Stoutco, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1975

218 N.L.R.B. 645 (N.L.R.B. 1975)

STOUTCO, INC.
Stoutco, Inc. and Chauffeurs , Teamsters and Helpers
Local Union No. 364 , International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America . Cases 25-CA-6530 and 25-CA-
6530-2
June 18, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On February 21, 1975, Administrative Law Judge
Samuel M. Singer issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Stoutco, Inc., Bristol,
Indiana, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
DECISION
SAMUEL M. SINGER, Administrative Law Judge: This
case was heard before me in Elkhart, Indiana, on
December 9-11, pursuant to charges filed on September 13
and October 3 resulting in complaint issued on October 31,
1974. The complaint, as amended at the hearing, alleges
that Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act. All parties appeared and
were afforded full opportunity to be heard, to examine and
cross-examine witnesses , and otherwise present evidence.
Briefs were received from General Counsel and Respon-
dent on February 3, 1975. Upon the enlire record' and my
observation of the testimonial demeanor of the witnesses, I
make the following:
1 General Counsel's unopposed motion to correct the record, dated
January 31 , 1975, is hereby granted.
2 The Board declined , however, to issue a bargaining order. The record
here does not disclose the result of the rerun election.
3 The vote of one employee (leadman Heimbaugh) was challenged. The
instant proceeding has been litigated upon the assumption that the unit
218 NLRB No. 112
FINDINGS AND CONCLUSIONS
1. BUSINESS OF RESPONDENT; LABOR ORGANIZATION
INVOLVED
645
Respondent, an Indiana corporation, manufactures,
sells, and distributes fabricated metal and related products
at and from its plant in Bristol, Indiana, the facility here
involved. It annually purchases and receives there from
sellers in other States goods and materials valued in excess
of $50,000. I find that at all material times Respondent has
been and is an employer engaged in commerce within the
meaning of the Act.
Charging Party, herein called Teamsters or Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; Issues
The only employees involved in this proceeding are
Respondent's drivers who were the object of a 1974
organizational drive by Teamsters. Some years earlier (in
1968) another union (United Steelworkers of America) had
attempted to organize Respondent's production and other
employees. In its Decision of December 15, 1969 (180
NLRB 178), the Board determined that during this 1968
organizational campaign Respondent had, in violation of
Section 8(a)(1) of the Act, unlawfully interrogated, threat-
ened, and promised benefits to employees in order to
dissuade them (at that time 135 employees in the
bargaining unit) from voting for Steelworkers; and the
Board set aside the election lost by Steelworkers.2
Teamsters' 1974 campaign among Respondent's five
drivers culminated in an election won by the Union by
vote of four to one.3 On August 26, 1974, Teamsters was
certified as exclusive bargaining representative of Respon-
dent's drivers. The complaint alleges that Respondent
through its shipping department supervisor-Jerry L.
Yoder, in direct charge of the drivers-interfered with,
restrained, and coerced its employees in violation of
Section 8(a)(1) of the Act, during and after the Teamsters
election campaign.4 It also alleges that Respondent in
September 1974 (within I month of Teamsters' certifica-
tion) discriminatorily discharged three of its five unit
employees (drivers) in order to discourage and defeat
union and protected concerted activity.
B. Alleged Interference, Restraint and Coercion
1. The testimony
Employee DeArmond testified credibly that while
driving his truck to Mishawaka, Indiana, on July 11,5
Supervisor Yoder (who accompanied him) initiated a
conversation about the Union, asking him what he thought
consisted of only five rank-and-file drivers.
4 The complaint cited interrogations of and threats to employees. At the
hearing I granted General Counsel 's unopposed motion to amend the
complaint to allege unlawful solicitation of an employee to question other
employees concerning their union sympathy and to report thereon.
5 All dates are 1974 unless otherwise indicated.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about it. When DeArmond replied that he would have "to
wait and see what both sides had to offer," 6 Yoder
remarked that "if the Union does get in the benefits or the
wages won't improve any because the Company couldn't
afford it and they could go broke"-adding that the drivers
would not be allowed to work on the dock (loading and
unloading trucks) when they were out of driving work.?
Bennie Williams, a "local" driver,s testified credibly that
on returning from a trip on the day before the August 16
election, Yoder warned that "if the Union won, got in, you
wouldn't be driving the truck any more" and that in case of
a union victory, "the local driver would have to give .. .
up" long-distance deliveries to Canada and Pennsylvania
to the over-the-road drivers .9
Employee Krontz, a "local" driver, testified that in a
meeting with Yoder and Shawer a week or two before the
August 16 election, "they explained that ... local drivers
would not be working if the Teamsters [Charging Party]
got in . . . unless there was a run to be made, that the over-
the-road drivers would get it first." Krontz then told Yoder
that he wanted "to get out of trucking" because he could
not afford to lose his job, but Yoder said he had "nothing
to worry about." According to Krontz, a day or two before
the election, when he asked Yoder and Shawer about his
job prospects, they asked him to talk to other drivers-
specifically to Bennie Williams-and find out "how they
felt about the Union" and how they intended to vote.
