Lamar Outdoor Advertising

National Labor Relations Board - Board Decisions

Jul 22, 1981

257 N.L.R.B. 90 (N.L.R.B. 1981)

90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lamar Advertising Associates of Dayton d/b/a
Lamar Outdoor Advertising and Local Union
639, Sign, Display & Allied Trades, AFL-CIO.
Cases 9-CA-14580, 9-CA-14652, 9-CA-4683,
and 9-CA-15035
July 22, 1981
DECISION AND ORDER
On December 10, 1980, Administrative Law
Judge Marvin Roth issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions and briefs and has decided to
affirm the rulings, 1 findings, 2 and conclusions of
the Administrative Law Judge and to adopt his
recommended Order. 3
1 Respondent has excepted to the Administrative Law Judge's ruling
excluding extensive documentary evidence regarding wage increases to
loyees during the period from late 1978 through July 1980. Respondent
offered this evidence in order to corroborate testimony of irs witnesses
which indicated that Respondent had no system of scheduled pay in-
creases. The Administrative Law Judge, in his Decision, agrees with Re-
spondent that "[t]he company did not have a policy of granting pay in·
creases at specific times or intervals." Therefore, Respondent was not
prejudiced by the Administrative Law Judge's exclusion of this evidence.
Accordingly, we find no merit in Respondent's exception.
Nor do we find merit in Respondent's contention that, because the Ad-
ministrative Law Judge generally discredited Respondent's witnesses and
credited the General Counsel's witnesses, his credibility resolutions are
erroneous or attended by bias or prejudice. N.LR.B. v, Pittsburgh S.S.
Company, 337 U.S. 656 (1949).
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Srandard Dry Wall Producrs.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We have also considered Respondent's contention that the Administra-
tive Law Judge has evidenced bias and prejudice against Respondent, as
manifested by his evidentiary rulings, factual inferences, and legal analy-
sis. We have carefully considered the record and the attached Decision
and reject these charges.
3 Respondent has requested oral argument This request is hereby
denied as the record, exceptions, and briefs adequately present the issues
and positions of the parties.
On March 5, 1981, Respondent filed with the Board a "Motion for a
Decision Sustaining the Exceptions Filed Herein," based on the failure of
both the General Counsel and the Union to file either a brief in support
of the Administrative Law Judge's Decision, or an answering brief to Re·
spondent's exceptions. Respondent contends that this failure indicates that
there is no opposition to its exceptions. On March 16, 1981, the General
Counsel filed with the Board a motion to strike Respondent's motion,
contending that the Board's Rules do not support a request for judgment
"based on the silence of the non-excepting party."
On April 16, 1981, Respondent filed with the Board a "Reply to Gen-
eral Counsel's Motion to Strike," urging that we overrule the General
Counsel's motion. National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, Sec. 10l.46(d), states that "a party opposing
the exceptions may file an answering brief to the exceptions." (Emphasis
supplied.) Neither this section nor any other section of our Rules and
Regulations or Statements of Procedure requires a party to file a brief
opposing exceptions in order to preserve its opposition to them. Accord-
257 NLRB No. 22
ORDER
Pursuant to Section lO(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Lamar Adver-
tising Associates of Dayton d/b/a Lamar Outdoor
Advertising, Dayton, Ohio, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order, except the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
ingly, we grant the General Counsel's motion to strike Respondent's
motion.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discourage membership in
Local Union No. 639, Sign, Display & Allied
Trades, AFL-CIO, or any other labor organi-
zation, by discriminatorily terminating employ-
ees, or in any other manner discriminating
against them with regard to their hire or
tenure of employment or any term or condi-
tion of employment.
WE WILL NOT discharge or discipline em-
ployees for joining with their fellow employ-
ees in questioning or criticizing their terms and
conditions of employment, or for otherwise
engaging in protected concerted activities with
regard to their terms and conditions of em-
ployment.
WE WILL NOT tell employees that other em-
ployees will be terminated because of their
union activities, or that our plant will never be
a union shop, or that our employees have no
right to know wage rates at other plants.
WE WILL NOT threaten you with loss of
jobs, less pay, loss of retirement benefits, or
worse working conditions if you choose or
keep Local 639, or any other labor organiza-
tion, as your bargaining representative.
WE WILL NOT expressly or impliedly prom-
ise or announce wage increases or other bene-
LAMAR OUTDOOR ADVERTISING 91
fits in order to discourage support for Local
639 or any other labor organization.
WE WILL NOT question you concerning your
union membership, attitude, or activities, or
those of your fellow employees.
WE WILL NOT spy on union meetings or
other union activities.
WE WILL NOT create the impression of
spying on employee union activity by accusing
employees of engaging in such activity.
WE WILL NOT fail or refuse to bargain col-
lectively with Local 639 as the exclusive col-
lective-bargaining representative of all full-
time and regular part-time employees em-
ployed by us at our Dayton, Ohio, location
(exclusive of all office clerical, sales, and pro-
fessional employees, and guards and supervi-
sors as defined in the Act) by failing or refus-
ing to furnish said Union with information
which is relevant and necessary to its function
as such representative.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to engage in union or concerted ac-
tivities, or to refrain therefrom.
WE WILL offer Ricky Kuck, Joseph T.
Horn, Jr., and Dallas Wayne Farley immediate
and full reinstatement to their former jobs, or,
if such jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights previously enjoyed,
and make them whole for losses they suffered
by reason of the discrimination against them,
with interest.
WE WILL promptly furnish Local 639 with
current information concerning rates of pay,
wage data, and fringe benefits offered and paid
by Lamar Corporation, its subsidiaries and af-
filiates engaged in the United States in the
business of selling and displaying outdoor ad-
vertising, for employees performing work in
job categories which are comparable or identi-
cal to those in the above-described bargaining
unit.
LAMAR ADVERTISING ASSOCIATES OF
DAYTON D/B/A LAMAR OUTDOOR
ADVERTISING
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: These
consolidated cases were heard in Dayton, Ohio, on
August 5, 6, and 7, 1980. The charges were filed on No-
vember 21 and December l3 and 20, 1979, and March
13, 1980, respectively, by Local Union 639, Sign, Dis-
play & Allied Trades, AFL-CIO, herein the Union. The
amended consolidated complaint, which issued on April
30, 1980, 1 and was further amended at the hearing, al-
leges that Lamar Advertising Associ1tes of Dayton
d!b/a Lamar Outdoor Advertising, herein Respondent
or the Company and sometimes Lamar-Dayton, violated
Section 8(a)(l), (3), and (5) of the National Labor Rela-
tions Act, as amended. The gravamen of the complaint,
as amended, is that the Company allegedly: discharged
employee Ricky Kuck because of his protected concert-
ed activities; discharged employees Joe Horn, Carl Gray,
and Dallas Farley because of their union activities;
threatened and interrogated its employees, and promised
and granted them benefits, in order to discourage sup-
port for the Union; engaged in surveillance and created
the impression of surveillance of employee union activi-
ty; and failed and refused to furnish the Union, as the
certified collective-bargaining representative of its em-
ployees, with information necessary and relevant to the
Union's performance of such function. The Company's
answer denies the commission of the alleged unfair labor
practices. All parties were afforded full opportunity to
participate, to present relevant evidence, to argue orally
and to file briefs. The General Counsel and the Company
each filed a brief.
Upon the entire record in this case2 and from my ob-
servation of the demeanor of the witnesses, and having
considered the arguments of counsel and the briefs sub-
mitted by the General Counsel and Respondent, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a partnership with an office and place
of business in Dayton, Ohio, is engaged in selling and
displaying outdoor advertising. In the operation of its
business, the Company annually provides services valued
in excess of $50,000 for other nonretail enterprises within
Ohio, each of which is engaged in interstate commerce. I
find, as the Company admits, that it is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION AND UNIT INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act. On January 3, following a
Board-conducted election (Case 9-RC-13173) the Union
was certified by the Board as the exclusive collective-
bargaining representative of the Company's employees in
an appropriate unit consisting of all full-time and regular
part-time employees employed by the Company at its
112 North Grimes Street, Dayton, Ohio, location, ex-
cluding all office clerical employees, sales employees,
professional employees, guards, and supervisors as de-
fined in the Act. It is undisputed that at all times since
January 3, the Union has been and is the exclusive bar-
1 All dates herein refer to the period of July I, 1979, through June 30,
1980, unless otherwise indicated.
2 Certain errors in the transcript have been noted and corrected.
I
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining representative of the employees in the appropri-
ate unit.
Jll. THE ALLEGED UNFAIR LABOR PRACTICES
A. Refusal To Furnish Information
Chronologically, the refusal to furnish information is
the last alleged unfair labor practice. However, as the
contentions of the parties necessitate some consideration
of the Company's overall structure, including its relation-
ship to Lamar Corporation, I shall deal first with this
matter.
The Company is one of some 19 subsidiary companies
of Lamar Corporation, based in Baton Rouge, Louisiana.
The subsidiary firms are located throughout the United
States, but predominantly in the South. The Company,
i.e., Lamar-Dayton, is unique among these subsidiaries in
that it is owned by a partnership of Lamar Corporation
and an individual investor. However, the investor func-
tions as a silent partner, in that he plays no role in the
day-to-day operations of the business. Rather, pursuant
to an operating agreement with Lamar Corporation, he
has contracted for Lamar Corporation to manage the
Dayton operation. The Company is engaged in the out-
door advertising business in the Dayton area. Specifically
the Company leases land, builds boards on the land, sells
the boards to advertisers, and services the boards by
posting or painting advertising signs and by maintaining
such signs. Harry Gammill, who was presented as an ad-
verse witness for the General Counsel and as the Compa-
ny's principal witness, identified himself as general man-
ager and vice president of Lamar-Dayton. As a company
witness, Gammill variously testified that Lamar-Dayton
had no president, that he was vice president only in
Dayton, that he was not an officer of Lamar Corpora-
tion, that he established the wages, hours, policies, and
procedures at Dayton, and that administratively he did
not report to anyone and was not responsible to anyone,
except to the extent that he was expected to operate
profitably. However, at other points in his testimony
Gammill admitted that Ken Reilly was president of
"Lamar Outdoor Companies" and specifically that Reilly
was probably the president of all the subsidiaries. Gam-
mill further admitted that every general manager of a
subsidiary is a vice president of Lamar Corporation.
Gammill also admitted that he answered to Reilly and to
Jerry Marchand, who was in charge of Lamar Corpora-
tion's outdoor advertising division. As will be indicated
at various points in this Decision, these were not the
only matters on which Gammill gave contradictory testi-
mony. Rather, Gammill demonstrated a propensity to
give shifting, contradictory, or patently false testimony,
or to become evasive about material matters.
