Smith's Transfer Corp. of Staunton, Virginia

National Labor Relations Board - Board Decisions

Dec 15, 1966

162 N.L.R.B. 143 (N.L.R.B. 1966)

SMITH'S TRANSFER CORP. 143
WE WILL NOT threaten to close our plant or to withdraw cafeteria or park-
ing lot privileges if United Steelworkers of America , AFL-CIO, or any other
labor organization succeeds in organizing our plant.
WE WILL NOT threaten our employees with discharge or with physical
assault because of their support of United Steelworkers of America , AFL-CIO,
or any other labor organization.
WE WILL NOT require our employees publicly to read an antiunion state-
ment or to assert an antiunion position.
WE WILL NOT post any notices which modify, alter, or detract from, this
notice or from notices posted pursuant to agreements with the National Labor
Relations Board.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to join or assist
United Steelworkers of America , AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing, or to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any or all such activities.
All our employees have the right to join , or not to join, United Steelworkers of
America, AFL-CIO, or any other union.
THE PAYMASTER CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provision, they may communicate directly with the Board's Regional Office, 881
U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago,
Illinois 60604, Telephone 353-7597.
Smith 's Transfer Corporation of Staunton , Virginia and Team-
sters Local No. 29, affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers of America.
Case 5-CA-3114. December 15, 1966
DECISION AND ORDER
On July 27, 1966, Trial Examiner Herzel H. E. Plaine issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial i xani-
iner's Decision. The Trial Examiner also found that the Respondent:
had not engaged in certain other unfair labor practices alleged in
the complaint, and dismissed the complaint with respect to these
allegations. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
162 NLRB No. 5.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions, the briefs, and
the entire record in this case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.
I The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was initiated , pursuant to Section 10(b) of the National Labor
Relations Act, as amended (hereinafter referred to as the Act ), upon a charge by
Teamsters Local No. 29 , affiliated with the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America (hereinafter referred to as the
Union ) filed July 19, 1965, and a complaint was issued October 25, 1965.
The complaint alleged that Smith's Transfer Corporation of Staunton , Virginia
(hereinafter referred to as the Respondent ), had engaged in unfair labor practices,
violating Section 8(a)(1) and ( 3) of the Act by the discriminatory discharge of
employee Edward P. Camden ; and violating Section 8(a)(1) by coercively interro-
gating employees regarding their union activities ,' by promising and granting eco-
nomic benefits to discourage employees from supporting the Union , and by instruct-
ing employees not to cooperate with the Board in its investigation of an unfair labor
practice charge against the Respondent. '
The Respondent 's answer denied any violations of the Act.
On due notice , the matter was heard before Trial Examiner Herzel H . E. Plaine
in Staunton , Virginia , January 25-26, 1966 , and in Washington , D.C., February 8,
1966 . All three parties have filed briefs.
Upon the entire record of the case 2 and from my observation of the witnesses I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT , AND THE LABOR ORGANIZATION INVOLVED
The Respondent is a Virginia corporation engaged as a common carrier of
freight by motor vehicle in interstate and local operations . It has various terminals
in the eastern United States, including a terminal and its principal place of business
in Staunton , Virginia . In the 12-month period preceding issuance of the complaint,
which was a representative period , the Respondent grossed revenues in excess of
$50,000 for services performed in the interstate transportation of goods among the
States and from services which are a part of the chain of interstate commerce. The
Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
The Union is a labor organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and issues
The Respondent is a motor transportation business which , with a wholly owned
subsidiary Huber & Huber , operates about 2,500 pieces of equipment in 17 eastern
States as far west as St. Louis, and maintains terminals and garages in several of
those States . Headquarters are at Staunton , Virginia , where the business was founded
some 35 years ago by three Smith brothers , two of whom are still actively in charge
as president and vice president.
i The alleged interrogation by Vice President Russell Smith , in May or June 1965, was
added as an amendment to the complaint at the opening of the hearing and became para-
graph VI(e) of the complaint.
2 To correct certain inadvertent errors appearing In the transcription of the testimony
and in the handling of the exhibits , I have included all corrections in Appendix A, [Appendix
A omitted from publication ]
SMITH'S TRANSFER CORP. 145
The Respondent's nonsupervisory employees comprise over-the-road drivers, local
or city drivers, garage or maintenance men, and office workers. The total is 2,300-
2,400 employees, of whom between 1,700 and 1,800, principally the road and city
drivers, and some garage and office employees in locations other than Staunton, are
unionized and represented by the Union (in Chicago by an independent union)
under some 15 collective-bargaining agreements applicable to particular localities.
At Staunton, Virginia, only the road and city drivers, something over 300 out of
1,200 employees, are unionized and covered by the applicable collective-bargaining
agreements . None of the office and garage employees at Staunton are under these
agreements.
This case concerns the garage or equipment maintenance workers at Staunton and
some events in 1965 relating to the union attempt to organize them. They comprised
74 hourly workers who, with their supervisory staff, were housed in a maintenance
shop separate from the other employees. There had been previous unsuccessful
attempts to organize this maintenance shop, and the 1965 effort began about March
1965. The campaign culminated in the filing of an election petition by the Union in
September, a Board hearing on the petition in October, and a Board-conducted elec-
tion in November 1965, at which a large majority of the maintenance shop employ-
ees voted against union representation.
Meantime, in July, before it filed its petition for an election, the Union filed the
instant unfair labor practice charge based on alleged unlawful conduct of the
Respondent in July and earlier. The ensuing complaint was issued by the General
Counsel before the election was held in November.
The prime issues are (1) whether the Respondent violated Section 8 (a) (1) of the
Act during the union campaign up to and including July 1965, by alleged coercive
interrogation of employees regarding union activities and sympathies, by promise
and grant of wage increases and overtime pay to discourage employees' support of
the Union, and by instructions to employees not to cooperate in the Board investi-
gation of the unfair labor practices charge, all denied by the Respondent; and (2)
whether the Respondent violated Section 8(a)(3) and (1) of the Act in July 1965
by discharging employee Edward P. Camden for his openly expressed union sym-
pathies or, as Respondent contends, for wasting time and for his inability to work
with others.
A subordinate issue arises out of the proposed use of the Respondent 's antiunion
campaign material to assist in determining whether the discharge of employee Cam-
den was unlawfully motivated. The General Counsel claimed the existence of an
underlying antiunion bias and motive on the Respondent 's part , as discerned from
the circumstances of the discharge itself, from the alleged independent 8(a)(1)
conduct immediately preceding and following the discharge , and from the antiunion
literature distributed by the Respondent to its employees before the election but
after the discharge.
On the latter point, the Respondent argues that publication and distribution of the
literature opposing the Union was an exercise of its right of freedom of speech, and
that not only is this after-occurring expression of views irrelevant to the prior dis-
charge, but in no event may the views expressed be used as evidence of the alleged
union animus or motive for the discharge, citing Section 8(c) of the Act. Further,
the Respondent argues that its 15 union contracts covering the majority, though not
all, of its employees over its entire system and its past record of no unfair labor
practice charge establish affirmatively that it has and had no antiunion bias.
B. Interrogation of employees, promise and grant, of benefits
The -assistant business'ageht for the Union Local 29, Charles Baker, testified that
the 1965 campaign to organize the Staunton maintenance shop began in March
1965. The shop employed 74 hourly employees working on 3 shifts around the
clock, including 2 men stationed in the nearby town of Crozet, Virginia., From the
time Union Agent Baker started in March until the petition for an election was
filed in September, the Union was able to sign up 25 of the employees.
Employee Ralph Southers, a mechanic, testified that he recalled the activity in
the spring of 1965 when the Union attempted to organize. The employees, he said,
were talking pro and con union . In his view "we had a happy home there until
somebody decides they want to mess it up," and since he thought the matter of the
Union was hurting the "happy family" he went around with a piece of paper to
learn 'how the people felt. The paper said "I do not wish to be represented by the
Union" (written across the top by employee Southers) and he took it about the
264-047-67-vol. 162-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop on a regular working day, starting early in the morning continuing until 5 p.m.,
talking to about half of the employees and asking how they felt about the Union.
He said that 90 percent of the men he talked to stated they did not want a union,
but a number had gripes and complaints. He asked what they were and jotted them
down. They included inequality in overtime, uneven pay, and a complaint about
treatment by the superintendent of the shop, Merle Bogan. Southers said he did not
argue the points but just marked them down.
Employee Southers did his interviewing of individual employees on the floor of
the shop throughout the course of a regular work day and saw among others Super-
intendent Bogan going through the shop. This was a day off from work coming to
him, said employee Southers, but he went about interviewing without asking permis-
sion to take the day off and without suggestion from or restrictions imposed by any
supervisor.
At the end of the day employee Southers gave Shop Superintendent Bogan and
Vice President Russell Smith , the top executive for the maintenance shop, an oral
report of the collected information in Superintendent Bogan's office , and tore up
and threw away the written matter.3
Employee Southers further testified that employee Howard Weeks, a mechanic
with whom he had worked, also went around the shop with a paper interviewing
some of the men, but he, Southers , did not know what Weeks' paper said or what
names were on it.
Employee Howard Weeks did not testify but employee Camden, who was later
discharged, was one of the employees with whom Weeks talked. Camden testified
the meeting occurred in the early morning after Camden had come off the night
shift preparatory to going home. Superintendent Bogan came by and said he wanted
Camden to talk to someone . Going to Bogan 's office and just outside his office,
Bogan introduced Camden to Howard Weeks and said according to Camden, "go
ahead and talk to Howard after which I want to talk to you too." Weeks showed
Camden the paper which was worded to the effect that "We the undersigned do
not wish to be represented by Union, nor do we wish to be bothered by any per-
sonnel representing the Union." Weeks said he was trying to find out who was for
and who was against the Union in the shop and wanted Camden to read the paper
and sign it , if he would.
Employee Camden testified he read it and told Weeks it was nothing but a piece
of paper, he could sign now and 2 minutes later change his mind and sign a union
card, but if he did not sign and everbody else did it would pinpoint himself as
wanting a union. So, said Camden, he signed and dated it and went on to see
Superintendent Merle Bogan.
Camden's encounter with Weeks had taken place just outside the open door of
Superintendent Bogan's office , both men standing as they talked and Camden signed.
When employee Camden turned to go in, Bogan was standing in the doorway and
ushered Camden into the office to meet a company personnel man (not identified
by name) who asked Camden if he had any major complaints . Employee Camden
replied he did not have any major complaints, and that he felt he was man enough
to tell Bogan if he had something to tell and if Bogan had something to tell him
he could tell him. The personnel man then said there was a lot of talk now about
the Union . Camden replied he was not talking about it except to the people with
whom he worked. The personnel man then asked how he felt about the Union and
he answered if they convinced him they had a good thing to offer "I think I will
go Union." 4
Employee Ralph Rowe , a mechanic who worked on gasoline trucks and diesel
tractors for between 8 and 9 years, was one of the men questioned by Southers.
Rowe testified he was asked if he was for or against the Union, and answered
Southers that he was for the Union. Southers asked, "What was the matter?" Rowe
replied he had complaints against Superintendent Bogan with whom he had had
"some falling out" and who was "right hateful toward me." Employee Rowe also
told Southers that wages were not equal , and that he had not received overtime
work and pay in 4 to 5 years.
Southers asked Rowe if he would sign if Southers helped in the matter by
taking it "to the ones who would straighten this matter out." Rowe said he would
3 None of the testimony of employee Southers was denied by Bogan or Smith, who also
testified, nor was it contradicted by anyone.
4 Superintendent Bogan , who gave considerable testimony respecting employee Camden,
offered no contradiction regarding the episodes with Weeks and the personnel man.
