Standard Motor Products, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1982

265 N.L.R.B. 482 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Standard Motor Products, Inc. and Daniel Whittle
and Charles Stallions. Cases 15-CA-8331 and
15-CA-8417
November 24, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 13, 1982, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, counsel for the Gener-
al Counsel and Respondent, respectively, filed ex-
ceptions and supporting briefs, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,I find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Standard
Motor Products, Inc., Montgomery, Alabama, its
officers, agents, successors, and assigns, shall take
the action set forth in said recommended Order, as
modified below:
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from its files any reference to the
discharge of Edgar Lee Hayes on September 22,
i We note the following scrivener-type errors made by the Administra-
tive Law Judge and excepted to by Respondent: in sec. In,B,3, first para-
graph, fifth sentence, the word "ever" should read "never"; in sec. I1,E,
penultimate paragraph, second sentence, the word "down" should read
"shown"; and in the section entitled "Conclusions of Law," the sixth
paragraph should read, "Respondent did not violate Section 8(aX3) and
(1) of the Act in the discharge of Daniel Whittle and Charles Stallions."
s Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
As requested by the General Counsel, we have modified the Order and
notice recommended by the Administrative Law Judge to include provi-
sions requiring Respondent to expunge from its files any reference to the
unlawful September 22, 1981, discharge of Edgar Lee Hayes and to
notify Hayes in writing that this has been done and that evidence of these
unlawful actions will not be used as a basis for future discipline against
him. See Sterling Sugars Inc., 261 NLRB 472 (1982).
265 NLRB No. 68
1981, and notify him in writing that this has been
done and that evidence of this unlawful action will
not be used as a basis for future discipline against
him."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discourage membership in
Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local Union No. 612, or
any other labor organization by discriminatori-
ly discharging, or in any other manner dis-
criminating against, employees with regard to
their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT publish, maintain, or enforce
any rule of conduct which unlawfully limits
the rights of our employees to make statements
relating to wages, hours, working conditions,
or other terms and conditions of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL offer full and immediate reinstate-
ment to Edgar Lee Hayes to his former job,
or, if such job no longer exists, to a substan-
tially equivalent position without prejudice to
his seniority or other rights and privileges pre-
viously enjoyed, and WE WILL make him
whole for any losses which he suffered by
reason of the discrimination against him, with
interest.
WE WILL expunge from our files any refer-
ence to the discharge of Edgar Lee Hayes on
September 22, 1981, and we will notify him in
writing that this has been done and that evi-
dence of these unlawful actions will not be
used as a basis for future discipline against
him.
STANDARD MOTOR PRODUCTS, INC.
482
STANDARD MOTOR PRODUCTS, INC.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge:
This case was heard at Montgomery, Alabama, on Feb-
ruary 24 and 25 and March 12, 1982. The charge was
filed in Case 15-CA-8331 on September 25, 1981,1 by
Daniel Whittle, an individual, herein called Whittle, and
the complaint in that matter issued on October 26 alleg-
ing that Standard Motor Products, Inc., herein called
Respondent or the Company, violated Section 8(aXl)
and (3) of the National Labor Relations Act, as amend-
ed, herein called the Act, in the discharge of Whittle and
employee Edgar Lee Hayes, on September 22. The
charge in Case 15-CA-8417 was filed by Charles Stal-
lions, an individual, herein called Stallions, on December
14, amended January 11, 1982, and the complaint in the
case issued on January 21, 1982, alleging that Respond-
ent violated Section 8(a)(3) and (1) of the Act in the im-
position of more onerous work assignments on Stallions
on November 12 and terminating Stallions on December
9. The complaint in each case also alleges certain indi-
vidual acts by Respondent violative of Section 8(a)(1) of
the Act. An order consolidating the cases for hearing
issued on January 21, 1982.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation licensed to do business in
the State of Alabama where it is engaged in the business
of warehousing and distributing of automotive parts. Re-
spondent operates a warehouse at Montgomery, Ala-
bama, which is the only facility involved in this proceed-
ing. During the 12-month period prior to issuance of the
complaint Respondent received at its Montgomery, Ala-
bama, facility goods and materials valued in excess of
$50,000 directy from points located outside the State of
Alabama. The foregoing facts which are admitted by Re-
spondent meet the Board's jurisdictional standards and I
find that Respondent is an employer within the meaning
of Section 2(2) of the Act engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. The com-
plaint alleges, and at the hearing Respondent stipulated,
that Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Local Union No. 612, herein called the Union,
is, and has been at all material times, a labor organization
within the meaning of Section 2(5) of the Act. I so find.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
According to the testimony of Stallions, which was
uncontradicted in this regard, the union activity among
Respondent's employees began about August 25 when
Stallions along with Edgar Hayes sought out a union to
I All dates are in 1981, unless otherwise stated.
organize Respondent's employees. On September 10,
they met with the Union and received authorization
cards to be passed out among Respondent's employees.
Stallions also testified without contradiction that he
signed a card himself and secured other employees' sig-
natures on authorization cards. On September 14, he
passed out union leaflets to employees who were report-
ing to work. It is undisputed that on September 14 the
Union telegraphed Respondent that Stallions, Hayes and
three other employees, Freddie Irving, John Graham,
and Mickey Williams2 were engaged in an organizing
campaign at the Company on behalf of the Union. Subse-
quently, Hayes was discharged on September 22 while
Stallions was discharged on December 9. The third al-
leged discriminatee, Dan Whittle, like Hayes, was dis-
charged on September 22. The details of each discharge
will be set forth below following treatment of the alleged
independent violations of Section 8(aXI) of the Act.
Plant Manager Tom Cunningham also testified that he
had received information that the names of Graham and
Williams had also been used without their knowledge or
permission.
B. The Alleged Independent 8(a)(l) Violations
1. Respondent's rules
The complaint in the first numbered case alleges that
Respondent promulgated in April, and continuously
maintained and enforced thereafter, the following rules:
18. Employees must not engage in any nonjob relat-
ed activities during working hours without permis-
sion from their supervisor. Violators will be dis-
charged.
29. Any employee making false, vicious or mali-
cious statements concerning an employee, the man-
agement, the company or its works will be dis-
charged. s
It is the General Counsel's contention that the above
rules constituted overly broad no-solicitation rules which
inherently interfered with the Section 7 rights of employ-
ees to engage in mutual aid and support. Respondent
admits that the above rules have been maintained by it at
all material times. The uncontradicted evidence also
shows that the rules were republished and distributed to
certain employees on August 8. 4
In T.R. WI Bearings Division, a Division of TR. ., Inc.,
257 NLRB 442 (1980), the Board reaffirmed its position
that an employer rule prohibiting, without further clarifi-
cation, employees from engaging in solicitation during
working hours is presumptively invalid. The presumption
may be rebutted, however. In the instant case, notwith-
standing the complaint allegation that the rules were en-
forced, there is no evidence that the rules related above
' Irving, presented as a witness by Respondent, testified that her name
was used in the telegram without her authorization or knowledge.
It. Exh. I.
Jt. Exh. 2.
483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were enforced so as to prohibit employees from solicit-
ing during their breaktime, lunchtime, or other free time
during regular working hours without prior permission.
On the other hand, Plant Manager Tom Cunningham tes-
tified without contradiction that the rules which were
originally published in April 1980, when the facility was
opened for business, were not strictly enforced with re-
spect to the no-solicitation rule, and that it was his prac-
tice in going over Respondent's rules with new employ-
ees to tell them that breaks were their own time and they
could do what they wanted during breaks and lunch pe-
riods. With respect to the rule regarding false statements,
Cunningham testified, again without contradiction, that
the rule was not applied or enforced against any kind of
union talk. Cunningham's testimony in the foregoing re-
spects was not rebutted by any General Counsel witness
and there was no evidence in the record to establish that
the rule was in any way disparately applied or to estab-
lish that any employee was under the impression that he
could not engage in union activity during the lunch peri-
ods or breaktime. On the contrary, Whittle, called by the
General Counsel, testified that "everybody" understood
that breaks were their own free time. Stallions also con-
firmed his understanding that breaktime and lunchtime
were free of restrictions relative to union solicitations.
