,
Shopmen 's Local 642, AFL-CIO (Union), is and has been
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues in this case have been adequately set forth in
the Statement of the Case above.
B. The Locale and the Characters
The events in this proceeding stem from the Respondent's
traffic department as headed up by its traffic manager,
Richard C. Higley. Higley was hired by Respondent on
February 5, 1973, 23 days before Fullerton was hired. His
employment with Respondent was Higley' s first experience
in a union shop, having never been employed in a union
shop before. This fact was brought out when Higley attend-
ed the regular union-management meeting in February 3
and some question concerning a breach of the union con-
tract was brought up in which Higley had been involved.
Under Higley were five driver-mechanics: three of them
including Fullerton and Gentile were long distance inter-
state drivers, the other two were local drivers. When not
engaged in driving the men did repair and mechanical work
in the shop.
The shop or floor steward who represented the drivers
was a man called John Beers. He was not a driver but was
an employee in the supply department and represented the
employees in that department also. Higley and Beers did not
get along harmoniously.4
Robert L. Strayer has been with Respondent for 31 years.
During the period in question he was vice president and
plant superintendent. He was also responsible for the rela-
tionship between Respondent and the Union.
The union officials who participated in the events of this
proceeding were Ronald Brnilovich, financial secretary and
acting business agent, not an employee of Respondent; and
Frank Leonhart, Jr., chief shop steward .5 The latter was
3 See sec. E, below.
The disagreement apparently stemmed from the fact that Beers was not
a driver and not familiar with driver problems and activities.
5 Glenn Taylor was assistant chief steward.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by Respondent since January 1971.
C. Credibility of Witnesses
Again, as in too many Labor Board cases, the decision in
this proceeding is dependent entirely upon the resolution of
the credibility of witnesses. It is considered extremely re-
grettable and an unfortunate commentary on Board cases
that witness come to the hearings as a matter of course
prepared to tell something other than the truth of the events
that occurred. As background, it appears as the record
shows that Respondent in the regular course of its business
may not have always been in compliance with the various
laws governing the operation of tractor-trailers over the
highways.6 The record also shows that the drivers knowingly
operated vehicles in a manner that did not conform to these
regulations .7 In addition, it is concluded that drivers on
return trips drove extra miles in order to add to their ex-
pense accounts. While these practices of the Respondent
and the drivers may be "all too human," they do reflect
adversely on the testimony of the persons who indulge in
them.
The determination of the facts herein has, as a matter of
course, been made more difficult by the need to resolve
credibility. The unraveling of the tangled skein due to the
many resultant conflicts has been painstakingly done. From
their demeanor and their testimony, it is considered that as
to certain material and relevant matters of this proceeding
neither Fullerton nor Gentile are credible witnesses. In
some places as will be shown Higley was vague and illogical.
Leonhart included times in his testimony that were not
consistent . Strayer stated he was unaware of the conversa-
tion between Higley and Fullerton at the meeting on May
8,8 and it strains credulity that under the circumstances
under which the exchange occurred Roger Strayer should
not have been aware of it.
In making these credibility determinations the pertinent
testimony of all witnesses has been considered as well as
their demeanor. In addition, inconsistencies and conflicting
evidence were considered and set forth herein. The absence
of a statement or resolution of a conflict in specific testimo-
ny, or of an analysis of such testimony, does not mean that
such did not occur. See Bishop and Malco, Inc., d/b/a
Walker's, 159 NLRB 1159, 1161. Further, to the extent that
a witness is credited only in part, it is done upon the eviden-
tiary rule that it is not uncommon "to believe some and not
all of a witness' testimony." N.L.R.B. v. Universal Camera
Corporation, 179 F.2d 749, 754 (C.A. 2, 1950) reversed on
other grounds, 340 U.S. 474 (1951); N.L.R.B. v. United
Brotherhood of Carpenters and Joiners of America, Local 517,
AFL [Gil Wyner Construction Co.], 230 F.2d 256, 259 (C.A.
1, 1956); cf. N.L.R.B. v. Florida Citrus Canners Co-Opera-
tive, 288 F.2d 630, 638 (C.A. 5, 1961).
6 Trucks were sent on the road with tires in a smooth and dangerous
condition . See also In. 7.
7 See sec. 1,2(d) below . See also Fullerton 's admissions to Higley made on
May 18. He said, "All the time I have worked here, I've worked here a year
... and I've handled hot loads for you, illegal loads without permits... .
8 See sec. H,5.
D. Collective-Bargaining Agreement Between Respondent
and Union
Respondent and the Union as of January 31, 1972, en-
tered into a collective-bargaining agreement expiring on
January 30, 1975. This agreement was in effect at all times
that Paul Fullerton was an employee of Respondent. Said
contract contained the following provision:
Employees shall be regarded as probationary employ-
ees until they have worked for the Company within the
bargaining unit . . . an aggregate total of sixty (60)
days within the period of three (3) months from the first
date of employment, and during such probationary pe-
riod all the provisions of this agreement shall apply to
such employees except the provisions of Subsection(B)
of this Section;' however, should any such probation-
ary employee be discharged or laid off, the Company
shall be under no obligation to re-employ such person
Said contract also contained clauses providing for union
security, grievance and arbitration procedures.
E. Respondent's Union History
Respondent has operated under a collective-bargaining
agreement with the Union since 1951. The present collec-
tive-bargaining agreement was executed after a 4-month
strike of the employees. The latter returned to work after the
contract was executed. The union contract provided for a
four-step grievance procedure. The first step was to be han-
dled by a conference with the foreman. The next three were
more formal and involved more persons. Further, griev-
ances necessitating immediate action were to be handled
during working hours without loss of pay. Brnilovich testi-
fied that Respondent felt in connection with some of the
grievances, "they were just being pulled off the floor, pro-
duction was being stopped.... " At his suggestion and in
agreement with the then plant superintendent (Strayer's
predecessor) weekly meetings were set up between Respon-
dent and the Union for Tuesday at 4 p.m.10 to handle these
matters.ll As Leonhart testified, "a lot of times the griev-
ances were settled right in that meeting without going any
further."
