Georgia-Pacific Corp.

National Labor Relations Board - Board Decisions

Jun 12, 1973

204 N.L.R.B. 47 (N.L.R.B. 1973)

GEORGIA-PACIFIC CORPORATION 47
Georgia-Pacific Corporation and Teamsters,
Chauffeurs, Warehousemen and Helpers Local No.
443, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America . Cases 1-CA-8378 and 1-RC-12115
June 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 21, 1973, Administrative Law Judge
Harry H. Kuskin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief; the General Counsel filed a
brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Georgia-Pacific Corpora-
tion, Wallingford, Connecticut, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order.
IT IS FURTHER ORDERED that the Regional Director
for Region I open and count Bruce R. Gallup's chal-
lenged ballot and issue the appropriate certification.
DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Administrative Law Judge: This con-
solidated representation and complaint proceeding was
heard at Wallingford, Connecticut, on November 15 and 16,
1972. The representation proceeding in Case 1-RC-12115
herein was inititated on April 20, 1972, by a petition filed
by Teamsters, Chauffeurs, Warehousemen and Helpers Lo-
cal No. 443, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein
called the Union, for a unit of the truckdrivers, yardmen,
and warehouse employees of Georgia-Pacific Corporation,
herein called Respondent. The petition resulted in an elec-
tion on May 25, 1972, pursuant to a stipulation for certifica-
tion upon consent election between the Union and
Respondent, which had the approval of the Regional Direc-
tor for Region 1 of the Board. The results of the election
were inconclusive in that four votes were cast for the Union
and four votes were cast against the Union, and the remain-
ing ballot, that of Bruce R. Gallup, was challenged. No
disposition has yet been made of this challenged ballot
which is determinative of the results of the election, because
of the following: On June 5, 1972, the Union filed a charge
in Case 1-CA-8378 herein, alleging that Respondent had
discriminatorily discharged Gallup on May 22, 1972, 3 days
before the instant election, in violation of Section 8(a)(3)
and (1) of the Act. In light of this, the Acting Regional
Director for the Region 1 of the Board, after investigation,
issued his report on challenged ballot in Case 1-RC-12115,
in which he stated that he had determined to issue a com-
plaint in Case 1-CA-8378, and that he could make no rec-
ommendation as to the disposition of the challenge pending
resolution of Gallup's status in the complaint proceeding;
and further that he will consolidate the matter of the chal-
lenged ballot with the proceeding in Case 1-CA-8378.
Thereafter, on July 26, 1972, he issued an order consolidat-
ing cases, complaint and notice of hearing. In addition to
alleging the violation of Section 8(a)(3) and (1) in the dis-
charge of Gallup and the refusal or failure thereafter to
reinstate him, the complaint, as amended at the hearing,
alleges that Respondent threatened employees with dis-
charge and other reprisals because of their support and
assistance to the Union and also interrogated them with
regard to their support of, and affiliation with, the Union,
all in violation of Section 8(a)(1) of the Act. In its answer
to the complaint, Respondent denies that it has violated the
Act in any respect alleged therein.
Upon the entire record, including my observation of the
witnesses, including their demeanor on the witness stand,
and after due consideration of the briefs of the General
Counsel and of Respondent, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The complaint alleges, and Respondent admits, that Re-
spondent is a Georgia corporation with an office and place
of business in Wallingford, Connecticut; that it is now and
has continuously been engaged there in the sale and distri-
bution of wood, wood products, building materials, valued
at more than $50,000, from points located outside Connecti-
cut; and that it has at all times mentioned herein caused
large quantities of wood and building products, used by it
for sale and distribution, to be purchased and transported
in interstate commerce from and through various States of
the United States other than the State of Connecticut. I find,
upon the foregoing, as Respondent also admits, that Re-
spondent is an employer as defined in Section 2(2) of the
Act, and is engaged in commerce and in operations affect-
ing commerce within the meaning of Section 2(6) and (7) of
the Act.
204 NLRB No. 13
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE LABOR ORGANIZATION INVOLVED and the warehouseman loaded a truck, and would not nec-
essarily be working together. It was therefore incumbent
upon each second-shift employee to know the location of
the bulk of the 400 to 500 items carried by Respondent,
which were lodged either in the warehouse, having a storage
area of about 43,000 square feet, or in the yard;2 and, be-
tween them, to know the location of virtually all these items.
It would appear that the trucks were, at times, in the process
of being loaded when the truckdriver-warehousemen re-
ported for work in the morning. In such instances, upon
learning what was going on the truck he was to drive that
day, the truckdriver would see to it that the materials were
so arranged as to make a level load, and would, where
indicated by the load involved, obtain and place on the
truck "sleepers or spacers," which are cross members placed
on the bed of the truck to allow for the use of mechanical
equipment in the loading of materials, such as a unit of
plywood.
The truckdrivers-warehousemen are hourly paid, but do
not punch a timecard. Instead, they keep track of their own
time on a little slip of paper which they turn over at the end
of the working day to an inside salesman, one William
Bruenn , which he thereupon transfers to a timecard. Should
a question arise concerning the time claimed, either Rolla-
son, Parent, or Bruenn might question the truckdriver in-
volved. The record also shows that Respondent provides
each of its employees with 2-1/2 hours of scheduled over-
time a week, overtime beyond that being based on
Respondent's need therefor. Further, Respondent allows
each full-time employee 5 days of paid sick leave a year.
Payment for sick leave is included in the paycheck for the
week in which such sick leave occurs. In this connection,
Respondent requires that an employee who is not coming
to work because of illness, or someone in his behalf, notify
it thereof by the time his shift begins. In those instances
where a full-time employee uses less than 5 days of sick
leave a year, Respondent will pay him for such unused sick
leave at the end of that year. As to Gallup, although he took
3 days of sick leave during his tenure of employment, which
lasted from February 23 to May 22, 1972,3 he was not paid
therefor at any time. According to Gallup, whose testimony
I find herein to be credible, he made no complaint to Re-
spondent in this regard because Respondent told him dur-
ing his employment interview that an employee was allowed
5 days of sick leave, but said nothing about payment; and
Respondent does not contend that it told him otherwise.
However, it takes the position that Gallup was not paid for
these 3 days of sick leave allegedly because he was a proba-
tionary employee. Whether Gallup was, in fact, hired as a
probationary employee is a disputed issue herein.
The record shows further that beginning in January 1972
and continuing through February, March, and April of that
year business was on the increase. The difference between
January and April in volume was a significant one. It shows,
too, that the increase would have continued thereafter with-
out any letup during that entire summer but for the fact that
one-third of the territory covered by the Wallingford facility
2 Each type of door and window was apparently stored separately and was
considered to be a separate item, as were the different grades and sizes of
plywood
All dates hereinafter are in 1972
Respondent further admits, and I find , that Teamsters,
Chauffeurs, Warehousemen and Helpers Local No. 443,
a/w International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
Iii THE ALLEGED UNFAIR LABOR PRACTICES
A. Some Background Facts
Respondent's Wallingford facility functions as a distribu-
tion center of building materials. Such distribution is made
in three different ways. Thus, Respondent brings in building
materials which it sells and thereafter delivers to its custom-
ers with its own trucks and equipment; it also sells building
materials from its premises to customers for picking up by
them with their own equipment; and lastly it sells carload
lots of building materials to customers which go directly to
the customer and are not handled by the facility. About 85
to 90 percent of the dollar volume of all sales by the facility
is delivered by Respondent to its customers by
Respondent's drivers.