Cunningham's testimony regarding the no-solicitation
rules was delivered in a believable and convincing
manner. His claim that he explained to employees the
extent of the no-solicitation rule was not only uncontra-
dicted, but also appears to have been supported by the
General Counsel witnesses, Whittle and Stallions. Final-
ly, there was no evidence the no-solicitation rule was, in
fact, applied to restrict employees' solicitation to times
other than when they were properly required to be per-
forming their assigned work tasks. Accordingly, I credit
Cunningham's testimony on this point, and I conclude
that Respondent has rebutted the presumption of invalid-
ity of the no-solicitation rule arising by virtue of the ref-
erence therein to "working hours," by properly orally
clarifying to employees the extent of application of the
rule. I therefore find no violation of the Act in Respond-
ent's maintenance of the rule as clarified.
The rule regarding false statements by employees
stands on a different footing. The Board has held that
rules substantially similar to Respondent's rule 29 are not
simply presumptively violative of the Act, but are viola-
tive per se because the utterance of inadvertent or un-
knowingly false statements by employees in the context
of concerted activity under the Act is protected. St.
Joseph Hospital Corporation, 260 NLRB 691 (1982), citing
American Cast Iron Pipe Company, 234 NLRB 1126
(1978), enfd. 600 F.2d 132 (8th Cir. 1979). Moreover, Re-
spondent's rule 29 is also overly broad because it is fa-
cially applicable to not only nonworking time, but also
to statements made while off Respondent's property. Id
Accordingly, I find that Respondent's maintenance of its
rule 29 violates Section 8(a)(l) of the Act.
2. Alleged statements of Cunningham
A number of instances of 8(aX)(1) violations alleged in
the complaint were attributed to Respondent's repre-
sentatives by the testimony of Stallions. Stallions related
that around 11 a.m. on September 14 he was called into
Cunningham's office where Cunningham told him that
he was aware that Stallions with a group of others was
organizing a union at the Company. Cunningham added,
Stallions testified, that he wished that they had come to
him personally, and that they would "regret" it. Stal-
lions' response was that he wished that Cunningham
would not take it personally, and it was not intended to
be personally against him. Stallions could recall nothing
further of the conversation.
Plant Manager Cunningham admitted that he had a
meeting with Stallions but placed it a day or so after the
Union's telegram. He added that the meeting was at Stal-
lions' request. Stallions, according to Cunningham, com-
plained that Cunningham was attempting to get Stallions'
father-in-law fired by another employer because of Stal-
lions' union activities. Cunningham reported he denied
the accusation and testified he avoided talking to Stal-
lions about the Union. Moreover, Cunningham related
that he could not recall making any comment to Stallions
regarding the wish that Stallions had come to him first
rather than the Union, and he emphatically denied that
he ever told Stallions that he or the employees would
regret going to the Union.
Stallions reported that Cunningham called him into his
office again on September 16 to tell him that he and
Billy W. Stanfield, his supervisor, were to cut out their
horseplaying and stop card playing and the football
board. In this meeting, according to Stallions, Cunning-
ham stated that he had proposed a wage scale to New
York (Respondent's home office) and that the situation
that existed at the plant would "alter those circum-
stances" to take effect on January 1. Cunningham added
that he could foresee some layoffs, Stallions testified.
While Stallions said there was some other talk about
other things he related nothing further about that con-
versation.
Cunningham denied the remarks attributed to him by
Stallions and testified that he made no comments at all
concerning wage increases to Stallions.
The General Counsel relies on Stallions' testimony in
the foregoing respects to establish the complaint allega-
tions that Cunningham unlawfully threatened to delay
pay raises for employees and to lay off employees be-
cause of their union activities.
Stallions further testified that on the morning of Sep-
tember 24 he met Cunningham at or around 10:30 or 11
a.m. In that meeting with Cunningham, Stallions asked
Cunningham if he would be next to be discharged in
view of the discharge of Whittle and Hayes. Cunning-
ham responded, Stallions testified, that he guaranteed
Stallions that he would not be fired before the election,
but that pending the outcome of the election he could
not guarantee him anything. Cunningham denied the
remark attributed to him by Stallions. The General
Counsel contends that the foregoing establishes the com-
plaint allegation that Respondent impliedly threatened an
employee with discharge by informing the employee that
484
STANDARD MOTOR PRODUCTS, INC.
his continued employment was dependent upon the out-
come of the union election.s
Considering all the foregoing testimony of Stallions, it
is clear such testimony is irreconcilable with that of Cun-
ningham. I found Cunningham more credible in demea-
nor as a witness. His denials of the remarks attributed to
him were unequivocal and persuasive. He exhibited gen-
erally good recall of events and he expressed his recol-
lections without hesitation. His explanations of the meet-
ings with, and remarks to, Stallions were not illogical or
implausible and were expressed with a sincerity that
clearly supported his credibility. Cunningham's assertion
that he specifically avoided talking to Stallions about the
Union was particularly convincing. It was also logical
that Cunningham would seek to avoid discussions re-
garding the Union with a known union supporter who
had been identified as such through the Union's own
telegram to Respondent. It is improbable that Cunning-
ham would make coercive remarks regarding the Union
to Stallions, a known union adherent, and not to other
employees. Yet, aside from unlawful interrogation attrib-
uted to him by Hayes, another known union adherent
and an individual who cannot be considered as wholly
impartial, no other employee attributed to Cunningham
any coercive remarks. Weighing the foregoing against
Stallions' testimony, his demeanor, his obvious pecuniary
interest in the outcome of the proceeding, his rather se-
lective memory,6 and my feel for the record as a whole,
I find Cunningham far more credible. Accordingly, I
credit Cunningham's denials and explanations regarding
the remarks attributed to him by Stallions. I find no vio-
lations of Section 8(aXl) of the Act by Respondent based
on Stallions' testimony.
The complaint also alleges that on May 11 Respondent
interrogated an employee concerning the employees'
union activities and beliefs. This allegation is based upon
the testimony of employee Hayes and grows out of
Hayes' employment interview with Cunningham on or
about May 11. Hayes testified that he had previously
worked for a freight line where he had been represented
by a union. In the preemployment interview, according
to Hayes, Cunningham in reviewing Hayes' application
allegedly remarked, "I see that you worked for the
Teamsters before." Hayes acknowledged that he had and
then, according to Hayes, Cunningham asked him if he
would sign "a card" if anybody approached him. Hayes
responded negatively. That was all that was said on that
point according to Hayes.
Cunningham denied questioning Hayes about whether
he would sign a union card if approached. He conceded,
however, that he had a conversation with Hayes con-
cerning his application and specifically he had observed
* The complaint allegation on this point alleges that the incident oc-
curred on October 5 rather than September 24 as Stallions testified. The
record relects no explanation for the difference in dates.
· It is noteworthy that while Stallions, a staunch union supporter who
was well aware of the discharge of Hayes and Whittle (and the alleged
unlawfulness of it). apparently did not reveal to Board investigators any
coercive remarks by Cunningham until after his own discharge in De-
cember. It appears that the discharge prompted the recollections upon
which the General Counsel had based the independent 8(a)() allegations
contained in the complaint in Case 15-CA-8417 and attributed to Cun-
ningham on dates prior to the discharge of Hayes and Whittle.
on the application that Hayes had received a rather large
hourly pay rate at his previous employer, and admitted
that he assumed that Hayes had been working at a firm
where employees were represented by a union. He asked
Hayes how he would feel about working for substantial-
ly less wages than he had received working for the prior
employer. At that point Hayes indicated that those were
"contract wages" at the previous employer and Cunning-
ham then expressed concern that Hayes was just looking
for a "stop gap job" and might not be satisfied working
for Respondent. Hayes had responded that his wife also
worked and there would be no problem. Cunningham
specifically denied that he asked Hayes how he would
respond if he were approached about the Union, and he
further denied any questions whatsoever to Hayes about
a union.