SMITH'S TRANSFER CORP. 147
and signed the paper for Southers. The paper he signed did not say anything, he
testified.
Not long thereafter Superintendent Bogan called employee Rowe into his office,
apologized to him, told him he was sorry as to what had happened in the past and
that it wouldn't happen again, and informed him he was getting a raise from $2.85
per hour to $3.03 per hour, which raise became effective June 13, 1965 (according
to Superintendent Bogan).
Following the discussion with Superintendent Bogan, Bogan's chief assistant,
Supervisor Burns, told employee Rowe he was transferring him from gasoline
equipment to diesel equipment. Thereafter, testified Rowe, he began getting "more
than I wanted" in overtime, 8 hours on Saturdays.
It is significant that employee Rowe's testimony was not directly contradicted
by anyone, including witnesses Southers and Bogan (Supervisor Burns did not
testify). Initially and indirectly, Superintendent Bogan sought to create the impres-
sion, and Respondent's counsel argues it was the fact, that employee Rowe was
first transferred to diesel work and then received his raise in consequence of the
transfer to allegedly more difficult work. But Superintendent Bogan was not sure
of the date of transfer (which he speculated was June 1 whereas he produced a
June 13 record date for the raise in pay) and later repudiated (as indicated, infra)
any relationship between the kind of work and the pay raise. Moreover employee
Rowe, who was skilled in repairing both gasoline and diesel equipment, was work-
ing on both at the time of his pay raise (gasoline equipment on the floor and
diesel and gasoline equipment on the repair bench). On cross-examination by
Respondent's counsel, employee Rowe offered the opinion that there was more
skill required in working on gasoline motors than on diesel engines, and while the
latter could be heavier work there was equipment to handle it. He denied there
was any upgrading in going from gasoline to diesel work. Superintendent Bogan
did not dispute employee Rowe on any of this testimony, and conceded that
employee Walter Glen who had worked with Rowe on gasoline trucks on the day-
time shift also got a raise on June 13 from $2.85 to $3.03 per hour while working
on gasoline trucks. Glen was not switched to diesel work with Rowe.
Both employees Rowe and Glen were among the 16 to 18 men who received
pay raises effective June 13, 1965, testified Superintendent Bogan on cross-
examination, and actually, he said, the type of work the man did was not signifi-
cant; upward adjustments were given "whether he was a gas, or diesel, or trailer
mechanic."
Employee Rowe testified that he had received raises in other years but the time
of the year he received this raise (June) was unusual, his two previous raises, for
example, having been in the fall of the year, October 1964 and September 1963
(as stipulated by the parties). Later in 1965, as Superintendent Bogan testified,
there was a general raise in November-December in which every employee shared.
On the matter of overtime, Superintendent Bogan testified that the Company had
many more diesel than gasoline trucks, hence there were more diesel mechanics
needed than gasoline mechanics, and more overtime work on diesel than on gaso-
line equipment. Accordingly, if a man wanted overtime work it was to his advan-
tage, he said, to be working on diesels. Employee Rowe testified that he had not
been aware that, because he was being kept on gasoline work, overtime work was
not being assigned to him. Nevertheless, as already noted, the overtime work came
to him with the transfer.
Still another employee-witness who was interviewed about his interest in the
Union by both Southers and Weeks, at separate times, was employee Forrest
Irving, a trailer mechanic with the Respondent for 10 years. Southers brought
around the yellow slip of paper during the workday and talked with Irving in the
shop bathroom. Southers told Irving the paper was for determining whether he
wanted a union or not and for putting down complaints . Irving told Southers he
would not sign the paper and told him to put down that the pay was not even and
that there was a person in the shop running about "telling stuff on the men" and
"ratting" on everybody. Weeks also came around asking that Irving sign and put
his complaints down (Irving thought it might have been the same day or a day or
two later), and Irving told Weeks he was not going to sign the paper. Employee
Irving testified on cross-examination that at the time he was for the Union.
Sometime later Superintendent Bogan called employee Irving to the office and
said he was giving Irving a little raise. Irving testified he thought this conversation
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred sometime in May 1965,5 and he got the raise in June 1965. Employee
Irving said his conversation with Superintendent Bogan was the only occasion in
his employment (other than 10 years earlier when he reminded Bogan of the
3-month automatic pay raise for beginners) that he had a personal discussion with
Bogan about a pay raise. Only he and two others of the six trailer mechanics, and
altogether only 17 men of the total shop, got raises after the paper concerning the
Union and complaints went around the shop, testified employee Irving.6 He had
previously received, in prior years such as 1964 and 1963, the automatic annual
raises which were given everyone throughout the shop.
From the testimony of the witnesses identified to this point, the sequence of the
foregoing events was clear-(1) the commencement of the union organizing cam-
paign, (2) Southers and Weeks interviewing employees regarding union sentiments
and shop complaints and reporting to management, (3) Bogan's promise of pay
raises to at least two employees-Rowe and Irving-and apology to Rowe,7 and
(4) effectuation of the pay raises to approximately 17 of the 74 employees and
of overtime to Rowe. The dates of these occurrences is less clear, since all of the
witnesses had problems with dates other than the date of the 17 pay raises, June 13,
1966, which the Respondent produced from its records .8 From the evidence adduced
it would appear that following the opening of the union campaign in the spring
of 1965; the Southers'-Weeks' interviews and report occurred in late May 1965,
followed by Superintendent Bogan's and Supervisor Burns' actions at the end of
May or early June, and effectuation of the pay raises and new assignment of over-
time by or about June 13, 1966.
The General Counsel claimed one other incident of alleged coercive interroga-
tion conducted by Vice President Russell Smith. Employee Donald Splaun was one
5 On cross-examination employee Irving testified lie thought he told Superintendent
Bogan, in the course of this conversation concerning the pay raise, that lie had not signed
the Southers' petition, but on redirect said he was not able to remember if he talked to
Bogan about it Irving also said on cross-examination that Bogan did not mention the
Union in connection with the raise
0 This figure coincided with Superintendent Bogan's later testimony of 16-18 employees
receiving a pay raise in June 1965 As in the case of employee Rowe, Superintendent
Bogan gave no testimony contradicting employee Irving, nor was Irving contradicted by
any witness
Apart from the naked assertion that the pay increase of June 1965 was a "merit" raise,
neither Bogan nor anyone else for the Respondent gave any testimony on how the selec-
tions were made or the merit adjudged, or indicating any real distinction from the "gen-
eral" raises that preceded and followed it other than its application to a few rather than
all of the employees. Respondent's Exhibit R-1, constituting Bogan's general summary of
past wage increases , made reference to some sporadic individual increases in years prior
to 1965, but there was no evidence of any system or method for granting merit raises which
would impart to the raises given at this time the appearance of a merit raise and of a
normal and expected occurrence
7 Followed by Supervisor Burns' discussion and transfer of employee Rowe to diesel
work providing more opportunity for overtime. This transfer occurred after the promise
of the pay raise , but whether it occurred before or after the pay raise actually became
effective on June, 13 is not'clear nor is resolution of this question material in the light of
the other circumstances : - I
B The Respondent attacks the credibility of employee witnesses Rowe and Irving, arguing
that the whole of their testimony is unreliable because of their difficulty-in pinpointing
dates and because of their unwillingness to affirm in their testimony dates that appeared in
statements 'each 'gave previously to a Board investigator. From the testimony of each it
would'se'em that in'the written statements the investigator assumed more,exactness as to
time than the witnesses 'wcre able to confirm then or at the hearing Whether this was so
or' not, the testimony' of'each on the salient events was clear and uncontradicted and sup-
ported' by other testimony, as, already observed. Moreover, in further support of the
credibility.of• both' witnesses it should be noted that they were testifying adversely to the
Respondent- in, regard to violations of Section 8(a) (1) 'while still in the employ of the
Respondent- and under the' eyes,and within the hearing in the courtroom of the manage-
ment, including the supervisors to whom their testimony related. See Georgia Rug Mill,
131 NLRB-1304, 1305, footnote 2. Note also the view of the•Fourth Circuit in a comparable
wage and hour action, Wirtz v B.A.C. Steel Co., 312 F.2d 14, 16 (C A. 4, 1963) . "The
average'employee involved in this type of action is keenly aware of his dependence upon his
employer's good will, not only to hold his job but also for the necessary job references
essential to employment elsewhere."
SMITH'S TRANSFER CORP. 149
of the two mechanics stationed at the small Crozet shop not far from Staunton. In
1965 he would come in occasionally to the Staunton garage and, one time in late
spring-early summer, as employee Splaun testified, he had a conversation with
Vice President Russell Smith in his office about the Union.
According to employee Splaun, Vice President Smith let Splaun know he wanted
to talk to him and when Splaun came into the office Smith asked him about the
Union and did Splaun "know the Union was going around," and was there union
talk around the shop. Employee Splaun replied, he did not know he did not hear
any. Whereupon Vice President Smith told Splaun, as Splaun put it, if the shop
"does go union it doesn't reflect on your job either way you decide." 0
C. Discharge of employee Camden
Employee Edward P. Camden worked for the Respondent for almost 7 years
beginning on October 17, 1958, and ending July 9, 1965, when he was dismissed.
He began his work briefly on the grease rack and then moved up to mechanic's
work on diesel equipment. He received pay increases over the years, including
special increases to equal the pay of a mechanic he succeeded on the night shift,
where he worked for the last 31/2 years of his employment. At the time of his
discharge he was being paid more than the other mechanics on his shift.
Supervisor Wood,10 who knew Camden from the beginning of his employment
and directly supervised him for a number of years, testified that Camden was a good
mechanic. He was also a chronic complainer over the years, Supervisor Wood testi-
fied, complaining that Wood was giving him tougher work than was given to his
coworkers. But, said Wood, this was a small problem, since he always did the work
even though he complained.
In addition, testified Supervisor Wood, employee Camden was talkative and liked
to argue with his fellow workers on any subject, including religion, and arguing,
said Wood, "even though he knew he was wrong." The discussions, said Supervisor
Wood, usually started in break time and frequently carried over into work time.
In 1965, employee Camden signed a representation card for the Union, given to
him by Union Organizer Baker in April. Beginning in April Camden began talking
about the Union with the men on his shift including Foreman Ralph Beard, who
had been transferred into and put in charge of the third shift at the end of March
1965, and Supervisor Wood, who headed the second shift until he took over the first
shift about June 1, 1965.11 Employee Camden did not reveal that he had signed a
union card, but he voiced his opinion making clear that he favored the Union, and
urging his coworkers and shift supervisors to consider that the Union would be a
good thing for them in terms of seniority, job security, and retirement. In this con-
nection he called Supervisor Wood's attention to the demotion of Foreman Patter-
son during the union campaign. Camden was emphatically rebuffed by his coworker
Dick Hiner, as Hiner testified; and, as Camden testified, Hiner and he clashed and
did not get along because of the hot arguments.12 Camden avoided further discussion
of the subject with Hiner, and thereafter directed his talk to the others, Frye, Beard,
and Wood. As Foreman Ralph Beard testified, employee Camden was the only per-
son on the third shift who openly favored the Union.
In late May 1965, employee Camden was among the employees questioned about
his union sympathies by Howard Weeks and asked to sign the Southers'-Weeks'
9 Vice President Smith confirmed this conversation with employee Splaun except he made
clear that he did not advise or suggest to his employees that whichever way they voted
on union representation would not affect their jobs.
