The Lima Lumber Co.

National Labor Relations Board - Board Decisions

Jun 16, 1969

176 N.L.R.B. 696 (N.L.R.B. 1969)

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Lima Lumber Company and Truck Drivers,
Warehousemen and Helpers Union, Local 908,
affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and
Helpers of America. Case 8-CA-51 10
June 16, 1969
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
On November 29, 1968 , Trial Examiner Ramey
Donovan issued his Decision in the above -entitled
proceeding , finding that the Respondent had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action , as set forth in
the attached Trial Examiner ' s Decision . Thereafter,
the General Counsel and Respondent filed
exceptions with 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner' s Decision , the exceptions and the briefs,
and the entire record in this case, and hereby adopts
the Trial Examiner's findings , conclusions, and
recommendations only to the extent consistent
herewith.
We do not agree with the Trial Examiner's
finding that Sharp , the discharged employee, is not
entitled to reinstatement and is to be reimbursed for
lost earnings only for the 2 hours after his
termination.
There is no dispute as to the facts. On July 29,
Sharp made a delivery of lumber and as he left the
yard the load on his truck shifted , apparently
evidencing an improper securing of the load. At the
site his truck became stuck in the mud and another
truck had to be sent to pull it out. When Sharp
returned to the yard at about 8:30 a.m ., he was
warned of discharge if another instance of his load
shifting occurred . Immediately following this, he
was asked about being the instigator of the union
activity in the plant , and upon his denial of this role,
he was peremptorily discharged . Two other
employees were promptly told of Sharp' s discharge,
were asked whether they had signed union cards,
and were threatened with loss of work and earnings
if the Union came in . At approximately 10:30 a.m.,
the customer to whose site the earlier delivery had
been made reported to Respondent's assistant
manager that lumber was scattered over the jobsite,
and the assistant manager responded that the
employee responsible had already been fired.
176 NLRB No. 90
The Trial Examiner properly rejected the
Respondent 's claim that Sharp was discharged
because of the incident in making the delivery, or
because of the customer ' s complaint concerning it,
as knowledge of this occurrence did not come to
Respondent until after Sharp had been discharged.
We cannot agree , however, that, although Sharp's
discharge itself was for unlawful reasons and the
Respondent 's asserted grounds therefor are without
merit, those same asserted grounds removed the
taint of illegality 2 hours later.
Since the Respondent unlawfully discharged
Sharp at 8 : 30 and immediately engaged in flagrant
coercive conduct , we find no basis for an assumption
that at 10 : 30 a.m . Sharp would necessarily have
been discharged solely because of the complaint by
the customer. The question of whether Sharp would
have been discharged for lawful reasons at 10:30 is
conjectural , and there is no way to establish that
this would clearly have occurred . As the established
unlawful reasons for the discharge at 8:30 a.m.
cannot be disentangled from the conjectural
grounds , we are of the opinion that the Respondent,
rather than the employee, must assume the risk of
any uncertainty. Accordingly, we do not adopt the
Trial Examiner's recommended Remedy, but rather,
we shall provide for the usual reinstatement and
backpay remedy, and modify the Trial Examiner's
Recommended Order to conform herewith.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that
Respondent cease and desist therefrom and take
certain affirmative action . We shall further order
that Respondent offer Daniel Sharp immediate and
full reinstatement to his former or substantially
equivalent position without prejudice to his seniority
or other rights and privileges and that he be made
whole for any and all losses he may have suffered by
reason of the discrimination against him. Any
backpay shall be computed in accordance with the
formula set forth in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein , and hereby orders that the
Respondent , The Lima Lumber Company, Lima,
Ohio, its officers , agents , successors , and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as modified
herein.
1. Substitute the following as paragraph 1(b) of
the Trial Examiner's Recommended Order:
THE LIMA LUMBER COMPANY
"Discouraging membership in Truck Drivers,
Warehousemen and Helpers Union, Local 908,
affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, by
discharging employees or discriminating against
them in any other manner in regard to their hire or
tenure of employment or any term or condition of
employment."