The record contains no information as to the cause of the
4-month strike or its conduct. Other than the allegations of
the complaint herein and the facts offered by the General
Counsel to support them, the record contains no evidence
of union animus or antiunion action attributable to Respon-
dent.l2
Subsec . (B) provided for seniority and privileges accompanying it.
1° Working hours were from 7 a.m. to 3:30 p.m.
1 The first meeting took place in February. Later by mutual agreement the
meetings were biweekly but either party could request a meeting for the
Tuesday on which no meeting was set.
12 The General Counsel to point up Respondent's antiunion action and
animus refers to a walkout of the employees lasting 3 days: May 9, 10, and
11. The walkout occurred because Leonhart informed employees of the
alleged threat to discharge Fullerton and that Respondent unilaterally
changed overtime arrangements. He urged the employess "to do something
about it." They "locked up their tool boxes and we walked out." Leonhart
ERIE STRAYER COMPANY
F. Paul Fullerton: Employment Relationship With Respon-
dent
On February 28, 1973, Fullerton was hired by Higley as
a driver-mechanic. His duties were to drive Respondent's
tractor-trailers on interstate long-distance hauls and when
not driving to work in the shop as a mechanic.13 Prior to
February 28, Fullerton had been used by Respondent as a
contract driver. Under this arrangement he was not an em-
ployee but was paid on a load basis driving Respondent's
equipment. He first drove as a contract driver in May 1972.
On January 22 and 26 and February 22 and 26, he again
drove for Respondent as a contract driver. Higley hired
Fullerton for the two February loads.
On May 18, 1973, Fullerton was discharged. His notice
of discharge stated "Not suitable for Erie Strayer Driver-
Employee." Higley and Strayer each testified that when
discharged, Fullerton was still a probationary employee,
that he was fired for cause.14
G. Fullerton 's Union Activity
Fullerton joined the Union in early March immediately
after he was hired." Shortly afterward he signed a checkoff
authorization. Union dues were deducted from his pay until
the time of his discharge. On April 22, Leonhart recom-
mended and nominated Fullerton as steward for the traffic
department. That evening the Union elected him. By April
24, Leonhart and Taylor the assistant chief steward had
advised Higley of Fullerton's stewardship.
H. Higley Threatens Fullerton About Union Involvement
1. Introduction
The complaint alleges that Respondent in or about April
1973, through Higley, threatened employees with loss of
employment if they engaged in union activities. The proof
of this statement is in conflict. The General Counsel's wit-
nesses tell one story, Respondent's, a somewhat different
story: The proof covers a period from April 24 through
May 8 and the conflict requires resolution. The following
statement and analysis accomplishes that end by dealing
first with the facts presented by the General Counsel's wit-
nesses ; then with the facts presented by Respondent's wit-
nesses ; and finally with the resolution of the disagreement.
2. Fullerton's version
On April 24 16 Higley and Fullerton had a conversation
was suspended for 3 weeks because of this occurrence . Neither he nor the
Union grieved the suspension . The General Counsel has failed to show with
regard to this walkout that Respondent 's actions toward the Union or the
employees were in any manner improper.
This is a rough summary of the driver-mechanics ' duties. Respondent
maintained a detailed job description of the duties of a driver-mechanic
which was extant when Fullerton was hired.
14 Time records were not introduced to verify Fullerton's probationary
period . On the record , however, it is found that on May 18, 1973, Fullerton
was a probationary employee.
15 Fullerton was a member of the Teamster's Union , Local 300 , before his
employment by Respondent.
351
in Higley's office. It was close to quitting time. Tony Gentile
and another unnamed driver were present. According to
Fullerton the following occurred:
Q. How did you come to be in the office?
A. It was getting close to quitting time. We always
met there so we could get together on what we were
going to do the next day, if we were going to have a run
or work in the shop or what we were going to do.
Q. Tell us just what happened?
A. We got in an argument in his office and we were
told not to get involved in the union or he would fire
the whole bunch of us. He was talking to me and Tony,
he would hire all new drivers and he asked me why
we were joining the union and I said I thought we
needed a steward down here so we can keep tabs on
what belongs to the five of us. He said he thought it
was a good idea because he was having such a hard
time with the floor steward, John Beers.
Q. Do you recall anything else that was said?
A. No, sir.
It was that same night at the union meeting that Leonhart
nominated Fullerton to be steward for the traffic depart-
ment and the members voted him into office.
3. Gentile in Effect Corroborates Fullerton
Gentile testified that the meeting with Higley took place
on the day the union meeting was held.I According to
Gentile, the following conversation took place:
A. Paul and I were in there, in the office with anoth-
er truck driver and we were talking in front of Mr.
Higley about going to the union meeting that night and
the possibility of electing a union steward for that area,
the Supply Room area and Paul had already expressed
his desire of being the union steward and Mr. Higley
said, that we shouldn't get involved. If we got too in-
volved in the union, he would fire all three of us and
get new truck drivers.
On cross-examination Gentile testified:
Q. The conversation in Mr. Higley's office, .... do
you recall, Mr. Higley, at the time you were saying or
agreeing with the statement by Mr. Fullerton that the
Traffic Department ought to have its own steward?
A. Referring the matter-he did say the traffic de-
partment ought to have its own steward, yes.
Q. You say, "he," are you referring to Mr. Higley?
16 Fullerton first testified positively that the date was April 22. When
shown a calendar and it was pointed out that April 22 was a Sunday, he
changed the date to the 24th, "the last Tuesday of the month , whatever date
it falls on."
17 This would place the meeting on April 24.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Mr. Higley said the Traffic Department-well, I
believe what he said was this section ought to have its
own union steward.
Q. Was the gist of it that you needed representation
by someone who is familiar with the truck driver, me-
chanic problems as opposed to the other people?
A. I believe the gist of it was that Mr. Higley and
John Beers couldn 't get along too well.