I credit Cunningham's version of the interview with
Hayes. Cunningham's testimony on this point was not
only clear and unequivocal, but also reasonable and logi-
cal. It is also consistent with Hayes' application for em-
ployment 7 which made no reference to Hayes' union
membership. Moreover, Hayes appeared less positive
generally in his testimony and was clearly less convinc-
ing. Furthermore, if Cunningham had been concerned re-
garding Hayes' potential as a union supporter at Re-
spondent's place of business sufficient to prompt or moti-
vate the question attributed to Cunningham by Hayes, it
is more than likely given the antiunion motivation attrib-
uted to Respondent in the 8(aX3) discharges herein that
Respondent would not have hired Hayes to begin with.
Accordingly, I find that Cunningham did not question
Hayes as Hayes alleged, and I therefore find no unlawful
interrogation as alleged in the complaint regarding this
incident.
3. Alleged statements of Stanfield
Stallions also testified regarding some remarks alleged
in the complaint as coercive and attributed to his super-
visor, Billy Stanfield. Thus, in support of the complaint
allegation that Stanfield threatened a layoff or plant clo-
sure because of the union activity, Stallions testified that
around September 22 he talked to Stanfield in the returns
department where Stanfield was supervisor, and Stan-
field told him that the Union was going to cause layoffs
and would cause the same thing that happened in the
San Francisco plant, that it would close down and possi-
bly move. Stallions responded that it was just another
scare tactic of the Company. He could recall nothing
further regarding the conversation which was witnessed,
according to Stallions, by employee Freddie Irving.
Stanfield in his testimony denied making such remarks to
Stallions and denied further that Respondent ever had a
plant in San Francisco or in California. Irving, called as
a witness by Respondent, testified that she had never
heard anything about layoffs or shutdown of a San Fran-
cisco plant.
Although not specifically alleged as an independent
violation of the Act, Stallions testified that on September
23 Stanfield talked to him in Stanfield's office where
' Resp. Exh. 12.
485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stanfield told him that Cunningham and the office per-
sonnel were watching Stallions on the monitors and that
he was standing around talking "union." Stanfield added,
according to Stallions, that they were putting a lot of
pressure on Stanfield to fire Stallions and that this could
not be tolerated. Stanfield told Stallions that he was tell-
ing him that to help protect his job. There were no wit-
nesses to his conversation, according to Stallions.
Stanfield denied the remarks attributed to him by Stal-
lions about Stallions being observed. On the other hand,
Stanfield testified that he had chastised Stallions once for
having walked away from his work area and going to
Stanfield's office where employees Pam Ray and Freddie
Irving were working. When Stanfield asked him what he
was doing there, Stallions replied that he was "just talk-
ing." Stanfield told him that as long as he had work to
do to go to his own worktable and do it. Stallions' re-
sponse, according to Stanfield, was, "Well, it won't be
long until the union will be in here and I'll have a specif-
ic job to do, and I'll know exactly what I'm going to do
and when I'm going to do it." Stanfield repeated his di-
rection that Stallions get on back to his worktable. Stal-
lions responded, "Well, we know what you make a year;
what Mr. Cunningham makes a year; what Speer makes
a year; and we know what the Company made last
year." Stanfield answered that he did not care what Stal-
lions knew but if he had proof of the matter and brought
it in the next day Stanfied would give him 10 minutes to
get up on a table and preach his "fucking Union." Stan-
field's testimony with respect to his matter was generally
corroborated by Irving.
Stallions also testified in support of a complaint allega-
tion of unlawful interrogation by Stanfield that, on No-
vember 10, 11, and 12, Stanfield questioned him several
times about which way the election was going.8 Specifi-
cally, Stanfield asked him if he thought the Union would
win the election and Stallions told him yes. Stanfield also
had inquired as to whether Stanfield's name had come up
at union meetings. On November 11, Stanfield allegedly
told Stallions that he saw many people going to Cun-
ningham's office and they were telling Cunningham that
they were all for the Company. Stanfield then observed
that the same people were coming out and talking to
Stallions and telling him that they were all for the
Union. Stanfield inquired whether with that kind of
"back stabbing" Stallions thought the Union would win.
Finally, Stallions related in his testimony that on the
day of the election he was called into Stanfield's office
where he found Pam Ray, Freddie Irving, and Stanfield.
Stanfield said that he called him there because Freddie
and Pam had some questions. They asked him whether
or not Stanfield had made some kind of deal with Stal-
lions. Stallions denied that he made a deal. He was then
asked (apparently by Irving or Ray) how he was going
to vote and he said that he was still going to vote for the
Union. Stallions could recall nothing further about the
conversation.
Stanfield denied in his testimony the remarks attribut-
ed to him by Stallions or any questions of Stallions re-
garding the outcome of the election or the union cam-
' The election was held on November 13.
paign. While he acknowledged that he did call Stallions
into his office on one occasion in the presence of Pam
Ray and Freddie Irving, he said that that was because of
reports made to him by Ray and Irving to the effect that
Stallions was implying to them that Stanfield was relat-
ing to Stallions everything that Irving and Ray were tell-
ing Stanfield in confidence. Stanfield denied that he had
been doing so and called Stallions in to confront him.
Stanfield told Stallions in the presence of Irving and Ray
to tell them what Stanfield had supposedly told Stallions
outside. He said that Stallions equivocated. Finally, Stan-
field told Stallions in the presence of the other two em-
ployees that he did not want him lying anymore. Stan-
field's testimony in this regard is corroborated by Irving,
while Pamela Ray testified she was not questioned re-
garding this incident.
From the foregoing, it is obvious that the testimony of
Stallions is at odds with the testimony of Stanfield and
Irving. Stallions was not corroborated in any respect re-
garding the comments he had attributed to Stanfield. Not
only was Stallions' testimony self-serving, but also it was
lacking in conviction. Finally, his testimony on other
points discussed below were specifically contradicted by
other credible employee witnesses rendering his total tes-
timony suspect and unreliable. On the other hand, the
denials of Stanfield of the remarks attributed to him were
emphatic and expressed with clear conviction. Stanfield
further impressed me as a very candid witness. Stan-
field's denials of any threat of plant closure as in the case
of Respondent's San Francisco plant is particularly con-
vincing in view of the absence of evidence that Respond-
ent ever maintained a place of business in San Francisco
or even in California. I conclude Stallions' testimony on
this point was pure fabrication. Irving's testimony where
it corroborated Stanfield's was also expressed with con-
viction and without equivocation. At times she even dis-
played indignation over Stallions' conduct. Accordingly,
on balance I credit Stanfield and Irving wherever their
testimony contradicts Stallions'. I therefore find no viola-
tions of Section 8(a)(l) based upon Stallions' testimony
regarding remarks attributed to Stanfield.
C. The Discharge of Hayes
Hayes was employed by Respondent about May 12
and worked as a material handler and subsequently as an
aisleman. Hayes became involved in activity on behalf of
the Union around the end of August. He solicited union
authorization cards and on one occasion passed out leaf-
lets to employees as they reported to work through the
back door of the plant. However, his leafletting activity
took place about a week subsequent to September 14, the
date of the Union's telegram advising Respondent of
Hayes' participation in union activity. Hayes was dis-
charged on September 22.
Hayes related that at some time prior to his discharge
he learned from Stallions that someone had written a
letter to get Cunningham fired. Hayes decided to tele-
phone Cunningham at his home one evening, and warn
486
STANDARD MOTOR PRODUCTS, INC.
him of the alleged existence of the letter.9 It was Hayes'
further testimony that during his telephonic conversation
with Cunningham the subject of the Union was raised
and Cunningham asked Hayes who was involved in the
Union. Hayes allegedly responded that he would not
"sell anybody short." Hayes was vague with respect to
how the subject of union arose in the conversation and
testified he "felt like" Cunningham started the talk about
the Union. There was further discussion about things
that the Union could and could not do and Hayes ex-
pressed his views in favor of the Union. Hayes was very
vague with respect to the details of the alleged conversa-
tion with Cunningham.
Cunningham, in his testimony, admitted that Hayes
had telephoned him and placed it in the evening of the
same day that he had received the telegram from the
Union. In his version, Cunningham testified that Hayes
mentioned a letter from two of Cunningham's supervi-
sors demanding that Cunningham resign. Cunningham
admittedly inquired of Hayes who was behind the letter
and Hayes ultimately responded that it was Supervisor
Stanfield and Johnny Graham, an individual who was
not a supervisor and who had been named in the Union's
telegram as being engaged in organizing efforts. Cun-
ningham admittedly asked Hayes why they would write
the letter, but Hayes could shed no light on the matter.
