Great Falls White Truck Co.

National Labor Relations Board - Board Decisions

Nov 20, 1970

186 N.L.R.B. 690 (N.L.R.B. 1970)

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Great Falls White Truck Company and Clayton
Braden . Case 19-CA-4684
November 20, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On July 30, 1970, Trial Examiner James T. Barker
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief. The General Counsel
filed a brief in opposition to the exceptions of
Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case,
including the exceptions and briefs, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the modifications
noted herein.
"(a) Offer to Clayton Braden immediate and full
reinstatement 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 pay
suffered by him by reason of his unlawful discharge in
the manner set forth in the section entitled 'The
Remedy.' "
3. Add the following as paragraph 2(b), and
reletter the following paragraphs accordingly:
"(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of
his right to full reinstatement, upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces."
4. Substitute the following for the first indented
paragraph in the Trial Examiner's notice:
WE WILL rehire Clayton Braden to his former
job or, if that job no longer exists, to a substantial-
ly equivalent job and pay him for any loss of wages
or income that he suffered, with 6 percent interest.
5. Add the following as the second indented
paragraph of the Trial Examiner's notice:
WE WILL offer the above-named employee if
presently serving in the Armed Forces of the
United States of his right to full reinstatement,
upon application, in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces.
TRIAL EXAMINER'S DECISION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner , and hereby orders
that Respondent , Great Falls White Truck Company,
Great Falls, Montana, its officers , agents , successors,
and assigns, shall take the action set forth in the Trial
Examiner 's Recommended Order, as so modified.
1. Substitute the following for paragraph 1(a):
"(a) Discouraging membership in Lodge No. 1046,
International Association of Machinists and Aeros-
pace Workers , AFL-CIO, or any other labor organi-
zation , by discriminatorily discharging any employee
or by discriminating in any like or related manner
with respect to hire or tenure of employment or any
term or condition of employment because he files
unfair labor practice charges or appears as a witness
in a Board proceeding."
2. Substitute the following for paragraph 2(a):
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner: This matter was
heard at Great Falls, Montana, on May 19, 1970, pursuant
to a charge and an amended charge filed, respectively, on
February 27 and March 17, 1970, by Clayton Braden. On
March 25, 1970, the Regional Director of the National
Labor Relations Board for Region 19 issued a complaint
and notice of hearing alleging violations of Section 8(a)(1),
(3), and (4) of the National Labor Relations Act, as
amended, hereinafter called the Act. The parties timely
filed briefs with me.
Upon consideration of the Briefs of the parties and upon
the record in this case and my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Montana corporation engaged in the
sale and service of trucks. During the 12-month period
immediately preceding the issuance of the complaint
186 NLRB No. 117
GREAT FALLS WHITE TRUCK CO. 691
herein , Respondent's volume of sales and services exceeded
$500,000 . In the same period of time the total amount of its
purchases of goods and materials originating outside the
State of Montana exceeded $50,000 and the total amount of
sales to firms located within the State of Montana but doing
business outside the State of Montana exceeded $50,000.
Upon these admitted facts, I find that at all times
material herein Respondent has been an employer engaged
in commerce within the meaning of Section 2(2),(6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Lodge No. 1046 , International Association of Machinists
and Aerospace Workers, AFL-CIO, hereinafter called the
Union, is admitted to be a labor organization within the
meaning of Section 2 (5) of the Act , and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The General Counsel contends that Respondent violated
Section 8(a)(4) of the Act by terminating the employment
of Clayton Braden on February 25, 1970, 1 because he
appeared as a witness and gave testimony adverse to
Respondent at the February 24 hearing in Case
19-CA-4567. Additionally, the General Counsel contends
that , in violation of Section 8(a)(3) of the Act, the
Respondent terminated Clayton Braden because he
engaged in protected concerted activities , including the
filing of the charge in Case 19 -CA-4567 and the filing of a
grievance , dated July 16, 1969.
The Respondent denies the commission of any unfair
labor practices, and affirmatively contends that Braden was
terminated because he intentionally performed faulty
repair work on certain vehicles of customers referred to
Respondent 's place of business for repair.