Q. Who is John Beers?
A. Union Steward on the assembly floor.
Q. In the shop?
A. Yes, he was our union steward.
Q. It is your testimony then that Mr. Higley on the
one hand agreed with or at least did not dissent from
dealings with the different stewards from the Traffic
Department but on the other hand said to you, "don't
get involved with the union" ?
A. Mr. Higley didn' t want us to get involved with
the union because-
Q. Not what he wanted , but did he say both of those
things?
A. Yes, he did.
Q. Get a steward to represent these five fellows be-
cause you need it for any reason , but at the same time,
don't get involved with the union?
A. Yes.
Q. He didn 't voice any objections to dealing with the
stewards or the truck drivers , did he?
A. No, not with dealing with a steward for the truck
drivers, but against one of his truck drivers being one
of the stewards.
Q. It is your sworn testimony here that he said, if
you're too involved I'll fire all of you and get new truck
drivers , is that what you're telling us?
A. He said, "all three of you and I'll hire new truck
drivers."
4. Higley denies that he made any threats
Higley testified that he held a meeting with Fullerton on
April 24 at the close of the workday. At some unspecified
time Gentile was present but not for the entire meeting.
Fullerton denied that there was any conversation "concern-
ing stewards for the Traffic Department." He also denied
that he ever told Fullerton "he would be fired if he got too
involved with Union affairs." He admitted that he made the
statement , "what are you doing tonight" and Fullerton's
answer was that he was going to the union meeting. Higley
admitted that he was notified of Fullerton 's stewardship a
day or so after he was appointed . Higley then testified to a
meeting with Fullerton the morning of Friday, April 27. The
meeting took place as follows:
A. Paul came in the office-this was after 7:00
o'clock Paul came in the office and I said, "I under-
stand you're the new steward," and he said, "yes," and
my conversation at that point was, "I think it's a good
idea," in reference to the problems in the Traffic De-
partment that they have had or could have. They would
have representation, someone who could understand
this and I couldn't refer to any specific incident but just
in general I said, "I've had a couple cases where I have
tried to explain some of the problems of the Traffic
Department and they don't understand, they don't un-
derstand the Traffic Department."
Q. Who is the "they" ?
A.-When I attended these Tuesday night union
meetings. That was the gist of the conversation.
Q. Was anyone else present during that conversa-
tion?
A. No, sir.
Q. Was there any conversation-have you ever had
a conversation with Mr. Fullerton about involvement
with unions or the union affairs?
A. In answer to your question, specifically, I had a
conversation with him regarding-I can't say it was
specifically regarding the union, no.
5. The union-management meeting of May 8
On Tuesday, May 8 the weekly meeting between manage-
ment and the Union occurred. When it opened the Union
was represented by Brnilovich, Ted Rathburn, recording
secretary, Frank Leonhart, and Glenn Taylor. Fullerton
had been out on the road and came in about 30 to 40
minutes afterward . Management was represented by Stray-
er and Higley. Three items had been discussed and the
fourth was in discussion when Fullerton arrived. After his
arrival, words passed between Fullerton and Higley which
are discussed in the next paragraphs. About the same time
the meeting became heated, loud words were spoken, and
the meeting got out of hand. It broke up when Bmilovich
left and the union men followed him.
Fullerton testified on direct examination that at this
meeting after Strayer had said he didn't want any of the
drivers operating unsafe vehicles:
A. Mr. Higley told us that he had told us not to get
involved with the union that we were a small bunch and
three of you were on the road, and he didn't know I was
a steward.
On cross-examination, Fullerton testified:
Q. At that regular meeting that took place on the
afternoon of May 8th, you were present or came later,
as I understand it?
A. Yes.
Q. Was there any discussion about involvement
with the union at that meeting?
A. Yes, sir.
Q. What was that discussion?
A. Mr. Higley told us when everyone was there that
he didn't want us-he told us not to get involved, we
ERIE STRAYER COMPANY 353
were a small bunch and we didn't need to be messing
around.
Q. You're telling me that Higley said that?
A. Yes, sir.
Q. All the stewards were there.
A. He wasn't talking to them. He was telling them
what he had told me. He said, "that's right, I told you
not to get involved. You're a small bunch and you're
on the road." He wasn't telling them not to get in-
volved, he was telling them what he told me.
Leonhard testified that he overheard the conversation
between Higley and Fullerton; that it went as follows:
Q. Tell us what happened there? Were you there at
the beginning of the meeting?
A. Yes, I was there at the beginning of the meeting.
Paul had been out on the road and he came in the
meeting late and we were talking something about a
grievance and then he got to talking about the tires and
Paul just said to Higley, "why don't you admit to the
fellows you told us you would fire us if we got involved
with the union," so Higley kind of hedged around a
little bit and said, "yes, I told you you're on the road
most of the time, don't get too involved."
On cross-examination, Leonhart testified:
Q. (By Mr. Stroh) As I understand your testimony,
you were never present and never heard Mr. Higley
make any threat against Mr. Fullerton or any other
person concerning discharge for union involvement or
activities, is that correct?
A. No, I testified that at the Tuesday night meeting
on May the 8th, Paul Fullerton confronted him and he
hedged around and finally said, "yes, I said, don't get
involved because you're on the road most of the time."
statement to Fullerton that if he got involved with the
union he would be fired, is that what you heard?
A. I heard Paul say that and I heard Dick say, "yes,
I said , don't get involved."
Q. Didn't you also-is it your testimony that you
heard Mr. Higley say, "don't get involved because they
were drivers and were out on the road? "
A. Yes. Dick said, "don't get involved because
you're out on the road most of the time.
Q. Out on the road, you mean away from the plant,
away from the in-plant problems?
A. That's right, they're driving on the road.
Q. And in terms of the involvement, it was men-
tioned by Mr. Higley?
A. Yes.
Q. Was it also stated to be in connection with being
a Steward for the truck drivers or the Traffic Depart-
ment?