At all times material herein, Respondent had a comple-
ment of about 16 or 17 employees at this location. Of these,
nine were outside employees. In this latter group were five
truckdriver-warehousemen or combination men,' Gallup
being one of them, and four warehousemen. So far as ap-
pears, the remainder of the employee complement consisted
of salesmen and office help. The facility was under the
overall supervision of David H. Rollason, the branch man-
ager, who is an admitted supervisor. Overseeing the work of
the outside employees was Bertrand P. Parent, who is re-
ferred to in the record variously as a leadman, warehouse
leadman, foreman, and warehouse foreman. His status is in
dispute, with the General Counsel contending that he is a
supervisor within the meaning of Section 2(l 1) of the Act,
and Respondent contending to the contrary.
Respondent maintained during this period two 8-hour
shifts for its outside employees. The first shift began early
in the morning, the exact hour not being disclosed by the
record, and the second shift began at 12:30 p.m. and lasted
until 9 p.m. The second shift consisted of two employees,
viz, a truckdriver-warehouseman and a warehouseman.
These second-shift assignments were rotated so that, in the
case of the truckdriver-warehousemen, of whom there were
five, each one spent I day a week on the second shift. The
two employees on the second shift usually spent the period
until 5 p.m., which marked the end of the business day,
unloading freight cars and putting away the unloaded mate-
rials, and also handling customers who came into the yard.
During the remainder of their shift, it was their function to
obtain the tickets for the next day's shipments and make up
the loads for the driver-warehousemen. This operation in-
volved picking out the materials ordered and getting them
ready to go on the truck to be loaded, and then loading the
truck. In the course thereof, the truckdriver-warehouseman
Referred to herein also as truckdrivers
GEORGIA-PACIFIC CORPORATION 49
was transferred by Respondent to a new facility in Massa-
chusetts, which opened on May 1. At that point, business
began to drop off at the Wallingford facility. However, it is
not contended by Respondent that Gallup's discharge on
May 22 was in any way related to the aforesaid transfer of
one-third of its territory to the Massachusetts facility. Rath-
er Respondent does contend that it discharged Gallup for
excessive absenteeism and for unsatisfactory performance
of his warehouse function.
As already noted, Gallup's discharge occurred in the con-
text of the heretofore mentioned election proceeding in
Case 1-RC-12115. There is record evidence, which I credit,
that talk among Respondent's employees about the desira-
bility of having union representation began during March;
that, among those involved in these conversations were
truckdrivers Marvin Palmer, Arnold St. Onge, and Gallup;
that Palmer visited with a union organizer about the matter
and obtained from Sam Kasowitz, the Union's business
agent and its representative herein, union authorization
cards and gave some of them to Gallup and St. Onge; that
Gallup did get one employee to sign a card and helped
obtain signed cards from two others; that, on April 19,
Kasowitz, in the company of another union official, visited
Rollason at his office at the facility and requested recogni-
tion; that Rollason refused such recognition; that, after the
union representatives left, Rollason convened a meeting of
the employees on the premises and told them that he had
been approached by the Union and that he did not want the
Union; that the representation petition in Case 1-RC-
12115 was filed by the Union on April 20; that a stipulation
for certification upon consent election was thereafter en-
tered into by the Union and Respondent, and was approved
by the Regional Director for Region I of the Board; that an
election, pursuant thereto, was held on May 25, 3 days after
Gallup's discharge; that Gallup's ballot was challenged by
a Board agent; and that his challenged ballot is determina-
tive of the election results. According to the allegations of
the amended complaint, Respondent engaged in conduct
violative of Section 8(a)(1) of the Act before and during the
pendency of the above petition. I shall deal with these inde-
pendent 8(a)(1) allegations and with the 8(a)(3) and (1) alle-
gation in the discharge of Gallup, seriatim.
B. The Allegations of Section 8(a)(1)
1. The supervisory status of Bertrand P. Parent
Essential to a resolution of the independent 8(a)(1) issues
herein and bearing upon the 8(a)(3) issue, which is to be
discussed at a later point, is a determination of the hereto-
fore mentioned issue of whether Parent is a supervisor. I
shall therefore treat with this matter first.
Unlike the outside employees who are hourly paid, Parent
is a salaried employee and an excepted employee under
Federal Wage and Hour legislation. Apparently when his
other duties and his responsibilities described hereinafter
permit, he does the same type of work on the premises as
the outside workers do. As to Parent's other duties and his
responsibilities, Branch Manager Rollason testified that
Parent does the following: (1) he schedules the deliveries of
customer orders for building materials in accordance with
customer requests, and makes the required daily assign-
ments of such deliveries to truckdrivers; (2) he determines
the amount of overtime to which a truckdriver will be enti-
tled, where the load to be delivered, in his judgment, war-
rants overtime; and (3) he effectively recommends
employees for overtime work on Saturdays, such as unload-
ing freight cars carrying building materials for the facility,
and effectively denies such overtime work to employees as
a form of discipline. Parent, himself, acknowledged, in re-
gard to the above, that it is his responsibility to see that the
outside employees get work in the morning and perform
their assigned duties; that, in addition, he takes care of the
equipment and of the employees' complaints, taking only
those complaints he "couldn't handle" to Rollason; and,
finally, that Rollason relies upon him to have the place
running smoothly, to get the deliveries out on time, and to
see that the stock is put away properly.
Noteworthy, too, on this supervisory issue is the uncon-
tradicted testimony, which I credit, (1) by Gallup, that dur-
ing his employment tenure, Rollason never came out and
told the truckdrivers what runs to take and what to do, as
Parent would do regularly, (2) by St. Onge, that Rollason
hired him after an interview during which Parent was pre-
sent and only after Parent gave his approval; that Rollason
told him at the time, "I'd like you to meet Burt (Parent)
.... He is our supervisor and warehouse foreman for all
truckdrivers and warehousemen"; that Parent granted him
permission to leave work early, clearing with Rollason only
on one occasion; and that he got his orders as to what to
do from Parent and took up with Parent any questions he
had about his work; and (3) by Palmer, that he was told by
Rollason about March 1971, when he was rehired, that Par-
ent was the "foreman and warehouseman"; that he worked
8 hours of overtime during 1 Saturday in March 1972 but
was paid for only 7-1/2 hours, and, upon inquiring from
Parent as to the reason therefor, Parent said that he was
being docked because he went to the bathroom in the morn-
ing and took too long for lunch; that Parent has granted him
permission to leave work early; and that, on occasion, he
would give the daily time slip, which he was required to
prepare, to Parent for the latter's approval of the time
claimed.