2. Add the following as paragraph l(c):
"In any other manner interfering with,
restraining , or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act."
3. Delete paragraph 2(a), insert the following as
paragraphs 2(a), 2(b), and 2(c), respectively, and
reletter the original paragraphs 2(b) and 2(c) as
paragraphs 2(d) and 2(e).
"(a) Offer to Daniel Sharp immediate and full
reinstatement to his former or substantially
equivalent position , without prejudice to his
seniority or other rights and privileges , and make
him whole in the manner described in the Remedy
section herein , for any loss of earnings suffered by
reason of the discrimination against him.
(b) Notify Daniel Sharp , if he is presently serving
in the Armed Forces of the United States, of his
right to full reinstatement , upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
(c) Preserve and, upon request , make available to
the Board or its agents , for examination and
copying, all payroll and other records necessary or
helpful in analyzing the amount of backpay due
under the terms of this Order."
4. Delete the second and third indented
paragraphs from the notice and substitute therefore
the following:
WE WILL NOT discourage membership in or
activities on behalf of Truck Drivers,
Warehousemen and Helpers Union Local 908,
affiliated with 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 any of our
employees because of their concerted or union
activities.
WE WILL NOT in any other manner interfere
with, restrain or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations , or to join or assist the
above-named union or any other labor
organization , to bargain collectively through
representatives of their own choosing, and to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any or all such
activities.
697
WE WILL offer immediate and full
reinstatement to Daniel Sharp to his former or
substantially equivalent position , without prejudice
to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may
have suffered because of the discrimination
against him.
WE WILL notify the above -named employee, if
presently serving in the Armed Forces of the
United States , of his right to full reinstatement,
upon application , in accordance with the Selective
Service Act and the Universal Military Training
and Service Act , as amended , after discharge
from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RAMEY DONOVAN, Trial Examiner : The charge in this
matter was filed on August 5, 1968, and the complaint
issued under date of September 11, 1968. It was alleged in
the complaint that Respondent illegally interrogated and
threatened its employees and that it illegally terminated
one named employee , all in violation of Section 8(axl)
and (3) of the Act. In its answer, Respondent denied the
commission of the alleged unfair labor practice.
The complaint alleges facts about Respondent 's retail
lumber business, in Lima , Ohio, that satisfy the Board's
standards for asserting jurisdiction . Respondent' s answer
admits these facts and concedes that it is an employer
engaged in commerce within the meaning of the Act. We
so find . The pleadings of the parties also establish that the
Union is a labor organization within the meaning of the
Act and we so find.
The case was tried before me in Lima , Ohio, on
October 28, 1968.
FINDINGS AND CONCLUSIONS
1. THE ALLEGED UNFAIR LABOR PRACTICES
Sharp was employed by Respondent as a truckdriver
and yardman from March to July 29, 1968, when he was
discharged by Darling, Respondent ' s assistant manager.
Darling had hired Sharp initially.
About a month or more after he commenced work for
Respondent , Sharp , a man whom I judge to be in his
early twenties, threw a rock over a boxcar on
Respondent ' s premises .' This was evidently during
working hours and no particular motive for the act
appears in the record. It is the type of conduct that is
commonly referred to as horseplay . In any event, the rock
bounced off one of Respondent's fork lifts that was on the
other side of the boxcar . No one was hit but the men on
the fork lift complained to Darling about the incident.
Darling thereupon discharged Sharp . The next day Sharp
telephoned Darling and asked to be reemployed. Darling
thereupon rehired Sharp but admonished him that he did
not want any more trouble from Sharp "but in the yard."
Darling testified that Respondent was short of help and
needed employees.
'Sharp places the incident in about April. Darling places it in May or
June.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McClintock , a counter salesman at Respondent ' s place
of business ,' testified that over a period of time there had
been complaints from customers about deliveries that had
been made by Sharp . According to McClintock, a
customer , in ordering material, sometimes would tell the
salesmen , such as McClintock , that the customer wanted
the material placed in the garage or some other location.