A. All that was said was just like I stated. He said,
"I told you, don't get involved." Nothing was said
about a steward, a union member or anything . He just
said , "don't get involved."
Brnilovich testified both on direct and cross-examination
that he overheard the conversation between Higley and
Fullerton; that it went as follows:
... and there was a passing of words between Mr.
Fullerton and Mr. Higley and Mr. Fullerton said, "isn't
it true that you said for us truck drivers not to get
involved because we were on the road," and Mr. Higley
said, "yes, I did... .
Higley testified that the conversation with Fullerton at the
May 8 meeting occurred in the following manner:
Q. . . . Were there any other statements or allega-
tions by Mr. Fullerton?
A. . . . he . . . said, "look Dick, be honest, tell him
that you told me you were going to fire me," and I sat
there and I said, "Paul, I didn't say that. I was talking
about involvement... .
*
Q. At no time during the meeting of May 8th, 1973,
the meeting you're referring to, did Mr . Higley say to
Mr. Fullerton that he had better not get involved with
the union or he would get fired , is that correct?
A. No, he didn't say those words.
Q. As I understand what you heard was a statement
by Mr. Fullerton raising the issue that Higley on some
prior occasion which you were not present, made a
Strayer, though present at all times at the meeting, testi-
fied that he could recall no conversation at the May 8 meet-
ing about "Mr. Fullerton getting fired for involvement with
the Union." 18
Analysis and Conclusions Showing That Higley Threat-
ened Fullerton
It is concluded that on April 24 Higley threatened Full-
erton with discharge in the event he became involved with
18 Strayer made a brief memorandum of the events at the May 8 meeting
which was received in evidence . The Fullerton matter was not mentioned in
it. The omission strains credulity in view of the foregoing testimony of the
others present at the meeting.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activities. Nevertheless, the Fullerton version of the
April 24 conversation is not credited in full . So much there-
of as states "he asked us why we're joining the Union" is not
credited. The statement is not probable in light of the fact
that Respondent's plant was then functioning under a
union-security clause and Higley knew that the drivers were
union members.
It is found that at the May 8 meeting the word "Union"
and the words "union activities" were not mentioned by
Higley in his conversation with Fullerton. It is noted that
Fullerton does not mention the word Union in his cross-
examination testimony of the May 8 conversation, though
he does use the word on direct. Further, the testimony of
Leonhart and Bmilovich show that the word union was not
mentioned. Both of them testify that there was a discussion
about "involvement."
In two instances Higley admitted that in the April 24
conversation with Fullerton he was talking "involvement."
The first admission occurred in response to the question by
his counsel whether he "ever had a conversation with Full-
erton about involvement with unions or the union affairs? "
Higley answered, "I had a conversation . . . I can't say it
was specifically regarding the Union, no." The second oc-
curred when he made the statement at the May 8 meeting
that he "was talking involvement" in his earlier conversa-
tion with Fullerton. On the basis of demeanor and the re-
cord as a whole Higley's version of the conversation with
Fullerton in April is not credited.19
Gentile does not testify that the same language occurred
in the April 24 meeting as that testified to by Fullerton.
There is sufficient closeness to make Gentile's testimony
corroborative. What appears reasonable is that Higley on
April 24 told Fullerton (and Gentile) in language expressing
the thought that Higley "was against one of his truckdrivers
being one of the stewards," and he would fire the three
long-distance drivers because they would become too in-
volved with the Union. It is not unreasonable to conclude
that Higley may have intended to tell Fullerton (and Gen-
tile) that if they became too involved with the Union they
would neglect their driving duties and that would be the
cause for dismissal. A threat of discharge couched in terms
of neglect of driving duties might very well be proper and
outside the proscription of Section 8(a)(1) of the Act. But
Higley was not that precise nor careful in his language.
From the testimony quoted above and the record as a
whole, it is found that in April Higley told Fullerton (and
Gentile) in effect that he was opposed to one of his long-
distance truckdrivers becoming a union steward and that
he would fire them if they became too involved in union
activities. Such a threat interfered with the rights of em-
ployees guaranteed by Section 7 of the Act. It is so found 20
19 It is considered unnecessary to make a determination that the April 27
meeting occurred as testified to by Higley.
20 Fullerton testified that after he was elected steward and within a week
or two after April 24 he had two conversations with Higley on following days.
The subject was mileage due Gentile for bringing his brother's car back to
Erie from New York after hauling a load to New York for Respondent.The
first day Fullerton spoke to Higley alone. This conversation was not reported.
The next day Gentile was present. Higley among other things according to
Fullerton said "I told you two not to get involved with the Union; [you are]
a small bunch and didn 't need the Union." Gentile was unable to recall that
The above finding is made taking into consideration the
testimony of Fullerton, Leonhart, and Bmilovich regarding
the words used by Higley at the May 8 meeting. It is clear
that Higley did not mention the word "Union" or the words
"union activities" at that time 21 The fact that he did not do
so does not alter the finding that he did so in April. Further,
it does not destroy in any way the fact that in April, Higley
was talking union involvement. Union or union stewardship
was the only involvement then in the picture between Full-
erton and Higley.
On the other hand, it is found that Higley's May 8 state-
ment was not violative of the Act. It was a repetition of the
April threat. On May 8, the record shows it was Fullerton
not Higley that used the words that Higley used in April.
This is clearly shown by the testimony of Leonhart and
Bmilovich. Higley's May 8 response was provoked by
Fullerton's insistence on an answer, and Higley' s response
cannot be considered in any way a threat within the mean-
ing of Section 8(a)(1) of the Act.
1. Fullerton was Discharged for Cause
1. Introduction
The General Counsel asserts that Fullerton was dis-
charged because he was a union steward. In effect, the
General Counsel asserts that the events on which Respon-
dent based the discharge were pretextual; that the discharge
violated Section 8(a)(3) of the Act. The record does not
support the General Counsel.