The Company holds itself out to the public as one
branch of the Lamar chain of operations. Thus, the Com-
pany indicates in its stationery that it maintains offices
throughout the United States, and that it has been in
business for 75 years, although Lamar-Dayton has been
in operation for only 6 years. The evidence further indi-
cates that in many respects Lamar Corporation maintains
common personnel policies for all its subsidiaries. Lamar
Corporation maintains one hospitalization plan and one
retirement plan for all personnel, and one safety manual,
issued by the home office in Baton Rouge, is utilized by
all Lamar companies. The evidence further indicates a
significant interchange of personnel at the managerial
level. Gammill himself served as a sales manager in
Baton Rouge before coming to Dayton as general man-
ager. While maintaining his office in Dayton, Gammill
also acted as manager of a Lamar facility in Muncie, In-
diana, although that facility was owned by Lamar Cor-
poration until May 1980, when Lamar Corporation trans-
ferred ownership to Lamar-Dayton. In the meantime
John Reed (of whom more will be said later) switched
back and forth in various managerial capacities between
Muncie and Dayton. Gammill periodically attends man-
agement meetings in Baton Rouge. The Baton Rouge
home office processes the payroll and performs other in-
voicing and bookkeeping services for Lamar-Dayton, for
which Lamar Corporation bills the subsidiary. Paychecks
are issued in the name of Lamar Corporation. As indicat-
ed, Gammill testified that he set the wage rates at
Dayton. However, he admitted that only Baton Rouge,
and specifically Reilly and Marchand, determined his
own compensation. Moreover, other evidence, including
admissions by Gammill and the uncontroverted testimo-
ny of other witnesses, indicates that Baton Rouge exer-
cised substantial control over the wage rates at Dayton,
and that in determining wage rates and other conditions
at Dayton, Gammill attached greater comparative signifi-
cance to prevailing conditions at other Lamar facilities
than to prevailing conditions at competing firms closer to
the Dayton area. Specifically, Gammill testified that in
December 1979 he granted wage increases to the Dayton
construction crew after the home office informed him
that funds would be released for a full scale conversion
from the "long handle" to "short handle" method of in-
stalling signs (the construction crew being responsible for
that conversion operation). During the election campaign
Gammill showed the employees copies of a union con-
tract at a Lamar facility in Orlando, Florida, indicating
that this was what they could expect if they voted in the
Union. However, at a previous meeting (which will be
discussed in connection with the termination of Ricky
Kuck), Production Supervisor Rick Boyd indicated that
the Company took a dim view of comparison with union
wage rates for bill posters employed by other firms in
Ohio or nearby States. Indeed, the evidence indicates
that the Company's adherence to its incentive wage plan
for biii posters was a major factor in bringing about the
present union campaign. While such a plan, in which
wages were based on employee production might have
been successful in the warmer climates where Lamar
Corporation maintained most of its facilities, the Compa-
ny either failed to realize or chose to disregard that with
the onset of a midwestern winter, the bill posters might
be concerned that their income would be seriously di-
minished.
On January 17, 1980, 2 weeks after the Union's certifi-
cation, Union Business Representative Frank Rich, by
letter to Vice President Gammill, requested certain per-
sonnel information and information concerning classifica-
tions, wages, benefits, and plant rules at the Dayton fa-
LAMAR OUTDOOR ADVERTISING 93
cility. Rich also requested "wage data concerning other
plants of Lamar Outdoor Advertising [union and non-
union]." Rich asserted that all of the information "would
enable us to properly and understandingly perform our
duties in the general course of negotiations." The Com-
pany subsequently furnished the requested information
con?erning the Dayton facility. However, at a bargaining
sesston on January 17, and by letter dated February 15
from th~ Company's attorney, Hall, to Rich, the Compa-
ny declmed to comply with the remaining request. Hall
asserted that the request was improper because the
U~ion was certified to represent only the Lamar-Dayton
umt. By letter dated February 18 from the Union's attor-
ney, Shaw, to the Company's attorney, Hall, Shaw, on
behalf of the Union, requested "wage and fringe benefit
offerings for all plants owned and operated by Lamar
Outdoor Advertising." Shaw asserted that such informa-
t!on "is necessary to conduct negotiations in an expedi-
ttous manner and that we are entitled to it as a matter of
law.". By letter dated March 7 Shaw denied the request,
assertmg that the Company was not required to give in·
formation "relating to the employees of other employers
regardless of the direct or indirect connection with
Lamar." The parties restated their positions at subse-
quent bargaining sesssions, and the Company further as-
serted that "Lamar Outdoor Advertising" owned no
plants other than Dayton. On June 12 the Company and
meaning of the Act. See N.L.R.B. v. Master Slack and/or
Master Trousers Corp., et al, 618 F.2d 68 (6th Cir. 1978);
N.L.R.B. v. Big Bear Supermarkets No. 3, 640 F.2d 924
(9th Cir. 1980). As indicated, the Union requested infor-
mation for all plants of "Lamar Outdoor Advertising,"
which is the name under which the Company conducts
its business. However, that name is descriptive of all
Lamar facilities which are engaged in the business of
outdoor advertising. The Company represented to the
public that it was one of a chain of facilities, and Vice
President Gammill testified that Ken Reilly was presi-
dent of "Lamar Outdoor Companies." It is evident that
the Company understood that the Union's request for in-
formation referred to all Lamar facilities engaged in the
outdc:or advertising business. Therefore the Union prop-
erly tdentified the requested information. As vice presi-
dent and general manager, Harry Gammill had access to
the requested information. Indeed Gammill obtained
copies of Lamar's union contracts for use in the repre-
sentation election campaign. Therefore the Union's re-
quest was properly directed to Gammill and to the Com-
pany's attorney.
However, as the Company points out in its brie[ this
is not the end of the inquiry. Information concernin~ the
wages and benefits of unit employees is presumptively
relevant to the performance of the Union's collective-
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shown, and that the Company violated Section 8(a)(5)
and (I) by failing and refusing to furnish the Union with
information concerning rates of pay, wages paid, and
fringe benefits offered and paid by Lamar Corporation,
its subsidiaries and affiliates engaged in the business of
outdoor advertising, to employees performing work in
job categories which are comparable or identical to those
in the bargaining unit. Press Democrat Publishing Compa-
ny, supra; see also K-Mart Corporation v. N.LR.B., 626
F.2d 704, 707-708 (9th Cir. 1980), citing General Electric
Co. v. N.L.R.B., supra. Although the Company and the
Union have negotiated a collective-bargaining contract,
the Union's request is not moot. The requested informa-
tion would be pertinent to future contract negotiations.
Therefore a remedial order is warranted.
I shall at this point return to the unfair labor practices
allegedly committed by the Company prior to the refusal
to furnish information. As consideration of some of these
allegations necessarily involves consideration of the al-
leged supervisory status of certain individuals, I shall
first address myself to the status of these individuals
B. The Alleged Supervisory Status of Rick Boyd, Ron
Tyree, and Alleged Discriminatee Joseph Horn
There are and usually have been at all times material,
some 12 to 14 employees in the unit which is presently
covered by the collective-bargaining contract. The unit
comprises employees in the three categories of billboard
constructors (also known as the construction crew), biJJ-
posters, and painters. The Company also utilizes individ-
ual employees in other work, e.g., an electrician and a
paper folder, and employs grass cutters on a part-time
basis. The painters normally work in the shop, whereas
the construction and billposting crews perform most of
their work in the field. At all times material, i.e., at least
since the spring of 1979, Harry Gammill has been gener-
al manager and in charge of the Dayton facility, and Hal
Ward has been sales manager at Dayton. It is undisputed
that at all times material Gammill and Ward have been
and are supervisors within the meaning of the Act. The
Company also has a position known as "production su-
perintendent." According to Gammill, the production su-
perintendent is a supervisor who is in charge of the work
of all hourly rated personnel; i.e., the unit employees.
However, that position has not always been filled. Addi-
tionally, the Company's supervisory personnel collective-
ly comprise an "operational committee" which meets
weekly to decide what work shall be done that week,
and also to discuss and deal with operational problems.
John Reed, who was presented as a company witness,
testified that he was "assistant sales manager" and in
charge of the Lamar Muncie facility from August 1,
1978, to January 2, 1980, that he was production superin·
tendent before going to Muncie, and that he was again
production superintendent at Dayton from January 2 to
June 2, 1980, when he was terminated. As will be dis-
cussed, I find that the position of production superin-
tendent as described by Gammill was in fact created in
September 1979 as an accommodation to Rick Boyd, and
that Reed's authority, at least upon his return to Dayton,
was substantially limited to shop personnel, i.e., with re-
spect to the unit, the painting employees.
Harry Gammill testified that in 1979 the operational
committee consisted of himself, Sales Manager Ward,
Construction Superintendent Rick Boyd, and Posting Su-
perintendent Joe Horn. Boyd and Horn were in charge
of the construction and bill posting crews, respectively.
There is no indication that at any time from August l,
1978, to September 1979, anyone held the position of
"production supervisor." Gammill testified that "as a
construction foreman," Boyd had the right to hire and
fire employees, assign work, and grant time off. On April
25, 1979, Boyd was seriously injured in an on-the-job ac-
cident. He did not return to work until September. There
were normally from three to six employees in the con-
struction crew. At the time of the accident the crew con-
sisted of Ron Tyree, Lewis Baker, and alleged discrimin-
atee Carl Gray. General Manager Gammill testified that
the day after the accident he met with the construction
crew, and they agreed that there would not be a con-
struction superintendent, but that Tyree, who had the
greater experience at construction work, would serve as
a "communicator" between the operational committee
and the crew. Gammill testified in sum that Tyree did
not have a specific title, but that he served as a commu-
nicator in that he received and transmitted work assign-
ments to the employees. All of the crew were given
raises. Gammill's testimony was substantially corroborat-
ed by Baker and Gray, who were presented as the Gen-
eral Counsel's witnesses. (Tyree, who quit his employ-
ment with the Company in January 1980, was not pre-
sented as a witness by any party.) However, in the ensu-
ing months Tyree, who evidently regarded himself as a
boss, took charge of the work in the field, and this
caused some friction among the crew. Tyree directed
work in the field to the extent it required some direction,
e.g., splitting up the crew or assigning the operation of
the crane (sometimes to himself). Indeed Gammill re-
ferred in testimony to Tyree as a "crew chier• or "head
of our work group." However, the evidence fails to indi-
cate that Tyree had authority to hire, fire, or effectively
discipline employees, or to effectively recommend per-
sonnel action, although from time to time he would com-
plain to management about employees, or recommend
pay raises.
Rick Boyd returned to work in early September.