B. Pertinent Facts
1. Background facts
a. Braden's work and union activities
George Gale is general manager of Respondent and
actively engages in the management and supervision of the
day-lo-day operations of Respondent . Arthur Rugwell is
service manager of Respondent and, as a journeyman
mechanic , had direct supervision over the work performed
by Clayton Braden . Braden was employed by the
Respondent in June 1954 and worked in the employ of
Respondent until February 25. At the time of his
termination Braden was a journeyman mechanic.
Since November 1954, Braden has been a member of the
Union and has served as a member of the joint
apprenticeship training committee, as a delegate to a
county trade and labor assembly , and as a shop steward.
Additionally, Braden served as a union member of the
negotiating committee which negotiated the collective-
bargaining agreement currently in effect between the
Union and Respondent . The collective-bargaining agree-
ment provides for premium pay for overtime work, a
maximum of 15 days' paid vacation commencing with the
12th year of employment , and for the settlement of disputes
through a grievance and arbitration procedure.
b. The vacation pay grievance
Clayton Braden testified that in the summer of 1969 he
commenced a vacation which was to run from June 30 to
July 14. On Monday morning , July 7, Arthur Rugwell
contacted Braden by telephone and informed him that a
vocational school pertaining to air , oil, fuel , and water
systems was being conducted at the shop under the auspices
of Cummins Engine Company. Braden responded that he
would report at 1 p.m . He did so. He attended the school
until 12 noon on July 10.
For the period of his attendance he received his regular
vacation pay. However, he received no additional compen-
sation and, as a consequence , Braden took the view that he
was entitled to vacation credits for the time spent in
attending the school.
c. Dental of pumproom assignment
Braden continued his vacation from noon on July 10
through July 14. When he returned to work on July 16, he
conversed with George Gale who inquired if Braden would
be interested in assuming the duties of operating the
pumproom . Braden indicated his interest and Gale
informed him that in the latter part of August he would
send Braden to a school to receive training in pumproom
operations . During the conversation , Braden inquired if
Gale was going to give him vacation credit for the time he
spent attending the Cummins school . Gale gave Braden no
reply.
Thereafter, Braden filed a written grievance with the
Union contesting , in substance , the failure of Respondent
to allow him vacation credits for his alleged compulsory
attendance at the Cummins school.
On July 21, James Murr , business representative of the
Union , and Braden met with Arthur Rugwell in a first-step
grievance meeting. Rugwell took the position that the
grievance had no validity because Braden 's attendance at
the Cummins school had been voluntary and not compulso-
ry, as Braden contended.
Thereafter, later in the afternoon , Braden conversed with
George Gale and Arthur Rugwell and during the course of
the conversation Gale informed Braden that , as he had filed
the June 16 grievance with the Union, he would not be sent
to the Kansas City pump school and that he would not
receive any more overtime pay. Further, during the
meeting, Gale stated to Braden that he was going to have
Rugwell pick up the shop keys available to him for off-
hours access to the shop.
George Gale testified that after learning that Braden had
filed his July 16 grievance he changed his mind about
sending Braden to school in Kansas City. He testified
further , in substance, that during the preceding years
All references herein are to the calendar year 1970, unless specifically
indicated otherwise
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Braden had filed several grievances and that his decision
not to assign Braden to the pumproom and to abstain from
sending him to school in Kansas City was reached because
Braden was filing grievances "all the time."
On July 27, a second -step grievance meeting was held
between the Company and the union grievance committees.
George Gale attended as a representative of the Company
and Clayton Braden was also in attendance . At the meeting
Gale reiterated his position that Braden was not entitled to
overtime pay, and again asserted that he was not going to
send Braden to Kansas City to attend the pumproom
operation school . He further asserted that Braden would
not be assigned to operate the pumproom . Gale character-
ized Braden as a "trouble maker" and stated that Braden
was the only employee with whom he had any trouble. He
further stated that if Braden desired to adhere strictly to the
terms of the collective -bargaining agreement that Braden
would not receive anything "outside of what was in the
contract."
The grievance was resolved adversely to Braden, with the
Union joining the Company in rejecting the grievance.