10 Stipulated to be a supervisor within the meaning of the Act.
u There were three shifts round the clock as follows : the first or "daylight" shift ran
from 7 : 30 a.m. to 4 p.m., the second shift from 4 P.M. to 12 : 30 a.m., and the third or
"night" shift from 11 p.m. to 7: 30 a.m. The third shift overlapped the second shift from
11 P.M. to 1.2:50 a.m. and in that interval of time Supervisor Wood handled the initial
work assignments for the third shift (in the more than 7 years that he was in charge of
the second shift until June 1, 1965). At 12 : 30 a.m. the foreman of the third shift took
sole charge of the shift. The third shift was the smallest of the shifts. In 1965 (until
July 9, 1965) it comprised three mechanics, employees Camden, Dick Hiner, and Raymond
Frye, and one foreman, Marvin Shoe, who was succeeded by Ralph Beard at the end of
March 1965. When Supervisor Wood took over the first shift about June 1, 1965, John
Eaton moved up and became foreman of the second shift.
12 Employee Dick Hiner testified that he discussed with Foreman Beard the talk that was
going on in the shop for and against the Union, in some of which he took part.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition against the Union, see section B, supra . As already noted Weeks ' discussion
with Camden occurred under the auspices of Superintendent Bogan, which discus-
sion was followed immediately by the elicitation from Camden by the personnel
officer in Bogan's office and presence of the extent of Camden 's sympathies and activi-
ties on behalf of the Union.ls
Sometime later in June or early July 1965, employee Camden had another of his
frequent conversations with Supervisor Wood in which he said to Wood that with
all the union talk going around he did not know what to think and it would help
him decide when he saw who was the summer vacation replacement for Foreman
Beard. It apparently was customary to use as the vacation substitute for the fore-
man the employee who was next in line for promotion , and Camden figured he was
next in line. Some few days later , on July 9, in asking Camden to resign , Super-
intendent Bogan referred to what Camden had said to Supervisor Wood as indicating
Camden 's dissatisfaction with his job.
Employee Camden had been passed over in March , when Ralph Beard was
brought in to be foreman of the third shift. Beard had come from the parts depart-
ment, where he was not a mechanic . Camden was disappointed and following
Beard's promotion asked Superintendent Bogan if Bogan had considered him.14
Bogan explained to Camden that he used in supervisory posts people who set good
examples and that since Camden was having marital problems he could not promote
him because , as Bogan testified concerning the matter , people "don 't have respect
for a guy that does things like that." Superintendent Bogan said if Camden straight-
ened out the marital difficulty he had no doubt that Camden could handle the job
and he would consider him in the future.15 Camden told Bogan on that occasion
that he had resolved his problems with his wife and gone back to her, and Bogan
testified he learned that this was true.
Nothing was said at this time , which was in late March or early April 1965, which
would indicate any dissatisfaction with employee Camden in his job as a mechanic.
Indeed, said Superintendent Bogan, he had not heard much before March 1965
about Camden 's performance because Foreman Shue, in charge of the third shift
until succeeded by Beard, had not done much reporting.
Nevertheless Superintendent Bogan instructed Foreman Beard "especially to
watch" employee Camden. Bogan assigned at the hearing , the somewhat incredible
reason that an employee , whom he could not remember had reported seeing Cam-
den asleep underneath a truck, and that although he, Bogan, had already investi-
gated the matter and found no one-Foreman Shue or the mechanics-who would
verify it , he nevertheless had instructed Foreman Beard to watch Camden and if
he caught him asleep to send him home and then to see Bogan . Foreman Beard
did watch Camden and did not find him sleeping but reported other things, said
Bogan. Likewise Supervisor Wood began reporting things to Bogan about Camden.
The big deterioration in employee Camden 's work began , said Bogan and Wood,
in April 1965.16 The complaints in the ensuing period that resulted in Camden's
discharge in early July 1965, as summarized by Bogan on cross-examination, were
the foremen 's reports that the men did not want to work with Camden , that Cam-
den spent too much time in taking trucks from the garage to the ready line, and
that he spent too much time talking in the shop instead of working.
13 Superintendent Bogan's testimony , that he had "no idea whatsoever Camden was in-
volved in any way what so ever with the Union ," is incredible in the light of this and
other uncontroverted evidence , referred to infra, that brought employee Camden's union
leanings and talk to his attention.
14 Bogan confirmed this conversation , noting that Camden did not discuss Beard, but
only whether he, Camden . had been considered.
15 As Superintendent Bogan testified , the marital problem was Camden ' s personal affair
and did not enter into consideration "so long as he did not expect me to give him a
promotion to a supervisors job" while such a condition continued . Earlier in Camden's
employment , Bogan had told Camden when he went on the night shift that if he handled
his work well including the work on Sundays by himself there was an opportunity for
promotion.
16 Superintendent Bogan took full responsibility for the discharge of employee Camden,
subject to consultation with Vice President Russell Smith . Bogan indicated at one place
in his testimony that Camden 's performance had started "going down hill " about a year
before April 1965 ( although he stated elsewhere , as indicated above , that he had not heard
much about Camden's performance before March 1965 when he put Foreman Beard to
watch him ), but it had not reached the point then where he could not be straightened out.
It was policy if "anyway possible to salvage a fellow we try to do it."
SMITH'S TRANSFER CORP. ,151
Piecing out these complaints , Supervisor Wood testified that after Beard had
become foreman of the third shift, somewhere between April 1 and 15, employees
Dick Hiner and Raymond Frye of the third shift and employee Olson of the second
shift (which overlapped the third shift, see footnote 11, supra) came to him sepa-
rately, and asked that if possible he keep from putting them on work with Camden
because they had to do most of the work while he did the talking.
This was hearsay testimony which I admitted on the assurance of Respondent's
counsel that the three named employees , who were present at the hearing, would
testify. The support for Wood's testimony did not quite measure up.
First, employee Olson though present at the hearing did not testify , creating a
doubt that his testimony would support Supervisor Wood. Second, employee Frye
testified on direct , that he walked in on a conversation in the shop between
employee Hiner and Supervisor Wood and heard Hiner ask Wood not to work
him with Camden if he could avoid it; whereupon Wood asked Frye how he felt.
Frye replied , he said, he would just as leave not work with Camden . He also testi-
fied that he did not think Camden was doing his share of the work. On cross-
examination , however, he erased the impression that he had a problem in working
with Ed Camden, testifying, "Yes, I liked Ed. I liked to work with Ed all right,"
and indicating also that they discussed and argued the Union, religion , and other
matters, without anger. Moreover , employee Frye did not make any request to his
immediate Foreman Beard (who was the only one in charge for the greater portion
of the night shift) to avoid assigning him work with Camden.
Third, employee Dick Hiner, a comparatively new employee, testified he came
to Wood in April 1965, saying he preferred not working with Camden if possible
and alleging Camden was not doing his share on joint work and wasting time in
connection with other work. Employee Hiner also made the same request to Fore-
man Ralph Beard but gave no reason for the request and Beard asked none.
Employee Dick Hiner disagreed hotly with employee Camden on the union issue
and cut Camden off in no uncertain terms from any further discussion of the union
issue with him. A personal dislike developed between the two and it clouds the
assertion that Hiner did not want to work with Camden because of Camden's work
habits.17
Supervisor Wood and Foreman Beard testified they reported the complaints to
Supervisor Bogan but said nothing to employee Camden.
Supervisor Wood and Foreman Beard also testified they timed Camden on "road"
repair work ( outside the shop ), and on taking repaired trucks from the garage to
the "ready" line, and that he took longer than was necessary or justified. They
reported the matters to Superintendent Bogan but said nothing to employee Camden.
Supervisor Wood testified he saw employee Camden sitting at the scale house,
and Foreman Beard said he saw Camden standing at the scale house. Each reported
to Superintendent Bogan, but said nothing to employee Camden.
Supervisor Wood testified he observed employee Camden regularly in the period
from April 1965 onward starting late almost every night (sometimes 25 minutes)
wandering off talking to other men and keeping them from working. He did not
reprimand Camden or call it to his attention for the rather surprising reason
"because I wasn't too sure of what he was talking about ." But he reported to Super-
intendent Bogan . Wood estimated Camden worked only 50 percent of the time in
the 2 hours per night he observed him. Foreman Beard testified , in the period from
April 1965 to discharge in July 1965, he estimated Camden worked two-thirds of
the time and stood talking to coworkers the other one-third of the time. He said
nothing to Camden about his standing around talking but reported to Superintendent
Bogan , as he had been instructed he said.
It should be noted that Supervisor Wood was not a timid man or supervisor nor
had he refrained in the past out of timidity or because he professed to be Cam-
den's friend from reprimanding Camden for shortcomings . For example, on an
earlier occasion , when employee Camden was having his marital problems, Wood
unhesitatingly reprimanded Camden about telephone calls that were coming in for
him at the shop from "another woman ." As Wood testified , when he brought it to
Camden's attention the calls stopped.
On another occasion in April 1965, Supervisor Wood warned Camden in no
uncertain terms about keeping accurate Sunday time tickets, following the failure
to account for several hours on one such ticket . Employee Camden handled the
17 Foreman Beard testified he knew of this rift and the disagreement between Hiner and
Camden on the union issue.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunday night shift alone , without help of other mechanics or supervision, and
apparently Superintendent Bogan was satisfied at the time that it was difficult to
keep accurate track of time when handling the shop alone and asked Camden,
without reprimand, that he try harder to keep better track of time. Camden was
not taken off or put under supervision on Sundays and worked a dozen unsuper-
vised Sundays thereafter before discharge.
That these comparatively minor incidents, the telephone calls and the missing
time tickets should draw the direct and stern reprimand of Camden's immediate
supervisor in this period, but that the alleged major disruption and demoralization
of a small shop of three mechanics by one of them over a period of more than 3
months, should draw not a word of direct reproof or warning to him from this
same supervisor, stretches credulity beyond limits, and suggests that this testimony
on Camden's work performance was vastly exaggerated by afterthought. It is like-
wise beyond reasonable belief that in a shop as busy (testimony of Superintendent
Bogan ), well supervised, and safety-conscious as this (testimony of Vice President
Russell Smith), management would permit so irresponsible a person, as employee
Camden was alleged to have become in this period, to continue Sunday after Sun-
day for more than 3 months to handle the shop without supervision. Again it sug-
gests that the shortcomings, if they were such, were viewed then as far less sig-
nificant than in the hearing room.
The testimony of Supervisor Wood and Foreman Beard, on what was not said
and not done to employee Camden, bears out Camden's testimony that he had
received no complaints about his work or tending to his work other than the inci-
dent concerning the one Sunday time ticket.
On Thursday, July 9, in the early morning following a night of work, employee
Camden was called in to see Superintendent Bogan. According to employee Cam-
den, Superintendent Bogan said he had heard that Camden was dissatisfied and
suggested that he look for another job.18 Camden said he had not had any com-
plaints about his work in the 61/ years he had been there and Bogan replied he
was not talking about Camden's work but about his dissatisfaction. Supervisor
Burns had come in and joined the conversation, testified Camden. Burns said that
Camden's dissatisfaction might not hinder his production but would cause other
fellows to be dissatisfied and their production to drop.19 Employee Camden asked
Bogan how he had reached the conclusion that Camden was dissatisfied. Superin-
tendent Bogan answered he had heard it from the fellows, and referred to Cam-
den's recent comment (made to Supervisor Wood, supra) that he was waiting to
see who replaced Foreman Beard on vacation. Camden asked Bogan to bring in
the other fellows and come to some conclusion respecting the charge of dissatis-
faction, but Bogan said he did not have time and would call him in a few days
and talk it over.
Superintendent Bogan agreed at the hearing that he told employee Camden he
would study the matter further and let him know. Bogan testified he referred to
other things at this meeting, such as, that Camden was giving the foremen a hard
time not doing his job and talking, and that other mechanics in the third shift had
complained of not wanting to work with him. According to Bogan , Camden replied
that he had a difference of opinion with employee Dick Hiner but did not think
his opinions mattered enough to influence whether others worked with him or not.