However, he was not yet physically able to work in the
field. Boyd was designated production superintendent,
which as indicated was a supervisory position which
placed him in overall charge of all hourly rated person-
nel. At a meeting on October 26, the operational com-
mittee demoted Joe Horn to a rank-and-file bi1lposter,
and the biilposting crew was subsequently informed that
Boyd (who retained his position as production superin-
tendent) would be in charge of the crew. The circum·
stances of Horn's demotion, and the work performed by
him after his demotion, will be discussed in detail in con-
nection with the alleged unlawful terminations of Horn
and Ricky Kuck. The evidence fails to indicate that
anyone ever replaced Horn in the capacity of "posting
superintendent." By December Boyd was physically able
to return to the field. Gammill testified that Boyd re-
turned to the field as construction foreman in early De-
LAMAR OUTDOOR ADVERTISING 95
cember. Boyd testified that this change took place during
the second week of December. Boyd did not receive a
reduction in pay either when he allegedly transferred to
the field or after John Reed transferred to Dayton, he
continued to serve on the operational committee, and he
continued to maintain an office at the plant where he
spent much of his time. As indicated, Gammill testified
that as Construction Foreman Boyd had authority to hire
and fire employees. It is undisputed that after his alleged
return to the field, Boyd did in fact exercise such author-
ity. On December I5, Boyd discharged construction em-
ployee Carl Gray. At the time, Boyd was in his office
while the crew was working in the field. Gammill testi-
fied that Boyd reported the matter to him on the follow-
ing Monday (December 17) and that Boyd had the au-
thority to terminate Gray. It is evident that at least until
January 2, 1980, Boyd, whatever his title or extent of au-
thority, was a supervisor within the meaning of the Act.
Gammill testified that in January Boyd had no authority
to hire and fire, because the Company had a production
superintendent; i.e., John Reed. However, Gammill ad-
mitted that Boyd had authority to responsibly direct the
work of employees and to recommend pay increases.
Boyd testified that as of January 9 he did not have the
power to hire and fire because "I was becoming part of
the Union," and that he discussed this matter with Gam-
mill. According to Boyd, he exercised supervisory au-
thority only during his first tenure as construction fore-
man; i.e., prior to the accident. However, as indicated,
Boyd exercised supervisory authority by discharging
Carl Gray on December 15. The Company's records in-
dicate that on January II Boyd authorized a pay increase
for electrician Randy Arner. The date is significant be-
cause (l) John Reed testified that he became production
superintendent on January 2, and (2) the General Coun-
sel alleges that Boyd engaged in surveillance of a union
meeting on January 9, and that his actions constitute evi-
dence that the subsequent termination of employee
Dallas Farley was discriminatorily motivated. In fact the
Union never regarded Boyd as part of the bargaining
unit. Boyd either did not vote in the representation elec-
tion or his vote was challenged. When Boyd showed up
at the January 9 meeting, Union Business Representative
Rich promptly requested him to leave, on the ground
that he was part of management. According to Gammill
and Boyd, Boyd resumed his position as production su-
perintendent when John Reed was terminated.
I find that at all times material, and specifically from
his return to work in September until the time of the
present hearing, Rick Boyd was a supervisor and agent
of the Company within the meaning of the Act, and that
at all times he was fully aware of his supervisory author-
ity. The only significant change in his status was that be-
ginning in December 1979 he spent more of his time in
the field. The Company may have found it expedient to
exercise more supervisory authority in the field, particu-
larly with respect to the construction crew, as the crew
was then engaged in the work of converting to the short-
handle method of operation. I further find, with respect
to Joe Horn, that he was not a supervisor or managerial
employee from the time of his demotion until his dis-
charge on November 21. The evidence indicates that
Horn possessed some indicia of supervisory authority
prior to October 26. However, as he was not a supervi-
sor after October 26, it is unnecessary for me, in deciding
the issues presented in the case, to determine whether, as
posting superintendent, Horn was a supervisor within the
meaning of the Act. As for Ron Tyree, the evidence falls
short of proving that, at any time, Tyree was a supervi-
sor within the meaning of the Act. Tyree enjoyed his au-
thority under an ad hoc arrangement whereby, as a result
of his experience, he emerged as a group leader. The
construction crew performed substantially unskilled
work of a routine nature, which required minimal direc-
tion on the job. The authority exercised by Tyree con-
sisted cf routine instructions in the field in performing
jobs which were assigned from the plant. The evidence
fails to indicate that Tyree was involved in personnel de-
cisions which required the exercise of significant supervi-
sory discretion. If Tyree exercised supervisory authority
over the construction crew prior to December I979, then
he had little occasion to do so after early December,
when Rick Boyd returned to the field. Indeed it was
Boyd and not Tyree who was in charge of the construc-
tion crew when Carl Gray was discharged. Tyree's own
actions and statements with regard to the representation
campaign tended to indicate that he did not consider
himself to be a part of management. The Company, and
specifically General Manager Gammill, vigorously and
vocally opposed unionization. However, Dallas Farley
testified that Tyree's expressed views about the Union
seemed to depend on who was present when he was
talking. In contrast, no witness suggested that Rick Boyd
was ever ambiguous about his opposition to the Union.
At the election on December 21, Tyree cast a void ballot
by voting both ways. Moreover, the Union indicated that
it considered Tyree to be an employee within the unit.
The Union did not challenge his ballot and Frank Rich
did not request him to leave when he accompanied Rick
Boyd to the union meeting on January 9. I find upon the
evidence that Tyree was not a supervisor of the Compa-
ny within the meaning of the Act. See Tri-County Elec-
tric Cooperative, Inc., 237 NLRB 968 (1978); John Cuneo
of Oklahoma, Inc., 238 NLRB 1438 (1978).
The complaint alleges that on or about December 10,
the Company, by Tyree, interrogated an employee re-
garding his union activities and threatened an employee
with discharge if he should support the Union. Employee
Lewis Baker testified that in conversations Tyree asked
him how he felt about the Union. Employee Lewis Wil-
liams testified that Tyree asked him how he would vote
in the representation election. Carl Gray testified that
about December lO Tyree accused him of voting for the
Union, i.e., signing a union card, and told Gray that
Tyree could not vote for the Union because he would
lose his job. I credit the uncontradicted testimony of the
employees. However, I find that Tyree was speaking for
himself and not as an agent of the Company. Therefore,
I am recommending that the allegations of paragraph
5(c) of the complaint be dismissed.
I
l
I
i
t
J
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Termination of Ricky Kuck
Ricky Kuck worked for the Company on the bill post-
ing crew from August until his termination on October
29. In October the crew consisted of Billposting Superin-
tendent Joe Horn, billposters Gary Watson, Bernie
Horton, and Jack Kelly, and Kuck, who was a billposter
trainee. The crew worked in the field, applying paper
advertising material to the metal boards. Superintendent
Horn received a salary, and Kuck, because he was still a
trainee, received an hourly wage. However, the other
billposters were covered by an incentive program where-
by they were paid on the basis of their production
output. The Company instituted this incentive program
for billposters in April 1979 and it remained in effect
until the Company and the Union executed the present
collective-bargaining contract. However, new billposters,
i.e., trainees, received an hourly wage until they com-
pleted their on-the-job training and were therefore con-
sidered capable of going under the incentive program.
General Manager Gammill initially testified that the
training period was 6 to 9 months. However, he subse-
quently testified that it was 3 to 9 months, and possibly
shorter. Joe Horn, who was in the best position to know,
testified that there was no set policy, but that the train-
ing period usually lasted from 2 to 5 months, and that, if
an employee were not qualified to be a billposter that
fact would become apparent in 1 to 2 months. Jack
Watson, who began as a billposter in March 1979, testi-
fied that both he and Lewis Baker (who transferred to
the crew in December 1979) were trainees for about 2
months. As for Kuck, Joe Horn testified that he was
doing fairly well. Gammill and Sales Manager Ward
conceded, in sum, that on the basis of Horn's reports
they understood that Kuck was a good employee and
that they did not receive any adverse reports about him.
Rick Boyd, who took charge of the bill posting crew on
the day of Kuck's termination, and had no personal
knowledge of Kuck's performance, testified that, after
Kuck's termination, "everybody" told him that Kuck
"could not make it as a billposter." Boyd attributed this
alleged information to employees Bernie Horton and
Lewis Williams. Boyd's testimony was uncorroborated
by any other witness. Williams did not begin working as
a billposter until late November. Gary Watson testified
that by October Kuck was performing on his own, all
but the most difficult work; i.e., boards over 20 feet high.
A week before his termination Kuck was given a 25-
cent-per-hour pay increase. I find that as of October 29,
the Company regarded Kuck as a capable employee, and
anticipated that within the short period of time he would
complete his training period and go under the incentive
program.
The incentive program itself was a source of consider-
able discontent among the bill posting crew. Although
originally reduced to writing, the Company had revised
the plan from time to time, and there was considerable
confusion among the employees concerning its applica-
tion. On its face, the plan made no provision for such
conditions as lack of supplies, or more importantly, in-
clement weather, which would curtail the availability of
bill posting work. The employees looked forward to the
coming winter (the first under the incentive plan) with
considerable concern. In late September Kuck, Watson,
and Horton began talking among themselves about the
possibility of a union. They decided to contact the Union
and Kuck was the first to do so. Kuck testified that on
October 10 he met with Business Representative Rich,
signed a union authorization card, and obtained addition-
al blank cards from Rich. However, Kuck admitted that
he kept the cards at his home for about a month. Kuck
testified that in the meantime he talked to other employ-
ees about union wages and benefits, but did not vocally
advocate unionization. Eventually Kuck turned the cards
over to Bernie Horton, who solicited and obtained
signed cards from most of the Company employees. I
find that these events actually occurred. However, I
find, in light of the evidence, that the organizational ac-
tivity actually occurred after Kuck's termination. As in-
dicated, Kuck admitted that he kept the cards for about
a month. At one point Kuck testified that he gave the
cards to Horton on Friday, October 19. However, in
view of the fact that Kuck and other of the General
Counsel's witnesses were proceeding on the mistaken as-
sumption that Kuck was terminated on Monday, October
22, whereas in fact the termination, and the meetings
which preceded that termination (which will be dis-
cussed) took place on October 29. Therefore Kuck's
choice of date is questionable. Horton testified that he
solicited the authorization cards in the washroom and on
the loading dock of the plant, and that all of the employ-
ees, including Joe Horn, signed cards. However, Horn,
who was demoted on October 26 and was not at work
on October 29, testified that Watson and Horton ap-
proached him after his demotion, and that he signed a
card at a later date (according to his affidavit, on No-
vember 8). Kuck testified that the signed cards were re-
turned to Business Representative Rich in early Novem-
ber. None of the cards were presented in evidence. This
fact tends to suggest that had the cards been introduced
the dates therein would have been adverse to the Gener·
al Counsel's case. The fact that Kuck did not personally
solicit any signed cards, further tends to indicate that he
was probably no longer working at the plant. On No-
vember 21, Rich demanded recognition of the Union,
based on the support manifested by the cards. In sum, I
find that the organizational campaign probably occurred
during the period from October 30 through mid-Novem-
ber.