According to Cunningham, no such letter was ever re-
ceived by the Company. Cunningham denied asking
Hayes who was behind the union activity or any ques-
tions of that nature.
The complaint alleges, and the General Counsel
argues, that Cunningham unlawfully interrogated Hayes.
I find Cunningham's version of the telephone conversa-
tion with Hayes more convincing than Hayes' vague tes-
timony as to the contents of that conversation. I con-
clude that Cunningham's questions were limited to ascer-
taining who was behind the letter seeking to have him
fired. Accordingly, I find no unlawful interrogation in
Cunningham's remarks to Hayes.
The details of Hayes' discharge are not in significant
dispute. It appears that, on the morning of September 22,
Cunningham was stopped in the plant area by employee
Bobby Dean who began to ask Cunningham questions
about the Union. Those questions led into a general con-
versation regarding the subject which, from time to time,
drew other participants including Supervisors Jeff Speer
and Stanfield and Hayes. Hayes testified that he was in
and out of the conversation and at one point in the dis-
cussion he disputed an assertion by Cunningham that if
employees went on strike the Company could bring in a
new crew and work them. Cunningham then asserted
that Hayes had been lying to the people. Hayes testified
that he then responded that he was not sure what the
law read and that he would check into it and find out.
Hayes added that Cunningham pointed out that he had
been especially good to Hayes in letting him have time
9 Hayes testified with considerable uncertainty about the date of the
telephone call to Cunningham, and said he could not be sure whether it
occurred before or after the Union's September telegram to Respondent.
off. °I Cunningham, also in the discussion, according to
Hayes, implied that union pay scales were absurd.
Hayes related that the conversation ended just prior to
the third break 1 and he and Bobby Dean went on
break. Hayes claimed he did not have an assigned break
and took any of the three breaks he cared to. Hayes
added that he went to the break room where he got a
Coke and then went to use the telephone which employ-
ees were authorized to using during break periods. After
using the telephone and waiting for a return call, Cun-
ningham and Supervisor Speer walked up to him and
Cunningham told Hayes that he was fired for taking an
illegal break and using the telephone while not on break.
While Respondent conceded that it fired Hayes for
taking an illegal break, it disputes his claim that he had
no assigned break period. In this regard, Warehouse Su-
pervisor Jeff Speer testified that he had specifically dis-
cussed Hayes' break period with him and assigned him to
the first break. In addition, Speer had posted a notice1 2
regarding the break schedule effective September I
which assigned the first break to one aisleman (Hayes'
position) and the second break to the two aislemen. No
aisleman was scheduled for the third break.
Employee Bobby Dean, called by Respondent, disput-
ed Hayes' assertion that Dean had taken a break after the
discussion with Cunningham. Dean testified that he did
not take a break that morning because he had spent his
breaktime talking to Cunningham. Dean related that the
conversation with Cunningham began 10 or 15 minutes
before the first break period and continued until the be-
ginning of the third break period. When the first break
bell rang, Cunningham asked Dean if he were going to
take a break but Dean had opted to remain talking with
Cunningham. Stanfield joined the conversation at or
about the time the second break bell rang. Hayes had
joined the discussion with Cunningham a few minutes
after it started and remained for the entire conversation
according to Dean.
Cunningham's version of the discussion corroborates
that of Dean. More specifically, Cunningham testified
that the conversation actually broke up when Hayes, ap-
parently offended at a remark of Stanfield, called him a
"big motherfucker." This brought a rebuke from Cun-
ningham who told Hayes that he did not want that kind
of talk, and particularly did not want it directed to any
of his supervisors. He added that he did not want to hear
of a situation in which Hayes showed disrespect or in-
subordination to any supervisor at that facility again or
he would fire Hayes. This apparently served to stiffle
further discussion and the conversation broke up. Cun-
ningham testified that, when the first break bell rang, he
indicated to the employees that they could take their
breaks at that time but since nobody responded he as-
sumed it was not their breaktime. He was uncertain
10 Hayes had admittedly had a poor attendance record while employed
by Respondent.
I Respondent authorized three separate 10-minute break periods each
morning to avoid overcrowding of its break facilities and to insure that
some work is continued during break periods. Thus, employees were as-
signed to specific break periods and took their breaks in accord with that
assignment.
Il Resp. Exh. 4.
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether he made the same offer when the second break
bell rang.
Shortly after the conversation broke up, Speer ap-
proached Cunningham and asked if he had told Hayes
that he could take a break at that point. Cunningham
said that he had not and Speer then related that Hayes
was using the telephone. At that point Cunningham ap-
proached Hayes who stated that he was taking a break.
When Cunningham asked if Hayes was not aware that
this was not his breaktime Hayes just shrugged his shoul-
ders. Cunningham terminated Hayes for taking an im-
proper break. Cunningham asserted in his testimony that
Hayes had made an effort to flaunt company rules in
front of Cunningham in such a way that Cunningham
had no alternative but to discharge him. Cunningham
conceded, however, that there had been no prior dis-
charges by Respondent of any employees for taking an
improper break. On the other hand, there was no evi-
dence that there had been any prior violations of the
break rules.
The General Counsel argues that Hayes' involvement
in union activity, Respondent's knowledge of that in-
volvement, the timing of the discharge within a week of
acquisition of such knowledge, and the absence of valid
justification, when coupled with Respondent's admitted
opposition to organization by its employees establish that
Hayes' discharge was because of his union activities. I
concur that the General Counsel has clearly established a
prima facie case of a violation of Section 8(a)(3) of the
Act in the discharge of Hayes based on the circum-
stances he enumerated. The taking of an improper or out
of order break on a single occasion is, on its face, a
rather flimsy excuse for discharging an employee and
serves to impugn the asserted basis for the discharge.
The gravity of the punishment greatly outweighs the of-
fense particularly when one considers that Respondent
had been so lenient with Hayes in a far more serious
problem, his absenteeism, prior to his involvement in
union activity.
Under the Board's decision in Wright Line, a Division
of Wright Line, Inc., 251 NLRB 1083 (1980), the General
Counsel having established a prima facie case of a viola-
tion, the burden shifts to Respondent to establish that
Hayes would have been discharged in any event. I am
persuaded that it has not carried that burden here. There
was no evidence that any employee was discharged or
even reprimanded for the same offense as Hayes prior to
Hayes' discharge.
One employee, Stallions, was reprimanded for taking
an improper break subsequent to Hayes' discharge as dis-
cussed infra. Even that action, however, demonstrates
disparate treatment in Hayes' case. Respondent attempt-
ed to explain the obvious difference in treatment accord-
ed Stallions on the basis that a reasonable basis for doubt
existed as to whether Stallions understood instructions
regarding his appropriate breaktime. Thus, Respondent
had given Stallions the benefit of the doubt while it
denied the same benefit to Hayes even though, notwith-
standing specific instructions with respect to his break-
time, there existed a basis for doubt as to whether Hayes,
by virtue of his discussions with Cunningham and Dean,
knowingly forewent the taking of a break.
Certainly, there was no showing that Hayes' taking of
a third break either caused overcrowding of the break
facilities or caused a disruption of work. In this regard,
from Respondent's own break schedule, it is to be ob-
served that no other aislemen were scheduled to take the
third break, so the aisleman was not completely unat-
tended because of Hayes' taking of the third break
period.
Most revealing as to Respondent's motivation in
Hayes' discharge was Cunningham's further explanation
of the difference in the treatment accorded Stallions.
Thus, Cunningham frankly testified:
So, there was a substantial difference between the
two. In one case, Hayes was coming across to me
as just flaunting this in my face, this is what I can
do and this is what the Union can do, and once
we're in you're not going to be able to stop us
doing whatever we want to do.