This information would be relayed to the driver. In
Sharp' s case , McClintock states that there were times
when the customers would later complain that the driver
had not placed the material in the garage or other
location that the customer had specified at the time the
material had been ordered . About 2 weeks before July 29,
McClintock states that a "lady" came in crying and said
that Respondent ' s driver, in delivering material, had
backed into the side of her garage and had broken three
or four shingles thereon . Respondent thereafter replaced
the shingles and repaired the damage . Although not
entirely clear , we construe McClintock ' s testimony, in the
context of his testifying about Sharp , as testimony that
Sharp was the driver involved in the shingles incident.
Sharp denies that he ever damaged any siding material on
any customer ' s property . There is no claim or evidence
that Darling , McClintock , or anyone else ever spoke to
Sharp about damaging shingles or siding on a customer's
property or that he was warned about the matter.
Without otherwise indicating when the incident
occurred , McClintock states that on a "Saturday
morning," Sharp was delivering a wrought iron chair set.
McClintock advised Sharp to be careful because "those
[the wrought iron] will break easily ." After Sharp
returned from the delivery , the customer telephoned and
reported that one of the wrought iron legs had broken off.
Respondent replaced the broken leg. Sharp , in substance,
admits the wrought iron leg affair . He states that the
problem was that he had so much other material in the
truck that he did not have enough room to insure against
injury to the wrought iron . There is no evidence as to
what , if anything, was said to Sharp by Respondent as a
result of this incident , or when , precisely , it occurred.
Aside from the incident on July 29 when he discharged
Sharp , Darling' s testimony as to Sharp was that there
were "a lot" of complaints about Sharp as testified to by
McClintock . Other than as indicated in the foregoing
reference to McClintock ' s testimony , the only specific
incident described by Darling was the occasion, heretofore
described, of Sharp 's throwing a rock over the boxcar.
The situation up to the time of Sharp 's discharge on
July 29 , as revealed by the evidence , is that Sharp had his
faults as an employee but, in our opinion , the credible
evidence does not show that Darling planned to discharge
him. Nor, in our opinion , were the faults of Sharp in his
work of such a degree or nature that Respondent had
regarded them as intolerable . Of course Respondent could
have discharged Sharp for any reason or no reason during
the period of his employment except for the employees'
legitimate union activity. But either because, as Darling
testified , Respondent needed help, or because the general
calibre of employees currently available to Respondent
was less than the optimum , Sharp , with his faults, was
retained . Without doubt an employer is entitled to expect
from his employees due care in handling material but it is
doubtful if Sharp was the only driver who was less than
careful . Respondent offered no evidence that Sharp was
its worst driver or that no other driver' s conduct had
'There were evidently about four or five men who were similarly engaged
at the counter.
resulted in complaints regarding deliveries or the condition
of delivered material . The only warning given to Sharp
was about his "horseplay ," after the rock tossing incident
in Respondent ' s yard . After discharging Sharp , Darling
rehired him the next day but warned him, according to
Darling , that "I don ' t want any more trouble out in the
yard ." The only other incident , about which Darling spoke
to Sharp, occurred several weeks later. Darling , according
to Sharp, "gave me heck" about a truckload that was not
fastened properly . Sharp himself is the only witness who
mentioned this incident and this fact is in some degree an
indication of testimonial candor.
Based upon observation and careful consideration of the
record as a whole , I do not credit McClintock ' s testimony
that "a couple of weeks" before July 29, Darling had
discussed with McClintock that "due to the fact that some
other calls and complaints had come in that he [Darling]
was going to discharge him [Sharp]." Darling , who, like
McClintock , was a witness called by Respondent , testified
after McClintock but says nothing about discussing with
McClintock any discharge of Sharp .' Nor does Darling,
who made the decision to discharge Sharp on July 29 and
who did discharge him on that date , say that he had
planned or contemplated Sharp ' s discharge prior to July
29. These facts are the more striking since Darling, in his
appearance as a witness was, quite understandably,
seeking to defend the legitimacy of his action in
discharging Sharp . Surely , a prior discussion by Darling,
two weeks before July 29 , in which he said that he was
going to discharge Sharp , would have been mentioned by
Sharp if it was the fact. Moreover , there are other
reasons , described at a later point in this decision why the
Examiner regards McClintock as less than a reliable
witness but rather as a witness tending to present an
uneven picture of the circumstances relating to Sharp's
discharge.