Superintendent Bogan also testified that employee Camden raised the union
matter at this meeting, but that he, Bogan , said the Union had nothing to do with
the matter.
In the course of his testimony, Superintendent Bogan indicated that there was no
secret about union activities around the plant, that he was aware of employees who
were active some going back a number of years-"all grapevine information," he
said-but none were fired. The Union, he said, had never been able to get as far
as it had this time. Notwithstanding Supervisor Wood's testimony that he
"reported everything" concerning employee Camden to Superintendent Bogan and
had no secrets from Bogan, Bogan suggested that Wood had not told him about
Camden's union talks with Wood until after the union petition for an election was
18 Superintendent Bogan testified he consulted beforehand with his assistant, Supervisor
Burns , with Personnel Officer Reardon, and with Vice President Russell Smith about dis-
charging Camden, and that they were in accord. Bogan said "we had been thinking about
it for three months, actually." Bogan testified in agreement with Camden, that on that
morning he asked Camden to resign and did not discharge him
19 Supervisor Burns did not testify.
SMITH'S TRANSFER CORP. 153
filed in September, 2 months or more after Camden's discharge. This was disin-
genuous in the light of what Bogan knew and showed that he knew about Camden
from Wood (at the time of discharge) which was inseparable from Wood's reports.
Bogan's further testimony at the hearing that he "had no idea whatsoever" on
July 9 of Camden's union sympathies was directly contradicted by the evidence,
see footnote 13, supra.
In the late afternoon of July 9, Superintendent Bogan telephoned employee Cam-
den at home and told him he was discharged. Camden testified that he asked for,
and Bogan promised, a reference or recommendation for a job elsewhere based on
Camden's satisfactory performance so far as he knew 20
Camden came into the shop for his paycheck which was left for him with Fore-
man John Eaton of the second shift (Eaton had succeeded Supervisor Wood when
the latter took the first shift). According to Camden, Foreman Eaton, with whom
he had worked in the past, expressed surprise at the happening and said if Camden
needed a reference to get another job to have the new employer call because Cam-
den had always done what he, Eaton, had wanted, in a satisfactory manner.21
Following the discharge Camden asked to get his job back on two occasions
without success. He spoke on one occasion to Personnel Director Reardon, and on
another to Vice President Russell Smith, who invited him to the office to discuss it.
The meeting occurred in December 1965, after the representation election had been
concluded. Vice President Smith said he met with Camden because he had no ani-
mosity toward him, the two had disagreed as to whether or not he should have
been discharged, and if "I could help him I was going to do it."
At the meeting Camden asked for his job back and Vice President Smith said he
could not see that right now. Smith said, according to Camden, that Camden had
the wrong attitude and had to learn to back down from a lot of things. It seemed
to him, he continued, that Camden was trying to force him to take Camden back
through the Labor Board complaint. According to Smith, Camden said filing the
charge may have been a mistake. But he was not trying to use force, answered
Camden, he thought right was right.
Smith said he gathered that Camden did not get along with the fellows in the
shop, and Camden replied if there had been a great deal of disagreement he would
have been the first to know.
Vice President Smith then said, according to Camden, that while it would suit
him, Smith, to put Camden back to work he could not explain it to people who
worked for him or to the stockholders. Smith said he reckoned Camden knew he
had cost him a lot of money keeping the Union off the job. Camden replied he did
not see how he could be personally responsible for the union trouble, there had
to be others involved. Smith conceded there were bound to be others involved.
Referring to the instant hearing, which would be coming up, Vice President Smith
said he reckoned Camden felt he owed his loyalty to the Union more than to
Smith's. Camden answered he felt loyalty had been disregarded when he was dis-
missed , and that the Union was the only one that had stood by him trying to right
a wrong. Moreover, Camden told Smith, Smith had lawyers to help him whereas
20 Superintendent Bogan did not deny this directly but did inferentially in his testimony
that Camden's work was not satisfactory.
Rogan, contrary to Camden's testimony, also claimed that he warned Camden in June
1965 that his job was at stake if he did not do a better job. I do not credit this testimony
of Bogan. As described by Supervisor Wood, Camden's almost daily conversations with
Wood in the period from June 1 forward do not reflect the conduct of an employee who
has been warned by anyone, particularly the plant superintendent, that he was on the verge
of being fired for failure to do his job. On the contrary, said Supervisor Wood. the con-
versations were not about Camden's work but general things that were happening in the
plant. "He was disturbed about what was going on and that was all we had to talk about
then. It wasn't about his work from then on," testified Supervisor Wood.
21 Foreman Eaton did not testify. However the Respondent did put in testimony of em-
ployees Dennis E. Hiner and Maynard L. Farish, who worked at the scale house on Sun-
days when employee Camden was there and who testified that Camden had asked them
on occasion to say, if asked, that the work he did to help them, with items they could not
handle, took longer than actually required. They did not tell management of these occasions
until after the discharge of Camden, which led the General Counsel to question the
relevance to the discharge of this testimony and some similar unrevealed testimony by
employee Raymond Lee Frye. The Respondent contended that the testimony bore on the
credibility of Camden, whether he was as industrious as be said he was.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Camden did not and he took the only facility he had open . The meeting concluded
on the note that if Smith could help Camden in any way he would.22
D. The antiunion leaflets, and Respondent 's labor relations
Allegedly pertinent to the discharge of employee Camden, but not charged in the
complaint as constituting a violation of the Act , were leaflets opposing the Union
distributed by the Respondent , prior to the representation election of November 12,
1965, by mail to employees ( testimony of employee Rowe ) and posted on the shop
bulletin board (testimony of President Roy R. Smith). General Counsel's Exhibits
2 through 5.
Under the heading "You have something to lose by voting for a union in Smith's
maintenance department ," the leaflets told the employees, among other things, "You
can lose real job security which means steady work without interruptions due to
strikes and picket lines," and stating that many union professionals try to mislead
employees into believing that union contracts provide job security ; "You can lose
friendly relations between employees and management ," stating that it is the prac-
tice of many union professionals to create mistrust between employees and between
employees and management , stirring up grievances and spreading misinformation;
"You can lose your freedom to handle your own problems individually and directly
with the management ," stating that union pressure tactics of intimidation , coercion,
and discrimination sometimes make employees afraid to be seen talking with any
representative of management; and "You can lose your right to think . . . work . . .
act . .. to live your life-as an individual ," stating that once voted in many unions
find ways to obtain employee conformity to the selfish ideas of the union leaders,
such as by threats, intimidation, ridicule, misrepresentation, name-calling, insults
and browbeating.
The company president, Roy R. Smith, who took full responsibility for matters
affecting Respondent's labor policy and labor relations, testified that he discussed
the preparation of the information contained in the leaflets with Personnel Director
Reardon, in whose department they were prepared, but did not know why the Com-
pany's name was left off the leaflets. The leaflets were mailed to the employees and
posted in the shop before the election of November 12, 1965, and while President
Smith could not fix the precise time of distribution, it was some time after the
Board direction for the election (October 19), or about 4 months after the dis-
charge of employee Camden.
The General Counsel claims that the leaflets exhibit a union hostility or animus
on the part of the Respondent and, considered together with the circumstances of
employee Camden 's discharge supra and the alleged Section 8 ( a)(1) conduct supra
and infra, establish Respondent 's antiunion motive in discharging Camden.
The Respondent objected to the admission in evidence of the leaflets as incompe-
tent under Section 8 ( c) of the Act , and as irrelevant to the prior discharge. I have
disagreed for reasons elaborated in the Conclusions of Law section, infra.
Apart from the legal objections , the Respondent asked for and was given the
opportunity to produce evidence which it says affirmatively demonstrates that it had
22 By help, Vice President Smith said he meant payment for psychiatric help but did not
tell that to Camden . Smith denied he discussed why he could not take employee Camden
back or that he made the references to the Union. However , I do not accept these denials.
They are not consonant with other testimony given by Smith , including the picture created
of a generally communicative and paternalistic relationship with his employees on an
individual , first-name, basis, a pride in keeping in direct touch with employees on problems
that might cause division among them or with management , and a resultant concern with
unionization . He was a cofounder of the business 35 years ago, and still the top active
executive for the maintenance shop . He knew each person there , as he did employee Camden,
through supervision and personal contacts , and would talk with them anywhere, in the
shop, on the parking lot, or on the street. He had loaned many of them money. He knew
about union activities in the shop , directly or from information supplied him, and who were
the activists. He would ask employees directly about what they knew of union activities
in the shop, as in the case of employee Splaun, section "B" supra. He would ask employees
how they felt about the Union. which way they wanted to go, what they wanted, or "what
could I do for them." He recalled asking employee Les Thompson how do you fellows want
to go on the union question, and eliciting on the parking lot the complaints of another
employee. lie would frequently do something about the complaints and correct inequities.
Vice President Smith's meeting with employee Camden was one that he invited rather
than avoided . It was a meeting without rancor , as both men testified but, as I find, not
without the content described by employee Camden.
SMITH'S TRANSFER CORP. 155
and has no union hostility or animus. This comprised principally the testimony
given, and exhibits introduced, by President Roy Smith, Respondent's chief execu-
tive officer and a cofounder of the business.
The substance of President Roy Smith's testimony, combined with some data
supplied by Vice President Russell Smith, was that the Company operates in 17
eastern States (Respondent's Exhibit R-20), and that of its 2,300-2,400 employees
(drivers, office and garage workers) some 1,700 employees (Respondent's Exhibit
R-19), are covered by 15 collective-bargaining agreements (Respondent's Exhibits
R-3 through R-18). All are agreements with the Teamsters Union, which is the
Charging Party in this case, except one relating to Chicago (R-16). Two of these
contracts (R-17 and R-18) cover over-the-road drivers and city drivers in Virginia,
including more than 300 road and city drivers of the approximately 1,200 employees
at Staunton, Virginia, the company headquarters; but none of the agreements apply
to the office and garage employees in Staunton.
The first collective bargaining agreement with the Union was made in 1944,
applicable to about 25 employees, and there has been a continuous expansion in
various locations to the present 15 contracts covering 1,700 employees. There has
been no history of unfair labor practice charges against the Respondent, according
to Vice President Russell Smith.
The Virginia contracts (R-17 and R-18, supra) provide that when a majority of
employees in any additional appropriate bargaining units of Respondent's operations
designate the Union as their agent, as evidenced by a card check, they shall auto-
matically be covered by the contract. The Union (Local 29) never claimed to repre-
sent a majority of the maintenance shop employees at Staunton and, of course, did
not invoke this provision of the Virginia contracts.
President Smith further testified that it was the Respondent's policy in those loca-
tions where the Union represented the majority of the employees in a unit to encour-
age the minority to join and pay dues, even in Virginia notwithstanding its so-called
right-to-work law. President Smith said he did this personally in meetings and in
talking to affected employees. He told such employees, he said, that even though by
law they need not join the Union, it would be better for the Company and for them
if they would join the Union and pay their dues.
However, on cross-examination President Smith testified that he made such
requests to employees to join the Union at the insistence of the Union, who told
him, he further testified, it would be better for him, without telling him why it
would be better, simply that there would be a better relationship. He did not ask
Staunton maintenance shop employees to join the Union because he said, there was.
no union contract or request for a contract there.
At the Staunton maintenance shop, testified President Smith, it was obvious to
him from conversations of employees and from information supplied by his execu-
tives that the Union did not represent the majority of the employees. If the majority
had wanted the Union he would have gone along with them, he said.