This testimony related not to Hayes' taking the break so
much as it related to Cunningham's conclusions with re-
spect to Hayes' remarks in the earlier conversation be-
tween Dean and Cunningham. Hayes was not given any
"benefit of the doubt" as to the appropriateness of his
taking the break because, I conclude, he had angered
Cunningham with what he had said about the Union in
the prior conversation. At the time of his discharge,
Hayes had said nothing additional to provoke Cunning-
ham. Hayes' remarks about the Union in the prior con-
versation, even if wrong, were clearly protected so long
as such remarks were not malicious or willful. American
Cast Iron Pipe Company, supra.
Respondent argues that, if it had been inclined to dis-
charge Hayes for union considerations, it would have
done so when he directed the obscenity to Stanfield.
Beyond the fact that Hayes may have been still under
the umbrella of the Act's protection at the time he made
the remark by virtue of its occurrence in a frank if not
heated union discussion, the fact remains, as Dean's
credible testimony has it, that Hayes apologized for the
remark. Under such circumstances, including the fact
that Stanfield himself had used vulgarity in the discus-
sion, s no valid basis for a discharge existed.
Considering all the foregoing, it is clear, and I con-
clude, that Cunningham clearly associated Hayes' taking
of an improper break with Hayes' staunch union support,
and discharged him accordingly. I therefore find that
Respondent has failed in its burden shifted to it under
Wright Line principles to establish that Hayes would
have been discharged even if he had not been a strong
union supporter. It follows, and I conclude, that, in dis-
charging Hayes, Respondent violated Section 8(aX3) and
(1) of the Act.
Cunninghamun testified that Stanfield had, in describing Respondent's
benevolent attitude to employees, noted in the discussion that Respondent
had given a "break" to Hayes once when he had come to work "all
fucked up," allegedly due to a medication overdose.
488
STANDARD MOTOR PRODUCTS, INC.
D. The Discharge of Daniel Whittle
Whittle was initially employed by the Company in
May 1980 and worked until his discharge on September
22, 1981, except for a brief break in his employment in
February when he voluntarily quit for a short while.
Whittle worked as an order filler and became active in
the Union's organizational campaign. In this regard, he
signed a union authorization card and testified that be-
ginning roughly in the second week of September he
began to talk to employees regarding the Union at lunch-
time and on breaks. In addition, he related that he at-
tended the first union meeting which was held on Sep-
tember 9.
Whittle testified that on September 22 he observed a
notice on the employee bulletin board to the effect that if
employees disagreed with union organization to call a
number which was listed in the notice. Subsequently,
Whittle was told that the number that was posted was
the telephone number of Paul Ledger, another employee.
Whittle testified that he concluded that he would call the
number, but when he went back to the bulletin board to
copy the number the notice had been removed. Accord-
ingly, that afternoon when he got off work he observed
employee Ledger clocking out ahead of him. He fol-
lowed Ledger outside asking him for his telephone
number and Ledger, Whittle testified, told him to "kill
his ass." Whittle proceeded to follow Ledger out to his
car and attempted to continue his questions of Ledger
about the telephone number in the presence of other em-
ployees Dean Dassel, Stallions, and William Bolling.
During the encounter with Ledger, employee Bolling,
who had a plate in his hand, told Ledger that he was
going to hit him with the plate. Also Stallions, according
to Whittle, had to be restrained physically from trying to
get some papers out of Ledger's hand. 1 4
The encounter ended, Whittle testified, when Plant
Manager Cunningham hurried out to the group and
asked Ledger if he had been threatened by Whittle.
Ledger responded affirmatively and was supported by
Dassel. While Whittle denied making any threat to
Ledger, no one else present at the site at the time sup-
ported him. Cunningham then fired Whittle on the spot.
Whittle additionally testified that as he walked back
toward the plant with Cunningham he asked Cunning-
ham why other people who did reprehensible things
were not disciplined and Cunningham allegedly replied,
"Things are different now."
On March 29, still according to Whittle, he returned
to the plant to talk to Cunningham and to ask for his job
back. Whittle testified that Cunningham told him he
would like to give him his job back but that the lawyers
in New York had the case and they were concerned be-
cause Hayes' and Whittle's names were on the same
charge. The conversation ended with Whittle saying that
he would get back in touch with Cunningham the next
morning. However, when he telephoned Cunningham
the next day, Cunningham reported that he had not been
in touch with New York. Whittle had no contact with
Cunningham subsequently.
1" Whittle's testimony in the foregoing respects wu corroborated by
that of Stallions and Bolling.
Whittle denied that he ever threatened to bash Led-
ger's head in. He further denied that he had raised his
fist to Ledger or made any threatening motion or point-
ing motion with his finger to Ledger's face. He admitted,
however, that Stallions' having to be restrained created
quite a scene. Whittle conceded Ledger was nervous
during the encounter and that Ledger was easily scared.
Nevertheless, Whittle maintained that, although he
weighed 210 to 215 pounds compared to Ledger's small-
er frame, he did nothing other than ask Ledger for his
telephone number. Whittle's testimony in the foregoing
respect was generally corroborated by Stallions, Bolling,
and employee Henry Hinkle who also claimed to be
present. More specifically, Bolling admitted that he told
Ledger that he was going to hit him over the head with
the plate, but he testified the comment was not serious,
and Ledger did not view it as serious. According to
Bolling, all Whittle did was ask Ledger for his telephone
number. However, Bolling admitted that at one point he
told Whittle to "cool it" or words to that effect. He ex-
plained that he gave that admonition because of "the
way everybody was crowding around the car and every-
thing."
Stallions; in his testimony, admitted that he had tried
to get the papers out of Ledger's hand and he admits
that somebody, probably Bolling, held him back. Stal-
lions denied hearing any threat by Whittle to Ledger.
Hinkle related in his testimony that he did not hear
any threats of violence from anybody during the parking
lot encounter. And, while he observed that Stallions did
have to be restrained, he did not hear Bolling say any-
thing to Ledger or Whittle. When Cunningham came out
to the group he stated, "Dan, you're fired because you
are behind all this mess." Cunningham's remark in this
regard is strikingly similar to another remark that Hinkle
testified he heard Cunningham make to Supervisor Jeff
Speer on the afternoon of September 16. In this regard,
Hinkle testified that he overheard Cunningham tell
Speer, "I believe Dan is behind all this mess." Hinkle
overheard no further remarks and was unable to put
Cunningham's alleged remark in context.
Hinkle also testified that on the day following Whit-
tle's discharge he told Cunningham that Whittle had not
threatened Ledger. He added that subsequently Cunning-
ham told him that Cunningham had ascertained that
Whittle did not threaten Ledger and would like to bring
him back but it was a Jewish holiday and he could not
contact his boss.
The testimony of Respondent's witnesses contrasts
sharply with that of the General Counsel's witnesses.
Thus, Paul Ledger testified that on his way to the park-
ing lot Whittle started following him and telling him,
"I'm going to knock your fucking head off." At Ledger's
car Whittle started pointing his finger in Ledger's face
and telling him, "I'm going to knock your fucking head
off and break your motherfucking neck." Ledger identi-
fied employee Hank Hoffmon, Dassel, Bolling, and Stal-
lions as being present. While Ledger said that Bolling
made a remark about hitting Ledger in the head with a
plate, Ledger said he did not regard that as a threat be-
cause he and Bolling worked together and in the past
489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been able to say things to each other without offend-
ing each other. He described Bolling as a fairly decent
friend. Ledger testified that, when Cunningham asked
Ledger if he had been threatened, Ledger told Cunning-
ham what happened. Dassel supported Ledger's version
and Cunningham fired Whittle. Dassel, as Respondent's
witness, generally corroborated Ledger's testimony.
Janice Stanfield, who is employed by Respondent as
an office clerical, testified for Respondent that she was
shutting down the terminal and closing the blinds on the
windows when she noticed "a lot of confusion" in the
parking lot. She observed Ledger at his car with his
hands on top of the car and Dan Whittle swinging his
fist in Ledger's face. She said Ledger appeared very
"agitated." She therefore called out to Cunningham and
told him Ledger was being "hassled" out in the parking
lot. At that point, Cunningham hurried out to the scene.