In view of all the foregoing, I find untenable
Respondent's position that Parent is not a supervisor within
the meaning of Section 2(11) of the Act. Rather do I find
that Parent, in his role as warehouse foreman,4 responsibly
directs the employees working with him, and, in the course
thereof, exercises independent judgment. In this connec-
tion, I rely on the following, inter alia, (1) the dependence
of Rollason upon Parent to oversee the work of the outside
employees during the two shifts; (2) Parent's role of making
daily assignments to the outside employees, checking on
4 Noteworthy in this regard is Rollason's persistent adherence , during most
of his testimony, to the position that Parent was a warehouse leadman and
not a warehouse foreman, until he was confronted by counsel for the General
Counsel with documents in the Company's personnel file for Parent showing
that , at least since August 21, 1968, Parent was referred to therein as "ware-
house foreman"; whereupon, he reluctantly admitted , "I might very well use
that title , sir" As already noted, the credited testimony of St Onge and
Palmer shows that Rollason separately told them on the occasion of their
hiring and rehiring, respectively, that Parent was a warehouse foreman.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their work performance, and handling their complaints and
problems , for the most part on his own; (3) the responsibili-
ty that Parent has of seeing to it that the work of the outside
employees proceeds apace; (4) the fact that Parent has ef-
fective authority to discipline these employees for work der-
elictions by denying them opportunities to work overtime
on those Saturdays when work is available; (5) the discre-
tion that Parent exercises as to a driver's allowable overtime
on a dailyrun which is heavier than usual, and as to whether
his subordinates may be excused from work early; (6) the
fact that Parent is salaried and not hourly paid like his
subordinates; and (7) the fact that Rollason, as branch man-
ager, held out to employees that Parent was the warehouse
foreman and supervisor . By virtue of all the foregoing, I
conclude and find that Parent is , and was at all times mate-
rial herein, a supervisor within the meaning of Section 2(11)
of the Act .5
I am persuaded further, and find, that, notwithstanding
the fact that Parent voted in the election, without challenge,
Respondent is responsible for any conduct by Parent herein
which contravened Section 8(a)(1) of the Act. Parent was
not included in the employee unit by agreement of the par-
ties. Rather it does appear that the stipulated, unit excluded
supervisors in general terms, that the employee 'list fur-
nished by Respondent and used for determining eligibility
to vote in the election 6 had Parent's name on it, that so far
as appears there was no positive indication by the Union
that it affirmed , agreed to, or ratified Respondent's unilater-
al determination of eligibility, that neither the Union nor
Respondent had observers at the election, and that Parent
cast his ballot , without challenge . Accordingly, as these cir-
cumstances do not militate against a supervisory finding
here,7 as I have just found that Parent was at all times
material herein a supervisor within the Act's meaning, and
notably, too, as the conduct of Parent antedated the election
herein, I am unable to find that , at the times when Parent
engaged in such conduct, the employees regarded him as
one of themselves so as to relieve Respondent of responsi-
bility therefor .8
2. The evidence and conclusions as to the 8(a)(l)
allegations
The record testimony of Palmer shows that, on Friday
evening, April 7, he was present at Mal's Village Inn, in the
company of Parent and truckdrivers Gallup, St. Onge, and
Gerald Shook. Mal's Village Inn is a bar located in nearby
Yalesville, Connecticut; it is frequented by Respondent's
employees. According to Palmer, while they were all seated
around a table, there was a discussion about the Union and
the following occurred: Parent commented that the employ-
ees did not need a union , that "it wouldn't do [them] any
good anyway." At this, he mentioned benefits that "the
Union had," but Parent replied that they did not mean
5 See Research Designing Service, Inc., 141 NLRB 211, 213.
6 There was no agreement between the parties that any employee was
ineligible. a
7 See Layman Candy Company, 199 NLRB No. 65
8 Cf. Montgomery Ward & Company, Incorporated, 115 NLRB 645, 646-
647.
anything. Parent also said that, "if the Union came in it
would probably be Bruce (Gallup) or Arnold (St. Onge)
because they were the ones that needed it," explaining that
they could not stand up for themselves; and Parent said
further that the consequences of the Union 's advent would
be that "we would cut down on overtime," and that "he was
going to get rid of two guys," namely, Bruce Gallup and
Arnold St. Onge. Parent's testimony with regard to the
above was limited to a response of "No, sir" to a question
posed by Respondent's counsel as to whether, on that date
or at any other time at Mal's Village Inn, he said that he was
going to cut down on overtime or get rid of some employees.
In view of the absence of any testimony by Parent as to his
version of this episode , and in view of the fact that Parent
did not impress me as a reliable witness, whereas Palmer
did, I credit Palmer and find that Parent then threatened the
employees that overtime would be cut and that Gallup and
St. Onge would lose their jobs if the Union came into the
plant. And I find further that the fact that these remarks
attributed to Parent were made in a bar does not relieve
Respondent of responsibility therefor since it nowhere ap-
pears that he, or the employees with him, were then under
the influence of alcholic beverages.9 Accordingly, I con-
clude and find that by these threats Respondent contra-
vened the Act in violation of Section 8(a)(1) of the Act.
The record shows further that, right after finishing his
day's work on April 21, St. Onge went to the same bar and
saw Parent there. The two of them sat in a booth and
talked.10 At one point, according to St. Onge, they got into
a discussion of the Union, as follows: Parent asked him
whether he had seen the poster, referring to the Board's
notice of the election among the employees to be held on
May 25. He acknowledged that he had. Whereupon, Parent
asked him whether he had signed a union authorization card
and he answered in the negative. Parent then pressed him
as to whether he intended to sign a card; and he answered,
in turn, that he did not know whether he could afford the
expense of joining the Union. At this, Parent told him not
to worry, that he, Parent, would talk to Rollason about it.
Parent also asked him who was the head of the Union; and,
when he replied that he did not know, Parent rejoined with,
"you didn't have to tell me anyways. I know already," men-
tioning Palmer and Gallup. He then responded, "You know
more than I do." In regard to the above, Parent's testimony,
on direct examination by Respondent 's counsel, was con-
fined to (1) answering "no sir" to the question of whether
he had, on that date, asked any of Respondent's employees
to give him information about who was for the Union or
interested in it"; and (2) disclaiming any interest in knowing
about the Union because he had been told by Rollason,
about the time when the Union appeared at Rollason's of-
fice and made its claim for recognition (which, as already
found, occurred on April 19), that he "was not to speak of
any of the activity." However, it is noteworthy, in the latter
connection, that, during cross-examination by counsel for
the General Counsel, Parent could not pinpoint the date of
this conversation with St. Onge and could not recall whether
he received the above instructions from Rollason after this
9 See Teknor-Apex Co, 195 NLRB 385
10 Here , too, it does not appear that either of them was under the influence
of alcoholic beverages at the time.
GEORGIA-PACIFIC CORPORATION
conversation." In all these circumstances , I find , here too,
that Parent's testimony was not convincing and hence not
worthy of credit; and I find, instead, on the basis of St.
Onge's forthright and convincing testimony, which I credit,
that Parent did interrogate him as to whether he had signed
a union authorization card and as to who was the head of
the Union. Accordingly, I find that, by the aforesaid inter-
rogation, which occurred in a context of threats, as found
herein, Respondent also interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of the
Act.
In addition, there is uncontradicted and credited testimo-
ny by St. Onge that, during the morning of May 23, while
he was in the front office, Rollason told him that he (Rolla-
son) wanted to talk to him, and then took him to the back
room where the following ensued: After pointing to the
Board's election notice which was posted in the room and
referring to the upcoming election, Rollason said, "you
know, if the Union gets in here that you, Gerald Shook and
Charles Willis don't have a Class I license for a trailer truck
.... We're going to have all trailers here in the near future
and if the Union got in here they would send people up here
that already have a Class I license to take your place."