Around July 22, 1968 , Sharp spoke to some of his
fellow employees about whether they would be interested
in starting a union at Respondent ' s plant . As a result of
this survey , Sharp went to the Union and secured some
authorization cards . In a period of 3 or 4 days he passed
out 11 cards to the employees and secured signatures
thereon from 11 of the men .4 Sharp had passed out the
cards in Respondent 's coffee room at the plant before
work and also at the homes of employees . Sharp then
turned over the signed cards to the Union.
Early in the morning on July 29, Sharp had received a
work order to deliver cdrtain lumber and plywood to a
construction site where a supermarket was being built.
Sharp loaded the truck with the material and proceeded to
drive to the site. As he was leaving the yard , the route led
across some railroad tracks . As a combined result of
driving over the tracks and , according to McClintock, the
fact that the "heavy load" on the truck was not fastened
down as securely as it should have been by 'Sharp, the
load shifted as Sharp drove over the tracks. McClintock
testified that he observed the shifting of the load from
where he was in the yard. He states that the top bundle of
plywood on the truck "fell to the center of the truck .. .
fell down in the load of lumber ." Darling also was in the
yard and saw the truck as it crossed the tracks. Sharp
states that as the truck crossed the tracks a portion of the
load shifted slightly but without damage to the material.
'Daring was present during McClintock 's testimony . Darling testified
twice during the hearing . Once during Respondent's case in chief and also
in surrebuttal.
'there were 13 or 14 employees who drove trucks or worked in the yard.
THE LIMA LUMBER COMPANY 699
Without further incident , Sharp ' s truck arrived at the
construction jobsite . Sharp testified that the ground was
muddy in spots and that to get into the lot he had to
maneuver and back up his truck twice . When the truck
was into the lot, it became stuck or mired and Sharp
testified that, in the course of trying to keep the truck in
motion and to avoid getting stuck , some of the material
fell off the truck at the construction site . Sharp then
unloaded the balance of the material . He testified that the
material was not damaged as far as he could see. Sharp
telephoned to Respondent ' s yard and the call was
answered by one of the counter salesmen , Siminello. In
substance , Sharp reported that his truck was stuck, and
one of Respondent ' s other trucks was sent to the jobsite to
pull out Sharp 's truck . This was all accomplished in a
relatively short time and , according to Darling , Sharp was
back at Respondent ' s yard between 8 and 8:30 a .m. that
morning . Darling estimates the incident at the
construction site as occurring at about 7 : 30 or 8 a.m.
Sharp testified that when he returned to Respondent's
yard, Darling was waiting for him and Darling said, "Did
your load shift?" Sharp said , "Yes," and Darling said "If
it happens again , it will be your last one." Darling then
said , " I heard there was some union talk going around
and I heard you instigated it." Sharp replied , "I have just
heard a little talk, that's all." Darling then said , "If you
cannot stand there and tell the truth , you may as well go
and punch your timecard and go home ." Sharp then
punched his timecard and went home . As previously
indicated , Darling ' s testimony, uncontradicted on the time
aspect, places Sharp ' s return to the yard and the discharge
as between 8 and 8:30 a.m.
Darling ' s version of the discharge is that when Sharp
returned to the yard , Darling walked up to him and said,
"Dan, I have had all I can take , you are fired ." Darling
states that nothing was said about a union.
Respondent called as a witness, the builder , Grunke, to
whose jobsite Sharp had delivered the material on July 29.