Cunningham testified that when he arrived at Ledger's
car he asked what was going on and if Ledger were
being threatened. Ledger responded that Whittle had
threatened him but Whittle denied it. Dassel reported
that Whittle had said that he was going to knock Paul's
head or something to that effect. Cunningham said that
he observed another employee, Willie Smith, nearby,
but, when he glanced at Smith, Smith acted as if he did
not see anything. He asked Whittle if what Dassel has
said was true and Whittle denied it. Cunningham then re-
sponded by saying that he had Janice Stanfield saying
that she had observed him "hassling" Ledger, that
Ledger had said he uttered a threat, and that Dassel said
that he had threatened to knock Ledger's head off. He
said under those circumstances he was firing Whittle-
Cunningham admitted that on the way back to the plant
Whittle said something about other employees breaking
company regulations and Cunningham responded that
that was a different situation from what they had there.
On the day of his discharge, Cunningham prepared a ter-
mination slip for Whittle stating, "Employee threatened
another employee with bodily harm while on company
property in front of witnesses." 15
Cunningham testified without contradiction that, later
in the afternoon of September 22, Bolling telephoned
him and asked whether Whittle could be reinstated if he
apologized to Ledger. Cunningham said no, but told
Bolling if he wanted to talk about it further to come to
Cunningham's office the next day. He did talk to Bolling
the next day and at this time Bolling admitted that he
had threatened to hit Ledger with a plate. However,
Bolling claimed that Ledger did not take it seriously
since they always joked around. Bolling further related,
according to Cunningham, that there had been other wit-
nesses, so Cunningham said that he would interview the
others to see what happened. Cunningham did talk to
others, most of whom denied having heard or seen any-
thing specific. On the other hand, employee Pam Cripple
specifically told Cunningham that she had heard Whittle
make a threat to Ledger as he was following him out to
his car. Cunningham concluded that Whittle had in fact
threatened Ledger in a serious tone which could be dis-
6 Resp. Exh. 11.
tinguished from Bolling's threat which Ledger admitted-
ly did not take seriously.
Cunningham admitted that Whittle came back to see
him a few days later and continued to assert his inno-
cence of any threats. Further, he admittedly told Whittle
that he hated to fire him because he was a good employ-
ee who he had once hired back but things were different
because he had not just quit, he had threatened an em-
ployee with bodily violence on company property. Cun-
ningham specifically denied saying anything to Whittle
about conferring with company lawyers in New York.
He further denied ever implying to Whittle that he
would not be hired because of the union situation nor did
he imply or state that Whittle could not be hired because
he was connected with Hayes in the same charge which
had been filed against Respondent.
As is readily apparent from the foregoing, there is a
considerable credibility conflict between the witnesses
with respect to whether or not Whittle issued a threat of
any kind to Ledger. Resolving such conflicts requires the
weighing of equally plausible stories by apparently sin-
cere witnesses who have different perceptions of events
they have witnessed. Such perception is naturally affect-
ed by the interest of the individual witness. Minor vari-
ations of perceptions can be expected and even variations
in the identification of other witnesses to the event as
present here is not unusual. In resolving conflicts in such
situations there is always a significant chance of an error
by the trier of fact.
Considering the record as a whole, I conclude that the
single witness to Whittle's threats who was most likely
not to have any position or particular interest to preserve
and therefore most likely to be most disinterested was
Pam Cripple. Pam Cripple, who admittedly was not
present during the entire encounter between Ledger and
Whittle, testified that, as she was leaving the plant and
walking into the parking lot, Whittle was "harassing"
Ledger about a telephone number and she heard Whittle
at one point when she was walking about 6 feet to the
side of Ledger tell Ledger that he was going to "knock
his fucking head off." She also testified she heard Ledger
tell Whittle that he was not even going to talk to Whit-
tle. Pam Cripple proceeded to her car and immediately
left the area.
Cripple was not only unlikely to be biased, but I also
found Cripple most convincing and sincere in demeanor.
Moreover, it is clear that Whittle, as well as Stallions for
that matter, was motivated in the encounter with Ledger
by an apparent change of heart by Ledger with respect
to the union organization campaign,"' and Ledger's ef-
forts to get other employees to withdraw their union au-
thorization cards. Under these conditions, it is not likely
that Whittle was simply asking Ledger for a telephone
number. Moreover, it is unlikely that a simple request for
a telephone number would have provoked the state of
fright which Whittle concedes was exhibited by Ledger.
'I Whittle testified that 38 of Respondent's 38 employees had signed
union authorization cards. If this is true, and there is no evidence to con-
tradict it, the testimony of all of Respondent's employee witnesses cannot
necessarily be dismissed as simply biased and motivated in their testimony
by antiunion considerations.
490
STANDARD MOTOR PRODUCTS, INC.
Accordingly, in view of the threat heard by Pam Cripple
whom I credit, and considering the circumstances as a
whole, and also because Ledger and Dassel impressed
me as sincere and honest, I credit the testimony of
Ledger and Dassel over that of Whittle and the other
General Counsel witnesses with respect to the threats
made at Ledger's car. Accordingly, I conclude that
cause existed for Whittle's discharge.
Whittle's denials of the threats to Ledger, which I
have discredited, in effect colors the remainder of his tes-
timony with respect to remarks he attributed to Cunning-
ham. Accordingly, and because I found Cunningham to
be a frank and convincing witness, I credit Cunning-
ham's denials of the specific remarks attributed to him by
Whittle.
Since I find the facts to be contrary to facts upon
which the General Counsel relies to establish the viola-
tions in Whittle's discharge, I conclude that the General
Counsel has not made a prima facie showing sufficient to
support the conclusion that protected conduct was a
"motivating factor" in Respondent's discharge of Whittle
as required under the Board's principles more recently
enunciated in Wright Line, supra. Moreover, in this
regard, I conclude, as Respondent's brief argues, the
record does not support a finding that Respondent was
aware of Whittle's union activities or inclinations, or
even that the encounter between Ledger and Whittle
was related to union matters.
I specifically discredit that testimony of Hinkle and
Bolling upon which the General Counsel relies to estab-
lish Respondent's knowledge or belief of Whittle's sym-
pathies. Hinkle's testimony regarding overhearing Cun-
ningham's September 16 reference to Whittle as being
"behind this mess" has already been recited. I find Hin-
kle's testimony patently incredible. His hearing was too
selective to be believable. His recollection of the date of
the statement, so positive on direct examination, was
shaken on cross-examination. The impression created
while testifying that Hinkle was simply repeating a story
prepared for him received support from the oddly similar
testimony of Bolling. Thus, Bolling testified that he over-
heard Cunningham on September 16 tell Speer near Cun-
ningham's office, "Dan and Cowboy [Stallions] are the
ringleaders." This could not have been the same remark
overheard by Hinkle because Hinkle said he heard it in
the work area. Although Bolling initially placed the time
as September 16, the same date Hinkle claimed to have
heard the similar remark, he subsequently conceded that
it could have been after Whittle's discharge. The similar-
ity in the alleged remark attributed to Cunningham by
both Hinkle and Bolling, their initial claims that the re-
marks took place on the same day, their inability to place
the remarks in any sort of context, and the improbability
that such similar remarks attributed to Cunningham
would be repeated to the same person, Speer, in two dif-
ferent areas of the plant, give the testimony of Hinkle
and Bolling the ring of pure fabrication. I therefore do
not credit either of them wherever either are contradict-
ed by other witnesses herein.
This leaves nothing to establish Respondent's knowl-
edge of Whittle's union sympathies or activities except
for the possible application of the Board's small plant
doctrine. However, as Respondent's brief points out, the
Board has held that the small size of an employer's plant
does not warrant a finding of knowledge of union activi-
ties of specific employees absent supporting evidence
showing that the union activities were carried out in
such a manner or at such times as to compel a finding
that the employer in the normal course of events must
have noticed them. See Hadley Manufacturing Corpora-
tion, 108 NLRB 1641, 1650 (1954); Ralston Purina Com-
pany, 166 NLRB 566 (1967). Here, while Respondent
employed only 38 unit employees, there is no supporting
evidence to show that Whittle's activities were carried
out at such places and times that Respondent must have
noticed them. Accordingly, I find Respondent had no
knowledge of Whittle's union sympathies. In view of the
absence of such knowledge and due to my finding of
cause for the discharge, I find that Whittle's discharge
did not violate Section 8(a)3) and (1) of the Act. I shall
therefore recommend that the 8(aX3) and (1) allegations
of the complaint relative to Whittle's discharge be dis-
missed.