Respondent contends that Fullerton was a probationary
employee terminated because of "demonstrated poor job
performance." Respondent refers to a series of incidents
that led to Fullerton's discharge, wherein Fullerton engaged
in conduct that caused complaints from Respondent's cus-
tomers, disobeyed instructions from his foreman, delayed a
delivery to a customer, negligently damaged a truck, and
broke plant rules . This course of conduct will be dealt with
below in time sequence and shows that the record bears out
Respondent's contentions.
2. Incidents involving Fullerton while in Respondent's
employ
a. The long way round
In late March, Fullerton and another driver named Bill
Grantham took loads to Suffix, New Jersey.22 After the
such a meeting occurred , though Gentile did recall another meeting during
the week following April 24, dealing with a pink slip issued to him because
he had had a driving accident . Some question exists as to Fullerton 's credibil-
ity as to the conversation quoted above, based on his demeanor and the
vagueness of the testimony . The failure of corroboration by Gentile carries
weight in light of the fact that it was his claim that Fullerton was then
pressing. In any event in view of the findings herein that Higley threatened
the employees earlier in April in somewhat similar terms, it is considered
unnecessary to make a finding with regard to the occurrence of the above
quotation in the conversation between Higley and Fullerton at this later
meeting.
21 Rathburn , the union secretary, took minutes of the meeting . In view of
the above finding it is not considered significant that his minutes were not
produced in evidence.
22 The atlas shows no town of Suffix in New Jersey. Whether Suffix or
ERIE STRAYER COMPANY
loads were delivered, Fullerton (as he said "kidding around
like") asked one of the men employed by the purchaser
"what's the longest way home so we can make some money,
we get paid by the mile." Fullerton volunteered the informa-
tion at the hearing that, "in order for me to go the longest
way home, we would have had to go 4 or 5 hundred miles
to get $50. I guess they took it serious." He testified that the
drivers are paid on a mileage basis and that Respondent
relied "on the driver telling the truth and stuff like this. If
I tell them I went 500 miles, they would believe it."
The purchaser reported this "long way round" request
back to Respondent. A day or so later in March Higley
spoke to Fullerton about the matter. Higley told Fullerton
he didn't know whether Fullerton 23 or Grantham had made
the statement but he cautioned Fullerton "to be more care-
ful on the job." Higley told Fullerton that when the custom-
er calls in he doesn't get the calls first, they go to other
members of management who in turn talk to Higley about
it. Fullerton denied that he was told anything about this
"the long way home" incident until after his discharge 24
From the above and the record as a whole it is found that
Higley cautioned Fullerton in late March in the manner
stated above. It is noted that Fullerton first testified to two
conversations held with Higley after his discharge, one on
May 18, the other on May 21. The "long way home" inci-
dent was not mentioned as part of either conversation. In
later testimony he mentioned "the long way home" matter
stating he was told about it after the discharge. There is no
evidence of any other meeting with Higley after the dis-
charge than those of May 18 and 21. In any event, it is
considered reasonable, what with Fullerton being a new
employee of 1 month, that Higley should admonish him
concerning his behavior immediately after the incident rath-
er than wait until after his discharge.
b. Fullerton as steward presents some grievances to Higley
Shortly after Fullerton became steward on April 24, he
presented two matters to Higley in his capacity of steward.25
Both concerned Gentile. The first dealt with Gentile' s claim
for mileage due him for bringing his brother's car back to
Erie from New York after hauling a load to New York for
Respondent.26 The second dealt with a pink slip 27 Gentile
Catasauqua is not significant in view of the fact that Fullerton admitted that
the events occurred as found herein . The General Counsel erroneously as-
serts that because Fullerton denies ever having been to Catasauqua , Higley's
testimony on this point is not credible.
23 According to Higley, Fullerton denied he had said it.
24 His testimony follows:
Q. . . . did anyone say anything to you about this?
A. I heard about it after I was fired.
Q. After you were fired?
A. Yes.
Q. Did you hear about it before you were fired?
A. No, sir.
Q. Did Mr. Higley say anything to you?
A. After I was fired.
Q. Before you were fired?
A. No.
25 The record is not clear as to the time factor but the presentations may
have been within I or 2 weeks after April 24.
355
had received for getting into an accident and damaging two
of Respondent's trucks. Only Higley and Fullerton were
present at the pink slip presentation. Fullerton asked Higley
if he would take the pink slip back. Higley refused. Full-
erton testified that then Higley told him, "if it had been you,
you being an experienced driver and doing the things Tony
had done, he would fire me." No grievance was filed by
Gentile in connection with either of these matters.28
c. Higley admonishes Fullerton again about the manner of
talking to the customers
About April 30, Higley admonished Fullerton again
about his manner of speaking to customers. It occurred
after a delivery made by Fullerton and Gentile to
Respondent's customer Dalrymple Concrete and Gravel.
The salesman reported back to Respondent that a driver
had been sarcastic, had been out of line, and caused some
hard feelings. The driver was not identified.29 Fullerton
when questioned by Higley stated he had no recall about
anything of this type happening. Higley told Fullerton that
"shipments have been late and that's what he'll find on this
job." He admonished Fullerton not to "offer any comments
to them one way or the other." Higley put this incident
down as a verbal reprimand.
d. Fullerton and Higley have a dispute about bald tires
On Friday, May 4, Fullerton returned from a trip in
which he took a load to Syracuse, New York . Before leaving
the plant Fullerton told Higley there were bald tires on the
tractor-trailer; and that if he was caught in New York State
it could cost " $25.00 a tire plus the wrecker fee to come out
and fix the equipment." Higley did not change his orders
and Fullerton "ran the load." When he brought the tractor-
trailer back, he told Higley about the tires again. Higley said
"he would try to get to them over the week-end."