It was President Smith's further testimony that he left it entirely up to the Staun-
ton maintenance employees, without trying to influence them one way or the other.
Referring to the leaflets, he said, "I gave them the facts and I believe I was on the
right track because they voted that way." 23
Whether the leaflets can be rightly characterized as "facts" rather than opinions
or views, it can scarcely be said they represented the neutrality President Smith
claimed he adopted. Reading the leaflets, as summarized above, they clearly urged
rejection of the Union and expressed hostility to the Union, if not unions in general,
that included impeachment of the Union by association with alleged vicious prac-
tices of "many" unions and "many" union profession a] S.24
23 The election was held on November 12, 1965, pursuant to a petition of the Union filed
September 8, 1965 (Respondent's Exhibit R-21), a hearing held October 12, 1965 (Docket
5-RC-5315), and direction of the Regional Director issued October 19, 1965. The tally of
ballots (Respondent's Exhibit R-22) showed 16 votes for the Union, 57 votes against,
and 1 challenged ballot. No objection having been filed, the certification of results (Respond-
ent's Exhibit R-23) was issued November 24, 1965, certifying that no collective-bargaining
representative was selected.
21 The (International) Union took note of the literature in a letter to President Smith
sent shortly after the election, on November 22, 1965, in which it said it was "forwarding
copies of this literature to the many Teamster Local Unions within whose jurisdiction
your company has operations so that they may be aware of your attitude toward the
Union." Charging Party's Exhibit 1.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Notwithstanding this open expression of employer opposition and hostility to the
Union at the Staunton maintenance shop, the Respondent would have me find that
its alleged cordial relations with the Union elsewhere , though forced in some
respects , nevertheless establishes that it had no union animus when employee Cam-
den was discharged from the Staunton shop in July 1965. But the Respondent's
testimony was clear that the "cordiality," whether voluntary or forced, applied only
where the Union was already in, and not to as yet nonunionized places like the
Staunton garage. And, from the testimony of management and other witnesses, it
was also clear that the Respondent 's policy of opposition and its underlying hostile
attitude to the Union organizing the Staunton garage were neither new nor unabated
in 1965 and were known in and about the shop before they found expression in the
leaflets of November 1965.
E. Interference with Board process
Also pertinent to the discharge of employee Camden, and of concern as an
alleged violation of Section 8(a)(1) of the Act, was the conduct of Vice President
Russell Smith at a meeting of the garage employees following the dismissal of
Camden.
Apparently it was the custom of Vice President Smith or Superintendent Bogan
to hold a brief meeting about once a month with the men in the shop on a subject
of general interest. This meeting, on a Friday following Camden's discharge, accord-
ing to employees Rowe and Irving, was addressed briefly by Vice President Smith.
Smith told the men that they knew the Company had to get rid of Ed Camden and
there would probably be investigators from the National Labor Relations Board
coming down to talk to the men. "Tell them you don't know anything," advised
Vice President Smith, and "don't tell them anything." 25
Vice President Smith testified that he did not put his advice that way. Rather, he
said, he told the group that an unfair labor practice charge had been filed after
Camden left , that someone from the Labor Board would be calling on people in the
shop to get statements , and "that the Company needed all the cooperation from
everyone that they could get." 26
This alleged phraseology was admittedly an equivocation. As Smith testified, the
men "must have misunderstood me."
Even assuming he used these equivocal words , Vice President Smith put himself
in the position of being understood as the employees testified he was understood.
The two employee witnesses were not newcomers, each having been employed about
10 years, and Smith had no problem or reticence in communicating with his employ-
ees, see footnote 22, supra.
However, I do not believe there was a misunderstanding as to what was said, and
I credit the unequivocal testimony of the two employees , Rowe and Irving. Their
credibility gains additional support from the fact that they were under the hazard
of giving adverse testimony against one by whom they are still employed.27
F. Conclusions-the Section 8(a) (1) and ( 3) violations
1. Interrogation
The record establishes that the Respondent , using for these purposes two employ-
ees Southers and Weeks , interrogated nonsupervisory employees of the Staunton
garage concerning their union support or opposition, and requested the employees to
sign an antiunion petition , obtaining signatures in some instances on a promise that
complaints , which were elicited at the same time, would be brought to manage-
ment's attention for redress . There was no evidence that the Respondent originated
the idea, but there was ample evidence that Respondent permitted the poll of the
employees to be held in the shop during a 10-hour period of a regular working day
in late May 1965.28 The Union 's 1965 campaign had started in March and appar-
Testimony of employees Rowe and Irving.
23 Smith did not improve his intention or meaning when he amplified, without objection,
on what he meant or thought, but did not say, by the Company needing the cooperation
of everyone. This was to the effect that he did not think the people would be against the
Company or him with respect to the discharge of Camden.
27 See cases cited footnote 8, supra.
29 The 10 - hour poll from 7 a.m. to 5 p.m. made it possible for employees Southers and
Weeks to reach all three shifts. For example employee Camden of the third shift was
interviewed by Weeks in the early morning as he came off his shift.
SMITH'S TRANSFER CORP. 157
ently received more support from the employees than any of the union campaigns
of previous years (according to Shop Superintendent Bogan).
The Respondent not only permitted the interrogation and poll to be held on the
premises during working hours but also encouraged it, as in the case of employee
Camden who was brought and introduced to poll taker Weeks by Superintendent
Bogan.
Lastly, Respondent's management (in this instance, Vice President Russell Smith
and Superintendent Bogan) received the report of the results of the interrogation by
Southers and Weeks, and acted promptly to meet some of the complaints uncov-
ered. Thus, employee Rowe received an apology from Superintendent Bogan,
employees Irving and Rowe were promised and given wage increases to match the
pay of others, and employee Rowe was assigned to lonb denied overtime work. Fif-
teen others of the 74 employees received pay increases.
Unmistakably, the Respondent engaged in coercive interrogation which interfered
with the employees' rights under the Act and violated Section 8(a) (1). Daniel Con-
struction Co., Inc. v. N.L.R.B., 341 F.2d 805, 812 (C.A. 4, 1965), cert. denied 382
U.S. 831; N.L.R.B. v. Wix Corp., 309 F.2d 826, 839 (C.A. 4); N.L.R.B. v. Over-
nite Transportation Co., 308 F.2d 279, 281 (C.A. 4, 1962); N.L.R.B. v. Lester
Bros., Inc., 301 F.2d 62, 65-66 (C.A. 4, 1962); and see generally N.L.R.B. v.
Cameo, Inc., 340 F.2d 803, 804-807 (C.A. 5, 1965), cert. denied 382 U.S. 926.
The Respondent argues it was not responsible for and chargeable with the con-
duct of the interrogators Southers and Weeks, who were themselves nonsupervisory
employees. But as the Supreme Court observed in International Association of
Machinists Lodge No. 35 v. N.L.R.B., 311 U.S. 72, 80 (1940) :
The employer . . . may be held to have . . . [violated the Act] even
though the acts of the so-called agents were not expressly authorized or might
not be attributable to him on strict application of the rules of respondeat
superior. We are dealing here not with private rights . . . nor with technical
concepts pertinent to an employer's legal responsibility to third persons for acts
of his servants, but with a clear legislative policy to free the collective-
bargaining process from all taint of an employer's compulsion, domination, or
influence.
Here, the respondent employer by acquiescing in, and encouraging, interrogation
and polling of the men by employees Southers and Weeks (whether self-inspired
is of no matter, compare Murray Envelope Corporation, 130 NLRB 1574, 1576-77
(1961) ), clothed these employees in the eyes of their fellow workers "with the
apparent authority to speak for the employer," N.L.R.B. v. American Manufactur-
ing Company of Texas, 351 F.2d 74, 78 (C.A. 5, 1965). Respondent was not only
aware of the two employees' acts and failed to disavow them (N.L.R.B. v. Bir-
mingham Publishing Company, 262 F.2d 2, 8 (C.A. 5, 1959)), but affirmatively
adopted them and acted upon the derivative information with a grant of benefits
to discourage union affiliation, see infra.
Similarly, Respondent's responsibility and liability for violation of Section
8(a)(1), attaches to the additional questioning of employee Camden on his union
views and sympathies (following the interrogation by fellow-employee Weeks) by
the personnel man in the office and presence of Superintendent Bogan . Like the
"personnel man" in N.L.R.B. v. Solo Cup Company, 237 F.2d 521, 523-524
(C.A. 8, 1956) "whether or not [he] was technically a `supervisor' within the Act's
definition . . . he had at least apparent authority to speak for management, and
. the Respondent was responsible for his coercive conduct."
The separate questioning by Vice President Russell Smith of employee Splaun
cannot be viewed in isolation. It was part of the total pattern of partisan inquiry
and activity which prevailed at the shop during the union campaign. Indeed Vice
President Smith admitted at the hearing to a number of other acts of inquiry con-
cerning union views and sympathies of other employees (see footnote 22, supra),
which if known beforehand and properly pleaded in the complaint might have been
found to have been coercive interrogation. In its setting, the questioning of Splaun
was not innocuous.
Nevertheless, employee Splaun testified that he received from Vice President
Smith an assurance against retaliation,29 which appears to mitigate the otherwise
coercive effect of the interrogation, compare N.L.R.B. v. Cameo, Inc., supra,
at 807. In the circumstances, therefore, I do not find a Section 8(a)(1) violation
21 This was an unusual assurance according to Smith, see footnote 9 and related text,
8upra.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the questioning of employee Splaun, and paragraph VI(e) of the complaint
should be dismissed.
2. Benefits
It was established that, in the course of the antiunion canvass of fellow workers
by employees Southers and Weeks, Southers had promised to bring individual
grievances to the attention of those in authority. After the report had been made
to Vice President Smith and Superintendent Bogan, at least two of the men,
employees Rowe and Irving, who had stated their support of the Union and their
complaints regarding pay, were called in at the end of May or early June 1965 by
Superintendent Bogan and told they would be receiving pay increases. The pay
increases became effective soon thereafter, June 13, 1965. Additionally, employee
Rowe, who had complained to employee Southers that he had been denied over-
time work for almost 5 years and that Superintendent Bogan had been "hateful"
toward him, was assigned to overtime work and received an apology from Bogan.
Whereas all 74 hourly employees in the shop shared in pay raises in the last
several years, usually paid in the fall of the calendar year, including the years
1964 and 1965, the pay raise at this time, mid-June 1965, was to only 17 employees
including Rowe and Irving. Superintendent Bogan called it a "merit" raise but,
apart from its application to a few rather than all hourly employees, and reference
to some sporadic individual raises in previous years, Respondent provided no evi-
dence of any distinction from the general raises that preceded and followed the
June 1965 raise and no evidence of any system or method for selecting recipients,
judging merit, or otherwise granting merit raises which would have imparted to this
raise at this time the appearance of a merit raise and of a normal and expected
occurrence.
The circumstances of and around the promise and grant of the pay raise and
other benefits give rise to the inference that it was the purpose of the Respondent
in providing such benefits to dissuade the employees from pursuing their interest
in the Union.30 Bestowal of economic benefits by an employer for such purpose is
a restraint upon the freedom of choice of employees for or against unionization
and a violation of Section 8(a)(1) of the Act. N.L.R.B. v. Exchange Parts Com-
pany, 375 U.S. 405, 409-410 (1964).31 Recent decisions of the Board apply this
established proposition to the promise or grant of benefits to employees during the
union organizing campaign before a union has been selected as bargaining repre-
sentative, S. & H. Grossinger's Inc., 156 NLRB 233; Betts Baking Company, 155
NLRB 1313; Western Saw Manufacturers, Inc., 155 NLRB 1323; and see Engineers
& Fabricators, Inc., 156 NLRB 919, holding that among other things the respond-
ent's "announcements of merit raises not clearly required by past practice just prior
to the election" was Section 8(a)(1) misconduct aimed at destroying the union's
majority status.
