Fontaine Truck Equipment Co.

National Labor Relations Board - Board Decisions

Feb 22, 1972

195 N.L.R.B. 508 (N.L.R.B. 1972)

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fontaine Truck Equipment Company and Aluminum
Workers International Union , AFL-CIO. Cases 10-
CA-8313, 10-CA-8338, and 10-RC-8135
February 22, 1972
SUPPLEMENTAL DECISION, ORDER, AND
CERTIFICATION OF RESULTS
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On February 19, 1971, Trial Examiner William J.
Brown issued his Decision in the above-entitled con-
solidated proceeding, finding that Respondent had en-
gaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor
Relations Act, as amended, and recommending that it
cease and desist therefrom and take certain affirmative
action. The Trial Examiner further found that certain
conduct of Respondent set forth in Union Objections 1,
3, and 4' interfered with the election which had been
conducted in Case 10-RC-8135, pursuant to a Stipula-
tion for Certification Upon Consent Election, and
recommended that the election be set aside and that a
second election be directed. Thereafter, Respondent
filed timely exceptions to the Trial Examiner's Decision
and a supporting brief.
On September 17, 1971, the Board issued an Order
Remanding Proceeding to Trial Examiner' for consid-
eration of a tape recording bearing on certain issues,
viz, independent 8(a)(1) allegations and Union Objec-
tion 1, based on alleged threats to employee Gardner;
and an 8(a)(3) allegation and Union Objection 4, based
on the alleged discriminatory discharge of Gardner.
The Board further found, contrary to the Trial Exam-
iner, that Union Objection 3 should be overruled. Fi-
nally the Board deferred consideration of the Trial Ex-
aminer's findings which were not the subject of
objections to the election, that Respondent violated
8(a)(l) by coercive interrogation and by soliciting an
employee to report on union activities of a fellow em-
ployee.
On October 15, 1971, Trial Examiner William J.
Brown issued his Supplemental Decision dismissing the
allegations of 8(a)(1) and (3) conduct involving Gard-
ner and overruling Objections 1 and 4. No exceptions
have been filed to the Trial Examiner's Supplemental
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
' The only other objection to the election was designated as Objection 2
and was not before the Trial Examiner since it had previously been over-
ruled by the Regional Director
' 193 NLRB No 30
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
In the absence of exceptions thereto, the Board
adopts, pro forma, the Trial Examiner's dismissal of the
8(a)(1) and (3) allegations involving Gardner and his
recommendation that Objections 1 and 4 be overruled.
The only issues remaining for consideration arise from
Respondent's exceptions to the independent 8(a)(1)
findings based on interrogating and soliciting an em-
ployee to report union activities of another employee.
The Board, in this connection, has duly considered the
entire record in this proceeding, including the Trial
Examiner's Decision, his Supplemental Decision, and
the exceptions and brief, and has decided, except as
noted below, to adopt the Trial Examiner's findings,
conclusions, and recommendations.'
Case 10-RC-8135
As all objections to the election have been overruled
and since the Union failed to receive a majority of the
valid votes cast, we shall certify the results of the elec-
tion.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Fontaine Truck Equipment Company, Ha-
leyville, Alabama, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Ex-
aminer's recommended Order.
CERTIFICATION OF RESULTS
It is hereby certified that a majority of valid votes has
not been cast for Aluminum Workers International
Union , AFL-CIO, and that said labor organization is
not the exclusive representative of the employees in the
appropriate unit, within the meaning of Section 9(a) of
the National Labor Relations Act, as amended.
' We find it unnecessary and do not pass upon the Trial Examiner's
finding that Foreman Gunter coerceively interrogated Gardner, since that
finding is cumulative and in no event would affect the remedy
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
WILLIAM J. BROWN, Trial Examiner: This Supplemental
Decision is issued pursuant to the Board's Decision and Or-
der dated September 17, 1971, remanding proceedings herein
for ;onsideration of evidence consisting of a tape recording
of the exit interview of employee Talmadge Gardner, an al-
leged discriminatee and a witness concerning certain alleged
instances of interference, restraint, and coercion and conduct
affecting the results of the election conducted herein on April
24, 1970. There is no question concerning the accuracy of the
tape recording and the transcription thereof, both received as
195 NLRB No. 94
FONTAINE TRUCK EQUIPMENT CO. 509
part of the record of the hearing as Respondent's rejected
exhibits. The Examiner has, pursuant to the Board's Order
of Remand, considered the transcription of the tape recording
and issues the following.
SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS
OF LAW
I FINDINGS OF FACT
A. Threats
At the hearing herein Gardner testified that on April 18,
1970, Supervisor Gunter threatened him in the vicinity of his
home by stating that unless he changed his mind about the