The evidence further indicates that the campaign was
conducted in a clandestine manner. Employees Horton,
Williams, and Baker testified that there were understand-
ings that certain persons would not be told about the
campaign. Horton specifically testified that he, Baker,
Watson, and Kuck agreed that they should not talk
about the campaign to Boyd, Tyree, or employees
Randy Arner and Cliff Leininger. General Manager
Gammill testified that he first learned of the union activi-
ty when Business Representative Rich came to his office
on November 21. As will be discussed, Rick Boyd made
an admission which indicates that immediately after
Kuck's termination, he had reason to suspect that some
clandestine activity was underway. However, in light of
the evidence, including the Company's actions and state-
LAMAR OUTDOOR ADVERTISING 97
ments which will be discussed, infra, I find that although
1 he Company may have suspected that there was incip-
Ient organizational activity, the Company did not have
~olid information about the campaign until Rich's visit.
On Monday, October 29, there was insufficient work
l(lr the billposting crew. It was raining that day. Howev-
er, there was also no paste for billposting work. (Ac-
cording to Gammill, the latter was attributable to Joe
Horn, who as billposting superintendent had been re-
sponsible for ordering the paste and assuring that there
was enough on hand.) Whatever the cause (and it may
well have been both factors) the situation called to the
attention of the employees their own growing concern
about their method of compensation. At or about 8:30
a.m., Rick Boyd summoned the billposting crew (Kuck,
Kelly, Horton, and Watson) into his office. According to
Kuck, Boyd announced that Horn was demoted from
posting superintendent, that he was not firm enough with
the employees and not doing his job, that he would be
just a regular billposter, and that Boyd would be in
charge of the crew. Boyd asked if he could do anything.
Horton asked how they were going to get paid in
winter, asserting that incentive was not enough, and
pointing out that the paste freezes in cold weather. Ac-
cording to Kuck, Kuck then asked Boyd what the union
scale was for the job. Boyd answered that it was about
$7 per hour. (Kuck was then making $3.25 per hour.)
Kuck responded that he thought it was between $8 and
$10 per hour. According to Kuck, Boyd then stated that
Kuck did not have to worry about it, because "this
wasn't a union shop" and "never would be." Kuck testi-
fied that the meeting lasted for about an hour. Gary
Watson, who was presented as a witness for the General
Counsel, substantially corroborated the testimony of
Kuck concerning this meeting. According to Watson, the
employees protested the announcement that Horn was
being demoted and also complained about their equip-
ment and especially about their wages. Watson testified
that the employees had previously raised these problems
with Horn and Sales Manager Ward. According to
Watson, Kuck stated at this meeting that he felt the em-
ployees were being paid unfairly, that employees at other
firms were paid up to $10 per hour or $200 per board for
similar work, and that, in support of these assertions,
Kuck cited wages at other unionized plants. According
to Watson, Boyd answered that that was none of their
business and they should not know what other billposters
were being paid, whereupon Kuck responded: "It con-
cerns me. I should know."
Boyd did not testify about the meeting on his direct
examination by counsel for Respondent. However on
cross-examination Boyd corroborated much of Kuck's
testimony. According to Boyd, the employees were
"angry and concerned" about the upcoming winter and
the incentive program, as they were "every winter." (In
fact, this was the first winter under the incentive pro-
gram. Gary Watson testified without contradiction that,
when the program was instituted, the employees were
told that they would go back on hourly rate during the
winter.) Boyd testified that Kuck was "outspoken" at
this meeting, that he asked Boyd about union scale, that
Kuck purported to inform Boyd of the union scale, and
that Boyd regarded his claims as "outlandish." Accord-
ing to Boyd, Kuck was a "loudmouth" who was outspo-
ken at all meetings. Boyd testified that he did not an-
nounce Horn's demotion at this meeting, but that the an-
nouncement was made at a second meeting, conducted
later that day by General Manager Gammill. Bernie
Horton, who was presented as a witnesses for the Gener-
al Counsel, testified that Gammill was present when the
announcement was made, which would indicate that an
announcement was made at the second meeting. Incredi-
bly, and in contradiction of Boyd's testimony, Gammill
testified that to his knowledge the billposting crew was
never informed that Boyd was taking over the billposter
superintendent's duties. Boyd, in his testimony, denied
that, as alleged in the complaint he threatened the em-
ployees with unspecified reprisals if they engaged in pro-
tected concerted activities. However, he did not deny
the factual basis for that allegation; namely, that Boyd al-
legedly told the employees that they had no right to
know what other billposters were being paid. Gammill
and Boyd both testified that Boyd did not tell Gammill
about the 8:30 a.m. meeting.
In February 1980 Gary Watson quit his job with the
Company and at the time of the present hearing he was
employed at another firm. Shortly after Kuck's termina-
tion, Kuck and Watson exchanged angry words in which
Kuck accused Watson and the other billposters of in-
forming on him. Watson was demonstrably a disinterest-
ed witness who had no motivation to knowingly give
false testimony favorable to Kuck. I credit the testimony
of Kuck and Watson concerning the 8:30 a.m. meeting.
Horn's demotion was probably mentioned at both meet-
ings on October 29. This was the first workday follow-
ing the demotion, and, in the interest of facilitating oper-
ations, it is probable that Respondent would inform the
billposters as soon as possible that Boyd was now in
charge of the crew. I find that Respondent, through
Boyd, violated Section 8(a)(l) of the Act by telling its
employees, in sum, that they had no right to know the
wages of other billposters. See Triana Industries Inc., 245
NLRB 1258 (1979). I find that Respondent further vio-
lated Section 8(a)(l) by telling its employees that Re-
spondent would never be a union shop. Boyd thereby
threatened that the Company would never deal with a
union and sought to impress upon the employees the fu-
tility of their supporting a labor organization. Although
this matter was not alleged in the complaint, the meeting
in question and statements allegedly made at that meet·
ing were fully litigated at the hearing. For reasons which
will be discussed in connection with Kuck's termination,
I do not credit the testimony of Gammill and Boyd that
Boyd did not inform Gammill of Kuck's conduct at the
meeting.
Following the 8:30 meeting the billposters milled
around the shop until they were summoned to a second
meeting in the conference room. Gammill, Ward, and
Boyd were all present at this meeting. Kuck wok a place
at the meeting. However, before the meeting began,
Gammill told Kuck that it was "nothing personal," but
that Gammill did not want him at the meeting. Kud: tes-
tified that Gammill gave no explanation. Gary Watson
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Gammill told Kuck that there was nothing
in the meeting that would concern him. The meeting ran
through the lunch hour and lasted most of the day. In
the meantime Kuck, who had no work, waited in the
shop, just killing time. Respondent's supervisors testified
in sum that the meeting was devoted to discussion of Re-
spondent's conversion from long handle to short handle
operation, the incentive program, and the overall oper-
ation of the posting department. It is evident from the
circumstances of Joe Horn's demotion (which will be
discussed) that Respondent was trying to urge the reluc-
tant employees to accept the conversion to short handle
as a solution to many of their problems.
Kuck testified that after the meeting he asked Boyd
why he was excluded and Boyd answered that Kuck was
laid off and no longer needed there. Kuck laughed,
walked away, and approached Gammill. Kuck also asked
Gammill why he had been excluded from the meeting.
According to Kuck, Gammill answered that he heard
that Kuck was checking on wages from other employers
in the area. Kuck responded that he did so because the
Company wage was so underscale, that he wanted to
know "how bad I was being screwed." At this point
Gammill told K uck that "if you don't like the way things
are being run around here just get the hell out." Kuck
responded: "Give me my checks, and I'll be on my
way." Gammill said he would do so. While Kuck was
waiting for his checks he angrily accused his fellow bill-
posters of informing on him about the Union. Superin-
tendent Boyd testified that he overheard Kuck accuse
Bernie Horton of telling on him. Therefore Boyd had
reason at this point to suspect that some kind of concert-
ed activity was underway. According to Kuck, Boyd
told him that his kind was not needed around there and
that he would not be missed.
In his opening argument, counsel for Respondent as-
serted that Respondent would show that one of the al-
leged discriminatees (Kuck) quit in a personal dispute
with Gammill. However, Gammill categorically testified
that all four employees were discharged. Gammill subse-
quently attempted to back away from this admission, but
once again admitted that Kuck was "fired." Rick Boyd
in his testimony also admitted that Kuck was discharged.
Boyd denied that he told Kuck that he was laid off, or
that Kuck asked him why he had been excluded from
the meeting, or that he told Kuck that his kind was not
needed and he would not be missed. However, at an-
other point in his testimony Boyd gave away the game.
Boyd admitted on cross-examination, in his own words,
that Kuck was excluded from the meeting because "I
knew by his attitude that he was not going to be there
very long." I do not credit Boyd's attempt to back away
from this damaging admission. Boyd testified that by "at-
titude," he meant that Kuck was a "loudmouth" who
complained about everything, including his pay, the way
the shop was run, and the condition of the equipment.
General Manager Gammill testified that he called the
meeting because the employees had asked for such a
meeting. Gammill further testified in sum that Kuck was
excluded from the meeting because he was a trainee who
was not on incentive and therefore had no reason to be
involved.4 This was a patently false rationalization. Kuck
was about to complete his training period and go under
the incentive program. Even as a trainee Kuck had an
obvious interest and need for information concerning all
aspects of the billposting operation, including the antici-
pated short-handle method of operation. Personnel Man-
ager Ward conceded that Kuck could have learned
something at the meeting. Moreover, from a nondiscri-
minatory point of view it made no sense to have Kuck
wandering around the shop all day, excluded from a bill-
posters' meeting simply because he was not yet on incen·
tive. Gammill, in his testimony, professed to be unable to
explain what harm would have been done if Kuck had
been permitted to remain at the meeting. I credit the tes-
timony of Kuck concerning the events which transpired
on the day of his termination. I find in light of Kuck's
testimony, the admissions by Respondent's witnesses, the
inherently implausible explanations given by Respondent
for the events of October 29, and Respondent's overall
course of conduct, that Gammill excluded Kuck from
the meeting because he had already decided to terminate
Kuck, and because he was concerned that Kuck's out-
spoken views might detract from his efforts to sell the
employees on the short-handle system and to persuade
them of the merits of the incentive system. Kuck's in-
quiry following the second meeting simply afforded
Gammill an opportunity to effectuate his decision, made
after the first meeting, to discharge Kuck. I further find
that Gammill discharged Kuck because of his outspoken
and leading role in presenting the common grievances of
himself and his fellow employees, checking out union
rates of pay, making inquiry concerning such rates, and
arguing in favor of such rates to the Company and his
fellow employees. Such activity constitutes protected
concerted activity under the Act Moreover, to the
extent that Kuck made inquiry concerning union rates of
pay, and argued in favor of such rates, his statements and
actions also constituted a form of union activity. Indeed,
Kuck's outspoken assertions and inquiries at the first
meeting were an extension of the billposters' initial ef-
forts in contacting the Union. Therefore, the Company
violated Section 8(a)(l) and (3) of the Act by discharging
Kuck.