Although Krontz said he would inquire, he never did.10
Driver Chupp's testimony establishes that a week after
the election Yoder told him that he thought the drivers
"are going to be sorry [they] voted the Teamsters in."
Chupp replied that "this [was ] our choice." 11
Employee Shell testified credibly that in early June
Supervisor Yoder asked him whether he was quitting
Respondent "because of the Union." 12 When Shell said
that he was "fed up with the way things were run" at
Respondent, Yoder told him to "just hang tight . . . either
way it goes . . . after the union gets in, or if it don't get in
Bennie [Williams] and [Shell] would be the only
drivers there" -adding that he "would fire everybody
else."
6 In fact DeArmond had signed a union card on May 30.
Yoder admitted having "one discussion" with DeArmond, but claimed
that he told him nothing more than he told "all the drivers"; namely, that
"we didn't need a union." Yoder also testified that he told the men that "we
got along good enough ;" without a labor organization and that "we could
work things out within ourselves." Yoder impressed me as an individual
who would go to great length to conceal his hostility to the Union. As
hereafter appears, he played the key role in Respondent's antiunion drive,
including the discriminatory discharges here alleged.
8 "Local" drivers are hourly paid employees working on the dock and
driving in the plant vicinity; they occasionally make long-distance
deliveries . "Over-the-road" drivers, paid by mileage, are long-distance
(overnight) drivers. Personnel Manager Shawer described three of Respon-
dent's drivers (Williams, DeArmond, and Krontz) as "local" and two (Shell
and Chupp) as "over-the-road "
s Yoder did not specifically deny the remarks attributed to him. Williams
also testified about preelection speeches delivered by Personnel Manager
Shawer, but the remarks described (including statements that employees
"would be better off without the Union" and that they "could accomplish
more without the Union") are noncoercive.
to Yoder and Shawer conceded talking to Krontz about his desire to
change jobs, but denied making any antiunion statements, including
requesting Krontz to ascertain the other drivers' union sentiments . I do not
credit their denials. At least one of the statements attributed to Yoder and
Shawer (loss of work by local drivers) is in line with that attributed to them
Shell also testified that a week before the August 16
election-while he and his wife were bowling with Mr. and
Mrs. Yoder-Yoder asked if Shell "was satisfied with the
way things were going ." When Shell "just wouldn't ... say
anything about it ," the subject was "dropped ." In another
conversation-a week after the election-Yoder asked
Shell if he was "satisfied" with the results of the election.13
Finally, as hereafter shown (sec. D, 1,a), 3 days after the
election Yoder told Shell that he was "pretty disturbed
because everyone had voted union," threatened "to get
everybody for something," and said that he issued Shell a
written warning for using a C.B. radio (infra, fn. 21) in his
truck because he "could get [him] for something right
then."
2. Conclusions
I find that although some of the statements attributed to
Respondent's officials were noncoercive and protected
speech (e.g., Supervisor Yoder's inquiry of Shell whether he
was satisfied with the election results), the credited
evidence amply supports the complaint allegations that
Respondent, through Yoder, unlawfully questioned em-
ployees concerning their union sympathies and activities,
threatened them with reprisals (e.g., loss of work and
discharge) for entertaining such sympathies and engaging
in such activities (including voting for the Union), and
soliciting an employee (Krontz) to question others con-
cerning their union sympathies and voting intention.
Respondent's conduct constituted interference, restraint,
and coercion within the meaning of Section 8(a)(1) of the
ACt.14
C. The Discharge of DeArmond and Krontz
1. The evidence
Mitchell L. DeArmond and Orin Arthur Krontz, "local"
drivers (supra, fn. 8), were hired on April 9, 1974, and
August 28, 1972. DeArmond signed his union card on May
30 and Krontz on April 4. The complaint alleges that both
were discriminatorily discharged on September 10 in
by driver Williams, a most credible witness still in Respondent's employ
although presently in layoff status.
"Although not specifically contesting the above testimony, Yoder
denied telling employees that he was going "to get some of the guys"
because they brought in the Union. Indeed, he denied talking to employees
at all about the Union subsequent to the election. I do not credit Yoder.
Chupp, still in Respondent's employ, was a credible witness.
12 Yoder testified that Respondent had received an inquiry concerning a
job application by Shell.
13 Although recalling the job-quitting incident and his asking Shell why
Shell was seeking other employment, Yoder denied mentioning the Union at
that time. He did recall telling Shell on one occasion that he "didn't feel that
we needed a union," that "we all got along good as a unit, and that things
could be worked out."
14 Although Personnel Manager Shawer appears to have participated in
some of the incidents referred to, the complaint did not name him as an
agent or representative through whom Respondent committed 8(axl)
conduct. It is further noted that when General Counsel moved to amend the
complaint subsequent to employee Krontz' testimony that Respondent
unlawfully solicited Krontz to question other employees, the amendment
was confined to Yoder even though Shawer participated in the incident.