2. The alleged unlawful conduct
a. Braden files unfair labor practice charges
Clayton Braden testified credibly that he ceased receiving
overtime work on July 21, 1969 , and did not again receive
any overtime until December 4, 1969.2 As a result of the
denial of overtime compensation , Braden contacted an
attorney and on November 11, 1969, filed charges in Case
19-CA-4567.
b. Braden appears as witness
A hearing in Case 19-CA-4567 was conducted on
February 24 . Clayton Braden appeared as a witness called
on behalf of the General Counsel and testified in the
proceeding . He testified in detail concerning the July 7
request of the Company that he attend the Cummins
School ; his interruption of his vacation to attend the school
from July 7 through 10; the July 16 conversation with
George Gale concerning assumption of duties in the
pumproom , and his attendance of a school in Kansas City;
the failure of Gale during their July 16 conversation to
confirm Braden 's entitlement to vacation credit ; the filing
of his July 16 grievance ; the subsequent grievance meeting
on July 21 with Arthur Rugwell ; his July 21 conversation
with George Gale, wherein he was informed he would be
denied overtime because he had filed a grievance; the
statement of George Gale at the July 27 grievance meeting
wherein Gale characterized him as a "trouble maker," and
stated his refusal to send Braden to the Kansas City pump
school and to assign him to the pumproom ; and the denial
of overtime from July 19 to December 4.
Present at the hearing on February 24 were George Gale
and Arthur Rugwell.
2 Documents in evidence support the testimony of Braden.
3 The foregoing findings with respect to the conversation between Gale
and Murr are based on the credited testimony of James Murr.
c. The termination of Clayton Braden
The following day, February 25, Clayton Braden
returned to work, reporting at approximately 8 a.m. Early
in the afternoon of February 25, Gale contacted the office
of the Union. He spoke with James Murr, business
representative of the Union, and arrangements were made
for Murr to meet with Gale at approximately 2:10 p.m. In
accordance with the arrangements, Murr went to the plant
and conversed with Gale in Gale's office. During the
conversation Gale stated that Braden had filed grievances
with the Union and he had filed "grievances" with the
National Labor Relations Board. Gale observed that on the
previous day a hearing had been held in the Board
proceeding. However, Gale stated that he had evidence
revealing that Braden had given approval for an engine to
be reassembled when it was not, in fact, at the time ready to
be reassembled. Gale informed Murr that he was going to
lay Braden off. Murr answered that Gale would have to
have a reason for his actions and observed that Braden
could file a grievance over the matter. Murr stated, "I
suppose you are laying Mr. Braden off for imcompetence."
Gale answered, "No, I would call it neglect." Gale quickly
added, "In fact, I would call it sabotage." 3
During the course of the afternoon at approximately 2:30
p.m., Clayton Braden was approached in the shop by
George Gale who stated to him, "You don't work here
anymore, you are fired. You can leave anytime you want."
Braden had no opportunity to reply. Gale said nothing
further to Braden . But soon after his discharge Braden
spoke with James Murr. Murr approached Braden and
asked Braden what he was "going to do." Braden
responded that he was going to pick up his tools and
prepare to leave and that he was then going to call his
attorney. Murr assisted Braden in loading his toolbox.
Braden then placed his tools in his van which was outside
the shop. As Braden was doing so Murr asked, "Do you
want to know why you have been fired?" Thereupon, Murr
stated that Gale had fired him "because of sabotage and
neglect."
George Gale testified that he discharged Braden because
of his conviction that Braden issued instructions to
reassemble an engine when it was not ready to be
reassembled and because of Braden's involvement in the
mounting of a "fifth wheel" which involved "strictly
sabotage because he knew better.
d. The alleged faulty work
(1) The Ryan Mercantile job
A day or two before the February 24 hearing in Case
19-CA-4567, a Mack truck with a six cylinder Cummins
diesel engine, belonging to Ryan Mercantile Company, was
brought to Respondent's shop for repair. In the presence of
Arthur Rugwell and Clayton Braden , it was recounted that
the truck had run out of fuel, and that ether had been used
as a replacement fuel in the engine. It was further revealed
that the engine had been using oil. The consequence of
Additionally, George Gale testified that he informed Murr that he felt
Braden's clearance for reassembling the engine "was deliberate" and
"strictly sabotage"
GREAT FALLS WHITE TRUCK CO. 693
using a large volume of ether as fuel is to put excessive
pressure on the cylinders and is considered detrimental to
the engine. Rugwell instructed Braden to do a "frame
overhaul" on the engine and to check the bearings to see if
they were sound.4
On February 23, Clayton Braden performed work on the
Ryan Mercantile truck. He worked on the truck from 7 a.m.
until noon and after lunch he worked for an additional
hour, until 2 p.m. Soon after 1 p.m., Braden had reached the
point in the repair of the motor wherein he was removing
pistons, rods, and liners. At approximately this juncture a
representative of Ryan Mercantile, one Pierce, came to the
shop and discussed the stages of the repairs with Braden. In
the presence of Pierce, Braden removed all of the pistons.