D. The Termination of Joe Horn
General Manager Gammill personally discharged Joe
Horn on Tuesday, November 21. After the Union filed
an unfair labor practice charge over Horn's termination,
Respondent's counsel submitted a position letter, dated
January 15, to the Board's Regional Office concerning
the termination. Respondent's counsel asserted, in sum,
• Gammill also gave a different version of Kuck's termination inter·
view. According to Gammill, Kuck said that he did not appreciate not
being invited to attend the meeting, whereupon Gammill responded that
it was nothing personal. but only incentive people should be there. Kuck
allegedly said that if there was another "damn" meeting he would make
"damn" sure he was there, whereupon Gammill replied that if Kuck did
not like the way they operated he could leave. Kuck said he would like
to leave and was given his final paychecks about 20 minutes later. Rick
Boyd testified that he overheard the conversation, but professed to be
unable to recall what Kuck told Gammill. I do not credit Gammill's ver·
sion of the conversation.
LAMAR OUTDOOR ADVERTISING 99
that Horn was a salaried employee in a supervisory posi-
tion, that he was not performing his supervisory duties
satisfactorily, that he was given the option of being
placed on hourly and nonsupervisory status, that Horn
wanted full salary, but was refused and terminated, and
that at the time of his termination Respondent was not
aware of any activity whereby Horn was involved with
a labor organization, As will be discussed, these asser-
tions were refuted in nearly every material respect by
General Manager Gammill or other company witnesses.
As an adverse witness for the General Counsel, Gam-
mill testified that Horn was discharged because as post·
ing superintendent he was not getting out production and
Respondent was not getting its boards posted. Gammill
initially testified that this was the main reason for Horn's
termination, but subsequently asserted that there were
"absolutely" no other reasons. In fact, Horn was demot-
ed from his position and replaced by Rick Boyd on Oc-
tober 26, some 3-1/2 weeks before his discharge. There-
after, as admitted by Gammill in his testimony, Horn was
"just a billposter" who had "no supervisory responsibil-
ities." Even Respondent's counsel in his opening argu-
ment referred to all of the alleged discriminatees as em-
ployees and made no claim that Horn was a supervisor.
Horn testified that after his demotion he became a regu-
lar billposter. Horn no longer worked in the office, he
did not review production, attend meetings of the oper-
ational committee, order materials, hire personnel, or
have responsibility for the company trucks. Horn's duties
differed from those of the other billposters in only one
respect. Horn testified that Gammill asked him to lay out
the cards, i.e., to arrange the daily work assignments, for
a few days until Boyd caught on as to how it was done.
Horn testified that he did so for a few days and that
thereafter Boyd issued the work assignments. Sales Man-
ager Ward, in his testimony, conceded as did Gammill
that Horn "was just a regular billposter," albeit more
knowledgeable than the others. Nevertheless, Ward testi-
fied that on the basis of information from Boyd he
learned that Horn was not cooperating with Boyd, not
performing his job, coming to work late, and manifesting
a poor attitude, and that at the time of Horn's discharge
Boyd was still not familiar with all aspects of his job.
Ward was conspicuously vague and contradictory about
Horn's alleged deficiencies and was unable to explain just
what Boyd needed to learn. Ward's testimony was un-
corroborated by the only company witness who was in a
position to have first hand knowledge of these matters;
namely, Boyd himself. If in fact Boyd, who had lengthy
supervisory experience, was still unable to master the de-
tails of supervising the billposting work, then this would
reflect adversely on Boyd's own supervisory ability,
rather than on Horn's alleged deficiencies or lack of co-
operation. Indeed, Ward conceded that the work was
getting done. General Manager Gammill testified that he
wanted to retain Horn after his demotion, but that the
other members of the operating committee, i.e., Ward
and Boyd, wanted him fired. However, Ward testified
that he never recommended that Horn be fired and that
to his knowledge no one else made such a recommenda-
tion. As will be discussed, Gammill's own course of con-
duct indicates that after Horn's demotion, Gammill was
satisfied with his performance and, until the morning of
Horn's discharge, anticipated that he would remain with
Respondent as a valued member of the billposting crew. 5
After Horn's demotion, there remained the open ques-
tion of his compensation. Horn, who was being paid at
the rate of $6.86 per hour, did not want to go under the
incentive program and so informed Gammill. Gammill
told Horn that he would leave Horn on hourly for 2
weeks and that if Horn was dissatisfied after that time he
could look for another job. However, Gammill and
Ward, in their testimony, conceded that after more than
2 weeks had elapsed, i.e., shortly before Horn's termina-"
tion, the operating committee decided to meet Horn's
conditions. Gammill testified, "I changed my mind and
decided to keep him on full salary." Ward testified that
"it was decided that Joe would remain a regular billpost-
er on his regular salary, and not join in the incentive
program.'' Gammill's own notes indicate that, on No-
vember 7, he arrived at a decision that Horn would stay
on the same salary until a superintendent was found. As
indicated, no one ever replaced Horn in the position of
posting superintendent. Gammill testified, in sum, that
the operating committee met on Tuesday, November 20
(the day before Horn's discharge), and discussed Horn's
status. I do not credit the testimony of Gammill that the
committee then and there decided to fire Horn, nor do I
credit the confused and contradictory testimony of Boyd
to the effect that Gammill made such a decision. As indi-
cated, the operating committee normally met weekly. In
light of the sequence of events, the evidence discussed
above, and additional evidence to be discussed, I find
that on November 20 the operating committee confirmed
Gammill's decision to keep Horn on at his regular salary,
and that Gammill intended to notify Horn of that deci-
sion the next morning.
Following the operating committee meeting, Gammill
left a message for Horn to see him in his office the next
morning, without indicating a reason. Gammill drove to
the Lamar Muncie plant where he spent the balance of
the day. However, on the way to Muncie, Gammill tele-
phoned his secretary, Carla Baker. Gammill asked Baker
to call Baton Rouge and to get Joe's time; i.e., his wages
for a 40-hour week. Gammill did not instruct Baker to
make out any checks for Horn, nor did he indicate that
he intended to terminate Horn. If in fact the committee
had decided to fire Horn, then it is probable that Gam-
mill would have instructed Baker to prepare final pay-
checks. It is also probable that this would have occurred
• The General Counsel does not contend that Respondent acted unlaw-
fully in demoting Horn from his position of posting superintendent. The
record evidence suggests several factors which alone or together may
have contributed to his demotion. The Company witnesses testified, in
sum, that Horn was not sufficiently aggressive in leading the crew and
that as a result the crew was falling behind in its work. However. Horn
was also outspokenly opposed to the proposed conversation to the short-
handle method of operation and at least inwardly unenthusiastic about
the incentive program. Gammill, in his testimony, inferred that Horn was
not presenting the Company's position to the employees. Horn expressed
the view that he was demoted in order to give more authority to Boyd.
Whatever the reason, the evidence indicates that after Horn's demotion
Gammill was satisfied with his performance and, until learning of his
union activity. anticipaled that Horn would remain on as a billprn;ting
employee.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately to Gammill and not as an afterthought. It is
also probable that Gammill would have pulled Horn's
timecard. However, the timecard was in place when
Horn reported to work the next morning. It is plausible
that Gammill realized, as an afterthought, that it would
be helpful to have Hom's weekly pay rate available in
case of any questions or if Hom were dissatisfied with
the arrangement. In sum, Gammill's actions were wholly
consistent with a decision to keep on Horn at his present
salary, but were inconsistent with his alleged intention to
fire Horn.
In the meantime, following his demotion, Horn
became increasingly active in the Union. He signed a
union card, attended union meetings, took over the ar-
rangement of those meetings, and volunteered to serve
on the Union's in-plant organizing committee. However,
prior to November 21 Respondent was unaware of his
activity. At or about 8:30a.m. on November 21, Business
Representative Rich, accompanied by Ricky Kuck, ar-
rived at the plant for the purpose of requesting recogni-
tion of the Union. They waited for Gammill to appear.
After introductions, they met in Gammill's office. Sales
Manager Ward carne in during the meeting. Rich and
Kuck testified in sum, that Rich made a demand for rec-
ognition based on the Union's card majority. After some
discussion, Gammill indicated that he would not volun-
tarily recognize the Union, but that they would have to
petition for an election. At this point Rich invoked the
employees' statutory rights and proceeded to announce
the names of the Union's in-plant organizers. Rich named
Kuck, and then Horn, and was about to name Gary
Watson when Gammill interrupted. According to Rich
and Kuck, Gammill said that, as of Friday, Horn would
no longer be employed there. At this point Ward carne
into the office. Ward inquired about union contract de-
mands and the makeup of a negotiating committee and
the employer officials made sarcastic remarks about
Kuck. According to Kuck, Gammill told him "you sure
do have high moral standards." Gammill, in his testimo-
ny, either substantially corroborated or failed to refute
the testimony of Rich and Kuck in all but one respect.
According to Gammill, he told Rich that as of 9:30 that
morning (the time of Gammill's scheduled meeting with
Horn) Horn would no longer be an employee. I credit
Rich and Kuck, because the evidence indicates that until
that moment Gammill had no intention of discharging
Horn at the 9:30 meeting.
After Rich and Kuck left, Gammill was visibly angry,
and yelled for Boyd to come immediately. Carla Baker
described Gammill as red in the face and swearing. Gam-
mill demanded to know if Boyd knew anything about the
Union and who was behind it. Gammill told Boyd and
Baker that Horn was named as having started the Union.
Boyd then met with Gammill in Gammill's office. Later
Horn, accompanied by Boyd, arrived for his scheduled
meeting with Gammill. Sales Manager Ward was also
present. According to Horn, Gammill said:
Joe, my first intention of calling you in to this
meeting this morning was to try to work out some-
thing to keep you here. In fact, if we couldn't work
out something, I had already gotten your pay-
checks. But this morning when I got to work, I was
approached by some clown by the name of Frank
Rich, Union representative. He named you, Gary
Watson, and Ricky Kuck as Union organizers. I
should have known when I let you bring Kuck
back to work, that you would have had something
planned like this. For this reason, I have no other
choice but to let you go. You can run back to your
little Union man and tell him everything I said. In
fact, I'll even write it down on paper if you want.
After requesting comments from Ward and Boyd,
Gammill gave Horn his final paychecks. At Horn's re-
quest, he was given an additional check for 3 days' accu-
mulated vacation pay. It is undisputed that at the close
of this meeting Gammill displayed Rich's business card
and in a sarcastic tone of voice said, "[T]hank you, Joe,"
or words to that effect.
Gammill testified that he told Horn that he was not
doing his job anymore and had to be replaced. Gammill
denied that the Union was mentioned. However, as Boyd
did with respect to Kuck's discharge, Gammill blurted
out the truth on the witness stand. Gammill testified as
follows:
Q. What did you tell Horn when you fired him?
A. Well, I stayed up half the night figuring out
how I was going to do it, because I'm that way.
But when I found out what had happened, well, I
just told him we didn't need him anymore, and it
wasn't-he knew what it was about. His production
wasn't there.