Grunke testified that on that date he arrived at the
construction site around 10 or 10:30 a . m. He drove up in
his car, did not get out of the car , but observed the
lumber scattered around the site . Nothing was piled up in
an orderly way but was in a scattered condition . Some of
the material was splintered and some was broken and
some of the sheeting "was standing on end like you would
take a deck of cards and fan them ." Grunke thereupon
drove immediately to Respondent ' s yard . He spoke to
Darling with considerable indignation, complaining of the
condition aforedescribed in which the lumber had been
delivered . Grunke threatened to take his patronage
elsewhere if the careless handling of the material on July
29 was illustrative of Respondent's type of work .' Darling,
in substance , apologized for the situation and promised to,
and subsequently did, replace the damaged material.
Darling told Grunke on the same July 29 occasion that he
had fired the man responsible.
Grunke testified that the construction site in its original
condition had been "very low." However, he states that
about 950 cubic yards of clay fill dirt had been dumped on
the site and rolled . Grunke expressed the view that the
ground was thereafter solid and that he knew of no soft
spots.
I credit Grunke's testimony about the disarray and
damaged condition of the lumber on July 29 when Grunke
came to the site around 10 or 10 : 30 a.m . While I do not
'July 29 was the initial business dealing between Grunke and
Respondent . The account for materials on the job was a substantial one.
believe that Grunke was deliberately misrepresenting what
he believed was the general condition of the ground at the
construction site , we are satisfied that some portion of the
ground was soft or muddy and that Sharp's truck stuck in
the muddy or soft soil on July 29.
Aside from other factors in the record which we will
refer to, it would not be unusual, in our opinion, for a
heavily loaded truck, such as the record shows to be the
case as to Sharp's truck on that morning , to sink or to
become stuck on naturally low terrain that had been filled
with clay soil. While rolling the fill dirt no doubt gave it a
degree of firmness, clay soil is probably the least porous
of soils and, if recently exposed to rain, clay and probably
most any other filled dirt, would be prone to yield under
the weight of a heavy truck. The only eyewitness to
whether the truck was stuck in the mud at the site on July
29 and who testified at the hearing was Sharp.' Sharp
testified credibly that the ground was muddy, that the
truck became stuck and had to be pulled out by another
truck of Respondent's that was sent to the site for that
purpose. There is no doubt that Sharp's truck was stuck.
McClintock, who was a witness called by Respondent,
testified that Respondent had to send another truck to the
site to pull out Sharp's truck. This witness also testified
that some of the lumber that was thrown off the stuck
truck had become covered with mud.'
Darling , who also was not at the construction site,
testified , ` . . . I am not positive but I am sure he [Sharp]
backed into a hole and got stuck." Darling said that he
sent another truck to the site to pull out Sharp's truck.
According to Darling, on July 29, Merritt, president of
Respondent, was passing, "went by" the construction site
at the time Sharp became stuck. Apparently, Merritt's car
was equipped with a radio telephone and Darling states
that Merritt "radioed" him and said, "Virg [Virgil
Darling] , you have a truck down here that is stuck" and
Merritt said you "had better get somebody out there to
pull him out ...."'
Conclusions
The critical matter in this case, in our opinion, is the
issue of credibility between Sharp and Darling as to what
was said on July 29 when Darling discharged Sharp.
Sharp states that when he returned to the yard on July 29,
'The evidence is undisputed that neither Grunke nor any of his
employees was present on the morning at the time the truck arrived at the
site or when it was stuck. Grunke did not arrive at the site until several
hours after the truck had been extricated and had returned to Respondent's
yard. When Grunke did arrive at the site he remained in his car and then
drove to Respondent's yard.
'Since McClintock was not present at the construction site on July 29,
whatever information he had about the muddy lumber was probably
gleaned when he overheard part of the conversation between Grunke and
Darling later that morning when Grunke came to the Respondent 's yard to
complain.