Under the circumstances, I make no findings of 8(a)(l) violations through
conduct of Shawer. See, e.g., Stouffer Restaurant and Inn Corp., 210 NLRB
336 (1974). Nor is it necessary to do so since the order remedying the unfair
labor practices applies to all of Respondent's agents and representatives.
STOUTCO, INC. 647
reprisal for or on account of their union affiliation and
activities . Respondent contends that they were fired for
falsifying their log (time) sheets.
Respondent's drivers, including DeArmond and Krontz,
are required by governmental regulations-' to record their
time (driving, on duty-not driving, and off-duty) on
official daily log sheets . The drivers turn in the sheets to
their shipping supervisor (Yoder), who transcribes the
information onto timesheets (or cards). After approving the
timesheets (signified by Yoder's "okay" and signature),
Yoder forwards them to payroll.
Supervisor Yoder testified that one (lay in July, observ-
ing DeArmond and Krontz take a "lengthy" lunch period
(in excess of the usual half-hour), he decided "to keep track
of each time they came in the morning, their noon half
hours and their quitting time." Thereafter, according to
Yoder, he would jot down on a special limesheet the "exact
minute" they started to work, went and returned from
lunch, and quit for the day. After the first week's check
(July 29-August 2), he reported to Personnel Manager
Shawer significant "discrepancies" between the times
shown on his own sheets and those turned in by the two
drivers.16 It was agreed that Yoder continue checking on
DeArmond and Yoder accordingly kept records on them
for 5 more weeks.17
Yoder also testified that although he detected numerous
inaccuracies and errors in the two drivers' log sheets (infra),
he mentioned nothing to either driver. He continued to
certify their timesheets (based on the employees' log
entries) as "okay" and to forward them to payroll,
although (as he here testifies) he believed them to be
replete with "false" work claims.
Relying on the information supplied to him by Yoder
(i.e., Yoder's personal timesheets), Personnel Manager
Shawer on September 9 summoned DeArmond and
Krontz to his office . There, in the presence of Yoder,
Shawer asked the drivers "if they were aware of their
putting down or falsifying time on their log sheets." Shawer
testified that DeArmond said he "didn't know that it was
that serious" and that Krontz said he was willing "to pay
back the extra money" or suffer -suitable disciplinary
action. Shawer answered that "due to the fact this was a
... violation of the plant rules 18 . . . [and] that we had
just previously discharged two employees for the same,
similar offense",19 he could not make "an exception," but
"would be back with them the following day." The next
morning (September 10), each was handed a notice stating
that he was being terminated for "falsifying log sheets."
Although DeArmond recalled making two inaccurate
entries in his log sheets -one for the usual 30-minute lunch
period although he took 10 additional minutes to work on
his automobile tailpipe and the second for the usual
starting time although he arrived late for work (he did not
15 Federal Highway Administration, U. S. Department of Transporta-
tion.
16 Yoder testified that he also checked on the third "local" driver
(Williams), who, like DeArmond and Krontz, spent most of his time in the
shop (as distinguished from the two over -the-road drivers , who spent most
of their time outside);- but that he never reported on Williams because his
log sheets were "okay."
17 Yoder testified that his records were based on personal observations in
all except two instances . But Heimbaugh, the leadman (now in layoff
status), denied Yoder's claim that it was he who had checked on the two
specify how late), Yoder's timesheets attribute to him
numerous additional inaccuracies. However, according to
those sheets, DeArmond was overpaid no more than $30
for a total of 8 claimed (but not worked) hours in all of the
6 weeks (July 29-September 8) Yoder allegedly checked on
him. In any event, it is apparent that many of Yoder's
calculations on their face are faulty. Thus, although Yoder
attributes to DeArmond a claim for 9-1/2 hours work on
July 30, DeArmond's log sheet shows that he claimed only
9 hours (2-1/2 hours "driving" plus 6-1/2 "on duty")-thus
negating Yoder's claim that DeArmond "cheated" a half
hour's pay. Another example in the same vein is Yoder's
September 3 timecard entry for 8.5 hours, although
DeArmond claimed only 8 hours on his log sheet (1-1/2
hours driving and 6-1/2 "on duty" work). Even more
glaring are mathematical errors in Yoder's computations.
Thus, Yoder's summary sheet (Resp. Exh. 6) purports to
show a "total" overpayment of $9.38 for "2.30" hours for
the week of July 29-August 3. However, using Yoder's own
figures for the 5 days involved (Yoder noted hourly
fractional overpayments of .30 -+ .30 + 1.00 + .30) the
total should be 1.9 hours-so that the "excess" wages
claimed for that week (according to Yoder's own daily
figures) would be $7.12 (1.9 x $3.75 per hour) and not
$9.38.
As to Krontz, Yoder had docked him in numerous
instances, mostly because Krontz had claimed 15 or 30
minutes additional pay for preshift time. According to
Yoder, there was "no reason for [Krontz] being early" and
Krontz was not entitled to payment (Krontz claimed on his
log sheets) for any time before the shift officially started.