Q. Wait a minute. When you say-when you
found out what had happened, what do you mean
by that?
A. Well, I'm talking about the whole thing that
developed like it did. The Union walked in on us,
type of thing at the same time, and Joe came in
after that, and here we go with the thing-the same
thing.
Gammill's "here we go with the same thing" was an ob-
vious reference to the fact that prior to its acquisition by
Lamar Corporation, the employees at the Dayton plant
had been represented by a union. I credit the testimony
of Horn concerning his termination interview. I find that
Gammill decided to fire Horn on learning that he was in-
strumental in organizing the Union and promptly carried
out that decision. Gammill was furious at the prospect of
unionization, but was particularly incensed at Horn be·
cause Gammill was about to offer him a particularly fa-
vorable wage scale. On learning of Horn's union activity,
Gammill was obviously in no mood to proceed with this
offer. Instead, Gammill chose to use the scheduled meet-
ing with Horn as the vehicle for his discharge. Therefore
Respondent violated Section 8(a)(3) and (l) of the Act
by terminating Horn. I further find that Respondent, by
Gammill, violated Section 8(a)(l) of the Act by indicat-
ing to Rich, in the presence of Ricky Kuck, that Horn
would be fired because of his support for the Union.
Kuck, who was himself discrirninatorily terminated, en-
joyed the status of an employee under the Act. There·
LAMAR OUTDOOR ADVERTISING 101
fore Gammill's statement constituted an unlawful threat
of reprisal against a fellow employee.
E. The Election Campaign and the Termination of
Carl Gray
I. The alleged S(a)(I) violations
The Union filed its election petition on November 21
and the election was held on the afternoon of December
21. About December l the construction crew (Lewis
Williams, Lewis Baker, Carl Gray, and Ron Tyree) were
summoned to a meeting at which Gammill and Boyd
were present. Boyd announced that the employees would
receive a 25-cent-per-hour pay increase. No reason was
given. Following this meeting, Gammill summoned
Baker and Gray into his office and announced that they
would receive an additional increase of 25 cents per hour
because they had been working there a long time and
had not recently received a raise. The Union was not
mentioned at either meeting. Respondent had previously
given the construction crew a general increase following
Rick Boyd's injury in April 1979. Williams, who began
working for Respondent in September, was given an in-
crease on October 29. Respondent did not have a policy
of granting pay increases at specific times or intervals.
Gammill and Sales Manager Ward testified, in sum, that
about this time the home office in Baton Rouge author-
ized funds for a full scale conversion to the short-handle
method of billposting, that the construction crew was re-
sponsible for performing this work, and that management
felt that the pay increases would be an incentive for the
crew to perform their duties expeditiously. Their testi-
mony is rendered somewhat suspect by the fact that
about the same time Gammill also gave Dallas Farley a
25-cent-per-hour pay increase. Farley was one of two
paint department employees, the other being Cliff Lein-
inger, who was about to retire. In Farley's case, as will
be discussed, Gammill's announcement was coupled with
an appeal to reject the Union, and warnings of the conse-
quences of unionization. The conversion program com-
menced in the summer of 1979 and was still in progress
at the time of this hearing. If Respondent were interested
in providing pay increases as a work incentive for its em-
ployees, then it is more probable that Respondent would
have granted the increases in late October, when em-
ployee discontent became so clearly apparent. In light of
the timing of the increases and the questionable nature of
Respondent's explanation, as discussed above, I find that
Respondent announced increases to its hourly paid em-
ployees in early December in order to dissuade them
from voting for the Union. Respondent thereby violated
Section S(a)(l) of the Act.e
• The billposting crew, who began the union campaign. received noth-
ing. The complaint alleges (par. (5)(a)(ii)) that on or about November 22
the Company gave several of its employees an unscheduled wage in-
crease. The General Counsel contends that this involved a $] bonus to
the billposters. In fact, Bernie Horton testified that at "the meeting where
Joe was released and Ricky Boyd became the immediate supervisor," i.e.,
the second meeting on October 29, Gammill announced that because the
Company was short on billposters, there would be an incentive plan
bonus of $1 per board. Gammill testified that an increase was discussed at
the October 29 meeting, but never implemented. As of October 29, the
Company had no knowledge of the union organizational campaign. I fmd
During the week of December 10, Gammill summoned
each of the unit employees individually into his office for
the purpose of dissuading them from voting for the
Union. Gammill testified that he made use of prepared
documents and, in sum, that he made substantially the
same presentation to each employee. If so, then Gammill
could have saved himself a good deal of time by address-
ing the employees at a single meeting and then if neces-
sary answering questions. However, the testimony of the
employee witnesses called by the General Counsel indi-
cates that in fact these one-on-one interviews were tai-
lored to the particular situation of the individual employ-
ees and were designed to apply the maximum amount of
pressure upon each employee. Gammill testified in sum
that he told each employee that the only thing they
could go by was what they had previously, that, if they
thought the Union was beneficial, they should join, but
that they should make sure they knew what they were
doing, and that only Rich could give them the informa-
tion they needed. Gammill further testified that he com-
pared company conditions with union contracts else-
where. However, Gammill failed to testify as to the ar-
guments which he advanced against the Union, which
were ostensibly the purpose of these interviews. For ex-
ample, Gammill testified that after meeting with Cliff
Leininger and Dallas Farley together he summoned
Farley for an individual interview in order to go "a little
more in detail." However, Gammill did not indicate the
substance of this detail. Instead, Gammill simply denied
the allegations of the complaint pertaining to these meet-
ings; i.e., alleged interrogation, promises, and threats.
Such terse denials have minimal evidentiary value when
one is called on to resolve questions of credibility. Unless
otherwise indicated, I credit the testimony of the em-
ployee witnesses concerning these meetings.
Gary Watson testified that Gammill questioned him as
to whether he had any part in the Union, whether he
was the main person, and whether Horton and Kuck
were also involved. Watson admitted that he was in-
volved, but asserted that there was much union talk
among the employees. Gammill told Watson that there
would be more opportunity to make money with the
conversion to short handle and that the Company was
considering a sick leave program. Gammill said that if
the billposters went on hourly scale the Company would
probably impose a production quota. Watson responded
that it was negotiable. Gammil then countered: "Well,
there will be a quota. I'll see to that in the contract if the
Union is elected in." I find that the Company, through
Gammill, violated Section S(a)(l) by interrogating
Watson concerning his union activities and that of his
fellow employees, impliedly promising a sick leave pro-
gram if the employees rejected the Union, and threaten-
ing imposition of a quota for billposters if the Union was
voted in. I do not, as alleged in the complaint, find that
Gammill threatened partial subcontracting of work. Al-
though Gammill referred to subcontracting at another
firm, he indicated "that wouldn't be possible' at Dayton.
Gammill told Watson, in sum. that the Company had re-
that the matter was unrelated to the union campaign and. therefore. I am
recommending that thi• allegation of the complaint be dismissed.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
frained even from partial subcontracting but he did not
indicate that unionization would change this policy.
Bernie Horton, Lewis Williams, and Carl Gray testi-
fied, in sum, that Gammill made unfavorable compari·
sons with union contracts at other locations, including
Lamar facilities. Gammill asked Horton how they got in
contact with "somebody from Cleveland," i.e., the
Union, and Horton answered, "we called." Gammill
asked Gray how he felt about the Union, but Gray
avoided answering the question. I find that Respondent
violated Section 8(a)(l) by systematically interrogating
its employees about their union attitude and activities
and that of their fellow employees. Indeed, the question-
ing met virtually every criterion suggested by Board and
court decisions for determining the unlawfulness of such
conduct. Painting department employees Cliff Leininger
and Dallas Farley were initially summoned together to
Gammill's office. Gammill proceeded to tell them the ad-
vantages of nonunion over union. Gammill took a carrot
and stick approach. He told the employees that if the
Union came in their retirement benefits would go "out
the window" and that if they went home sick during the
day, they would not be paid for the balance of the day.
(As indicated, Leininger was about to retire.) Gammill
then told Farley he was getting a 25-cent-per-hour raise
because he was doing a good job. Later in the day Gam-
mill summoned Farley alone to his office. During this
second interview Gammill told Farley that if the Union
came in there was a strong possibility that his job could
be phased out or that he could take a cut in pay. 7 Gam-
mill added that if the Union came in, one man (unidenti-
fied) stood to gain while the rest would probably lose
out. I find that Respondent, through Gammill, violated
Section 8(a)(l) of the Act by threatening employees with
Joss of retirement benefits, loss of employment, loss of
income, and more onerous working conditions if the em-
ployees selected the Union as their representative. I fur-
ther find that Gammill's assurance that Farley was doing
a good job, but that his job might be phased out if the
Union came in, may properly be considered as evidence
with respect to the subsequent alleged unlawful termina·
tion of Farley.
On December 19 Rick Boyd assembled all the unit em-
ployees to a meeting in the paint shop, which was con-
ducted by Gammill. Employees Watson, Baker, and Wil-
liams testified concerning the meeting. I find Watson's
account to be the most complete and accurate. Gammill
talked about the equipment and the short handle proce-
dure. Gammill said that he knew they had turned in
cards for the Union, it was their decision, and he did not
know if the Union would help them, but they should
make sure they were doing the right thing. However,
Gammill asserted that regardless, things would improve,
that the short-handle method would be better for the em-
ployees, and that the Company was purchasing new
equipment. Gammill further asserted that the employees
1 In his investigatory affidavit, Farley stated that he had never been
threatened about a union or his union activities. However, in the same
affidavit Farley referred to Gammill's statement that his job might be
phased out. Therefore the aflidavit, when considered in its enlirety, is not
inconsistent with Farley's testimony as to what Gammill actually told
him.
at Dayton previously had a union, but were dissatisfied
and voted it out. I do not credit the testimony of Baker
that at this meeting Gammill said that there would be a
daily production quota for billposters. Despite leading
questions from the General Counsel, Baker's testimony in
this regard was not corroborated by either Watson or
Williams. As indicated by Watson's testimony previously
discussed, Gammill may have made such a statement to
other billposters in the individual interviews. However, I
am not persuaded that he did so at the December 19
meeting. As for Gammill's statement that he knew the
employees had turned in union cards, Gammill was
simply stating the obvious. Business Representative Rich
had already made a claim for representation based on
signed authorization cards from an overwhelming major-
ity of the employees. Therefore, Gammill did not create
the impression of surveillance of union activities and I
am recommending that this allegation of the complaint
be dismissed. I find that Gammill's December 19 presen-
tation constituted permissable propaganda which did not
violate the Act.
In the meantime, one day in December Lewis Baker,
Bernie Horton, and Gary Watson (all of whom were
then billposters) were having lunch when Rick Boyd ap-
proached them. Baker and Horton testified, in sum, that·
Boyd accused them of being responsible for bringing in
the Union. According to Baker, Boyd asked them when
and where was the next meeting and who was buying
the beer. Watson did not testify about this conversation.