'At another point in his testimony Darling said that although "I was not
at the jobsite , I am sure it was not wet." There was an objection to this
answer by the General Counsel and then Darling stated , "ft could have
been a week or so, we had a lot of rain the night before that and with this
being filled, sure, there is bound to be soft spots ..... Darling said that
on subsequent deliveries, after Sharp's discharge, the trucks did not
become stuck. As to the latter fact, it would be my opinion , that the
experience of Sharp 's truck , which was the first delivery made by any of
Respondent's trucks to the particular site , would prompt subsequent
drivers to exert great caution. If three men are walking along and the first
man steps on a soft spot and sinks up to his knees in mud , the two men
following him are unlikely to step in the same spot and are likely to use
great care in traversing the particular area.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Darling said , "Did your load shift." When Sharp said,
yes, Darling warned him that "if it happens again, it will
be your last one." In other words, there was a warning
that , if through inadequate loading and tying down of a
load, any subsequent load because loose, Sharp would be
discharged . Darling then said that he had heard there was
some union talk going around and that Sharp was the
instigator . Sharp , in effect , denied being the instigator,
saying that "I have just heard a little talk, that' s all."
Darling thereupon accused Sharp , in substance, of lying
and told him to punch out and go home . Darling 's version
is that nothing was said about a union and that he simply
told Sharp that "I", Darling "have had all I can take, you
are fired."
Baker , a university student who had worked as a
yardman for Respondent during the summer of 1968,
testified that, on July 29, he and another employee, Ely,
were assembling or building pallets in Respondent's yard.
Darling came over and told Baker and the other man that
he, Darling , had discharged Sharp . Darling asked Baker
and Ely if they had signed union cards . Baker testified
that he did not give Darling a specific answer . Darling
then said that if they joined the Union and the Union
came in , he would reduce the work hours and the men
would make less money ; also, that during slack periods,
such as during the winter season , when there was not
much work to perform , he would send the men home.
Darling testified that he had heard Baker 's testimony
but that never , at any time , did he discuss the Union with
Baker. Respondent 's counsel then asked:
Q. Did James Baker ever discuss the Union with
you?
A. He made the remark about the pallets. I may
have made a statement saying if the Union ever gets in,
we will do like other people do and this is the only
thing that I ever said on that.
Q. In other words, what was that?
A. In other words, you read in the newspapers what
these other companies are doing and this could happen
to us, I do not know.
the I view the foregoing testimony, Darling at first
denied flatly that he ever talked to Baker on the union
subject. Then, when afforded a direct opportunity to say
whether or not Baker had initiated the union topic with
him, Darling gave, in our opinion , a rather obscure
answer . As I interpret Darling 's testimony above
described , Darling, in effect, admits that on July 29, as
Baker testified , Baker was working on, or at least some
work relating to pallets was involved , when Darling made
some statements on the union topic . Even Darling's
testimony does not show that Baker either initiated or
said anything regarding a union . According to Darling,
Baker 's reference was to some work on the pallets. It was
Darling who initiated the union subject , saying what
Respondent would do "if the Union ever gets in." The
rest of the testimony as to what Darling claims he said is
again , in our opinion , vague and not convincing as an
accurate account of what Darling said to Baker.
In several respects Darling did not impress me as a
candid and accurate witness . On the Baker incident,
despite Darling 's lack of candor , enough appears in
Darling 's own testimony that partially corroborates Baker,
to wit, it is not denied , but, in substance, admitted that on
July 29 Baker was doing something relating to pallets in
the yard and that Darling initiated the union subject by
saying what the Company would do if the Union came in.
I believe that Baker was a credible witness and we credit
his testimony.
The materiality of Baker's testimony is that the
reasonable inference therefrom is that on July 29 Darling
had some awareness of union activity relating to
Respondent's employees and of some possibility of a
union attempting to come into the plant.' Since,
immediately after mentioning that he had discharged
Sharp, Darling proceeded to ask Baker and Ely if they
had signed union cards and to describe steps, economically
detrimental to the employees, that Respondent would
initiate if a union came into the plant, there is indication
of awareness of incipient union activity and indication of
hostility toward union activity of employees and also some
possible connection between Sharp's discharge and the
matter of union activity. The latter because the Baker
conversation occurred after, but on the same day as, the
discharge, and because Darling referred to the discharge
and made his antiunion remarks in the same context and
in the same relatively brief conversation.