Yoder's timesheets purport to show that Krontz was
overpaid $92.14 for a total of 22-3/4 hours claimed (but
allegedly not worked) during the 6 weeks (July 29-
September 8) Yoder checked on him. While Krontz
admitted that he had "logged in" as of the time he arrived
at the shop (at times before the official starting time), he
claimed that he had performed certain chores during that
time and that he had followed this procedure "ever since
[he] started working there." Krontz added that Yoder was
hardly in a position to observe what he was doing before
formal starting time since Yoder was seldom at the shop on
Krontz' arrival.20
As in DeArmond's case, there are also obvious errors in
Yoder's timesheets concerning Krontz. Thus, although
Krontz' August 29 log sheet shows 10-1/4 hours work ("on
duty"), Yoder mistakenly lists only 9 hours on the official
timesheet; he reduces this figure to 8.75 hours on his
personal sheet (presumably a deduction for claimed
preshift work). And although Yoder comments on one
sheet "no reason for [Krontz] not taking 1/2 lunch" hour,
it is plain from the log, as Yoder admitted at the hearing,
drivers and reported thereon to Yoder in those two instances.
18 Company rule A3 provides that "falsification or concealment of any
information on ... reports made to or for the Company" will "normally"
result in discharge , absent "mitigating circumstances."
19 Those two (Buck and Waterson) were nondriver plant employees and
were not dismissed for mislogging or false logging but for punching each
other's timecard in violation of company rule A4.
20 DeArmond similarly testified that Yoder reported to work after
DeArmond.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was in error since Krontz actually logged the half-
hour lunch time.
2. Conclusions
The question whether Respondent discharged DeAr-
mond and Krortz for discriminatory reasons or legitimate
reasons presents only a question of fact. The Board and
courts have repeatedly observed that motive for an
employer's action in cases of this type is usually determina-
ble only by circumstantial evidence, since "direct evidence
of a purpose to violate the statute is rarely obtainable."
Hartsell Mills Company v. N.LR.B., 111 F.2d 291, 293
(C.A. 4, 1940). See also NLRB. v. Tepper, Edward P.,
d/b/a/ Schoenberg Frams, 297 F.2d 280, 284 (C.A. 10,
1961). In addition, it is clear that "The mere existence of
valid grounds for a discharge is no defense to a charge that
the discharge was unlawful, unless the discharge was
predicated solely on those grounds, and not by a desire to
discourage union activity." N.L.R.B. v. Symons Manufac-
turing Co., 328 F.2d 835, 837 (C.A. 7, 1964). "[W ]here there
are legitimate reasons for the discharge of an employee, the
question is whether those were in fact the only grounds for
the dismissal , or whether they were `put forth as a mere
pretext to justify an impermissible discharge.' " N.L.R.B.
v. Pembeck Oil Corp., 404 F.2d 105, 109-110 (C.A. 2, 1968).
The "Board could well determine on the whole record that
`but for' their union activities . . . employees would not
have been discharged." Self-Reliance Ukrainian American
Cooperative Assn., Inc., d/b/a Certtfled Foods v. N.L.RB.,
461 F.2d 33, 38 (C.A. 7, 1972).
Based on the entire record , but particularly in view of the
considerations set forth below, I find that the credited
evidence and reasonable inferences to be drawn therefrom
establish that the,September 10 discharge of DeArmond
and Krontz was motivated in substantial and controlling
part by Respondent's desire to discourage establishment of
the newly elected Union at its shop.
To begin with, Respondent vigorously opposed unioniza-
tion of its, drivers. This is evidenced by the fact that the
drivers' supervisor (Yoder) not only subjected DeArmond
and Krontz, but the three other drivers in the unit
(Williams, Chupp, and Shell), to coercive threats and
interrogation. To Chupp he bluntly foretold that the men
"are going to be sorry [they] voted the Teamsters in." He
threatened Shell that he would "get everybody for
something" for bringing in the Union. And prior to the
election Yoder also threatened "local" drivers DeArmond,
Williams, and Krontz with loss of work (loading and dock
work) if the Union came in. Even if Respondent's
expressed ' distaste for organizing the shop had been
privileged and free from coercion-which it was not-
nevertheless "its' expressed attitude is one of the factors
which must serve to measure its motivation" in determin-
ing legality of the discharges. See Revere Camera Co. v.
N.L.R.B., 304 F.2d 162, 165 (C.A. 7, 1962).
That Respondent was well aware that DeArmond and
Krontz were Union adherents is apparent from the
circumstance that the drivers had selected Teamsters
unanimously in the August 16 Board election. Yoder told
one driver (Shell) 3 days after the election that he was
"pretty disturbed because everyone had voted union."
Also relevant is the timing of Yoder's decision to
conduct his surveillance on DeArmond and Krontz to
determine whether they had been "cheating"-i.e., during
the organizational, campaign and shortly before the
election. According to Krontz' credited testimony, Krontz
had "logged in" and attended to chores prior to the start of
his shift "ever since [he] started working there." Yet, Yoder
had not previously kept track of arrival and departure
times or of lunch periods for Krontz or any other driver-
nor warned anyone of any infraction as to these matters.