E. The Alleged Discriminatory Work Assignments and
Discharge of Stallions
Stallions began work for Respondent in June and gen-
erally worked in the re-box department under the super-
vision of Stanfield. The fact that Stallions became active
in the union campaign as well as the fact that he was
named in the Union's telegram to Respondent on Sep-
tember 14 as having been involved in such activities has
already been set forth. Stallions continued in his union
activity and served as a union observer during the
NLRB-conducted election. The General Counsel alleges
that Respondent imposed more onerous work assign-
ments on Stallions from November 12 to on or about
December 9 when Stallions was discharged by Respond-
ent. It is further alleged that the more onerous work as-
signments were imposed because of Stallions' union ac-
tivity and that his discharge was prompted by such ac-
tivity.
With respect to the alleged unlawful work assign-
ments, Stallions testified that on the day prior to the
election he was assigned to work outside the plant wash-
ing down the parking lot, sweeping it, and painting
white lines on it. That assignment was contrary to his
normal assignment in the return department where he
went over returned parts to ascertain whether they were
defective, and, if defective, to throw them away. His
work on the parking lot continued through November 13
and after that date he continued to receive assignments
to work outside the plant, cutting weeds and grass, after
which he was assigned to dig out a drainage ditch, a task
which he claimed took 2 days. Thereafter, he continued
to receive outside work assignments cutting trees and
grass and working in flower beds. On December 7, he
was transferred back into the plant where he was as-
signed to loading and unloading trucks, and sorting out
parts.
Respondent denies that Stallions was assigned to more
onerous work, although it concedes that except for the
tree cutting he was assigned to do the outdoor work he
491
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified about. However, Stanfield and Cunningham
both testified that the assignment of employees to outside
work was not without precedent, and each pointed out
that even Stallions had been assigned to outside work
earlier in the summer. In fact, Stanfield testified without
specific contradiction that in July and August Stallions
did 80 to 85 percent of all the outside work at the plant.
Furthermore, Stanfield testified that he himself had done
some of the outside work painting yellow lines in the
parking lot and running a weed eater.
Respondent further contends that several employees
had been assigned to do outside work from time to time,
and Stanfield in his testimony named a number of em-
ployees who had been so assigned. Most of this work
was assigned during the preceding summer when work
was slow and employees were given the option to go
outside and work or go home. On the other hand, Stan-
field related that the bulk of the more recent outside
work was done around the time of the sales convention
that Respondent held in Montgomery in December. In
this connection, Cunningham explained that the conven-
tion began on December 13 and drew approximately 100
attendants. Because a number of visitors from outside the
area could be expected to visit the plant during the con-
vention, Cunningham gave instructions to do as much
cleanup and spruce up work outside the building as pos-
sible. Employee Pamela Ray testified in support of Cun-
ningham that it was generally known by the employees
that Respondent was trying to spruce up the place in
preparation for the convention.
Finally, Stanfield testified that back during the summer
Stallions had told him that the preferred to work outside.
That testimony receives corroboration from the testimo-
ny of Pamela Ray who said Stallions once told her that
he did not mind doing outside work, and that he enjoyed
the sunshine and being outside.
In arguing that Stallions' outside work assignments
were discriminatory, the General Counsel points to the
timing of the assignments right around the election, the
arduous nature of the work outside, and Respondent's
union animus. That Stallions was assigned outside work
which was not his regular duty is not disputed. There is
little, however, in the record to show that such assign-
ments were actually more arduous than his regular as-
signments. With respect to cutting grass, the record re-
flects that he used a riding mower. Only the digging of
the ditch would appear to have presented a more diffi-
cult task than normally peformed by Stallions. 17 There is
no evidence which would indicate that Stallions' outside
work was made more onerous due to weather conditions.
Moreover, consistent with the testimony of Stanfield and
Ray, whom I have credited, I conclude that Stallions en-
joyed the outside work. This conclusion is substantiated
by the fact that Stallions at no time protested or in any
way raised objections to Stanfield or any supervisor
about his outside assignments. Accordingly, I conclude
"1 Although Stallions' testimony indicated in effect that he dug a
"new" ditch, and it took 2 days, Stanfield testified that the assignment
took a major part of only I day and involved not the digging out of a
new ditch but the cleaning out of an old one. I find Stanfield's testimony
more credible than Stallions' who, I believe, tended to exaggerate. I
accept Stanfield's testimony where it differs from Stallions'.
the record does not establish that such outside assign-
ments of Stallions were more onerous.
Moreover, the absence of discrimination in the outside
assigments to Stallions is supported by the reasonable ne-
cessity for the work to be performed; i.e., because of the
sales convention. Further, the assignment of other em-
ployees to do portions of the outside work, even though
to a lesser degree than Stallions, in preparation for the
convention, also reflects the absence of discrimination. I
therefore conclude that the General Counsel has not es-
tablished the required preponderance of evidence to
show that the assignments of Stallions to the outside
work was violative of Section 8(aX3) and (1) of the Act.
Turning to the discharge of Stallions, Respondent as-
serts that Stallions was discharged on December 9 for
spitting tobacco juice on the warehouse floor in violation
of a company rule. Based upon Stallions' denial of
having chewed or spit tobacco at all on the afternoon of
December 9, the General Counsel argues that Respond-
ent's asserted grounds for the discharge is nonexistent
and that he would not have been discharged but for his
union or protected activities.
Stallions testified that at 4:20 p.m. on December 9 as
he was leaving the restroom area he was approached by
Supervisor Stanfield who read him the rule in the plant
about spitting on the floor,18 pointed to the floor, and
said there was few drops there and Stallions could hit
the "damn clock." While Stallions admitted he had been
chewing tobacco the morning he was discharged he
denied that he was chewing tobacco anytime after lunch
that day. Moreover, he claimed that he had continually
chewed tobacco since becoming employed. While he had
been aware of the rule against spitting on the floor, he
testified that he had been told by Cunningham that it
was "OK" to chew tobacco as long as one either spit in
a box or spit in a can. Therefore, Stallions testified that
he carried a little box around with him for this purpose.
In direct contradiction of Stallions, Stanfield testified
that he approached Stallions on the afternoon of his dis-
charge regarding a work problem. As he was talking to
Stallions he observed Stallions chewing tobacco and,
while he watched, Stallions turned his head, "worked a
big gob of spit in his mouth," spat on the floor, and
turned back to look directly at Stanfield. While there
was a box in the vicinity which may have been Stallions'
target, it was Stanfield's testimony that he hit the floor.
Stanfield without saying anything to Stallions went to
employee Pamela Ray and directed her to go to talk to
Stallions and observe that he was chewing tobacco. Stan-
field then went into the office and related what had tran-
spired to Cunningham. Cunningham asked if there were
anything in Stallions' file regarding his chewing tobacco.
Stanfield replied affirmatively referring to a July 10
warning which had been issued to Stallions to the effect
that chewing tobacco was against company policy." A
"1 Respondent's applicable rule states: "Spitting on the floor is one of
the most unsanitary- habits. Any employee apprehended will be dis-
charged. This especially applies to chewing tobacco." It. Exh. 1, rule 27.
19 Stanfield further testified that leadman Johnny Graham had once
complained about Stallions' chewing but since Graham was not a super-
visor and since Stanfield had not personally seen Stallions chewing in the
Continued
492
STANDARD MOTOR PRODUCTS, INC.
decision was then made to discharge Stallions so Stan-
field removed a copy of the Company's rules signed by
Stallions when he was employed, took them to Stallions,
and read them to him and then discharged him. Accord-
ing to Stanfield, Stallions still had tobacco in his mouth
at the time of the discharge. Pamela Ray testified for Re-
spondent in support of Stanfield's testimony that at Stan-
field's direction she had gone to observe Stallions on De-
cember 9 and had ascertained that he was chewing to-
bacco. Furthermore, she observed him spit once in her
presence. However, on that occasion, he spat into a box.