The foregoing renders more plausible the possibility
that Sharp was testifying accurately when he described the
union references made by Darling when the latter
discharged Sharp. Without Baker's testimony, partially
admitted by Darling, the suspicion would be present that
Sharp might have simply conjured up the alleged union
references by Sharp at the time of the discharge, since the
record is otherwise bare of evidence of any awareness by
Darling of union activity among the employees, including
Sharp.
Before making an ultimate resolution of what occurred
when Darling discharged Sharp, some additional analysis
is in order.
Darling testified that on July 29 he sent another
employee in a truck to pull Sharp and his truck out "and
to straighten up the material." As has been previously
described, there is no question that Darling did send a
man to pull out the truck and that this mission was
carried out. It is also clear that this all occurred between
about 7:30 and 8:30 a.m., no later than 8:30. Sharp had
been pulled out and was back at the yard between 8 and
8:30 and was discharged around 8:30. But, in our opinion,
Darling had not told the man whom he sent to pull out
Sharp to also straighten up the material. Darling's
reference to the need to straighten up the material that
had been delivered is apparently an effort to convey the
idea that since the material was scattered all over the site
he instructed one of his employees to not only pull Sharp
out but to also straighten up the material.
The weakness in Darling's testimony is that, at the time
aforedescribed, it is our opinion that Darling did not know
that the material was scattered all over the site so as to
require the effort of an additional man to repile the
material and straighten it out.
Darling did not learn of the condition of the delivered
material until Grunke came to the yard to report the
condition and this was at least 2 hours after the man and
truck dispatched by Darling had pulled out Sharp's truck
and Sharp had returned to the yard where he was
discharged between 8 and 8:30 a.m. If, prior to Grunke's
arrival at the yard around 10:30, Darling had sent an
employee to not only pull out Sharp's truck but to also
straighten out the lumber at the site, this would have been
prior to 8:30. But when Grunke arrived at the site, around
10-10:30 a.m., the lumber was scattered all over the place
'The only way a union could come into the plant would be through the
employees or, in other words, the union affiliation and activity of
employees.
THE LIMA LUMBER COMPANY 701
as described by Grunke and this is what led the latter to
drive immediately to Respondent ' s yard and complain
about the condition in which the material had been
delivered.
Either the employee sent by Darling several hours
earlier to pull out Sharp and to straighten out the
delivered material had completely ignored Darling 's direct
order to straighten the material or such an order had
never been given . We believe the latter to be the case.
There is no indication that, when Grunke came to
complain to Darling , that the latter had expressed surprise
that at 10 or 10:30 Grunke had found the lumber still
unstraightened or that Darling told Grunke that several
hours earlier he had sent a man with express orders to not
only pull out Sharp but to straighten the material. Yet
these would have been normal responses if Darling's
testimony is accurate . Nor is there any claim or evidence
that Darling thereafter questioned or reprimanded the
employee who pulled out Sharp and who allegedly had
been instructed to straighten the material but, obviously,
had never done so.