In evaluating the above attribution to Rollason, I note
that the Supreme Court has held, in relevant part, that,
while an employer may make a prediction as to the precise
effects he believes unionization will have on his company,
such a prediction must be carefully phrased on the basis of
objective fact to convey an employer's belief as to de-
monstrably probably consequences ...."12 However, I am
satisfied that Rollason 's remarks do not meet this test. Thus,
it is apparent that no contract demands had as yet been
made by the Union upon Respondent, nor has it been
shown that there is any basis in past conduct of the Union,
or otherwise, for concluding that the Union would demand,
after gaining the right to represent Respondent 's truckdri-
vers-warehousemen in a Board election , the replacement of
those among them, who were driving tractor-trailer vehicles
without Class I licenses, by its members who did have them,
nor is it established , in any event , that Respondent would
be legally required to comply with such a demand. Accord-
ingly, I find that, by the above remarks, Rollason sought to
engender in St. Onge and in the other employees named by
him fear that they risked the loss of their jobs if the Union
came into the plant. And I conclude, and find further, that,
by this implied threat, Respondent further violated Secion
8(a)(1) of the Act.
C. The Alleged Violation of Section 8(a)(3) of the Act
1. An overview of Gallup's employment history
Gallup's employment with Respondent spanned the peri-
od from February 21 to May 22, 1972. It was punctuated
by a work interruption of almost 3 days, starting on March
27. Gallup then had a disagreement with Parent , his supervi-
sor, and walked off the job; however, he relented by March
29 and was returned to work as of March 30 at his request.
it During his testimony, Parent was consistently vague about dates
12 N.L.R. B. v. Gissel Packing Company, Inc, et a!, 395 U S 575 (1969)
51
It was further punctuated by (1) absences from work on
March 13 and 20 on grounds of illness and on April 6
because he had to take his wife to the hospital; and (2) by
an injury on the job on April 13, which caused him to be
away from work from that date until Friday, May 12, and
thereafter to work on a limited basis 13 until Monday, May
22. It was on the latter date, within about 45 minutes after
Gallup had returned from Dr. Wallace's office with a certifi-
cate saying that he, Gallup, was "fit for work. Doing Usual
Duties," that he was discharged. As heretofore noted, Re-
spondent asserts that the grounds for the discharge were
excessive absences and unsatisfactory performance of his
warehouse function. However, it concedes that Gallup was,
at all times, "a very capable truckdriver." Additionally, Re-
spondent contends, in substance, that Gallup was hired as
a probationary employee and was discharged within the
90-day probationary period, and that, in appraising the
above reasons and the timing of the discharge, weight must
be given to this claimed limited tenure. I shall hereinafter
treat with the employment interview and the above-men-
tioned developments in Gallup's employment history.
2. The employment interview
Gallup was interviewed for a job as truckdriver-ware-
houseman on February 3 by Rollason and Parent.14 The
discussion dealt with his previous job and his qualifications
as a truckdriver; and also with Respondent's terms and
conditions of employment. Of consequence in this respect
is Gallup's testimony that (1) he was told by Parent that,
when working as a truckdriver, he would have to help with
the loading of his truck; that, if not on such assignments, he
would be working in the warehouse, putting away ware-
house lumber, unloading freight cars, and sweeping the
floors; (2) he was told that, among the employee benefits he
would receive would be 5 days a year of paid sick leave; (3)
in the course of the discussion of benefits, he explained to
Rollason and Parent that he was a member of the Teamsters
and was "under the Teamsters" in his prior employment,
and that, in changing jobs, he wanted to make sure that he
did not lose any more of those "Teamster benefits than was
necessary;" and (4) after Rollason asked for Parent's opin-
ion of his (Gallup's) acceptability and received a favorable
answer, Rollason told him that he was hired subject to a
physical examination, and if he passed his physical he
would be taking his orders from Parent, who was the ware-
house foreman. In the latter connection, he specifically de-
nied Rollason's prior testimony 15 that he (Gallup) was also
told by Rollason during the interview tlat he was being hired
as a probationary employee.
Rollason also gave testimony concerning this employ-
13 Doctor Donald Wallace, who had examined Gallup on May 12, certified
that he was "fit for warehou.e work. is unfit for work with arms overhead
14 Rollason testified variously that ( 1) Parent was present at least part of
the time he talked to Gallup, and (2) Parent and he were present while Gallup
was being interviewed As Gallup testified to the latter, and as Parent did not
testify in this regard, I find that the evidence preponderates in favor of a
finding that Parent was present throughout the interview
15 Rollason was called by counsel for the General Counsel as his first
witness, and testified under Section 43(b) of the Rules of Civil Procedure for
the District Courts
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment interview ; whereas Parent did not, although he was
called as a witness by Respondent and testified herein.
Rollason's version differed from that of Gallup in these
material respects: As to whether Gallup's union member-
ship was discussed , he testified that all that he recalled was
that he told Gallup that, "we are non-union," and that
Gallup responded that, he "didn't care whether we were
union or not"; and tlat he did not recall whether Gallup
stated that he was a union member , i.e., a teamster; and
further that he is certain that Gallup did not say that he
(Gallup) wanted to insure that he was going to get the same
kind of benefits from Respondent as he had been getting
from his then employer. As to the discussion concerning the
scope of Gallup's duties, Rollason's testimony accorded
with that of Gallup, except that he also said that he ex-
plained to Gallup that Respondent would want him to learn
the warehousing business so that he could rotate into the
second shift which loaded the trucks. With respect to wheth-
er there was any discussion about Gallup's tenure , Rollason
said that he told Gallup that he would start on a "trial basis"
for 90 days, and that, at the end of that period, Respondent
could discharge him or he could decide to leave and there
would be no hard feelings. In amplification thereof, Rolla-
son testified that he has mentioned this as a condition of
hire to everyone he has interviewed for a job with Respon-
dent, "certainly within the last couple of years." Notewor-
thy in this regard is the uncontradicted testimony of St.
Onge, who admittedly was hired during this period, that he
was not told during his interview by Rollason and Parent,
prior to his employment in May 1970, or at any time subse-
quent thereto, that his hiring was on a probationary basis.
In view of this, as well as the fact that (1) Gallup's testimony
that he told Rollason and Parent of his membership in the
Teamsters during his prior employment stands undenied on
this record, Rollason testifying only that he could not recall
this; (2) although Parent was present during the employ-
ment interview and testified herein as a witness for Respon-
dent, he did not testify with respect thereto, thus leaving
Rollason's version uncorroborated; l6 and (3) that Rollason
did not impress me as a reliable witness, particularly when
I take into account his deliberate misrepresentation that
Parent had the title of, and was, a warehouse leadman,
notwithstanding that company records , some of which are
in his own handwriting ,) and his own statements to em-
ployees compellingly establish that Parent's title was that of
warehouse foreman ; and (4) that Gallup impressed me as a
truthful witness , I find that Gallup's version , in all instances
where it differs from that of Rollason , more closely resem-
bles the truth. Therefore, I conclude, and find, that Gallup
did make known to Respondent at the time of his employ-
ment interview that he was a member of the Teamsters and
that he was not told at that time, or at any time prior to May
22, that his employment was on a trial basis for 90 days.
16 Parent's failure to testify in this respect warrants an inference that his
testimony would not be favorable to Respondent. See Monaghan Ford Corpo-
ration of Flushing, 173 NLRB 204, 208, and cases cited in In 27 therein.
17 On August 14, 1970, Rollason made the following entry, in relevant part,
on a "salary incentive compensation form" in Parent's personnel file, "Burt
Parent is far more than just a warehouse foreman."