He informed Pierce that the number two rod was "rough"
and had a slight "build up" on it and that the number two
rod inserts had grooves on them.
At 2 p.m., Ron Mackenstadt, a mechanic and an
employee of Respondent, reported to work. He was
directed to assist Braden in working on the Ryan
Mercantile truck. Braden instructed Mackenstadt to pull
the number two main bearing. Specifically, in Macken-
stadt's presence Braden informed Pierce that because the
number two rod showed a buildup, and the number two
insert had developed grooves, it would be advisable to pull
the number two main bearing in order to determine if it was
functioning properly.5
At approximately 2 p.m., and coincident to the arrival of
Mackenstadt, Braden was assigned to another job
Subsequently, after Braden had turned his attention to the
other job, Mackenstadt proceeded to pull the number two
main bearing. The bearing was found to be in good
condition.
Mackenstadt continued to work on the Ryan Mercantile
truck until 10 p.m. He was engaged until approximately 8
p.m. in cleaning the engine and putting in new pistons and
sleeves At approximately 8:30 p.m., Arthur Rugwell called
the shop by telephone and instructed the night foreman to
have the number four main bearing pulled. Mackenstadt
proceeded to pull the number four bearing and it was found
that that bearing and four other bearings were scored. The
night shift proceeded no further with the repair work, but in
the morning it was decided that the engine should be
removed and that an attempt to do a frame overhaul should
be abandoned.
Arthur Rugwell testified that there was "too much time
lost" as a consequence of the failure to make an earlier
determination of the faulty nature of the main bearings.
4 A frame overhaul is an overhaul accomplished without physically
removing the engine from its normal placement in the vehicle
5 Clayton Braden testified credibly that when a rod shows wear it is
standard procedure to pull the main bearing with which the rod is
associated in order to ascertain whether the main bearing needs further
attention
6 I credit the testimony of Arthur Rugwell that on the afternoon of
February 23 Braden informed him that number two bearing had been
pulled and that it was good However, I find that this information was
transmitted to Rugwell by Braden after he had been transferred to another
job and not at the time of his transfer Braden testified credibly that at the
time he was transferred from the Ryan Mercantile job to another job he
informed Mackenstadt to pull the number two bearing. The testimony of
Ronald Mackenstadt supports this testimony of Clayton Braden
However, I am unable to credit the testimony of Clayton Braden to the
effect that he specifically stated to Rugwell that the number four bearing
George Gale testified that this failure led to an expenditure
of 20 additional hours of time at a "flat rate" of $10 per
hour. Rugwell further testified that standard procedure for
a mechanic performing the duties to which Braden had
been assigned was to first pull and check the number four
main bearing. He testified that this was so because it is the
number four main bearing which generally shows the most
dirt.
After 2 p.m., and after he had assumed his duties on the
other assignment to which he had been transferred, Braden
told Rugwell that he had pulled the number two bearing
and that it was good. Braden made no comment to Rugwell
concerning the number four bearing.6
(2) The "fifth wheel" assignment
On the morning of February 25, Rugwell assigned
Braden and a fellow employee to install a fifth wheel on a
vehicle belonging to Montana Grain Growers. The fifth
wheel is a large plate mounted on the back of the frame of a
tractor and its function is to connect the tractor to the
trailer so as to permit up and down oscillation of the trailer
and to provide for a proper distribution of weight between
the two components. The Montana Grain Growers vehicle
was a used one and Rugwell instructed Braden to install the
fifth wheel on the used vehicle by locating it on the frame in
the same manner as the fifth wheel on a new vehicle
situated on the Respondent's premises had been located.