I find that the promise and grant of benefits to employees during the union
organizing campaign was a violation by the Respondent of Section 8(a)(1) of
the Act.
3. Interference with Board process
Vice President Russell Smith's advice to the Staunton garage employees, following
the discharge of employee Camden in July 1965, on what to say or not to say to
Board investigators who would inquire into the discharge, was a patent violation
of Section 8(a)(1) of the Act.
In Jackson Tile Manufacturing Co., 122 NLRB 764, 766, enfd. 272 F.2d 181.
(C.A. 5, 1959), the Board held that an employer's instructions to an employee on
how to answer a Board field investigator were calculated to interfere with and
obstruct the Board in its investigation, and had the effect of depriving employees
of vindication by the Board of their statutory rights, in violation of Section 8(a)(1)
of the Act.
30 The fact that there may have been sporadic individual raises in prior years does not
negative the inference that the pay raise during the anion campaign was intended to
counteract the activities of the Union, N.L.R.B. v. Valley Broadcasting Company, 189 F.2d
582, 586 (C.A. 6, 1951).
3'A showing that the purpose was successful is not essential to establish the restraint,
N.L.R.B. v. Brown Dunkin Company, Inc., 287 F.2d 17 (C.A. 10, 1961) ; Murray Envelope
Corp., supra, 130 NLRB at 1576, though this record is not devoid of a showing of some
success by the Respondent in its purpose.
SMITH'S TRANSFER CORP. 159
Similarly, in Grand-Central Chrysler, Inc., 155 NLRB 185, it was held to be a
violation of Section 8 ( a)(1) for the employer to instruct a supervisor to withhold
evidence relating to the discharge of an employee from a Board agent, on the
ground that this was an obstruction of the Board in its investigation , which obstruc-
tion had the necessary effect of interfering with the freedom of employees to vindi-
cate their statutory rights in a Board proceeding.
4. Discharge of employee Camden
From the record it appears that employee Camden was a mechanic for the
Respondent at the Staunton garage for almost 7 years . He was a good mechanic,
acknowledged as such and paid more than any other mechanic on his shift at the
time of his discharge . Additionally , he had sole charge and responsibility for the
Sunday night shift.
Camden was a mechanic who had faults , from management 's standpoint. Thus
he complained about being overworked , he talked a great deal on the job and
enjoyed argument with his fellow workers on any subject , and he unfortunately
developed marital troubles at home. The latter cost him a promotion to a fore-
men's position in March 1965, because of management 's view that the men would
not respect a supervisor involved in such troubles. But Camden did his work, and
his complaining and talking were understood and tolerated until he started talking
"union," beginning in April 1965.
Significantly , commencement of the union talk coincided with the start of the
"big deterioration" in employee Camden's work , according to management who
said they had him watched and reported upon closely from then on.
However the evidence has impressed me that what went on in the period from
April to July 9 ( when Camden was discharged) from the standpoint of his work
performance , was not essentially different from what had been the situation in
prior times . I have found it incredible that employee Camden could have performed
so poorly and irresponsibly to the point where he was said to have disrupted the
work and demoralized his fellows of the 3-man night shift by his talking and idling
and not cooperating on joint jobs over a more than 3-month period, without draw-
ing a word of reproof or warning for such conduct from those immediately super-
vising him . Likewise, I have found it incredible that in this busy, well-supervised,
and safety conscious shop, management would have permitted so irresponsible and
inadequate a worker as Camden was said to have become in this period , to con-
tinue in charge and unsupervised for a dozen or more Sunday nights.
About the same time , employee Camden had been sharply warned by his super-
visor for a deficient time ticket for a Sunday and asked to keep a better record
of time though handling the shop alone . He had also been reprimanded on an
earlier occasion for telephone calls coming in from a woman other than his wife,
which calls ceased with the reprimand.
The direct reprimand for these relatively minor matters , contrasted with the
absence of any reproof for the alleged major aberrations, suggests that the work
performance of employee Camden was far from as bad as it was made out to be
in the defense of the unfair labor practice charge.
The record shows that in the April-July 1965 period employee Camden talked to
his fellows on the third shift and his immediate supervisors about the Union as a
means of providing job security in the shop. He was the only person on the third
shift who openly favored the Union. Indeed his union views or advocacy had
angered fellow -employee Dick Hiner who asked not to be assigned to work with
Camden. Camden was not told of this request , but what was being said and what
was occurring were reported to Superintendent Bogan by Supervisor Wood and
Foreman Beard . Superintendent Bogan also knew directly of employee Camden's
union leanings from the questioning by the personnel officer in Bogan's office and
presence in May 1965.
Camden had been disappointed at not having been promoted in March. His
marital problem , the alleged obstacle to promotion , having been cleared up, he
told Supervisor Wood in late June or early July that with all the talk in the shop
for and against the Union it would help him decide when he learned whether he
or someone else was designated acting foreman for the summer vacation of the
foremen . This was reported to Superintendent Bogan, but he and others of man-
agement, including Vice President Russell Smith , had apparently been discussing
Camden for some time and had concluded to ask him to leave. On July 9, Camden
was asked to resign on the ground he was dissatisfied, Superintendent Bogan citing
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the recent Camden comment to Supervisor Wood and alleged reports by others,
and Assistant Superintendent Burns stating that his dissatisfaction would affect the
production of fellow workers. Employee Camden denied he was dissatisfied and
asked for confrontation by the alleged informants. Superintendent Bogart told him
the matter would be considered further but later informed him that he was
discharged.
In subsequently attempting to get his job back, employee Camden was given an
interview by Vice President Russell Smith, who made it plain that Camden's com-
plicity with others in attempting to bring the Union into the shop, which had cost
the Company money, and his persistence in turning to the Union to force the
Company to take him back, through the instant Labor Board complaint, made
reinstatement impossible.
It is my view that the discharge of employee Camden in July 1965 would not
have occurred but for his continued union advocacy in the previous 3 months.
Camden had been a long-time employee whose shortcomings as an individual, from
the employer's standpoint, were known and accepted because he was an able and
productive mechanic. However, when he added to these shortcomings open advo-
cacy of a policy opposed by the employer, he was no longer tolerable or tolerated.
The discharge is now attributed by the employer to Camden's other shortcom-
ings , but the circumstances indicate that this is pretext and afterthought.
Respondent's initial reason, on July 9, was Camden's, and not its, alleged dis-
satisfaction. Consistent with that allegation, it suggested that he resign. While Cam-
den no doubt was disappointed in his past failure to advance and may have hoped
that unionization would help him to advance in the future, he obviously wanted
his job and said so. The Respondent, who no longer wanted him, then had to take
to discharge and rely on an exaggeration of Camden's previously tolerated faults
as a covering justification.32
The moving reason for the discharge was employee Camden's continued vocal
support for the Union in the face of the Respondent's opposition and hostility to
the Union's attempt to organize the Staunton garage. Hartsell Mills Company v.
N.L.R.B., 111 F.2d 291, 293 (C.A. 4, 1940); N.L.R.B. v. L. J. Williams, d/b/a
Williams Lumber Company, et al., 195 F.2d 669, 672 (C.A. 4, 1952), cert. denied
344 U.S. 834; N.L.R.B. v. English Mica Company, 195 F.2d 986, 987 (C.A. 4,
1952); N.L.R.B. v. Southern Desk Co., 246 F.2d 53, 53-54 (C.A. 4, 1957);
N.L.R.B. v. Brookside Industries, 308 F.2d 224, 226 (C.A. 4, 1962); N.L.R.B. v.
Lester Brothers, Inc., 337 F.2d 706, 708 (C.A. 4, 1964).33
The Respondent openly manifested, in a number of ways, the union opposition
and hostility which motivated or contributed to employee Camden's discharge.
There were the constant individual inquiries made of the employees by Vice Presi-
dent Russell Smith concerning their feelings about the Union (footnote 22, supra)
without assurance against retaliation except in the case of employee Splaun (foot-
note 9, supra). There was the antiunion poll of the shop conducted, under man-
agement auspices, by employees Southers and Weeks (exemplified by the interroga-
tion of employees Rowe, Irving, and Camden), followed by the dispensation of
economic benefits to some of the dissidents, such as employees Rowe and Irving,
to wean them away from union support (section III, F, I and section III, F, 2,
supra). There was the separate interrogation, on his union views, of employee Cam-
den by the personnel officer in Superintendent Bogan's office (section III, F, 1,
supra).
32 It has been repeatedly held that an employer's tolerance of an employee's shortcomings
until he engages in union activity is an indication of discriminatory motivation. N.L.R.B.
v. Greensboro Coca Cola Bottling Company, 180 F.2d 840, 843 (C.A. 4, 1950) ; Peoples
Motor Express, Inc., 165 F.2d 903, 905-906 (C.A. 4, 1948) ; N.L.R.B. v. Whitin Machine
Works, 204 F.2d 883, 887 (C.A. 1, 1953) ; N.L.R.B. v. East Texas Steel Castings Company,
Inc., 211 F.2d 813, 817 (C.A. 5, 1954).
33 Even if the Respondent was only partially motivated by the impermissible cause, the
violation is established. N.L.R.B. v. Dazzo Products, Inc., 358 F.2d 136, slip op. p. 2 (C.A. 2,
1966), citing N.L.R.B. v. Park Edge Sheridan Meats, Inc., 341 F.2d 725, 728 (C.A. 2,
1965) ; N.L.R.B. v. Iron City Sash t Door Co. of Johnstown, 352 F.2d 437, 438 (C.A. 6,
1965) ; N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7, 1964).
The argument of the Respondent that it did not discharge other employees who exhibited
interest in the Union does not exculpate the Respondent from the charge of discrimination
or rebut the General Counsel's case, N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Com-
pany, 196 F.2d 272, 276 (C.A. 5, 1952), cert. denied 344 U.S. 865; Nachman Corp. v.
N.L.R.B., 337 F.2d 421, 424 (C.A. 7, 1964).
SMITH'S TRANSFER CORP. 161
Also pertinent were the suspect circumstances surrounding the discharge itself,
such as the inadequately explained special supervisory watch placed on Camden
after he began to talk in favor of the Union, the absence of advance notice or of a
reprimand immediately preceding the discharge, and the shift of reasons for justifi-
cation of the discharge.
Lastly, following the discharge, and providing added insight into the Respond-
ent's hostile attitude toward the Union and antiunion motivation for the discharge,
were (1) the unlawful attempted interference by Vice President Russell Smith with
the Board investigation of the discharge (section III, F, 3, supra), (2) posting and
distribution of the antiunion leaflets by the Respondent prior to the representation
election (section II, D, supra and discussed infra under section 111, F, 5), and (3)
the explanation, supra, by Vice President Russell Smith to Camden that his past and
continued adherence to the Union made reinstatement impossible. This last explana-
tion, additionally, is direct evidence of the Respondent's unlawful refusal to reinstate.
The Respondent has argued that statements by the employer made after the dis-
charge, particularly the leaflets, are not relevant to the discharge and to a determi-
nation of what motivated it.