2. Gallup's absences from work
Gallup's absences, which are alleged by Respondent to be
of consequence herein, occurred on March 13 and 20, which
were successive Mondays, and on Thursday, April 6; they
lasted the whole day in each instance.18 Gallup testified
credibly that he was sick on these 2 Mondays; that, on the
first Monday, his wife telephoned Respondent, in his pres-
ence, and reported that he was not feeling well and would
not be in that day; that, on the second Monday, he called
in himself and explained to Parent that he "had a head cold
and it was bothering [him] and he was all stuffy"; and that,
on Thursday, April 6, his wife telephoned Respondent, in
his presence, and reported that her doctor had requested
that she go back to the hospital for another test, and that
he had to take her to the hospital."
There is testimony by Rollason that he spoke to Gallup
on March 21, 22, or 23 in the kitchenette of the facility about
his (Gallup's) absences on March 13 and 20, pointing out
to him that he (Rollason) was particularly disturbed by, and
suspicious of, Monday and Friday absences, and that Gal-
lup then said that he would try to remain in better health.
In view of the fact that Gallup denied that Rollason ever
discussed his absences with him, and in view of Rollason's
lack of reliability as a witness, I find that the record does
not preponderate in favor of a finding that such a conversa-
tion did, in fact, occur. Moreover, I note that Gallup did not
thereafter absent himself from work either on a Friday or
a Monday. Accordingly, even granting that Monday or Fri-
day absences were a cause for concern to Respondent, Gal-
lup gave Respondent no cause for concern on this account
thereafter. Accordingly, the only issue remaining is whether
these two Monday absences and the subsequent absence on
Thursday, April 6, were excessive, as Respondent also con-
tends. I shall treat with this issue at a later point.
3. The 3-day interruption in Gallup's employment start-
ing on March 27
The undenied testimony of Gallup establishes that he
walked off the job during the morning of March 27 under
the following circumstances: He was helping to tie down the
load on his truck, about II a.m., while two employees went
to get the rest of the materials for that load. At this point,
Parent shouted at him, accusing him of "standing around
and not doing anything." He answered, in turn, that he was
tying down his load while waiting for somebody to get the
rest of the materials for his load. Parent countered by saying
18 Gallup was also absent for part of the day on Friday, March 3. About
2 o'clock on that day, according to Gallup, he asked Parent for the rest of
the day off if there was nothing further that needed to be done. And, after
explaining to Parent, in response to Parent's question, that he wanted to visit
the union hall in order to request a withdrawal card and pay his last month's
dues, Parent granted him permission, saying nothing about having to clear
this with Robinson . Parent did not testify as to this absence . In fact, Parent
did not testify as to any of the absences discussed herein. However, Rollason
testified that Gallup had permission to leave after asking to go home for
personal reasons Inasmuch as Rollason was not present during the above
episode and as, in any event, I have found that he was not a reliable witness,
I credit Gallup and find that he then told Parent that he had to visit the union
hall concerning a withdrawal card and payment of dues and was granted
permission to leave on that basis.
19 Mrs. Gallup was pregnant at the time
GEORGIA-PACIFIC CORPORATION
that he should be in there helping get the material. To this,
he replied that he understood that the reason for his being
there was to get the load out as quickly as possible and he
was therefore trying to make the preparations. Parent, how-
ever, continued to shout, in the presence of a customer, that
he (Gallup) was not doing his job. This embarassed him,
and he "returned some of [Parent's] words," telling Parent
also not to shout at him. And at the juncture when Parent
said, "if you don't like the way we do things around here
then leave," he took off his hard hat and handed it to Parent
and left the premises.
On March 29, 2 days thereafter, Gallup telephoned Rolla-
son and asked to meet with him and discuss what happened.
At or about 3 o'clock that afternoon, Rollason, Parent, and
he met in Respondent's conference room. According to
Gallup, the following then occurred: He told Rollason what
had happened and admitted that he "acted rather harshly
... and without real reason," adding that he should have
stayed and worked out his differences with Parent. Parent,
in turn, said that he was probably wrong, that he should not
have "hollered" in front of the customers, that he would
"holler" at him (Gallup) on occasion thereafter, but that he
(Gallup) was not to get so upset about it. This was followed
by a handshake and an exchange of apologies. The confer-
ence ended with Rollason granting his request to come back
to work. The following day, March 30, he returned to work
with no change in his duties or his supervision.
Parent did not testify with respect to any of the above,
while Rollason, who did not witness the incident between
Gallup and Parent on March 27, testified only as to what
happened at the conference on March 29. Rollason's testi-
mony confirmed, in substantial part, the above testimony of
Gallup. However, he testified further that Parent and he
brought up Gallup's work performance in the warehouse,
including the loading of his truck, telling him that this part
of his work was unsatisfactory, in that "he was not going
with the person loading his truck into the warehouse to learn
the layout of materials and how [Respondent] shipped ma-
terials," the knowledge thereof being essential as it was
"pretty critical" that he take his turn on the second shift;
and in that "he was still standing around with his hands in
his pocket not getting the truck ready to get loaded." It was
also his testimony that he brought up the matter of absen-
teeism and how important it was for a truckdriver to be on
the job every day unless he was really sick.20 And as to
Gallup's return to work, he testified that it was agreed that
Gallup was to continue on a trial basis and they would see
how it would work out.
The foregoing testimony by Rollason that he criticized
Gallup with respect to his absences and his work in the
warehouse, including the loading of his truck, and that he
imposed a condition upon Gallup's return to work stands,
as already implied, uncorroborated by the testimony of Par-
ent. Indeed, although Parent was Gallup's immediate super-
visor and was the only one of management who had
first-hand knowledge of Gallup's work performance, he was
not questioned thereon, or about any of the episodes herein
involving Gallup's employment, when he testified as a wit-
20 Rollason testified that he could not say that Gallup lied when he called
in sick theretofore
53
ness for Respondent. Accordingly, since Gallup denied that
any of these matters was discussed during the meeting, and
since I have heretofore found that Gallup was a credible
witness and have credited him in those instances where his
testimony conflicted with that of Rollason, I credit Gallup
here rather than Rollason, and find that neither Gallup s
work performance not his absences were the object of criti-
cism during the meeting, and further that there was no
discussion of any limitation on the nature of his employ-
ment when he returned on March 30.
4. Developments after Gallup returned to work up to
and including Gallup's discharge
So far as appears, Gallup's on-the-job performance until
April 13 proceeded without incident. On that day, he suf-
fered an on-the-job injury and, as a result thereof, he was
disabled and did not perform any work for Respondent
until Friday, May 12. As heretofore found, Doctor Wallace,
after an examination on that date, certified that he was "fit
for warehouse work . . . is unfit for work with arms over-
head. . . ." Thereafter, until Monday, May 22, Gallup
worked on a limited duty basis, being assigned to "basic
yard work" and to sweeping floors and general cleanup;
and, on a couple of occasions, to cleaning out the air-condi-
tioner. On May 22, Gallup reported for work at the regular
time, namely 7 a.m. Shortly thereafter, Parent asked Gallup
if he had made an appointment with his doctor to have his
shoulder checked again. Gallup replied in the negative, add-
ing that his wife was going to make one later that day.
Whereupon, Parent, who was under instructions from Rol-
lason, told him to telephone his wife and tell her not to
bother as "we'll make the appointment for you. We want
you to see the doctor today." Respondent thereupon made
the appointment and Gallup went to see Dr. Wallace at or
about 9:30 a.m. Dr. Wallace pronounced him completely
healed and able to resume his regular duties at Respondent,
giving him a certificate saying, as already found, "fit for
work. Doing usual duties."