Yoder's failure to give DeArmond and Krontz even an
inkling of the alleged wrongdoing prior to their abrupt
dismissal is highly significant. Neither was afforded an
opportunity to rectify the claimed misconduct. In terms of
the record as a whole, I am persuaded that the real purpose
of his secret and inaccurately recorded surveillance was to
build a "record" of misdeeds to serve as a basis for
overcoming and nullifying any union election victory by
ridding the shop of the Union's adherents in the event the
shop was organized. Noteworthy is the fact that Yoder
continued to certify the-two employees' alleged fraudulent
timesheets as "okay," forwarding them to payroll for
preparation of paychecks. "This and other evidence
supports the ... conclusion that [Yoder] was looking for
any infraction by [the men] that might ostensibly justify
discharging" them. 'United States Rubber Company v.
NLRB., 384 F.2d 660, 663 -(CA. 5, 1967). "If the
employer had really been disturbed by the circumstances it
assigned as reasons for [the] discharge[s ], and had had no
other circumstance in mind, some word of admonition,
some caution that the offending lapse not be repeated, or
some opportunity for correction of the objectionable
practice, would almost be inevitable. The summariness of
the discharge[s] . . . gives rise to a doubt as to the good
faith of the assigned reasons ." E. Anthony & Sons, Inc. v.
N.L.R.B., 163 F.2d 22,26-27 (C.A.D.C., 1948).
Another relevant factor is Personnel Manager Shaver's
reliance on Yoder's secret timesheets-replete with' errors
and inaccuracies at least as to DeArmond . Shawer, as he
testified, had no direct, knowledge of the two employees'
alleged cheating. There is no evidence that he checked the
data Yoder presented him; nor did he offer them to the
employees for verification. Shaver's action in firing the
two drivers does not square with his protestation that he
deliberately delayed taking action 'prior to the Board
election in order to avoid possible unfair labor practice
charges. Shawer waited as much as 3-1/2 weeks after the
election (from August 16 to September 10)' before discharg-
ing the drivers.
To be sure, the record is not devoid of evidence tending
to, negate discrimination . Thus, there is evidence that
Respondent in the past had terminated employees for
misconduct, including violation of its rules against picking
up hitchhikers (infra, sec. D, 1, b) and fraudulent timecard
punching (supra, fn. 19); but this is not determinative here.
Moreover, the record shows that Respondent retained
other union adherents who voted for Teamsters. However,
the retention of some union adherents does not erase the
illegality of its discharge of others. The objective of
discouraging union activity may be achieved by making
"an example" of even' only one union adherent. See
STOUTCO, INC. 649
N.LR.B. v. Shedd-Brown Mfg. Co., 213 F.2d 163, 174-175
(C.A. 7, 1954).
I find and conclude that the reasons advanced by
Respondent for the discharge of DeArmond and Krontz
are pretextuous . I conclude that the discharge was, in at
least substantial and controlling part, motivated by
Respondent's hostility to the Union and its desire to carry
out its threats of retaliation for the union vote-all in
violation of Section 8(a)(3) and (1) of the Act.
D. The Disciplinary Warning to Foster Shell and
His Subsequent Discharge
1. The evidence
Foster D. Shell, an over-the-road driver hired on April 9,
1974, signed a union card on May 31. The complaint
alleges that on or about August 26 Respondent issued to
Shell a written disciplinary warning and on September 27
discharged him in reprisal for or on account of his union
affiliation and activity.
a. Disciplinary warning for alleged breach of
Respondent's rule against "C.B." radios in company
trucks
On August 19, Supervisor Yoder wrote up a
"Disciplinary Action Sheet" on Shell, reciting that- al-
though informed of company policy against use of a "C.B.
Radio" 21 while driving a Company truck, "on 8-17-74 to
8-21-74 on a trip to'Waco, Texas, [Shell] did put his C.B.
Radio in his truck." The use of such radio in company
trucks is indeed a breach of Company policy.22 However,
Shell and Yoder gave conflicting testimony as to whether
Yoder had waived this rule in Shell' s case . Shell testified
that when he requested Yoder (at that time on "friendly"
terms with Yoder) whether he could get Company
President Stout to let him use a C.B. radio, Yoder said,
,.use it , but don't bring it in here ... use it after you leave
the town and before you get back." Shell also testified that
Yoder had even given him a bracket to help mount the
C.B. radio; and that he used the radio on his "runs" for
about 2 months. While admitting that he made up a
bracket for Shell "just as a friend," Yoder claimed that he
did this with the "understanding" that it was to be used in
Shell's private automobile. He repeatedly denied giving
Shell authorization to use the C.B. radio in his truck, but at
one point qualified this denial thus:
He [Shell ] had asked me quite a few times if he could
put his C,B. radio in his truck, and I kept telling him
"no," that it was against the company policy, that we
would not have C.B. radios, and he did keep bugging
me and so finally I said "yes, you can, but if you get
caught, you will pay the penalty or the consequences
that occur."
n21 A "Citizens Radio Band," used to communicate with another C.B.
radio within a limited radius, can readily be mcunted or attached (as with
clamps onto car or window) and removed.