On Monday, May 7 the bald tires were still on the tractor-
trailer. Without changing the tires the tractor-trailer was
used to go to Warrenton, Pennsylvania. That evening Hig-
ley called Fullerton at home told him the trailer was at the
Edinboro exchange of Interstate 79, and ordered him to
pick it up at daylight the next day.30 In the morning Full-
erton and his wife drove to Edinboro. Fullerton saw the
bald tires still on the trailer and decided it was unsafe to
drive. He left the trailer and with his wife returned to the
plant . At the plant, Higley and Fullerton had some words
over his refusal to drive the trailer. Higley told Fullerton to
get to work in the stock room. Fullerton did not punch in
but reported to Leonhart. Leonhart and Higley spoke to
26 See In. 20 above.
27 A pink slip is a warning given to employees for improper conduct.
28 The record shows these as the instances in which Fullerton exercised his
stewardship. In his disagreement with Higley about "bald tires" Leonhart
represented Fullerton . Fullerton attended the May 8 meeting as a steward.
(See sec . (d) and (e) below .) The record contains no indication that
Fullerton's steward activities were other than normal.
29 No finding is made that Fullerton was the driver . This incident is listed
to show that Higley cautioned Fullerton the second time and the basis for
the admonishment . It is considered not unreasonable to speak to Fullerton
even though there was a doubt that Fullerton was the driver concerned.
30 Edinboro is about 25 miles from Erie.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fullerton. At this meeting Leonhart told Higley that Full-
erton "didn't have to drive anything that wasn't safe." Hig-
ley told them both there was no problem, to "get the hell
out, I'll talk to you at 3:30." Then Higley told Fullerton that
he was to work in the stock room. Fullerton punched in at
7:15 a.m. for that purpose. At 9:30 a.m. Fullerton and an-
other driver named Smith took new tires, drove to Edin-
boro, and put the new tires on the trailer. When they started
the tractor-trailer up something was wrong with the motor.
They drove to Saegerstown, the next exit on Interstate 79,
and called Higley. Higley told Fullerton to leave the trailer
and take the tractor to the repair shop in Erie. Fullerton did
this after arranging with the gas station at Saegerstown to
leave the trailer. He left the truck at the repair shop in Erie
and returned to the plant.
e. The May 8 meeting between management and the Union
The regular Tuesday meeting between the Union and
management had started. Several items had already been
discussed. When Fullerton arrived, safety while driving was
the subject because of a pink slip Gentile had received when
he hit a wall he couldn' t see . Fullerton pointed out to Stray-
er that some of the tractor- trailers did not have wide load
mirrors on them and while he, Fullerton, as an experienced
man could do without them, inexperienced people like Gen-
tile could not. Strayer then stated that "no company em-
ployee should operate any piece of equipment that was not
in a safe condition irrespective of whether it was a vehicle
for over the road or a plant tool."
By this time, the discussion had become quite heated.
Cross conversation occurred. Among them was the conver-
sation between Higley and Fullerton about the discharge
for "involvement." See section H,5 above. Strayer then stat-
ed he didn't like the way the Tuesday meeting was going.
In response to a question from Brnilovich he stated he
would prefer that the processing of grievances go "back to
the methods in the contract." On that note Brnilovich left
the meeting and the other union men followed. Bmilovich
testified that "There was no hard feelings as far as we were
concerned or anything. We weren't getting anywhere... .
You can't get no where if both parties are heated. So I
thought the best thing to do was walk out and not have any
problems."
f. On May 9 Fullerton starts to Ashland, Virginia
On May 9, Fullerton reported to work as usual . Higley
told him to go and pick up the tractor that was being re-
paired. While there Higley told Fullerton to affix wide load
mirrors. The repair people did not permit this. Fullerton
drove the tractor back to the plant and by 9:30 a.m. had put
the mirrors on. Higley then ordered Fullerton to pick up the
trailer in Saegerstown and take it down to Ashland, Virgin-
ia.
The trailer was loaded with a "dimensional load," so
called because it was 11 feet, 11 inches wide and exceeded
standard specifications for shipping regulations . Permits
were necessary to drive "wide loads" on the roads of Mary-
land, Virginia, and Pennsylvania. To comply with these
permits, the load was required to be driven only at certain
times of the day through urban areas, carry certain wide
load signs, and could not be driven after sundown and
before sunup.
g. On May 9, Leonhart induces the employees to go on "an
unauthorized walk-out"
Shortly after noon on May 9, the union employees of the
plant, at the urging of Leonhart, walked out and struck the
plant 31 The walkout lasted through May 10. The employees
returned to work on May 11.
h. The night of May 9, Fullerton stays at Breezewood when
ordered to continue driving
Fullerton picked up the load at Saegerstown. Apparently,
as he admitted, he was aware that something was "going on"
at the plant. During the day he tried to talk to Higley and
was told he was not there. The person he talked to told him
to continue on to Breezewood.
Here the record is somewhat confusing. Fullerton testi-
fied that he talked to Higley twice from Breezewood, once
about 4:30 p.m. and the other time at 6 p.m. Higley testified
he spoke to Fullerton only once, from his home at about 6
p.m.
It is considered unnecessary to determine how many
phone calls were made. The significant facts are that when
Fullerton spoke to Higley at 6 p.m. both knew the walkout
was taking place and Higley told Fullerton to continue driv-
ing as long as he could that day. Fullerton's testimony is
open to question. On direct examination Fullerton testified
that he spoke to Higley at 4:30 p.m. and again at 6 p.m.
During the first conversation Higley told him to continue
driving and he told Higley he couldn't because he was in an
urban area. By 6 o'clock both Fullerton and Higley were
aware that the walkout had occurred.32 Fullerton stated
Higley repeated his instructions to continue driving till dark
and to call him in the morning.
On cross-examination Fullerton did not mention the 4:30
p.m conversation. The examination dealt with the 6 p.m.
conversation. Fullerton shilly-shallied. He told Higley he
would not drive on and then he told Higley he would drive
on. In any event, Fullerton did not drive on but stayed at
Breezewood for the night. His statement that he was in an
urban area was incorrect. A Pennsylvania Department of
Transportation map placed in evidence showed that Breeze-
wood was not an urban area. From the foregoing it is found
that Fullerton in fact informed Higley he was going ahead
but refrained from continuing because of the walkout in the
plant 33
31 The record indicates that the walkout was unauthorized . Neither the
General Counsel nor the Charging Party contends to the contrary. As a result
of the walkout , Leonhart was suspended for 3 weeks. The record does not
show that the suspension was grieved or contested.