In assessing Stallions' general credibility and in evalu-
ating Respondent's motivation in his discharge, it is nec-
essary to allude to other incidents which provoked writ-
ten disciplinary action against Stallions by Respondent.
The first was on November 19 when Cunningham issued
a written warning to Stallions for threatening other em-
ployees with loss of their jobs and telling them that
people in the plant would make it hard on them if they
did not sign a union card. Stallions denied having en-
gaged in such conduct and refused to sign the disciplin-
ary action form. His denial was contradicted at the hear-
ing by the testimony of Charlotte Smith who testified
that, following her employment on November 9, Stal-
lions asked her to sign a union authorization card and
she refused. Stallions then told her that when the Union
came in it was more than likely that if she did not join
she would not keep her job very long. Smith reported
the matter to Cunningham. Smith's testimony was clear
and she impressed me as being sincere. I credit her testi-
mony over Stallions.
Stallions received another writeup dated December 8
for having taken an authorization break. Stallions refused
to sign the warning at first but then proceeded to sign
under Cunningham's threat to discharge him for insubor-
dination if he did not sign. It appears that on December
7 upon returning to work in the plant following the out-
side assignments he worked in a "class 4" position out-
side his old work area. Stallions took his break with em-
ployees in the new area. But according to Stanfield,
whom I credit, the following day, December 8, Stallions
was assigned to checking overstock in another area, yet
took the same break he had taken the day before. Since
there may have been some legitimate confusion in Stal-
lions' mind about which break he should have taken, Re-
spondent decided not to discharge him and instead only
issued the written warning to him. The December 8
warning to Stallions was not alleged to be discriminatory
nor was discrimination in this regard argued in the Gen-
eral Counsel's brief.
There was substantial record testimony tending to es-
tablish that Stallions was involved both before and after
his discharge in a mysterious campaign to embrass Cun-
ningham or have him fired. This campaign involved the
circulation of rumors about the resignation of Cunning-
ham and subsequently the initiation of a poster campaign
seeking to have Cunningham fired. While these matters
may be related to Stallions' credibility since he denied
any involvement in such a campaign, I find it unneces-
plant he made no note in Stallions' record of the matter. Stanfield added
that he had seen Stallions chew tobacco several times outside the plant
while working outside, but that was not contrary to any rules.
sary to treat them in detail in this Decision. It is suffi-
cient to observe that I find Cunningham, Stanfield, and
Ray more convincing and credible than Stallions. Ac-
cordingly, I accept their testimony with respect to the
facts surrounding Stallions' discharge on December 9.
Stallions' known union involvement makes his dis-
charge suspect. The suspicion is increased by the fact
that he was the second of the five people named in the
Union's September 14 telegram as being involved in
union activity who was discharged. The three remaining
employees named in that telegram, according to Cun-
ningham, had indicated that their names were contained
in the telegram without their authorization, thereby sug-
gesting their lack of support for the Union's campaign.
Thus, the two most active union adherents, Hayes and
Stallions, were discharged by Respondent. This circum-
stance, coupled with the unlawful discharge of Hayes
which I have already found, establishes, in my view, the
General Counsel's prima facie violation of Section 8(aX3)
and (I) in Stallions' discharge. It therefore becomes Re-
spondent's burden to show, under these circumstances,
that it would have fired Stallions notwithstanding his
union involvement. I am satisfied that Respondent has
met its burden in this regard. On the credited testimony
of Respondent's witnesses, I have found that cause exist-
ed for Stallions' discharge; i.e., spitting on the floor of
the warehouse. While there is no evidence that other em-
ployees had been discharged for this offense, it is quite
clear that it was a dischargeable offense under Respond-
ent's rules and Stallions was clearly aware of the rules.
The absence of any prior discharges for infraction of
the rule against spitting on the floor does not support an
inference of discrimination here where there is no evi-
dence of any prior violations. Stallions himself had once
been warned by Stanfield in an excessively broad appli-
cation of Respondent's rule not to chew tobacco in the
warehouse. Although that warning must be considered as
an invalid application of the rule, it occurred prior to
any union activity by Stallions and cannot be considered
as discriminatorily motivated. It does serve, however, to
reflect Stanfield's sensitivity to the chewing of tobacco
in the warehouse and decreases the likelihood that Stan-
field's reaction to Stallions' spitting on the floor was mo-
tivated by Stallions' union activity. Moreover, Stanfield's
reaction is even more understandable since, I find, Stal-
lions' spitting on the floor in Stanfield's presence makes
such action viewable as open defiance. Stallions' denial
which I had discredited that he was chewing tobacco at
all at the time precludes a determination that his spitting
was an act of inadvertence, that his failure to hit an ap-
propriate receptacle was accidental, or that some other
ameliorating circumstance existed.
I am not so naive as to believe that Respondent was
not happy to be relieved of Stallions' employment be-
cause of his prior union activity. But, as the Board said
in B. G. Berland Paint City, Inc., 199 NLRB 927 at 928
(1972):
The mere fact that an employer may want to part
company with an employee whose union activities
have made him persona non grata does not per se es-
tablish that a subsequent discharge of that employee
493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must be unlawfully discriminatory. If the employee
himself obliges his employer by providing a valid
independent reason for the discharge, i.e.-by en-
gaging in conduct for which he would have been
discharged anyway-it cannot properly be labeled
pretext and ruled unlawful.
See also Golden Nugget, Inc., 215 NLRB 50 (1974); Kiate
Holt Company, et al., 161 NLRB 1606 (1966).
Here Stallions committed a dischargeable offense
under Respondent's rules. No ameliorating or mitigating
circumstances were drawn. No evidence of disparate ap-
plication of the rules with respect to this offense was
shown. And Stallions had even been warned previously
about chewing tobacco inside the warehouse.
Under the circumstances, I conclude that Stanfield's
conclusion that Stallions' action was an act of defiance
was an honest one and the discharge justifiable. Accord-
ingly, I conclude that Stallions would have been dis-
charged even in the absence of his union activity. It fol-
lows, and I conclude, that Stallions' discharge did not
violate Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By publishing, maintaining, or enforcing a rule of
conduct for employees which unlawfully limits the rights
of employees to make statements relating to wages,
hours, working conditions, or other terms and conditions
of employment, Respondent has engaged in, and is en-
gaging in, unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discharging its employee Edgar Lee Hayes,
thereby discouraging membership in the Union, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. Respondent did violate Section 8(a)(3) and (1) of the
Act in the discharges of Daniel Whittle and Charles Stal-
lions.
7. Respondent has not violated Section 8(a)(1) of the
Act in any other manner alleged in the complaint.
THE REMEDY
Having found that Respondent has committed viola-
tions of Section 8(a)(3) and (1) of the Act, I shall recom-
mend that it be required to cease and desist therefrom
and to take certain affirmative actions designed to effec-
tuate the policies of the Act. Since I found that Respond-
ent discriminatorily discharged Edgar Lee Hayes, it will
be recommended that Respondent be ordered to offer
him immediate and full reinstatement to his former job,
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss
of earnings he may have suffered from the time of his
suspension to the date of Respondent's offer of reinstate-
ment. The backpay for said employees is to be computed
in accordance with the formula approved in F. W Wool-
worth Company, 90 NLRB 289 (1950), with interest com-
puted in the manner prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977).20
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER2 1
The Respondent, Standard Motor Products, Inc.,
Montgomery, Alabama, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Publishing, maintaining, or enforcing any rule of
conduct where it unlawfully limits the rights of employ-
ees to make statements relating to wages, hours, working
conditions, or other terms and conditions of employment.
(b) Discouraging membership in Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, Local
Union No. 612, or any other labor organization, by dis-
criminatorily discharging employees, or in any other
manner discriminating against them with regard to their
hire and tenure of employment or any term or condition
of employment.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Edgar Lee Hayes immediate and full rein-
statement to his former job, or, if such job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights or privileges, and
make him whole for any loss of earnings in the manner
set forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Montgomery, Alabama, place of business
copies of the attached notice marked "Appendix." 22
Copies of said notice, on forms provided by the Regional
Director for Region 15, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
20 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716, 717-
721 (1962).
1" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
494
STANDARD MOTOR PRODUCTS, INC.
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
2s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgmznt of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
495