22 Based on Personnel Manager Shawer's credited testimony Shawer
alluded to an earlier (April 17) written warning to another employee
(Chupp) for similar breach of the ban against C.B. radios in company
trucks. The rule was called to the drivers' personal attention at a meeting
Shell testified credibly that when Yoder talked to him
about the disciplinary warning he issued to him (on Shell's
return from Waco), Yoder said:
that he was pretty disturbed because everyone
had voted union ]several days earlier ] and he was going
to get everybody for something and he said, "You was
the only guy I -knew I could get for something right
then," and he said, "I wrote you up for C.B. radio,"
that I had it when I went to Waco, Texas, he said he
wrote me up ....
b. Discharge for alleged breach of Respondent's rule
against hitchhikers in company trucks
Shell admitted that he continued to drive with the C.B.
radio in his truck despite the August 19 reprimand.
Suspecting that Shell would ignore that admonition,23
Yoder decided to check on him on a subsequent trip to
Georgia. On Sunday night, September 22, Yoder asked
Gerald Kirby, at that time welding supervisor, to accompa-
ny him on a drive to intercept Shell. As they caught up
with Shell they spotted the C.B. antenna on the truck;
later, at around 12:30 am. on Monday (September 23)-
near the intersection of Routes 9 and 20 in LaGrange,
Indiana-they stopped the truck. Yoder left his, car to talk
to Shell.
Shell testified that the first thing Yoder asked was
whether he had "riders" in the truck; and that although he
had none, he said that he had "a couple of broads."
According to Shell, he said this only because he feared
discharge for being caught with a C.B. radio in the truck-
hoping to gain Yoder's "sympathy" -for his (Shell's)
intention to turn in what he had heard on the C.B. radio to
be two wanted "runaway girls." 24
Although claiming that he had no "hitchhikers" when
stopped by Yoder, Shell admitted that, he did pick up
one-"a kid standing on the highway" at. Route 20 in
Elkhart (Indiana)-shortly after midnight when he started
out on his trip; and that he drove him for 12 miles before
dropping him off at the intersections of Routes 9 and 20 in
La Grange, Indiana. Asked why he had picked up the boy,
Shell testified, "Well, it's a hard question. He was standing
there with his shirt collar up, it was the first night of frost
..: ' Although he testified that another truckdriver
(Lembacker of Evans Products Co. in Elkhart) was driving
behind him and stopped off with him at his truckstop,
Lembacker was not called to corroborate Shell.
On his return from the Georgia trip on Friday,
September 27, Yoder summoned Shell to Personnel
Manager Shawer's office. Shell testified that Shawer told
him that he was being discharged "for having passengers in
the truck"; that he (Shell) answered he had only one ("not
two") in it; and that he went on to ask "why a fellow would
get fired for one mistake." However, Shell also testified (as
he previously told Yoder at the truckstop), "I did tell
later that month . Shell admitted "someone" telling him it was illegal to have
[a C.B. radio ] in the truck.
23 Yoder, testified that it was apparent that Shell did not take his August
"19 warning "seriously," since Shell "threw [the notice ] in the waste basket."
24 According to Shell , it was "a proven story" that a truckdnyer had left
"a couple of girls" at a truckstop and that the girls were later turned in to
the police.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Shawer] I thought they [the hitchhikers ],was runaway girls
I thought he would feel sorry for me and try to get out
of the C.B. radio deal."
Yoder's version of the September 22-23 incident con-
forms with that of Shell in most respects, including Shell's
testimony that he told Yoder he had picked up two female
hitchhikers. Yoder testified, however, that Shell said he did
not know that the hitchhikers were girls until they got into
the truck; and that Shell claimed he was taking them to
Kendallville (some distance away) to turn them over to the
police. Yoder also testified that although he did not check
Shell's statements about the number and sex of his
passengers , he could readily see (from the street light by
the parked truck) that Shell had a passenger. He admitted
that he did not bother checking on the C.B. radio in the
truck-the initial object of his mission-because, as he
indicated, after getting Shell on the more serious hitchhiker
offense, "the C.B. radio was immaterial." 25
Shawer's account of the September 27 discharge inter-
view likewise jives in most respects with that of Shell. Thus,
Shawer recalled Shell telling him (and 'Yoder) that he
picked up two female hitchhikers-adding, however, that
he did not know that they were girls until they were in the
truck.26 When Shawer asked Shell "if he didn't know that
this was a dischargeable offense, Shell said "yes," but
asked to be given "a second chance." Shawer then said,
"Well, under the circumstances, since you have been told
[of] company policies, since it's something that the I.C.C.
frowns upon, carrying hitchhikers . . . we don't have any
choice but to discharge you for this kind of an infraction."