32 Fullerton in the meantime had telephoned his wife who told him of the
walkout.
33 Respondent points out another reason why Fullerton could have contin-
ued on May 9. The tractor-trailer contained a sleeping bunk . Fullerton could
have pulled in at a rest stop and slept there for the night . This reason has
no weight absent a showing that this was company practice . Fullerton testi-
fied without contradiction that he usually stayed overnight at motels because
the Company paid his expenses.
ERIE STRAYER COMPANY 357
i. The wide load is delayed in its arrival at Ashland
On May 10 about 7 a.m. Fullerton telephoned Higley that
he was not driving because of the strike.34 Higley told him
to secure the trailer, park it at the truck stop, leave the keys
with the manager of the truck stop, and return to Erie. The
truck stop manager refused to accept the keys. Fullerton
called the plant. In Higley's absence, he spoke to a secretary
and informed her that he was keeping the keys and bringing
them back with him. Higley got this message that day at
about 8 to 8:30 a.m. Fullerton did not report to the plant
that day but came in the next day, Friday, May 11. When
he reported he had with him the original permits that had
been with the truck for wide load passage over the high-
ways.
In the morning of May 10, the Ashland customer called
Higley to find out about delivery of the load because their
job and crew were waiting for its arrival to complete the
work at hand. Higley arranged with them that they send a
tractor to Breezewood to pick up the load. The customer did
this on May 11. When they arrived they had new keys made
in order to get into the truck. Because Fullerton had brought
the permits back with him, Higley stated he was compelled
to have the "load" repermitted; that the repermits were
telegraphed by Virginia and Maryland to Breezewood 35
j. Fullerton forgets to take his expenses advance
About 3:15 p.m. Friday, May 11, Higley told Fullerton
he was to go to Ashland on Monday , May 14. Also, he told
him to get an advance from the company treasurer. Full-
erton left without doing so. On May 14, pursuant to a tele-
phonic request from Fullerton received that morning,
Higley telegraphed $ 100 to Fullerton at Breezewood.36
ees who are absent or late to call a certain number within
20 minutes of starting time. Starting time that day was about
7 a.m. His wife did call but at 7:50. Fullerton stated that he
was sick; his wife let him sleep. Further he said she had not
read the rules nor had a copy of the contract.
in. Fullerton is discharged
On May 18, the Friday of the foregoing week, Fullerton
was discharged for the reason that he was "not suitable for
Erie Strayer employee" as stated in his discharge slip. Hig-
ley stated that other reasons for his discharge were "his
conduct primarily, his attitude, disregard for any instruc-
tions." According to Higley and Strayer, Fullerton's dis-
charge did not occur spontaneously. On May 8, Higley
reported to Strayer the activities that had taken place on
May 7, and the morning of May 8, resulting in the trailer
remaining at Saegerstown.37 At that time Strayer responded
that Fullerton was not "an Erie Strayer Truck Driver" and
that Higley "should do something about it." Higley stated
further that the concept that Respondent "ought to get rid"
of Fullerton "was probably brought up the week of May 7. "
On May 11, Higley requested the accounting department to
give him a copy of Fullerton's complete employment record
including his work as a contract driver. His purpose was to
check Fullerton's status as a probationary employee. On
May 18, Strayer as a result of Higley's computations con-
cluded that Fullerton was still in probationary status. 38 Hig-
ley and Strayer discussed the events that had occurred as are
narrated above. Strayer made the decision to discharge
Fullerton.39 The discharge slip was filled in by Higley. Both
Strayer and Higley signed it. Later that day Higley delivered
it to Fullerton telling Fullerton this was not "Strayer's
doing" but "I'm the one that's doing it."
k. Fullerton has an accident
On May 14, on the way to Ashland, Fullerton was in-
volved in an accident south of Altoona. According to his
own statement the load he was carrying was over-length. It
"hung over the top of the cab and when I turned to the left,
the load swung to the right." He hit another trailer that was
parked; the accident occurred in the daytime and he had no
excuse for its happening. Fullerton immediately reported
the incident to Higley.
1. Fullerton fails to show for work
Fullerton returned to the plant on May 15. He worked
Wednesday, May 16, without incident. Thursday, May 17,
he did not show up at work. When asked by counsel if he
called in, he responded "Yes sir . . . my wife called Mr.
Higley." On cross-examination, Fullerton stated that he was
aware of the plant rules then in effect that required employ-
34 In essence, this admission is confirmation of the finding that he did not
continue the night before because he was aware of the walkout.
35 The record is not clear that the Company had new permits issued.
Respondent 's original offer in evidence as proof of the new permits were
permits issued on May 14 for a load moving on that day to Ashland.
36 The cost to the Company was approximately $4.
Analysis and Conclusions with Regard to Fullerton's
Discharge
The record is replete with instances where Higley had
requested Fullerton (and other drivers) to drive tractor-
37 When asked on cross-examination if he told Strayer about "Fullerton's
objections to the bald tires," Higley replied "I explained all details to him."
B As shown above, probationary status did not permit the probationer to
achieve seniority under the contract. Fullerton 's probationary status has no
special significance in this case , in light of the fact that he was discharged
for reasons other than those that would be violative of the Act. The General
Counsel indicated that whether Fullerton was a probationary employee or
not is immaterial to this proceeding . He properly urges that this case should
not be deferred under Collyer Insulated Wire, 192 NLRB 837. Respondent
has not raised the issue. A grievance has been filed on Fullerton 's discharge
in which Respondent has consistently taken the position that Fullerton's
discharge is not subject to the grievance procedure because Fullerton is a
probationary employee. If Respondent's contention is upheld, the arbitration
procedure would then not resolve the issues raised in this case. Accordingly,
it is decided that this case shall not be deferred.