However, he testified that Boyd asked him how it felt to
be a big union man. Lewis Williams testified that on one
occasion in early December, when he was at work in the
shop folding posters, Boyd approached him and similarly
asked when was the next meeting, and who was buying
the beer. Williams testified that on other occasions Boyd
asked him how he felt about the Union. Boyd, in his tes-
timony, denied that he created the impression of surveil-
lance of union activities, or interrogated employees re-
garding their union activities. However, he did not tes-
tify concerning the specific conversations described by
the employee witnesses. As indicated, Boyd was demon-
strably a less than credible witness in several crucial re-
spects. In contrast I have Jess reason to disbelieve the
employee witnesses. I credit the testimony of the em-
ployees. I find that Respondent through Boyd, violated
Section 8(a)(l) of the Act in creating the impression of
surveillance of union activities by accusing Baker,
Horton, and Watson of being responsible for bringing in
the Union, and further violated Section 8(a)(l) by inter-
rogating employees concerning their union activities and
that of their fellow employees.
On December 20, the day before the representation
election, Gammill met with the three accused union ac-
tivists (Baker, Horton, and Watson) in an informal beer
drinking session in Rick Boyd's office. Boyd paid for the
beer. Baker and Watson testified in sum that Gammill
asked them for their problems and complaints. They told
him. Gammill closed the conversation by saying that if
they had any complaints in the future, they should feel
free to come and talk to him, and his "door was always
open." Horton and Boyd, who was also present, did not
LAMAR OUTDOOR ADVERTISING 103
testify concerning what was said in th~ conversati~:m.
Gammill in his testimony, denied the pertment allegation
of the c~mplaint that, by soliciting employee complaints
and grievances, he impliedly promised increased be~efits
and improved terms and conditions of employment 1f the
employees rejected the Union. How~ver, he did n?t
deny the employees' testimony concernmg what was sa1d
in the conversation. The employees' testimony indicates
that Gammill did not make any express promises, other
than to say that his door was always open. H?wever,
Gammill did not indicate that he was not makmg any
promises. I find in light of the timing of this meeting that
the Company, through Gammill, violated Section 8(a)(l)
by impliedly promising the employees increased benefi~s
and improved terms and conditions of employment 1f
they rejected the Union. See Merle Lindsey Chevrolet,
Inc., 231 NLRB 478, fn. 2 (1977). In sum, Gammill was
making a last ditch unlawful effort to stave off the pros-
pect of unionization.
2. The discharge of Carl Gray
Carl Gray had been employed on the construction
crew since October 1978. He could accurately be charac-
terized as a fair to average employee. Gray generally
performed his work in a capable manner. As. indicate?,
Gammill gave Gray a 50-cent-per-hour pay mcrease m
early December. On one occasion Gammill bought him a
case of beer as a reward for bringing in a new prospec-
tive employee. Gray had a tendency to be tardy on occa-
sion, but his record in this regard was not the worst
among the Company's employees. On a few occasions
Boyd had criticized his work. However, during his
tenure of employment Gray was never singled out for
discipline by reason of tardiness, absenteeism, drunk-
eness, or disorderly conduct.
Gray signed an authorization card during the organiza-
tional campaign. He testified that he attended one union
meeting before his discharge on December IS and that
he talked in favor of the Union to other employees.
However, he did not play a leading role in the campaign.
Gary Watson testified that on one occasion in early De-
cember Rick Boyd was present when Gray said that
"maybe the Union would be a better thing.'' In fact,
there was much talk about the campaign among the em-
ployees in early December, most of it was favorable to
the Union, and Boyd heard much of the conversations.
As indicated, Gray avoided giving an answer when
Gammill asked him about his attitude toward the Union.
Gray testified that about December 10 Ron Tyree ac-
cused him of voting for the Union, i.e., signing a union
card, and later asked him how he was going to vote in
the election. Gray testified that he avoided answering
Tyree. In fact, as was common knowledge in the plant
by that time, nearly all of the employees had signed
union authorization cards. In sum, as of December 15
Gray was not a likely candidate for a discharge on the
basis of his union activity.
Saturday, December 15, was a mandatory overtime
workday for the construction crew. The starting time
was 7 a.m. Gray testified that on Friday evening he went
out with his wife to celebrate their anniversary, that he
was out until 2:30 to 3 a.m., drinking beer, and that he
overslept. Gray reported to the plant between 9 and 9:30
a.m. Gray testified that he was not drunk, but that Rick
Boyd, who was at the plant, accused him of being drunk,
and that he denied the accusation. Boyd refused to
permit Gray to work that day. Gray then asked for his
Christmas bonus check. Boyd told him to pick it up on
Monday. Gray argued that the Company held up checks
in order to force the employees to report in order to get
their checks. Gray testified that at this point Boyd ac-
cused him of "going around here saying what you ain't
going to do," and being late for the job. According to
Gray, he protested that he was joking, whereupon Boyd
became visibly angry, went into the office, brought Gray
his bonus check, and told him to pick up his last pay-
check on Friday. Gray, again arguing with Boyd, asked
for his paycheck immediately. Boyd insisted that Gray
pick up the paycheck on Friday and ordered him to
leave the shop. According to Gray, Boyd told him that
he was discharged for being drunk.
Rick Boyd testified that Gray came to work visibly
drunk, that he was staggering, and had alcohol on his
breath. According to Boyd, Gray demanded his bonus
check and insisted that Boyd had no right to hold it.
Boyd was equally adamant that he could hold the check
until Monday. According to Boyd, Gray then swore at
him, shook his finger, and said, "Your time's coming,
buddy." Boyd responded that "if that's the way you feel
about it, you can have your time now and I'll give you
your check." He then discharged Gray. Boyd testified
that the discharge had nothing to do with union activity.
General Manager Gammill testified that on Monday
Boyd informed him that he discharged Gray because he
came to work late, drunk, and demanding his bonus, that
Boyd had authority to take such action, that he agreed
with the discharge and that Gammill had no knowledge
that Gray favored the Union.
Boyd's version of the verbal exchange is not signifi-
cantly different from that of Gray. It is evident that
whether Gray arrived drunk, as testified by Boyd, or
simply "hungover" as asserted by the General Counsel,
Boyd determined that Gray was in no condition to work,
or at least in view of the lateness of the hour and Gray's
obvious condition, that there was no point in sending
him to work in the field. If Boyd were seeking a pretext
to discharge Gray, then he could have fired him when
he came in. However, Boyd did not do so. He simply
told Gray not to work that day. Gray did not leave. He
asked for his bonus check, and even according to his
own version of the exchange, persisted in arguing with
Boyd after Boyd told him to pick up the check on
Monday. At this point Boyd was placed in a position
where he had to make an on-the-spot decision. Whether
he made the right decision is not for me to decide. 8
Rather the question presented is whether in deciding to
fire Gray, Boyd was motivated in whole or part by
Gray's union or other protected concerted activities. The
evidence fails to establish that he was so motivated.
Moreover, the election was less than a week away. It is
8 The General Counsel presented evidence concerning past employer
disciplinary practices. However, none involved situations similar to that
confronted by Boyd.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlikely that at such a crucial time, Boyd would dis-
charge an employee because of union activity without
first obtaining Gammill's approval. The fact that Boyd
acted on his own initiative, tends to indicate that he re-
garded the discharge as nondiscriminatory. Boyd was
confronted by an impromptu situation which was
brought about by Gray's own unprotected actions. I find
that the General Counsel has failed to prove by a pre-
ponderance of the credible evidence that Respondent
fired Gray because of his union or other protected con-
certed activities. Therefore I am recommending that this
allegation of the complaint be dismissed.
F. Alleged Surveillance and the Termination of Dallas
Farley
In October 1979 Respondent's paint department con-
sisted of painter Cliff Leininger and painter's helper
Mason Archie. On October 22 Respondent discharged
Archie because of his poor attendance record. About
November l Respondent hired Dallas Farley as a paint-
er's helper. It is undisputed that Respondent regarded
Farley as a satisfactory employee. Leininger, who was in
the best position to evaluate Farley's performance, was
not presented as a witness. However, General Manager
Gammill, in his testimony, admitted that he received no
complaints about Farley's work, that his attendance was
good, and that he was good as a "helper." As indicated,
Gammill told Farley in mid-December that he was
giving him a raise because Farley was doing a good job.
John Reed, who eventually took charge of inside oper-
ations after he returned to Dayton, testified that Farley
seemed fairly capable for the time he had been there.
However, Farley testified without contradiction that
Leininger told him that his work was good and he was
picking it up fast and that Rick Boyd told him (prior to
Reed's return) that he did more work in 3 weeks than
Archie did the whole time he was there. The painting
work, which was performed at the plant, consisted of a
process whereby a transparency was placed in a projec-
tor and projected onto the board, and the employee
painted the advertisement by following the projection.
Gammill testified that the work required some skill, a
steady hand, and a knowledge of proportion and shad-
ing, but that the work was "mechanical" rather than
"skilled," particularly with the improved "projectors we
have right now." In sum, the work required a simple
form of artistic ability (the absence of which would
quickly become apparent) coupled with a period of on-
the-job training.
Farley did not join the Union before the representation
election. On the evening of January 9 the Union, which
was now the certified bargaining representative of the
Company's employees, conducted a meeting at a union
hall in Dayton. About 12 employees, including Farley,
attended the meeting, and business representative Rich
presided. The principal purpose of the meeting was to
discuss the Union's position in the forthcoming contract
negotiations. Rich was engaged in informal conversation
with some employees, but the meeting had not yet been
called to order when Rick Boyd, Ron Tyree, and electri-
cian Randy Arner came into the hall and sat down to-
gether. Joe Horn called Boyd's presence to the attention
of Rich. Rich asked Boyd to step into the corridor and
Boyd did so. Rich asked Boyd if he had the right to hire
and fire and Boyd answered that he did. 9 Rich asked
Boyd to leave the meeting because he was "manage-
ment." Boyd returned to the meeting to inform Tyree
and Arner that he was leaving. However, they, along
with employee Tom Halsworth, chose to leave with
Boyd. After they left the meeting proceeded. There was
discussion of union stewards. Rich explained that there
was an industry practice for the Union to have one
inside and one outside steward. Farley's name was men-
tioned for the position of inside steward. Rich proposed
Farley, who responded that he would "definitely take it
under consideration." I o
In the meantime Boyd and the others who left with
him did not completely abandon the scene. They rode
around and stopped for beer, waiting for the meeting to
end. They returned to the meeting place and picked up
employee Dave Johnson, who joined them for several
hours of more drinking and driving around. Boyd testi-
fied that Tyree asked Johnson what went on. Randy
Arner, who was presented as a company witness, testi-
fied that Johnson talked about what happened at the
meeting, "some things good about it and some bad."