About 45 minutes after Gallup returned to the facility on
May 22 and resumed his regular duties, Parent told him that
Rollason wanted to see him. On his way to Rollason's office,
Gallup met Rollason who then and there discharged him,
effective as of the end of the day. According to Gallup,
Rollason then said, in relevant part, that "technically this
was the end of [his] 90-day probationary period and it
wasn't going to work out so [he] would be terminated at the
end of the day.- 21 In contrast to the above, Rollason, when
called as a witness by Respondent, gave no details as to the
discharge interview saying only that he discharged Gallup
on that day. And, it is noteworthy that, when asked by me
whether or not he mentioned the probationary period to
21 Rollason also told Gallup that a meeting between management and the
employees had been scheduled for the next day and he (Gallup) was welcome
to attend , that the upcoming Board election was to be held on Thursday of
that week , and that he was eligible to vote and could exercise his franchise.
Rollason explained that he made the latter representation unwittingly and
that he thereafter learned from a Board agent dust before the election that,
because of the discharge of Gallup on May 22, the ballot of Gallup should
be challenged, and, as Respondent was not going to have an observer at the
election, he arranged with that Board agent to do the challenging , which the
latter did
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gallup at that time , he answered, hesitatingly and with
considerable uncertainty, "I believe I did. I think I . . . I
don't know whether I did or not. I recall kind of a conversa-
tion that, `Bruce, this is just not going to work out for either
of us and let's be done with it.' I think that was the extent
of the conversation at that time." In view of all the fore-
going, I conclude, and find, that the terminal interview oc-
curred in the manner testified to by Gallup.
Respondent made no claim that anything untoward oc-
curred between it and Gallup during the period between
May 12 and 22. However, the following episode between
Parent and Gallup on May 21 or 22, concerning which
Gallup gave uncontroverted and credible testimony is to-
gether with other episodes mentioned hereinafter, to be con-
sidered in assessing the reasons for Gallup's discharge:
Gallup was doing some loading on St. Onge's truck early
that morning, in the presence of Parent and St. Onge. It
became necessary for him to go to the bathroom and he
excused himself as he had done before without objection.
But, this time , Parent ordered him to stay and finish helping
St. Onge. Upon his (Gallup's) insistence that "[he had] to
go," Parent replied, in a slightly raised voice, "Well, go
ahead, you're nothing but a goddam troublemaker any-
way."
5. Gallup's union activity and Respondent's knowledge
thereof
I have heretofore found that Gallup made known to Re-
spondent, at the time of his interview for employment on
February 3, that he was a member of the Teamsters Union;
and that, on March 3, he asked for, and obtained, permis-
sion from Parent to leave early from work in order to attend
to some union business at the union hall of the Teamsters.
And while the record does not disclose whether Respondent
was aware of the fact that he had, as I have found, engaged
in soliciting employees for signatures to union authorization
cards, it is clear nevertheless, and I find, that it regarded him
as being active in the Union and in the forefront thereof.
Thus, I have found that, on April 7, Parent said, in part, in
the presence of employees Palmer, Gallup, St. Onge, and
Shook, that, "if the Union came in it would probably be
Bruce (Gallup) or Arnold (St. Onge) because they were the
ones that needed it." And I have found further that, on
April 21, Parent asked St. Onge who was the head of the
Union, and, when St. Onge claimed ignorance thereof, Par-
ent replied, "You didn't have to tell me anyways. I know
already," mentioning Palmer and Gallup, and said further
that the consequences of the Union's advent would be the
cutting down of overtime and "get[ting] rid of two guys,"
namely Gallup and St. Onge. It follows therefrom, and from
my findings heretofore, that Respondent learned ' of
Gallup's union membership on February 3; that, as of April
7, it anticipated that Gallup would be in the forefront of any
union organizational activity at the facility, that it admitted-
ly learned of such union organizational activity by April
19,22 and that, at least by April 21, it had identified Gallup
as one of the leaders of such activity. Additionally, viewing
22 As already found , the Union made its recognition demand on Rollason
on that date
against this setting Parent's remark to Gallup on Wednes-
day or Thursday, May 17 or 18, that Gallup was a trouble-
maker, I infer and find, on the basis of the entire record, that
Parent was referring to Gallup's actual or presumed leader-
ship in the Union's organizational activity at the facility.
6. Analysis and conclusions
The General Counsel contends that Respondent dis-
charged Gallup because of his union activities and his pro-
tected concerted activities. Respondent, on the other hand,
contends that it discharged him for excessive absenteeism
and for unsatisfactory performance of his warehouse func-
tion; in addition, it urges, in effect, in its brief that, in
evaluating the merits of its reasons for the discharge and the
timing thereof, consideration should be given to its claim
that he was in a 90-day trial or probationary status during
his employment tenure. As to the last-mentioned contention
of Respondent, I have already found herein that Gallup was
never told by anyone during his employment interview or
during his period of employment prior to May 22 (including
the occasion on March 29 when he was allowed by Rollason
to return to work after having walked off the job), that he
was to serve a probationary or trial period of 90 days. In any
event, the law is clear that "there is no license under Federal
law to interfere with or discriminate against [probationary]
employees for the exercise of their rights to self organization
or to refrain therefrom." 23
As to Respondent's claim, in its brief, that Gallup's ab-
sences for full days on March 13 and 20 and on April 6 were
excessive,24 the record shows that Respondent tolerated ab-
sences in other employees which were of equal or greater
gravity.25 Thus, Rollason testified that the respective per-
sonnel files of several employees named hereinafter reveal
that: St. Onge had 12 absences in 1971, among which were
I on a Monday, and 5 on Fridays, as well as 1 early depar-
ture due to illness on a Friday, and that, in 1972, he had I
absence which was not connected with an injury, and it
occurred on a Monday;26 Palmer had 6 absences in 1971,
1 of which occurred on a Friday and 2 of which occurred
on Mondays, and that, in 1972, he had 4 absences, 2 of
which were on Fridays; Charles Willis had 6 absences in
1971, of which I was on a Monday, and that, in 1972, he had
3 absences, 1 of which occurred on a Monday and 1 on a
Friday; that employee Laird Eberle had 8 absences in 1971,
23 Lapeer Metal Products Co, where the Board held immaterial that the
dischargees involved were probationary employees who were subject to dis-
charge without explanation to the incumbent union Also see International
Typographical Union, 183 NLRB 496, as to the discharges of Janice
Churchill and Suzanne Nelson , and Milford Fabricating Company, Inc, 193
NLRB 1012, where the Board recognized the above principle, but found that
the discharge of Charles Clinton, a probationary employee, was for cause
24 In so urging, Respondent is apparently departing from Rollason's testi-
mony that he also included Gallup's absence for part of the day on Friday,
March 3, in making his discharge decision.