39 Strayer's testimony was:
Q. On what basis did you make that determination?
A. I had received complaints from the sales department, when he was
on the job site with customers . I saw his attitude around the plant and
it was at that time that I made a mental comparison between Paul
Fullerton and other drivers that the company had had over the years and
in my mind this man didn 't measure up to their abilities or performance.
I therefore told Mr. Higley to terminate Paul Fullerton.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trailers under conditions that apparently were not safe or
not in full compliance with safety regulations. How much
Fullerton's objections to such situations caused Strayer to
look upon him as "not an Erie Strayer driver" is difficult to
determine 40 In any event, the history of Erie Strayer's union
associations since 1950 do not bear out a contention that it
was Fullerton's activities as a union steward that caused his
discharge. It is concluded that Higley's statement may be
considered the basis for suspicion that Fullerton was dis-
charged because he was a union steward. But it is consid-
ered that the events that followed Higley's statement do not
warrant a conclusion that Fullerton was discharged because
of his union activities. Fullerton's "long way home" episode,
his refusal to drive with bald tires, his refusal to drive the
night of May 9 when the walkout was on , his episode of
forgetting the advance, his accident while driving, his failure
to report absent in accordance with the rules all happening
within a space of a few weeks and taken cumulatively more
reasonably constitute the reasons for the discharge as ad-
vanced by Respondent 4' It is considered neither likely nor
reasonable on the record as a whole that Respondent sin-
gled out Fullerton from all the union stewards to discharge
him for being a steward or used the above series of events
as a pretext to discharge Fullerton because he was a steward
particularly in the light of Respondent's constant dealing
with the Union stewards and the Union. 42
Upon the foregoing findings of fact and on the record as
a whole, I make the following:
CONCLUSIONS OF LAW
1. Erie Strayer Company is, and at all times material
herein has been an employer within the meaning of Section
2(2) of the Act, and engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. International Association of Bridge , Structural and
Ornamental Iron Workers, Shopmen's Local 642, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. The evidence shows that Respondent by threatening
employees with discharge for engaging in union activities
has interfered with, restrained, and coerced employees in
violation of Section 8(a)(l) of the Act.
4. The evidence fails to show that Respondent by dis-
charging Fullerton has violated Section 8(a)(3) of the Act43
40 Note Strayer's statement at the May 8 meeting about safe vehicles and
tools.
01 Fullerton was discharged without a previous warning . The record does
contain evidence that some probationary employees received warning slips.
The Union contract did not provide for such a practice nor does the General
Counsel show that such was the practice at Respondent 's plant . Under these
circumstances , Fullerton's discharge without a warning slip is not considered
unduly significant.
42 This statement applies to Higley also who showed some evidence of an
unfriendly attitude to the Union. As admitted by the union members, Higley
told them he thought the truckdrivers should have steward representation. As
they further admitted Higley's main objection, as stated above, was to one
of the drivers being that steward.
43 It is clear from the record that Respondent ran its plant at times so
economically that instances may have occurred where the conditions of the
tractor-trailer on the road , or the instructions given the driver, may not have
been entirely in compliance with the various existing traffic or transportation
v. THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain affirma-
tive action which is necessary to effectuate the policies of
the Act. As above stated, Higley's threat was an isolated
instance of antiunion coercion in Respondent's pattern of
otherwise acceptable behavior vis-a-vis the Union. Some
consideration was given to the idea of treating the single
instance as, de minimus and recommending that no cease
and desist order issue. However, two things make the threat
a serious matter: Higley's general demeanor, 44 and the fact
that a threat of discharge for union activities goes to the
heart of the Act. After the threat, neither Higley nor Re-
spondent indicated to the employees that the threat was
improper or that it would not occur again. Higley's denial
that he made the threat and his general incredibility reason-
ably leads to the conclusion that he might do something
similar again . Under the above circumstances and the re-
cord as a whole it is recommended that a cease-and-desist
order issue.
RECOMMENDED ORDER45
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case, it
is recommended that Erie Strayer Company, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with discharge in the event
they become involved in union activities.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist Interna-
tional Association of Bridge, Structural and Ornamental
Iron Workers, Shopmen's Local 642, AFL-CIO, or any
other labor organization to bargain collectively through
their representatives, or to engage in other concerted activi-
ty, or to refrain from such activity, except as such right may
be affected by some agreement as provided in Section
8(aX3) of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Post at each of its places of business in Erie, Pennsyl-
laws. It is not the purpose of the decision to determine the legality of such
operations. An employee who is discharged for a refusal to carry out orders
that might be considered illegal may have an action with regard thereto in
another forum . Such an action does not properly lie before this Board unless
it can be shown that the discharge in whole or in part was for reasons
proscribed by the Act.
"This includes his newness to the union shop , and the refusal to speak to
Leonhart, chief steward, during working hours on what might be considered
a dangerous matter , the driving of a truck with bald tires.
45 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Section
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.
ERIE STRAYER COMPANY 359
vania, copies of the attached notice marked "Appendix," 46
Copies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 6, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint herein be
dismissed insofar as it alleges any unlawful conduct other
than that found above.
46 In the event that the 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 Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce any employee in the exercise
of his or her right to join or assist International Associ-
ation of Bridge , Structural and Ornamental Iron Work-
ers, Shopmen's Local 642 , AFL-CIO, or any other
labor organization to bargain collectively through their
representatives , or to engage in other concerted activi-
ty, or to refrain from such activity, except as such right
may be affected by some agreement as provided in
Section 8(a)(3) of the Act.
All our employees are free to support or to become or
remain members of International Association of Bridge,
Structural and Ornamental Iron Workers , Shopmen's Local
642, AFL-CIO, or ai,y other labor organization , or to re-
frain from such activity, subject to Section 8(a)(3) of the
Act.
Dated By
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten any employee that he will be
discharged in the event he becomes involved in union
activity.
ERIE STRAYER COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 1536 Federal Building, 1000 Liber-
ty Ave., Pittsburgh, Pennsylvania 15222, Telephone
412-644-2944.