On the contrary, it has been held that statements of the employer after the dis-
charge, reflecting the attitude of the Company toward the Union in a period closely
following the event, indicate what the employer's attitude was at and immediately
preceding the time of the discharge, Angwell Curtain Company, Inc., v. N.L.R.B.,
192 F.2d 899, 903 (C.A. 7, 1951); Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732,
742 (C.A.D.C., 1950), cert. denied 341 U.S. 914. Compare, Hollywood Vassarette
Division of Munsingwear, Inc., 149 NLRB 839, 844, footnote 16 (1964), using
statements made after a grant of benefits, as background evidence for a determina-
tion that the grant was improperly motivated and violated Section 8(a)(1).34
5. In ascertaining motivation for discharge examination of
speech not prevented by Section 8(c)
In addition to arguing relevance, supra, the Respondent objected strenuously to
the admission in evidence of its preelection leaflets and any use of the statements
in them to show that it had a hostile attitude toward the Union, on the ground that
Section 8(c) of the Act prohibits such use. Section 8(c) provides:
The expressing of any views, argument, or opinion, or the dissemination
thereof, whether in written, printed, graphic, or visual form, shall not consti-
tute or be evidence of an unfair labor practice under any of the provisions of
this Act, if such expression contains no threat of reprisal or force or promise
of benefit.
The claimed pertinent prohibition is against the use of the printed antiunion views
(that fall short of forbidden threats or promises) as evidence or as supporting other
evidence in establishing an unfair labor practice.
The General Counsel argues that he has not charged that the wording of the leaf-
lets or their dissemination constitute either an unfair labor practice or evidence on
which was predicated the commission of an unfair labor practice, but that the state-
ments do provide a background from which another action, alleged to have been an
unfair labor practice discharge, may be shown or inferred to have had an antiunion
motive. The leaflets were offered and received in evidence for that purpose.
The Respondent answers, in effect, that since wrongful motive is an essential
ingredient of a Section 8(a)(3) discharge, the otherwise privileged campaign state-
ments are being used as evidence against him to establish the unfair labor practice.
As already indicated, I have used the statements as cumulative and corroborative
of other materials and events that established, in my view, an antiunion attitude and
discriminatory motivation in effectuating the discharge. The question is whether any
adverse use of the statements is proper under Section 8(c) of the Act.
Section 8(c) was enacted as part of the Labor Management Relations Act, 1947
(Taft-Hartley), 61 Stat. 136, 29 U.S.C. Sec. 151, et seq., for the purpose of insur-
ing to both employers and labor organizations full freedom to express their views
to employees on labor matters providing they refrained from threats of violence,
34 In the organizing and counterorganizing campaign at the Staunton garage, that ran
from March through November 1965, the series of events heretofore described had a rela-
tionship to each other that, in my view, brought the leaflets issued in early November within
the ambit of a period "closely following" the July discharge.
264-047-67-vol. 162 12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intimation of economic reprisal, or offers of benefit. S. Rept. 105 on S. 1126, 80th
Cong., p. 23; 1 Leg. Hist. 429; Pittsburgh S. S. Company v. N.L.R.B., 180 F.2d
731, 735 (C.A. 6, 1950), affd. 340 U.S. 498.
While both Houses of the Congress were intent on limiting the Board in what it
might regard as misconduct in speech they approached the matter differently.
The Senate Committee would have prevented the Board from predicating a find-
ing of unfair labor practice on privileged speech, S. 1126, 80th Cong., Section 8(c),
but would not have precluded the Board from considering such statements as evi-
dence, S. Rept. 105 on S. 1126, pp. 23-24; 1 Leg. Hist. 429-430.
The House Committee, taking a more restrictive position, provided that privileged
speech should not constitute or be evidence of an unfair labor practice, H.R. 3020,
80th Cong., Sec. 8(d)(1), with the intention that a statement could not be used
against the person making it unless standing alone it constituted an unfair labor
practice, H. Rept. 245 on H.R. 3020, p. 33; 1 Leg. Hist. 324.
In the conference resolution of the Senate and House bill, substantially the House
version became what is now Section 8(c), but disagreement continued as to what it
meant. The House conference report, signed only by the House managers (there
was no counterpart report to the Senate), simply indicated that the provisions of
the House bill had been adopted. H. Conf. Rept. 510 on H.R. 3020, p. 45; 1 Leg.
Hist. 549. Members of the Senate had been sharply critical of the conference bill,
including the exclusionary sweep of the House wording of Section 8(c),35 as a result
of which Senator Taft, the chief Senate manager, prepared and placed in the Con-
gressional Record a memorandum on June 5, 1947, and supplement on June 12,
1947, 2 Leg. Hist. 1535 and 1622, "to make clear the legislative intent," id. Senator
Taft set forth that the purpose of the phrase "constitute or be evidence of an unfair
labor practice" was to make clear
that the Board is not to use any utterances (not) containing threats or prom-
ises of benefit as either an unfair labor practice standing alone or as making
some act which would otherwise not be an unfair labor practice, an unfair
labor practice. It shall be noted that this subsection is limited to "views, argu-
ment, or opinions" and does not cover instructions, directions, or other state-
ments which might be deemed admissions under ordinary rules of evidence. In
other words, this Section does not make incompetent, evidence which would
ordinarily be deemed relevant and admissible in courts of law." [Emphasis sup-
plied] 2 Leg. Hist. 1541. And see 2 Leg. Hist. 1624.
From the Taft analysis of the legislative intent it would thus appear that the pro-
tection of speech under Section 8(c) was not an immunity of such speech for all
adverse purposes. The Supreme Court appears to have so understood the intent of
the provision when it said, in I.B.E.W. v. N.L.R.B., 341 U.S. 694, 704 (1951).
The remedial function of § 8(c) is to protect noncoercive speech by employer
and labor organization alike in furtherance of a lawful object. It serves that
purpose adequately without extending its protection to speech .. . in further-
ance of unfair labor practices . ..." 3e
The Supreme Court gave a recent practical demonstration of the effect of this
concept of limitation on the reach of Section 8(c), in N.L.R.B. v. Exchange Parts
Co., 375 U.S. 405 (1964), where it held that benefits conferred on employees dur-
ing a union campaign violated Section 8(a)(1). In so doing, the Court made use of
an otherwise Section 8(c) privileged general letter of the employer to employees,
u See criticisms and discussion on the meaning by Senators Pepper, Morse, Murray, and
Taft at 2 Leg. list. 1545, 1555, 1567, 1590-91. The H. Minority Rept. 245 on H.R. 3020,
p. 84, 1 Leg. list. 375, had also called attention to the problem of giving a literal reading
to the language that the privileged statements are not to be considered as evidence.
36 The same result would obtain if Section 8(c) amounts to "no more than a restatement
of the principles embodied in the First Amendment," N.L.R.B. v. LaSalle Steel Co., 178
F.2d 829, 835 (C.A. 7, 1949) cert. denied 339 U.S. 963; N.L.R.B. V. Kropp Forge Co., 178
F.2d 822, 828 (C.A. 7, 1949), cert. denied 340 U.S. 810; for while under the First Amend-
ment the employer is free to express his views on labor matters "in determining whether a
course of conduct amounts to restraint or coercion, pressure exerted vocally by the em-
ployer may no more be disregarded than pressure exerted in other ways," N.L.R.B. v.
Virginia Electric and Power Company, 314 U.S. 469 (1940) ; and see Giboney v. Empire
Storage and Ice Company, 336 U.S. 490, 502 (1949).
SMITH'S TRANSFER CORP. 163
sent during the union campaign and summarizing prior to the election past and cur-
rent benefits conferred by the company, as making "almost explicit" the inference
of veiled threat conveyed to the employees that the source of the increased benefits
conferred during the campaign might dry up if not obliged. While so using the state-
ments to help discern the coercive purpose and effect of the grant of benefits, the
Court, citing and quoting Section 8(c), added a disclaimer saying that it placed no
reliance on the words of the respondent employer dissociated from its conduct to
find the violation, 375 U.S. at 409, footnote 3.
The Board has operated under this concept of Section 8(c), particularly where
motivation is in issue as in the 8(a)(3) discharges, with general, though not unani-
mous, approval of the courts of appeals.
Soon after the Taft-Hartley Act was adopted the Board rejected in a discharge
case, the Trial Examiner's ruling that under Section 8(c) the employer's speech
could be used in his favor but not against him in determining motivation (the dis-
charge was affirmed on the other evidence), Greensboro Coca Cola Bottling Com-
pany, 82 NLRB 543, 545, 554 (1949), enfd. N.L.R.B. v. Greensboro Coca Cola
Bottling Co., 180 F.2d 840 (C.A. 4, 1950).
Shortly thereafter, in Edwards Brothers, Inc., 95 NLRB 1451, 1452, footnote 2
(1951), the Board refused to adopt the Trial Examiner's ruling which excluded
from evidence speeches to employees (in connection with discharge questions), the
Board holding that, whether or not the speeches were privileged under Section 8(c),
such testimony was relevant and admissible as background and to show motivation
on the part of the employer.
In N.L.R.B. v. Southern Desk Co., 246 F.2d 53 (C.A. 4, 1957), the court affirmed
and enforced the Board's decision respecting a discriminatory discharge, and specif-
ically adopted the Board's finding (among others) that the employer was opposed
to the union's organizational effort, which in turn rested on the Trial Examiner's
admission into evidence and use of the employer's prerepresentation election letter
considered, though privileged under Section 8(c), in the whole context of the case
as showing "company hostility to the Union," 116 NLRB 1168, 1170, 1177 (1956).37
In Angwell Curtain Co., v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7, 1951), the
court held that the Board properly considered the "antiunion attitude" of the
employer in finding discriminatory discharges and that, in this connection, antiunion
statements made after the discharge in a period closely following it were relevant as
reflecting attitude immediately preceding the discharge.
The same type reasoning and rule have been applied to Section 8 (a) (1) cases. In
Hendrix Manufacturing Company, Inc. v. N.L.R.B., 321 F.2d 100, 103-104 (C.A.
5, 1963), the court noted the legal right of the employer vigorously to oppose the
union in a preelection speech, but also found that the Board had ample justification
to regard this speech as an emphatic statement of antiunion attitude. "In this sense
it is properly `background' against which to measure statements, conduct, and the
like made by other management spokesmen, especially in terms of the interpreta-
tion which the employees reasonably could put on such actions. More specifically,
this would bear on the question whether, from the listeners' point of view, these
statements by subordinate management constituted forbidden coercion, threats, or
intimidation."
The court went on to reject the idea advanced by the Tenth Circuit in N.L.R.B.
v. Colvert Dairy Products Co., 317 F.2d 44 (C.A. 10, 1963), a case upon which the
Respondent in the present proceeding relies heavily, that this use of speech as back-
ground in determining attitude is "a left-handed" finding that the employer's speech
was illegal. On the contrary, says the Fifth Circuit, the purpose of the speech was
proper, it was antiunion but legally antiunion, 321 F.2d at 104, footnote 6.38
The Colvert case, 317 F.2d 44, is the leading case for the contrary view, that an
employer's antiunion speech, privileged under Section 8(c), may not be used as
background to show employer union animus, on the ground that such use would
37 Accord, in a discharge case, using statements to employees to show that the employer
"was opposed to unionization," Bakcr Hotel of Dallas, Inc., 134 NLRB 524, 528-529
(1961), enfd. 311 F.2d 528 (C.A. 5, 1963).
'-More recently, for use as background of Section 8(c) privileged speech, see U.A.W. v.
N.L.R.B., 363 F.2d 702, 707 ; (C.A.D.C., 1966) ; Hollywood Vassarette Division of Munsing-
wear, Inc., 149 NLRB 839, 844, footnote 16 (1964) ; and General Electric Company, 150
NLRB 192, 280-282. The latter includes, at the cited pages, an excellent analysis by Trial
Examiner Arthur Leff of the respondent's Section 8(c) defense in that case.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
destroy by indirection the right of free speech in labor controversy.39 The Respond-
ent has cited several other cases in support 40 Without stopping to analyze the fact
situations in these decisions, it is evident that the Colvert line of cases combines a
literal reading of the statute with an expansive logic for which there are adequate
and persuasive answers, noted above, in the legislative history of Section 8(c) and
in the collective majority view of the Board and courts.