25 Rollason admitted that he treated Gallup differently from the other
employees on such matters , relying on the heretofore rejected ground that
Gallup was a probationary employee
26 The record fails to indicate when, in 1972, the last file entry as to
absences was made . Except in the case of Shook referred to hereinafter, I am
assuming that the entries were current on the first day of the hearing, i.e ,
November 15
GEORGIA-PACIFIC CORPORATION
3 of which occurred on Mondays, and that he had 10 ab-
sences during 1972, 3 of which occurred on Mondays and
2 of which occurred on Fridays; Robert Farkas had 5 ab-
sences in 1971, 1 of which occurred on a Monday and 1 on
a Friday, and that he had no absences in 1971; and, finally,
that Gerry Shook had 1 absence in 1971 and it occurred on
a Friday, and that, during the first 7 months of 1972, prior
to his demise, he was absent 3 times, of which 2 occurred
on a Monday. In view of all the foregoing absences of
Gallup's fellow employees, including the fact that (1) the
fact that by allowing Gallup to return to work on March 30,
subsequent to his walking off the job, Respondent manifest-
ed, I find, that his prior absences were not sufficient to
prejudice his job or to invoke any punitive action against
him; (2) his single absence subsequently was neither on a
Friday nor on a Monday 27 but on a Thursday; and (3)
Gallup gave uncontroverted and credible testimony that
this absence and the reason therefor were reported to Re-
spondent in timely fashion, with no adverse comment to
him thereon from management, and also that this absence
was occasioned not by his illness but by the need to take his
pregnant wife to the hospital, it follows, and I find, that
Respondent's claim of excessive absences by Gallup does
not withstand scrutiny and is, consequently, lacking in mer-
it.
With respect to the claim of unsatisfactory work by Gal-
lup in the performance of his warehouse duties, Respondent
does not point to any specific episode or instance of unsatis-
factory performance in this regard by Gallup since his re-
turn to work on March 30.28 As I have heretofore found in
respect to the claim of excessive absences, I find similarly
that, by allowing Gallup to return to work on March 30,
Respondent manifested that Gallup's prior work perform-
ance in the warehouse was not sufficiently serious to prej-
udice his job or to invoke any punitive action against him.
It follows therefore, and I find, that Respondent's claim that
an operative factor in its discharge of Gallup was his unsat-
isfactory performance of warehouse work has not been
sustained by the record and is, therefore, lacking in merit.
As to the timing of the discharge, Respondent asserts, in
its brief, that, although Rollason terminated Gallup on May
22, he actually decided to terminate Gallup on April 6, upon
learning of Gallup's absence on that day. While it is true
that Rollason so testified and added that he told Parent, as
well as Seth English, his assistant , and Charlie Masse, an
inside salesman , on April 6 of his decision to terminate
Gallup, and enlisted their aid in recruiting a replacement,
this testimony is uncorroborated in the record. And while
Rollason testified further that, on that day, he told Masse
to get in touch with the Connecticut State Employment
Service and arrange for referrals of truckdrivers, and while
the record shows that an applicant named Vincent Kulen-
gosky did appear on the basis of a referral by that agency
on April 6,2 the record fails to disclose whether Masse did,
27 As already found, Respondent claimed that it viewed with suspicion
em2floyee absences which occurred on a Monday or a Friday.
As already noted, Parent, who was Gallup's supervisor and was the only
one of management who had first-hand knowledge of Gallup's work perfor-
mance, gave no testimony in this regard
29 The referral from the Connecticut State Employment Service and a
completed and signed company application form purporting to be that of
55
in fact, contact the Connecticut State Employment Service
on April 6, and, if so, whether this referral was in response
thereto. Noteworthy in this regard is the fact that Rollason
was not only unsure as to how many additional applicants
he interviewed in seeking a replacement for Gallup,30 but
supplied no names or completed application forms of any
other interviewees. In all these circumstances, including my
finding heretofore that Rollason was not a reliable witness,
I conclude that the record fails to preponderate in favor of
a finding that Respondent did contact the Connecticut State
Unemployment Service on April 6 or soon thereafter in
search of a replacement for Gallup. Also casting doubt on
Rollason's testimony as to when he decided to terminate
Gallup is his further unconvincing testimony concerning the
reasons for not discharging Gallup either on April 6, the
date claimed, or on or about May 1, when, as already found,
Respondent opened another facility in Massachusetts and
transferred from the instant facility to that facility a sub-
stantial amount of the instant facility's business. Thus, con-
cerning April 6, he testified, at one point, during direct
examination by Respondent's counsel, that he did not do so
because "we were so busy at that time that I felt that even
though [Gallup] did not function in the warehouse he could
at least deliver materials for me, he was a good driver, that
I was better off to make do with Mr. Gallup than to dis-
charge him" ;31 and, at another point, he testified, in re-
sponse to questions by me, that Respondent was not
operating in April with its full complement of five trucks,
as it was using only four of them, and that he "believes" that
the reason therefor was "that our business was down" And
concerning May 1 or thereabouts, Rollason testified that
Gallup was then on workmen's compensation as the result
of an on-the-job injury,32 and that because an employee on
workmen's compensation may not be discharged without
clearance through a special workmen's compensation board
or a safety committee of Respondent, he felt that he could
not discharge Gallup until he was back on normal duty.
However, it is evident from an examination of Respondent's
applicable rule which is in evidence as Respondent's Exhibit
6(c), that there is no prohibition therein against discharge
before the injured employee returns to normal duty , so long
as clearance is obtained.33 Indeed, when pressed on the
Kulengosky is in evidence as Resp Exhs 2(a) and 2(b), respectively.
30 Rollason's relevant testimony, while testifying on direct as a witness for
the General Counsel under Section 43(b) of the Rules of Civil Procedure for
the Federal District Courts, was as follows
Q. Did you interview anybody else?
A Yes, sir. On April 6th I interviewed somebody.
Q How about after April 6th9
A I-yes
Q How many people did you interview for the job)
A I would have to look at my records Not a great many.
Q Twos Five?
A Probably in that range
31 Rollason explained that Respondent was "unusually busy" due to (1) the
pickup in spring business which generally comes in April and May but came
early in March of 1972 and continued to increase in April, and (2) the fact
that Respondent had a lot of material to sell and not everybody else did,
which resulted in Respondent's getting a larger share of the available busi-
ness
32 1 have found heretofore that Gallup was injured on the job on April 13,
and that he returned to work on May 12 on limited duty which lasted until
Mal 22, when he was pronounced fit for regular duty by Doctor Wallace
3 The rule reads as follows
Termination of Injured Employees
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
point, during cross-examination by counsel for the General
Counsel, Rollason admitted that he knows now that "that
can be modified"; and that he discharged St. Onge subse-
quently,34 although he felt, contrary to Respondent's insur-
er, that St . Onge was then on workmen 's compensation. In
all these circumstances, I find without merit Respondent's
contention, in its brief, that "the date on which Gallup was
restored to full duty status (May 22) was the earliest day on
which he could be discharged consistent with corporation
policy." Rather it does appear from the unseemly haste in
which Rollason effected Gallup's discharge on May 22 that
the action was the result of a decision of recent origin. Thus,
Parent asked Gallup early that morning when he planned
to see the doctor about his fitness for normal duty and
Gallup told him that his wife was going to make an appoint-
ment with the doctor later that day. Thereupon, Respon-
dent pretermitted such action by Gallup's wife and
arranged for Gallup's immediate examination by Doctor
Wallace. And, within about 45 minutes of Gallup's return
from Doctor Wallace's office with a certificate of fitness for
regular duty, Rollason discharged him, telling him only that
he would be terminated at the end of day as "technically this
was the end of [his] 90-day probationary period and it
wasn't going to work out." Indeed, the comment about this
being the end of Gallup's 90-day probationary period
strongly indicates the urgency to act which Respondent felt
that day, especially since, as is apparent from my earlier
findings herein, Respondent was then, for the first time,
taking the position that Gallup was a probationary employ-
ee. Also noteworthy, in connection with the terminal epi-
sode, is the fact that the grounds for Gallup's discharge
urged here, namely, excessive absences and unsatisfactory
work performance in his warehouse function were not made
known to Gallup by Rollason . In fact, Rollason's statement
to Gallup that "it wasn't going to work out," was so obscure
as to remit Gallup to guesswork as to why he was being
faulted by Respondent.