Arner professed that he was unable to recall what John-
son said about the meeting. In light of the admissions by
Boyd and Arner, and subsequent developments which
will be discussed, I find that Johnson told them that ·
Farley volunteered to be the inside union steward. I fur-
ther find that Boyd went to the meeting in order to
obtain information and to report such information to
Gammill. Respondent, by Boyd, thereby violated Section
8(a)(l) of the Act by engaging in surveillance of union
activities. At the least, Boyd's actions unlawfully created
the impression of surveillance. Boyd was a supervisor,
acted like a supervisor, and knew he was a supervisor. If
prior to November 21 Boyd had neglected to report his
suspicions about employee union activity, then he cer-
tainly learned from Gammill's outburst when Rich vis-
ited the plant, that Gammill expected him to keep Gam-
mill fully informed on the progress of such activity.
On January 12 John Reed, Farley's immediate supervi-
sor, told Farley that he would have to lay him him off
for Jack of work, and that he "didn't see any more paint
work down the pike." Farley testified that when he
asked Reed about future prospects, Reed told him that if
he got a job opportunity he should not turn it down. By
letter dated January 31, Gammill informed Farley that
he was being terminated as of that date. In garbled lan-
guage, Gammill told Farley: "This termination was due
to lack of work in the paint department and also indica-
tions that the lack of work in the paint department in the
near future are not there." 1 1 Gammill further asserted
9 Boyd testified I hat he could not recall whether Rich asked this ques·
tion. I credit Rich.
1° Farley testified that the maller was taken up after Boyd left. Rich
testified at one point that they were discussing the designation of a ste·
ward when Boyd arrived. However, at another point he testified that the
discussion took place after Boyd left. I find that the discussion took place
after Boyd left with the others.
1 1 The letter, if read literally. could be interpreted as stating that there
would be work in the near future. Perhaps Gammill was trying to
convey a message to Farley.
LAMAR OUTDOOR ADVERTISING 105
1hat the termination "had nothing to do with the quality
of your work.'' Nevertheless, on February 25, less than a
month after terminating Farley, and after considering al-
lernative replacements, Respondent rehired Mason
Archie. Gammill and Reed categorically testified in sum
1hat they never considered recalling or rehiring Farley.
According to Reed, they did not consider Farley be-
cause they needed someone who could do all of the
work alone. In fact, Farley was about as well qualified as
Archie and demonstrably a more productive and reliable
employee. Gammill conceded that Archie was rehired as
a "painter's helper." Cliff Leininger retired about May
15, leaving Archie as the only employee in the paint de-
partment. Nevertheless, Reed testified that when Reed
left Dayton in June, Archie still "hadn't completely
learned the job.'' Gammill testified that Archie's ''going
to be a good sign painter one of these days.'' As indicat-
ed, Gammill stated in his January 31 Jetter that Farley's
termination had nothing to do with the quality of his
work.
Gammill and Reed testified, in sum, that Gammill de-
cided to Jay off Farley because the paint department ran
out of work. In fact, work was temporarily slow at that
time and Farley was laid off for a few days in early Jan-
uary. However, such temporary slack was not unusual in
midwinter. Leininger, because of his age and apparent
physical limitations, needed an assistant. Moreover, the
paint department did not exist in a vacuum. Respondent
anticipated that the short handle method of billposting
would lead to greater productivity. Respondent, which
had never permanently laid off an employee for lack of
work, had a policy of finding alternative work for its
employees when work was slow in their own job catego·
ry. Nevertheless, Gammill admitted that he never consid-
ered offering Farley a position in any other job classifi-
cation. It is evident that Gammill regarded Farley as a
better employee than Mason Archie, that he hired Farley
with the intention that he would replace Leininger when
Leininger retired, and that until learning of the union
meeting on January 9, Gammill continued to anticipate
that Farley would assist and eventually replace Leininger
when he retired. However, on learning about the meet-
ing, Gammill realized that he could deal the Union a
severe blow by removing Farley from the plant. The
Union needed an inside steward. Farley, an articulate in-
dividual, was the logical and possibly the only practical
choice. Leininger, the other painter, was about to retire,
and electrician Randy Arner was vocally opposed to
unionization. In December, Gammill warned Farley that
unionization could lead to the loss of his job, but Farley
chose to ignore the warning by volunteering for the key
position of inside steward. I find that Respondent laid off
and terminated Farley because of his union activity and
thereby violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All full-time and regular part-time employees em-
ployed by Respondent at its Dayton, Ohio, location, ex-
eluding all office clerical employees, sales employees,
professional employees, guards, and supervisors as de-
fined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times since January 3, 1980, the Union has
been and is the exclusive representative of all of the em-
ployees in the unit described above.
5. By failing and refusing to furnish the Union with re-
quested information which is relevant and necessary to
the Union's performance of its function as collective-bar-
gaining representative, Respondent has engaged, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
6. By discriminating in regard to the tenure of employ·
ment of Ricky Kuck, Joseph T. Horn, Jr., and Dallas
Wayne Farley, thereby discouraging membership in the
TJnion, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8( a)(3) of the Act.
7. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, Respondent has engaged in, and is en-
gaging in, unfair labor practices within the meaning of
Section S(a)(l) of the Act.
8. The allegation of the complaint that Respondent dis-
criminatorily discharged Carl Gray has not been sus·
tained by the evidence.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec·
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has committed viola·
tions of Section 8(a)(l), (3), and (5) of the Act, I shall
recommend that it be required to cease and desist there-
from and take certain affirmative action designed to ef-
fectuate the policies of the Act.
Having found that Respondent discriminatorily termi-
nated Ricky Kuck, Joseph T. Horn, Jr., and Dallas
Wayne Farley, it will be recommended that Respondent
be ordered to offer each of them immediate and full rein-
statement to their former jobs or, if they no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of earnings
that they may have suffered from the time of their dis-
charges to the date of Respondent's offer of reinstate-
ment.12 The backpay for said employees shall be com-
puted in accordance with the formula approved in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
computed in the manner and amount prescribed in Flor-
12 None of lhe evidence presenled warrants anything less than the
usual remedy of reinstatement and backpay. Kuck's reference to being
"screwed" was an e•pression of his own lawfully protected activities and
did not render him unfit for future employment. As Gammill was pre·
pared to offer Horn his present salary, which Horn wanted, the finding is
warranted that but for his unlawful termination, Horn would have re·
mained in Respondent's employ without any reduction in thai salary.
Moreover. Respondent by its unlawful action deprived Horn any doubt
in the matter. Therefore any doubt in the matter must be resolved against
the wrongdoing employer.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ida Steel Corporation, 231 NLRB 651 (1977). 13 It will
also be recommended that Respondent be required to
preserve and make available to the Board or its agents,
on request, payroll and other records to facilitate the
computation of backpay due.
Additionally, I shall recommend that Respondent be
ordered to furnish the Union with current information
concerning rates of pay, wage data, and fringe benefits
offered and paid by Lamar Corporation, its subsidiaries,
and affiliates engaged in the business of outdoor advertis-
ing, for employees performing work in job categories
which are comparable or identical to those in the bar-
gaining unit. However, Respondent is not required to
identify the recipients by name. Rather, reference to job
categories or functions performed would constitute ade-
quate compliance with this Order.
I find upon consideration of the facts of this case that
the unfair labor practices proven herein are sufficiently
broad in scope and intensive in nature as to demonstrate
that Respondent has a general disregard or hostility to
the Act. Respondent engaged in a pattern of unlawful
conduct which extended over a period of several months
and which included three discriminatory discharges and
the refusal to comply with a basic obligation of collec-
tive bargaining. Respondent manifested a disregard of
employee rights at every stage of self-organization begin-
ning with the first collective efforts of its employees to
obtain redress of their grievances, extending through the
union organizational campaign, and continuing even after
the Union established its representative status in a Board-
conducted election. Therefore, I shall recommend that
Respondent be ordered to cease and desist from infring-
ing in any manner upon the rights guaranteed in Section
7 of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
lO(c) of the Act, I hereby issue the following recom-
mended:
ORDER14
The Respondent, Lamar Advertising Associates of
Dayton d/b/a Lamar Outdoor Advertising, Dayton,
Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local Union No. 639,
Sign, Display & Allied Trades, AFL-CIO, or any other
labor organization, by discriminatorily terminating em-
ployees, or in any other manner discriminating against
them with regard to their hire or tenure of employment
or any term or condition of employment.
.(b) Di.scharging or disciplining employees for joining
with theiT fellow employees in questioning or criticizing
their terms and conditions of employment, or for other-
wise engaging in protected concerted activities with
regard to their terms and conditions of employment.
13 See, generally, Isis Plumbing & Heating Ca., 138 NLRB 716 (1962).
14 Jn the event no e~ceptions are filed as provided by Sec. 102.# of
the Rules and Regulations of the National Labor Relations Board, the
~ndings, conclusions, and recommended Order herein shall, as provided
m 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.
(c) Telling employees that other employees will be ter-
minated because of their union activities, or that the
plant will never be a union shop, or that the employees
have no right to know wage rates at other plants.
(d) Threatening employees with loss of jobs, less pay,
loss of retirement benefits, or more onerous working
conditions if they designate or select said Union or any
other labor organization as their bargaining representa-
tive.
(e) Expressly or impliedly promising or announcing
wage increases or other benefits in order to discourage
support for said Union or any other labor organization.
(f) Interrogating employees concerning their union
membership, attitude, or activities, or those of their
fellow employees.
(g) Engaging in surveillance of union meetings or
other union activities.
(h) Creating the impression of surveillance of employ-
ee union activity by accusing employees of engaging in
such activity.
(i) Failing or refusing to bargain collectively with said
Union as the exclusive collective-bargaining representa-
tive of all full-time and regular part-time employees em-
ployed by Respondent at its Dayton, Ohio, location (ex-
clusive of all office clerical, sales and professional em-
ployees, and guards and supervisors as defined in the
Act) by failing or refusing to furnish said Union with in-
formation which is relevant and necessary to its function
as such representative.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them under Section 7 of the Act.
2. Take the following affirmative action which is
found necessary to effectuate the policies of the Act:
(a) Offer Ricky Kuck, Joseph T. Horn, Jr., and Dallas
Wayne Farley immediate and full reinstatement to their
former jobs, or, if such jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or other rights and privileges previously enjoyed,
and make them whole for losses they suffered by reason
of the discrimination against them as set forth in the sec-
tion of this Decision 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, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due.
(c) Promptly furnish said Union with current informa-
tion concerning rates of pay, wage data, and fringe bene-
fits offered and paid by Lamar Corporation, its subsidiar-
ies and affiliates engaged in the United States in the busi-
ness of selling and displaying outdoor advertising, for
employees performing work in job categories which are
comparable or identical to those in the above-described
bargaining unit.
(d) Post at its Dayton, Ohio, place of business, copies
of the attached notice marked "Appendix."l 5 Copies of
,. In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.··
LAMAR OUTDOOR ADVERTISING 107
said notice, on forms provided by the Regional Director
for Region 9, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it 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 notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.