This required Braden, by measurement, to locate the
centers, drill holes, mount plates, and install bolts. Braden
commenced performance of this assignment at approxi-
mately 9:30 a.m., on February 25. He took the measure-
ments from a new truck located on Respondent's premises
and, in the course of doing so, recorded those measure-
ments on a piece of paper. At the time he ceased work on
the fifth wheel assignment he had performed some of the
required work, including the drilling and lining up of some
of the holes. However, there remained additional dulling to
be done and this was performed later in the day by an
apprentice. The fifth wheel work was completed by the
apprentice and the wheel mounted on the evening of
February 25. However, the following morning, February
26, it was found necessary to remount the fifth wheel with a
consequent inconvenience to the customers.?
CONCLUSIONS
The evidence of record establishes rather convincingly
that Respondent seized upon a pretext in an effort to justify
should be pulled and that he also transmitted this instruction to
Mackenstadt Neither Mackenstadt nor Rugwell recalled such instruction
emanating from Braden, and, in effect, denied having received such
information from him I credit them
7 Respondent also introduced evidence concerning alleged faulty work
performed by Braden in February 1970 on a Peterbuilt truck The customer
later returned the truck and complained to Gale who reimbursed the
customer for a portion of the repair charges However, the customer
complaint was not lodged with Gale until February 27, 2 days after
Braden's termination Moreover, the customer, Norman Hickok, who
testified concerning the incident, was unable to definitely establish that
faulty workmanship on Braden's part was the cause of the postrepair
trouble he experienced However, Hickok. on February 27, in lodging his
complaint to Gale, instructed Gale not to permit Braden to perform any
more work on his truck At that point in time , Hickok was not aware that
Braden had been terminated
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the termination of Clayton Braden . At the time of his
termination Braden had been in Respondent's employ for
some 15 years and had a ranking of journeyman mechanic.
The day preceding his discharge he had testified at a Board
unfair labor practice proceeding, involving certain alleged
violations of the Act perpetrated against him by Respon-
dent. He had initiated the proceedings by filing charges. His
testimony was in support of the charges and complaint and
was adverse to the position of the Respondent in that case.
Thus, from this evidence alone, viewed the precipitous
nature of Braden 's termination , a strong inference of
improper motive is established.
But, separate and apart from this, the record evidence
sufficiently establishes an antagonism of prior origin
between George Gale, Respondent's principal managing
agent, and Clayton Braden. There may have been other
foundations for its existence, but the hostility stemmed, in
part, as Gale concedes, from the nuisance impact of the
several grievances Braden had lodged with the Union over
the years. That Braden had, in Gales' mind, a certain
tendency to seek the ultimate of all to which he deemed
himself entitled under the contract, is suggested by Gale's
candid testimony, including that concerning Braden's
purported grievance for 1 hour's pay denied him through
secretarial oversight. That Gale found Braden's propensity
to grieve annoying is established by his characterization of
Braden "as the only man in my organization in my 6 years
that has ever went [sic] to the union with any grievances."
There is convincing evidence that, however long-suffering
Respondent had been in countenancing previous griev-
ances filed by Braden, the July 16 grievance strained
matters to the breaking point. The decision not to send
Braden to Kansas City for training and the decision not to
carry out the plan to assign him to the pumproom attest to
this. In filing his July 16 grievance seeking a declaration of
the application of the collective-bargaining agreement to
the refusal of Respondent to grant him vacation credit for
time spent in attending the Cummins School, Braden was,
of course, engaging in protected and concerted activity.8 It
was not rendered otherwise merely because it was found
without merit by both union and employer members of the
grievance committee . That he was engaged in protected
concerted activity in filing the unfair labor practice charges
in Case 19-CA-4567 cannot be doubted.
It is unnecessary, upon this record, to determine whether
Respondent would have taken the ultimate step of
terminating Braden solely for filing his November 10, 1969,
charge in Case 19-CA-4567.9 Rather, it is enough to find
that Braden's involvement herein could only heighten the
displeasure which Gale openly manifested over Braden's
filing of the July 16 grievance, an action which led Gale,
discriminatorily, as the Board found, to deny Braden
overtime pay and a change in work assignment.
8 The Board so found in affirming the decision of Trial Examiner
George H. O'Brien in Case 19-CA-4567 reported at 183 NLRB No. 64.