I am, of course, bound by the Board's view and practice, but from the foregoing
analysis I think this view and practice are correctly founded and of importance to
a fair resolution of controversy, as here, where state-of-mind is involved.41
We are told that "the `real motive' of the employer in an alleged Section 8(a)(3)
violation is decisive," N.L.R.B. v. Brown, et at., d/b/a Brown Food Store, 380 U.S.
278, 287 (1965) 42 And Judge Learned Hand has pointed out that "nothing is more
difficult than to disentangle the :motives of another's conduct-motives frequently
unknown even to the actor himself," N.L.R.B. v. Universal Camera Corporation,
190 F.2d 429, 431 (C.A. 2, 1951), remanded 340 U.S. 474. Moreover, "Actual
motive, a state of mind, being the question, it is seldom that direct evidence will be
available that is not also self-serving. In such cases, the self-serving declaration is
not conclusive; the trier of fact may infer motive from the total circumstances
proved. Otherwise no person accused of unlawful motive who took the stand and
testified to a lawful motive could be brought to book." Shattuck Denn Mining Cor-
poration v. N.L.R.B., 362 F.2d 466, slip. op. p. 6 (C.A. 9, May 9, 1966).
Examination of the total circumstances, including speech, is therefore essential to
fair judgment of motive, and Section 8(c) presents no bar to such examination.
I have found that the Respondent's preelection leaflets expressed hostility to the
Union coming into the Staunton garage, corroborating other detailed evidence of
hostility and discriminatory motivation for the discharge and, with other evidence,
contradicting Respondent's claim of good union relations and neutrality at the
Staunton garage.43 As recently stated by the Court of Appeals for the First Circuit
"the respondent's vehement opposition to the union is of significance in determining
whether the discharges here were actuated by anti-union motives." N.L.R.B. v.
Lipman Brothers Inc., 355 F.2d 15 (C.A. 1, January 1966). And note the Board's
recent decision, Virginia Metalcrafters, Inc., 158 NLRB 958, pp. 5-6 (1966), rely-
ing on the circumstances of the discharge and "that Respondent was hostile to
the Union's organizing campaign" in finding discriminatory motivation for the
discharge.44
3n The panel of the Tenth Circuit that decided the case was divided 2 to 1, Judge Bratton
taking the opposing view that the privileged speech was valid background, lending cor-
roborative support to evidence of coercive purpose.
11 Indiana Metal Products Corporation v. N.L.R.B., 202 F2d 61.3 (C.A. 7, 1953) ; Pitts-
burgh S.S. Company v. N.L.R.B., 180 F.2d 731 (C.A. 6, 1950), affd. 340 U.S. 498, but ex-
pressly not deciding effect of Section 8(c), at 501.
41 The result is not unlike that reached by the Board and the courts in using, or exclud-
ing from evidence, events barred as the basis of an unfair labor practice charge by the
6-month limitation under Section 10(b) of the Act. The pre-statute-of-limitations events
are barred as evidence if only through reliance on them an unfair labor practice can be
charged, but otherwise they "may be utilized to shed light on the true character of matters
occurring within the limitations period" ; Local Lodge 1112l, Machinists v. N.L.R.B., 362
U.S. 411, 416-417 (1960) ; rule properly applied in assessing animus and hostility toward
union, N.L.R.B. v. Craig-Botetourt Electric Co-operative, 337 F.2d 374 (C.A. 4, 1964), enfg.
144 NLRB 355.
43 Accord American Ship Building Co. v. N.L.R.B., 380 U.S. 300, 311 (1965).
4a Background evidence, purporting to be favorable to the Respondent respecting its
union relationships, was also properly admitted and weighed, supra. Compare Consolidated
Chemical Industries, Division of Stauffer Chemical Company, 120 NLRB 1625, 1638
(1958).
44 Certain matters, not touched upon in the body of the decision, deserve note
1. In my review of the facts and in the conclusions reached, I had no occasion, and
therefore found no necessity, to consider or determine whether Foremen Ralph Beard and
John Eaton were "supervisors" within the meaning of the Act, although there was testi-
mony developed at the hearing which could support a determination that they were
supervisors, in contradiction of a stipulation that they were not supervisors entered by
counsel for the Respondent and the Union in the earlier representation hearing, 5-RC-
5315, October 12, 1965. 1 did not think, nor did the parties suggest in their briefs, that
SMITH'S TRANSFER CORP.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
165
The activities of the Respondent set forth in section II, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing the
free flow thereof.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action which will effectuate the policies
of the Act.
Because the Respondent discriminatorily laid off and discharged its employee
Edward P. Camden, it will be recommended that the Respondent offer him immedi-
ate and full reinstatement to his former position or to a substantially equivalent
position, without prejudice to his seniority or other rights or privileges. It will be
recommended that the Respondent make him whole for any loss of earnings he
may have suffered as a result of the discrimination against him by payment of a
sum of money equal to that which he normally would have earned as wages from
the date of discharge to the date of the Respondent's offer of reinstatement, less
net earnings, if any, during this period. The backpay shall be computed on a quar-
terly basis as prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289
(1950), approved in N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344
U.S. 344 (1953), and shall include interest at 6 percent per annum as provided by
the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), approved in
Philip Carey Manufacturing Company v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964)
and cases cited.
Because the Respondent by its conduct violated fundamental employee rights
guaranteed by Section 7 of the Act, and because there appears from the manner
of the commission of this conduct a disposition to commit other unfair labor prac-
tices, it will be recommended that the Respondent cease and desist from in any
manner infringing upon the rights guaranteed employees by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941).
any of the significant or determinative facts of this case turned on the relative "supervisory"
or "employee" status of Beard or Eaton, to the extent of their involvement.
It is also, therefore, unnecessary for me to deal with the suggestion of Respondent's
counsel, renewed in his brief, that I take judicial notice of the stipulation respecting
Beard and Eaton and, in effect, consider the General Counsel and myself bound by it. In
passing, even if it could be assumed that the General Counsel is in some way party to the
stipulation in the representation case, it is far from clear that in this 8(a) (1) and (3)
case the Trial Examiner would be bound by the stipulation or prevented by it from making
an independent determination of the supervisory status of the affected individuals, com-
pare Amalgamated Clothing Workers v. N.L.R.B. (Sagamore Shirt Co.), 365 F.2d 898
(C.A.D.C., June 27, 1966), 62 LRRII 2431, 2434-35.
2. In the hearing at the close of the General Counsel's case, Respondent's counsel, who
in cross-examining the General Counsel's witnesses had made use of earlier written state-
ments of the witnesses produced from the General Counsel's file, requested twice that I
compel the General Counsel to provide Respondent with copies of these written statements
to help prepare his witnesses in the presentation of the Respondent's defense. I denied the
request on the ground that in having and using the statements of the witnesses for pur-
poses of attempted Impeachment of the witnesses, the Respondent had had the full use of
such investigative material as is permitted under the so-called Jencks rule, and had no
right to such investigative materials in the General Counsel's file to prepare the Respond-
ent's case.
The Board's practice, following the Jencks case infra and statute, 18 USC 3500, is writ-
ten into Section 102.118, Board Rules and Regulations, Series 8 (29 CPR 102-118), see
Ra-Rich Iltanufacturing Corporation, 121 NLRB 700 (1958). In Jencks v. United States,
353 U.S. 657 (1957), the Supreme Court held that the production of such pretrial
statements was required only "for impeachment purposes . . . at the time of cross-
examination . . ." Anthony DI. Padermo v. United States, 360 U.S. 343, 345 (1959).
The statements were produced for and used by the Respondent in accordance with
the prescribed conditions, and were not otherwise properly available to the Respondent.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing facts and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning of Section 2 ( 6) and (7) of
the Act. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. By interfering with, restraining , and coercing employees in the exercise of
their rights under Section 7 of the Act , and by discriminating with respect to the
employment and tenure of Edward P. Camden, as found above , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 ( a)(1) and ( 3) of the Act . These unfair labor practices affect commerce
within the meaning of Section 2 ( 6) and (7) of the Act.
3. In light of the preceding conclusions , the Respondent 's several motions to
dismiss parts or all of the complaint are, except for paragraph VI(e) of the com-
plaint, without merit and are denied . Paragraph VI(e) of the complaint is dismissed.
RECOMMENDED ORDER
Upon the basis of the foregoing facts and conclusions of law, and upon the
entire record in this proceeding , I recommend that the Respondent , Smith's Trans-
fer Corporation of Staunton , Virginia , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Interfering with, restraining , or coercing its employees in their union activi-
ties by discharge or threat of discharge or other reprisal , or by interrogating any
of them concerning their union activities and sympathies , or by promising or grant-
ing any of them benefits to discourage their participation in union activities.
(b) Discouraging membership in or activities on behalf of the Union, or any
other labor organization of its employees , by discharge or threatening discharge of
any employee , or in any manner discriminating in regard to hire, tenure , and con-
dition of employment.
(c) Interfering with Board investigation of any alleged unfair labor practice and
instructing employees not to cooperate in any such investigation.
(d) In any other manner interfering with, restraining , or coercing its employees
in the exercise of their rights to self-organization , or to form , join, or assist the
Union, or any other labor organization, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection , or to refrain
from engaging in any or all such activities.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act.
(a) Offer to employee Edward P. Camden immediate and full reinstatement to
his former position or to a substantially equivalent position without prejudice to
his seniority or other rights and privileges, and make him whole in the manner set
forth in the section of this Decision entitled "The Remedy," for any loss of earn-
ings he may have suffered as a result of the discrimination against him.
(b) Notify the above-named employee, if serving in the Armed Forces of the
United States , of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and , upon request , make available to the Board and its agents for
examination and copying all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to ascertain
the backpay due under the terms of this Recommended Order.
(d) Post in the Respondent 's maintenance shop or garage in Staunton , Virginia,
copies of the attached notice marked "Appendix ." 45 Immediately upon receipt
of the copies of said notice , to be furnished by the Regional Director for Region 5
45 In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order " shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice . In the further event that the Board's Order is enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States Court
of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order."
SMITH'S TRANSFER CORP. 167
(Baltimore, Maryland), the Respondent shall cause the copies to be signed by one
of its authorized representatives, to be posted, and to be maintained for 60 con-
secutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 5, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith.46
40 In the event that this Recommended Order is adopted by the Board. this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the (late of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer to Edward P. Camden immediate and full reinstatement to
his former position or to a substantially equivalent position without prejudice
to his seniority or other rights and privileges, and will make him whole for
any loss of earnings suffered as a result of the discrimination against him.
WE WILL NOT interfere with, restrain, or coerce our employees in their union
activities by discharge or threat of discharge or other reprisal, or by coercively
interrogating any of them concerning their union activities and sympathies, or
by promising or granting any of them benefits to discourage their participation
in union activities.
WE WILL NOT discourage membership in or activities on behalf of Teamsters
Local 29, a/w International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organization, by dis-
charge or threatening discharge of any of our employees or in any other man-
ner discriminating against any employee in regard to hire, tenure, or condition
of employment.
WE WILL NOT interfere with National Labor Relations Board investigation
of any alleged unfair labor practice and WE WILL refrain from instructing
employees not to cooperate in any such investigation.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization or to form, join,
or assist the above-named Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from engaging in any or all such activities.
All of our employees are free to become or remain, or to refrain from becoming
or remaining, members of any labor organization.
SMITH'S TRANSFER CORPORATION OF STAUNTON, VIRGINIA,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland 21202, Telephone 752-2159.