The record does indeed show that picking up hitchhikers
is a violation of a written company rule to the effect that
"Under no circumstances will . . . hitchhikers be allowed in
company trucks." Respondent had previously (March 13)
discharged an"employee (Tolbert) for breaching this rule
and Shell was made aware of the rule (a U. S. Transporta-
tion Department regulation against picking up hitchhik-
ers 27) when hired on April 9 and in company-employee
meetings in which the men were told that hitchhiking was a
,"dischargeable offense."
2. Conclusions
a. The August 19 disciplinary warning
Respondent , as it claims, did have a rule against using a
C.B. radio in company trucks. Shell, who knew this,
nevertheless asked his supervisor (Yoder) for authorization
to use -his radio. According - to Yoder's own testimony,
although he "kept telling" him "no," he finally said "yes,
you can, but if you get caught, you will pay the penalty."
Shell reasonably construed these remarks to mean that
while Yoder was willing to condone Shell's breach of the
company rule, Shell risked disciplinary action if caught
violating it by someone else. Shell continued using his C.B.
radio without incident or objection until August 19, 3 days
after the Union's unanimous election victory. On that day,
25 Kirby, who accompanied Yoder, corroborated some of Yoder's
testimony, including the testimony that Yoder was able to see (and saw) at
least one passenger in the truck by the street light, although (like Yoder) he
could not make out whether male or female.
26 According to Shawer , Shell also related that he drove the girls to the
Yoder suddenly switched his position and wrote out a
disciplinary warning about the C.B. radio, telling Shell (on
his return from Waco) as he handed it to him that he
(Yoder) was "pretty disturbed because everybody had
voted union," that he was "going to get everybody for
something," and that accordingly he was getting Shell
"right then."
It is apparent that Yoder, a "friend" of Shell's before he
discovered his union sympathies, had at the least tolerated
Shell's noncompliance with Respondent's rule against C.B.
radios in company trucks prior to the election; that the
infraction "would have continued to be condoned" by
Yoder but for the union issue (Magnolia Petroleum Co. v.
N.LRB., 200 F.2d 148, 149-150 (C.A. 5, 1952); and that
"the straw that broke the back [of Yoder's] tolerance and
condonation was the union activity in the plant." (Ibid.)
I find that Yoder's August 19 disciplinary warning was
motivated by discriminatory considerations and was hence
violative of Section 8(a)(1) and (3) of the Act.
b. The September 27 discharge
The basic issue here, as with DeArmond and Krontz
(supra), is whether Shell's discharge was motivated by
discriminatory or legitimate reasons . However, resolution
of this issue is neither simple nor free from doubt.
On the one hand it is clear, as General Counsel urges,
that, as in the case of DeArmond and Krontz, Supervisor
Yoder "went to great lengths to accumulate cause for
Shell's discharge." Thus, Yoder precipitately gave Shell the
written warning for using the C.B. radio in the face of his
being led to, believe that he (Yoder) would-not personally
hold this against him. (The only intervening circumstance
was the union election victory.) Subsequently, after making
it clear (through the August 19 reprimand) that he was no
longer acquiescing in the breach of the C.B. radio rule,
Yoder journeyed forth on the night of September 22 with
the avowed purpose of trapping Shell in continued use of a
C.B. radio. Undoubtedly elated at the unexpected discov-
ery of a hitchhiker in Shell's truck, Yoder determined to
bring about his discharge for this, more serious, offense.
On the other hand, the uncontested fact is that Shell did
breach a serious company rule and governmental regula-
tion. He picked up hitchhikers-whether they be women
(as Yoder claimed) or a boy (as Shell claimed)-which, he
knew, was a dischargeable offense and a flagrant violation
of the U. S. Transportation Department's regulations. The
record shows that Respondent had discharged another
employee (evidently the one Shell replaced when hired) for
violating this very rule. Finally, there is no evidence of any
prior condonation of a breach of the 'hitchhiker rule, as
there is of the less serious C.B. radio rule.
Under the circumstances, despite reservations on the
matter, I am not persuaded that General Counsel has met
his burden of showing by the preponderance of evidence
that the substantial motivating reason for, Shell's, discharge
was discriminatory. While, as in the case of DeArmond
Kendallville (Indiana) truckstop, where he called the police to pick up the
runaway girls, which the police did. Shawer further testified that the police
(whom he telephoned), verified this.
27 Sec. 392.60 of the Department 's Motor Carrier Safety Regulations.
STOUTCO, INC.
and Krontz, Yoder may have groped for an infraction to
supply him with cause for firing Shell, this, without more, is
insufficient to establish unlawful motivation. Even if "it is
fair to assume that the Respondent entertained a desire to
get rid of [the employee], whose union activities it resented,
and was pleased to have an opportunity present itself for
doing so . . . that alone is not enough to establish that the
discharge was in violation of Section 8(a)(3)." P. G. Berland
Paint City, Inc., 199 NLRB 927 (1972).
Accordingly, considering the record as a whole, I find
and conclude that the preponderance of evidence does not
support the allegation of the complaint that the September
27 discharge of Shell was violative of Section 8(a)(3) and
(1) of the Act.