Thus, the Board, like the Trial Examiner, found that Respondent had
violated Section 8(axl) and (3) of the Act by discriminating against Braden
for asserting a claim under a collective-bargaining agreement between
Respondent and Braden 's union, and that this discrimination derived from
depriving Braden of opportunity to work overtime hours at premium pay,
recalling Braden 's shop keys, and removing Braden from consideration as
designee to work in the pumproom.
9 The actions found violative of the Act by the Board in Case
It was in this state of disenchantment with Braden that
Gale observed and heard Braden testify adversely to him in
Case 19-CA-4567. If Braden's propensity to file grievances
could lead Gale to take adverse personnel actions against
Braden, as the Board found, it is readily inferrible that Gale
would not find termination too stringent a penalty to visit
upon Braden for filing unfair labor practice charges and for
adverse testimony given at a formal Board proceeding
against the Company.
In the point of fact, as I view the record, the conclusion is
mandatory that Gale terminated Braden because he
engaged in the ultimate act of "harassment" by initiating
the Board proceeding and appearing at the hearing as a
principal witness adverse to Respondent's interest. Not
only is the affirmative evidence of unlawful motivation
pervading but the evidence of pretext is substantial.
Thus, while the faulty diagnostic procedures pursued in
connection with the Ryan Mercantile truck repair may
have been attributable in part to Braden 's unattentiveness
and oversight, the evidence is not such as to warrant the
conclusion that the error was intentional or wanton. The
crucial point in testing the cylinders of the Ryan Mercantile
truck was reached after lunch, and as Braden's shift was
ending. If his examination of the No. 2 bearing to the
exclusion of the No. 4 bearing was not in conformance with
preferred practice, it appears not to have been so irregular a
procedure as to have invoked questions from either
Rugwell or from Mackenstadt. The evidence establishes
that Braden informed both Mackenstadt and Rugwell that
the No. 2 bearing was satisfactory. He said nothing
concerning the No. 4 bearing and he was asked nothing
concerning it. Indeed, I am convinced, it was Rugwell's
realization that only No. 2 bearing and not the No. 4
bearing had been checked, that caused him to make his
evening call to the shop to initiate a further check of the
bearings. Doubtless, Rugwell was entitled to rely on
Braden's adherence to accepted procedures, but I am not
convinced from the record evidence that the technique of
checking the No. 4 bearing first, and to the initial exclusion
of any other bearing, was followed in such undeviating
fashion as to have rendered an inquiry by Rugwell to
Braden rhetorical.
Respondent is, of course, correct in asserting that
involvement in union or concerted activity serves as no
shield for a termination effectuated for reasons other than
those protected by the Act. Clearly, faulty workmanship, or
sabotage, or any good or bad reason is encompassed within
the absolute right recognized in employers to terminate
employees, so long as protected concerted or union activity
is not the motivating cause for the discharge.10 But the
evidence of record, in my opinion, falls short of establishing
that the Ryan Mercantile repair job involved workmanship
so faulty as to warrant precipitous severance of a mechanic
19-CA-4567 may, of course, be considered for the purpose of shedding
light on subsequent actions of Respondent and for the purpose of assessing
motive , but, perforce, may not alone supply the necessary evidence of
discriminatory motivation with respect to the termination here in issue.
10 The Respondent 's reliance on the principle enunciated in N.L.R.B. v.
Burnup and Sims, Inc., 57 LRRM 2385 , is not here applicable for the
alleged faulty repair work performed by Braden occurred in the course of
his performance of duties and does not constitute misconduct arising from
his involvement in protected activity.
GREAT FALLS WHITE TRUCK CO. 695
with 15 years' tenure. The evidence is manifestly insuffi-
cieni to establishing sabotage.