In sum, therefore, in view of my findings above that the
reasons stated by Respondent for Gallup's discharge are not
supported by the record and are thus lacking in merit, I
conclude and find that these reasons were not the real rea-
sons for such action and that the real reason lies elsewhere.
In looking for the real reason, significance attaches not only
to the failure of the asserted reasons to withstand scrutiny,
but to the following, as also found herein: (a) the hasty and
precipitate action by management in effecting the dis-
charge; (2) the fact that Respondent had knowledge of
Gallup's membership in the Union and identified him as
one of the leaders; (3) the fact that Parent threatened Gal-
lup and St. Onge in the presence of other employees that
they would lose their jobs if the Union came into the plant;
(4) the fact that Parent called Gallup a troublemaker, refer-
ring to Gallup's actual or presumed leadership in the
Union; and (5) the further fact that Respondent discharged
Gallup 3 days before an upcoming Board election among its
outside employees, of whom Gallup was one 35 In all these
On industrial injury cases, no employee is to be terminated until the
case has been discussed with the Safety and Workmen' s Compensation
Department
34 St Onge was discharged on August 7
circumstances, and on the entire record, including my find-
ings of unfair labor practices herein by Respondent consist-
ing of coercive threats to, and interrogation of, its
employees, which clearly demonstrate Respondent's union
animus, I infer and find that Respondent discharged Gallup
for union-connected reasons in violation of Section 8(a)(3)
and (1) of the Act.
7. Recommendations respecting the election
It follows from my finding above that Gallup was discri-
minatorily discharged on May 22 and that, but for his dis-
criminatory discharge, he would have been a unit employee
on Respondent's payroll on May 25, the date of the election
herein. Consequently, and since he was also in
Respondent's employ on the payroll eligibility date, he
would have been eligible to vote in said election. According-
ly, I shall recommend that the Regional Director for Region
I of the Board be directed to open and count Gallup's
challenged ballot and that he be further directed to issue
either a Certification of Representative to the Union or a
Certification of Results of Election, depending upon the
results of the revised tally, including this valid ballot.
Upon the basis of the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening employees that their overtime would be
cut and that certain of them would lose their jobs if the
Union came into the facility; by impliedly threatening em-
ployees that once the union came into the facility some of
them would lose theirjobs because of the Union's demands
upon it; and by interrogating an employee as to whether he
had signed an authorization card for the Union and as to
who was the head of the Union, Respondent has interfered
with, restrained, and coerced employees in the rights guar-
anteed in Section 7 of the Act, and has engaged, and is
engaging , in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discharging Bruce R. Gallup on May 22, 1972, and
thereafter failing and refusing to reinstate him, because of
his union-connected activities, Respondent has discriminat-
ed in regard to the hire or tenure of employment of its
employees thereby discouraging membership in the Union,
and has engaged, and is engaging, in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and (3)
35 I attach no overriding significance here to the fact that Rollason told
Gallup that he (Gallup) would still be eligible to vote in the upcoming
election , as he (Rollason) admittedly was unaware of the effect that Gallup's
discharge shortly before the date of the election would have, under Board
law, upon his eligibility to vote therein.
GEORGIA-PACIFIC CORPORATION
of the Act, I shall recommend that Respondent cease and
desist therefrom and that a broad order issue designed to
protect the employees of Respondent, and that it affirma-
tively take such action as will dissipate the effects of its
unfair labor practices. In the latter connection, having
found that Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Bruce R. Gallup and thereafter fail-
ing and refusing to reinstate him, I shall also recommend
that Respondent offer him immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of earnings he may have suffered during the
period of this discrimination against him by payment to him
of a sum of money equal to that which he would have
earned as wages from the date of such discrimination to the
date of Respondent's offer of reinstatement, less his net
earnings during such period, with backpay and interest
thereon to be computed in the manner prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., Inc., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in the case, I
hereby issue the following recommended :16
ORDER
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees that their overtime would be
cut and that certain of them would lose their jobs if the
Union came into the facility.
(b) Impliedly threatening employees that once the Union
came into the facility some of them would lose their jobs
because of the Union's demands upon it.
(c) Interrogating any employee as to whether he had
signed an authorization card for the Union and as to who
was the head of the Union.
(d) Discharging any employee because he engaged in
union-connected activities.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Offer to Bruce R. Gallup immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position without prejudice to
his seniority or other rights and privileges, and make him
whole for any loss of earnings he has suffered, in the manner
set forth in the section hereof entitled "The Remedy."
(b) Preserve and, upon request, make available to the
National Labor Relations Board or its agent, for examina-
tion and copying, all payroll records, social security records,
36 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes.
57
timecards, personnel records and reports, and all other rec-
ords necessary or useful to determine or compute the
amount of backpay due, as herein provided.
(c) Post at its facility in Wallingford, Connecticut, copies
of the attached notice marked "Appendix."37 Copies of said
notice, on forms provided by the Regional Director for
Region 1, after being signed by a representative of Respon-
dent, shall be posted by Respondent immediately upon re-
ceipt thereof and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the said Regional Director, in writing, within
20 days from the date of the receipt of this Decision, what
steps Respondent has taken to comply herewith.
31 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which the parties had the opportunity to
present their evidence , an Administrative Law Judge of the
National Labor Relations Board has found that we violated
the law and has ordered us to post this Notice and to prom-
ise you that:
WE WILL NOT threaten that you will suffer a cut in your
overtime and that certain of you will lose your jobs if
Teamsters , Chauffeurs , Warehousemen and Helpers
Local No . 443, a/w International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America , herein called the Union , comes into the facili-
ty.
WE WILL NOT threaten you by suggesting to you that,
after the Union comes into this facility, some of you
will lose your jobs because of demands by the Union
upon us.
WE WILL NOT interrogate you as to whether you have
signed an authorization card for the Union and as to
who is the head of the Union.
WE WILL NOT discharge any of you and fail and refuse
thereafter to reinstate you because you have engaged in
union-connected activity or because you have acted
together for your common interest or protection.
WE WILL NOT in any other manner interfere with your
rights under the Act to form , join , or help unions, to
choose a union to represent you in bargaining with us,
to act together for your common interest or protection,
or to refuse to participate in any or all of these things.
WE WILL offer to Bruce R. Gallup immediate and full
reinstatement to his former job , or if that job no longer
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exists , to a substantially equivalent position without This is an official notice and must not be defaced by
prejudice to his seniority or other rights and privileges , anyone.
and make him whole for any loss of pay suffered as a This notice must remain posted for 60 consecutive days
result of his discriminatory discharge . from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concerning
GEORGIA.PACIFIC CORPORATION
this notice or compliance with its provisions may be direct-
(Employer)
ed to the Board's Office , Seventh Floor , Bulfinch Building,
15 New Chardon Street , Boston , Massachusetts 02114,
Dated By Telephone 617-223-3300.
(Representative) (Title)