CONCLUSIONS OF LAW
1. By coercively questioning employees concerning
their Union sympathies, by threatening them with reprisals
(including loss of work and discharge) for voting for or
bringing in the Union, and by soliciting an employee to
question others concerning their union sympathies and
voting intentions, Respondent has interfered with, re-
strained, and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, in Violation of Section
8(aXl) of the Act.
2. By discharging Mitchell L. DeArmond and Orin
Arthur Krontz on September 10, 1974, and thereafter
failing or refusing to reinstate them, in order to discourage
union affiliation and activities, Respondent has discrimi-
nated in regard to the hire and tenure of their employment,
in violation of Section 8(a)(3) and (1) of the Act.
3. By issuing a disciplinary warning notice to Foster D.
Shell on August 19, 1974, because he voted for the Union,
Respondent has discriminated in regard to the hire and
tenure of his employment, in violation of Section 8(a)(1)
and (3) of the Act.
4. It has not been established that Respondent has
violated Section 8(a)(3) and (1) of the Act by discharging
Foster D. Shell on September 27, 1974.
5. The unfair labor practices enumerated in above
paragraphs 1, 2, and 3 affect commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
The remedial order herein should contain the conven-
tional provisions in cases involving findings of interference,
restraint, coercion, and discriminatory discharge in viola-
tion of Section 8(a)(1) and (3) of the Act. Respondent
should be required to cease and desist from the unfair
labor practices found, and to offer reinstatement with
backpay to the employees discriminated against (Mitchell
L. DeArmond and Orin Arthur Krontz). Reinstatement
should be to the discriminatees' former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges; and the discriminatees should be made whole
for any loss of earnings suffered by reason of the
2s In the event that no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings and conclusions herein and the recommended Order which follows
651
discrimination against them, by payment to each of a sum
of money equal to that which he normally would have
earned from the date of his discharge (September 10, 1974)
to the date of a valid offer of reinstatement, less net
earnings during such period, to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Although it has been found that Foster D. Shell was
discharged for cause, Respondent should be required to
expunge from its records all references to the disciplinary
warning discriminatorily issued to Shell on August 19,
1974.
In view of the nature of the unfair labor practices in
which Respondent has engaged, it should further be
required to cease and desist from infringing in any manner
upon rights guaranteed employees by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER28
The Respondent, Stoutco, Inc., Bristol, Indiana, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively questioning employees concerning their
sympathies and activities for any labor organization;
threatening them with reprisals (including loss of work and
discharge) for voting for or bringing in a union; soliciting
employees to question other employees concerning their
union sympathies and voting intentions; or in any other
manner interfering with, restraining, or coercing employees
in the exercise of their rights under Section 7 of the Act.
(b) Interfering with, restraining, or coercing employees,
or discouraging union membership, by reprimanding or
otherwise disciplining them for engaging in lawful concert-
ed and union activities, including voting for a labor
organization.
(c) Discouraging membership and activities in Chauf-
feurs, Teamsters and Helpers Local Union No. 364,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, by discriminating in regard to the hire
and tenure of employment of Respondent's employees or
by discriminating in any other manner in regard to any
term or condition of their employment, in order to
discourage or interfere with membership or activities
therein.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Mitchell L. DeArmond and Orin Arthur
Krontz immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make each whole for any
loss of earnings he may have suffered as a result of his
discharge, in the manner set forth in "The Remedy"
section of this Decision.
shall, as provided in Sec. 102A8 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.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Expunging from its records all references to the
disciplinary warning issued to Foster D. Shell on August
19, 1974.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
records necessary to determine and analyze the extent of
Respondent's compliance with this order and the amount
of backpay that may be due Mitchell L. DeArmond and
Orin Arthur Krontz, including payroll records, timecards,
social security records, and other records.
(d) Post at its shop in Bristol, Indiana, copies of the
attached notice marked "Appendix." 29 Copies of said
Notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
in all other respects.
29 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the Notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an Administrative Law Judge, at
which all sides had the chance to give evidence, it has been
decided that we have violated the National Labor
Relations Act, and we have been ordered to post this
Notice.
The National Labor Relations Act gives you, as an
employee, these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of your own choosing
To act together with other employees to bargain
collectively or for other mutual aid or protection
and
If you wish, not to do any of these things.
Accordingly, we give you these assurances:
WE WILL NOT do anything that interferes with any of
your rights listed above.
WE WILL NOT coercively question you concerning
your union sympathies and activities; nor threaten you
with reprisals (including loss of work and discharge) for
engaging in union activities; nor solicit you to question
fellow employees concerning their union sympathies
and voting intentions.
WE WILL NOT fire or ' otherwise take any reprisal
against any of you because you have joined or
supported, support, or will support Chauffeurs, Team-
sters and Helpers Local Union No. 364, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union.
WE WILL offer Mitchell L. DeArmond and Orin
Arthur Krontz immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, with full seniority
and all other rights and privileges, since they were
found to have been discharged by us in violation of the
National Labor Relations Act.
WE WILL make up all pay the above-named
employees lost, plus interest.
STOUTCO, INC.
1