Union it might not be wise for Gardner to return to work.
Gunter's testimony denied being in the area of Gardner's
home on the day in question and denied ever making such a
threat. In the course of his exit interview, as appears from the
tape recording thereof, Gardner denied having told the Union
that he had been threatened by a supervisor on the occasion
in question and also denied that a supervisor had threatened
him on the occasion in question. On appraisal of the newly
considered evidence, I credit Gunter's account and recom-
mend dismissal of the allegations of the complaint in this
respect. It is also concluded that Objection 1 to conduct
affecting the results of the election should be dismissed.
B. Gardner's Discharge
As appears from the original Trial Examiner's Decision in
this matter, I reached the conclusion that Gardner's dis-
charge was discriminatorily motivated primarily on the tes-
timony of Gardner to the effect that when, in the course of
his exit interview, he attempted to explain his most recent
absence, Norman threw on the table a Union telegram pro-
testing an alleged threat against Gardner and forthwith dis-
charged him without listening to Gardner's offer of an expla-
nation of his absence. The tape recording casts a different
light on the discharge interview. It clearly indicates not only
an utter absence of antiunion utterances throughout the inter-
view but also a genuine concern for Gardner's personal prob-
lems. There is no doubt but that the absenteeism of Gardner
was not only substantial but also of relatively serious effect on
the Company's operations planning. I conclude that the evi-
dence does not preponderate in favor of the conclusion that
he was discharged in reprisal for his Union activity; it is also
concluded that Union Objection 4 to conduct affecting elec-
tion results should be dismissed.
On the basis of the foregoing Supplemental Findings of
Fact and upon the entire record in this case I make the
following supplemental conclusions of law replacing, where
inconsistent therewith, Conclusions of Law previously en-
tered herein.
II CONCLUSIONS OF LAW
1 The Company has not engaged in unfair labor practices
in the nature of threats of reprisal for employee Union ac-
tivity;
2. The Company has not engaged in unfair labor practices
within the purview of Section 8(a)(3) of the Act;
3. Union Objections 1 and 4 to conduct affecting the results
of the election herein have no ment and should be dismissed;
proceedings in the representation case should be remanded to
the Regional Director for further proceedings not inconsist-
ent with the findings and conclusions herein and with the
Board's order of September 17, 1971.
On the basis of the foregoing Supplemental Findings of
Fact and Conclusions of Law and upon the entire record in
this case , I hereby issue the following Supplemental Recom-
mended Order in lieu of the previous Recommended Order:'
ORDER
Fontaine Truck Equipment Company, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
sympathy respecting the Union.
(b) Soliciting employees to ascertain and report to the
Company concerning Union activities of fellow employees.
(c) In any like or related manner interfering with, restrain-
ing or coercing employees in the exercise of their rights under
Section 7 of the Act
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) Post at its Haleyville plant copies of the notice attached
hereto and marked "Appendix."' Copies of said notice, on
forms provided by the Regional Director for Region 10, shall
after being duly signed by an authorized representative of the
Company, be posted immediately upon receipt thereof and be
maintained by the Company thereafter for a period of 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasona-
ble steps shall be taken by the Company to ensure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director in writing within 20 days
from receipt of this Decision what steps have been taken to
comply with the terms hereof.'
' 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, recommendations, 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
3 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD "
' In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read "Notify
the Regional Director for Region 10, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT coercively question our employees con-
cerning their feelings with respect to Aluminum Work-
ers International Union , AFL-CIO
WE WILL NOT ask employees to find out and report to
the Company concerning the attitude of other employees
toward the above-named Union.
WE WILL NOT by such coercive questioning or re-
quests for reports , or in any like or related manner inter-
fere with , restrain , or coerce employees in the exercise of
their rights to join or assist the above -named or any
other union.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FONTAINE TRUCK This notice must remain posted for 60 consecutive days
EQUIPMENT COMPANY from the date of posting and must not be altered, defaced, or
(Employer) covered by any other material. Any questions concerning this
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
notice or compliance with its provisions may be directed to
the Board 's Office, 1417 City Federal Building , 2026 Second
Avenue North, Birmingham , Alabama 35203, Telephone
205-325-3877