This is so because there is no evidence to reveal that, as
Respondent contends, Braden actively misled either
Rugwell or Mackenstadt into believing that only a check of
the No. 2 bearing remained as a preliminary to reassem-
bling the engine. And, of course, it was Mackenstadt who
performed the task of checking the No. 2 bearing and found
it in satisfactory condition. In my view of the record all that
can reasonably be ascribed to Braden was a certain
inattentiveness to work details which may well have been
attributable to the emotions generated by the events
occurring at the February 24 hearing. But the involvement
of Braden in the faulty repairs and the quantum of loss in
money and in terms of customer dissatisfaction was not so
great as to have reasonably, and to have alone, served as the
basis for Gale's decision to terminate Braden. Braden had
worked too long with a satisfactory work record to permit
of such a conclusion. The evidence of intentional mischief
available to Gale was, at the time of Braden's discharge, too
minimal. Thus, even assuming that Gale believed Braden's
poor workmanship to have been responsible for the delays,
expense, and customer dissatisfaction occasioned in
connection with the Ryan Mercantile job, I am convinced
that this consideration was not the sole or even principal
motivating cause of Braden's termination. Rather, I find
that the Ryan Mercantile incident arose fortuitously for
Gale's purposes at a time when Gale's antagonism against
Braden was at full vent. Gale invoked the opportunity thus
accorded him to terminate Braden, but I find that the
termination was occasioned not by Braden's role in the
repair work but because of Braden's institution of, and
appearance as, a witness at the unfair labor practice hearing
in Case 19-CA-4567 on February 24.11
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in Section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully terminated
the employment of Clayton Braden because of his union
and concerted activities, I shall recommend that Respon-
dent offer Clayton Braden immediate and full reinstate-
ment to his former or substantially equivalent position of
employment, without prejudice to his seniority or other
11 The willingness of Respondent to resort to pretext is demonstrated by
Gale's delineation of the "fifth wheel" installation as a consideration in the
termination of Braden and his sanguine description of Braden's
involvement in the repair of the Peterbuilt truck While Braden's asserted
rights and privileges, and make him whole for any loss of
pay he may have suffered by reason of the discrimination
against him by payment to him of a sum of money
equivalent to that which he normally would have earned in
Respondent's employ absent the discrimination against
him. Said sum shall be calculated in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289,
with interest at the rate of 6 percent per annum as set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Lodge No. 1046, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent discharged Clayton Braden because he
filed an unfair labor practice charge in Case 19-CA-4567
and appeared as a witness in the hearing conducted in said
case and testified adversely to Respondent. As a conse-
quence, Respondent engaged in unfair labor practices in
violation of Section 8(a)(1), (3), and (4) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case, I
shall recommend that Respondent Great Falls White Truck
Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Lodge No. 1046,
International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization, by
discriminatorily discharging any employee or by discrimi-
nating in any like or related manner with respect to hire or
tenure of employment or any term or condition of
employment.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Clayton Braden immediate and full
reinstatement to his former or substantially equivalent
position of employment, without prejudice to his seniority
or other rights and privileges, and make him whole for any
loss of pay suffered by him by reason of his unlawful
discharge, in the manner set forth in the section entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, as well as all other records
poor workmanship in connection with either or both of those repair
assignments is conjectural, the evidence leaves no doubt that neither
incident came to the attention of Gale until after he had terminated
Braden
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary to analyze and compute the amount of backpay
due under the terms of this Recommended Order.
(c) Post at its Great Falls, Montana , plant, copies of the
attached notice marked "Appendix." 12 Copies of said
notice , on forms to be provided by the Regional Director
for Region 19, after being duly signed by Respondent's
representative , shall be posted by Respondent immediately
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 Respondent to
insure that said notices are not altered , defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 19, in
writing , within 20 days of the receipt of this Decision, what
steps have been taken to comply herewith.13
12 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 . 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 Order of the National Labor Relations Board."
13 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps 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 WILL rehire Clayton Braden to his former or
equivalent job and pay him for any loss of wages or
income that he suffered with 6 percent interest.
WE WILL NOT discharge any employee because he
files charges with the National Labor Relations Board
or appears as a witness at a hearing conducted by the
National Labor Relations Board.
WE WILL NOT discharge any employee because he
engaged in concerted or union activities.
The National Labor Relations Act gives all employ-
ees these rights:
To organize themselves.
To form, join , or help unions.
To bargain as a group through representatives
they choose.
To act together for collective bargaining or
other mutual aid or protection.
To refuse to do any or all of these things.
WE WILL NOT interfere with any of these rights,
including their right to join or assist Lodge No. 1046,
International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization of
their choice.
GREAT FALLS WHITE
TRUCK COMPANY
(Employer)
Dated By
(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 directed to the Board 's Office, 10th
Floor , Republic Building, 1511 Third Avenue , Seattle,
Washington 98101, Telephone 206-583-4532.