As indicated , we do not believe that Darling instructed
the man sent to pull out Sharp 's truck to also straighten
out the delivered material . Darling did not know at that
time or at the time he discharged Sharp that the material
was scattered and broken . He learned of these facts when
Grunke told him, about 2 hours after the discharge. Prior
to that, and at the time of the discharge , Darling's
knowledge of Sharp ' s July 29 delivery to Grunke's site
was as follows : As Sharp left the yard on the way to the
site, Darling saw the material on the truck shift, as the
truck crossed the railroad tracks . There is no evidence or
even suspicion expressed that any portion of the material
fell off at that time or was broken on the truck . The only
details as to the shift in the load are meager . Sharp states
that the load shifted slightly without damage . McClintock
testified that some bundles of plywood fell to the center of
the truck "in the load of lumber ." Other than the fact
that he saw the load shift , Darling does not describe any
details . The other information that Darling had when he
made the discharge , and prior to Grunke 's visit, was that
Sharp ' s truck had been stuck in the terrain at the jobsite
and the truck had to be and was pulled out by another
truck . We are satisfied that Darling did not know at that
time that the material was scattered around the
construction site in a damaged condition. Until Grunke
came to the yard, Darling ' s information about the
situation at the jobsite was based on a call from
Respondent' s president Merritt, who, in passing the
construction site in his car , observed that one of his trucks
was stuck . According to Darling , Merritt, who did not
testify, simply called him on the radio telephone and said,
"You have a truck down here that is stuck " and Merritt
told Darling to get someone down to the site to pull out
the truck . Because of "this happening and with the past"
Darling states that he decided to discharge Sharp."
I encountered great difficulty in seeking to believe that,
because a driver of a loaded truck , delivering to an
"Darling states that he made his decision "through my boss to discharge
Sharp." The reference is apparently meant to be to Merritt as the "boss."
A few pages later Darling was asked expressly what Merritt had said to
him. The only thing testified to by Darling in response to the question was
that Merritt said , "Virg, you have a truck down here that is stuck" and
Merritt said, you "better get somebody out there to pull him out because
he was in trouble ." Darling then testified that he had no alternative except
to discharge Sharp. We believe that the foregoing was the extent of the
conversation and that neither Merritt nor Darling discussed the discharge
of the driver.
unpaved construction site, became stuck in the muddy
ground , his employer would for that reason discharge him.
There is no evidence that Sharp had ever become stuck
before or that no other driver of Respondent's ever
became stuck on a construction site. It is probably true
that no driver should ever get into a position where his
vehicle becomes stuck but the realities of day to day work
would indicate that truck drivers do become mired at one
time or another . An employer of course could discharge
an employee for becoming stuck but it appears highly
doubtful that Darling discharged Sharp for that reason.
Equally dubious is any claim that the fact that the load
shifted when Sharp crossed the tracks , as described above,
was a reason for the discharge . In the circumstances of
this case , it also appears doubtful that , as Darling claims,
Sharp's past record, combined with the fact that he got
stuck on July 29 , resulted in his discharge . Sharp as an
employee had his faults but as of the start of work on
July 29 he was still an employee and had not been warned
of any possibility of discharge if any of his past faults
again appeared. And, as indicated, the matter of getting
stuck on July 29 simply does not appear to be the type of
situation that would normally culminate in discharge."
The record lends some support to the view that
Respondent' s witnesses were conscious of the
unconvincing nature of the asserted reasons for discharge.
As we have seen , Darling's testimony would convey the
impression that prior to the discharge he was aware that
not only had Sharp's truck become stuck but that he was
also aware of the fact that the load was scattered all over
the jobsite and therefore sent a man to straighten up the
strewn material as well as pull the truck out. The fact
was, as the evidence shows, that it was several hours after
the discharge that Darling became aware of the condition
of the material.
McClintock, Respondent's other witness, testified that,
on July 29, when Sharp returned to Respondent's yard
from the Grunke site , "he [Sharp] went on with his
normal course of work . But, later on , the contractor
[Grunke] came in and he was hopping mad due to the fact
that material was not stacked , it was just throwed off on
the ground ." McClintock states that he heard Darling say
to Sharp that "since they had this complaint [Grunke's
complaint] on this load of material that was delivered,
that he would have to fire him . . . ." McClintock
continued, "And Mr. Grunke was pretty well perturbed
about it and this just clinched the feeling we had insofar
as his [Sharp 's] employment."
The foregoing effort to depict the Grunke complaint as
a, or the, material factor in the discharge is wholly
unconvincing and it is contrary to clear facts in the
record. It reflects adversely not only on McClintock's
reliability as a witness but casts doubt on Respondent's
basic position . First of all , both Sharp and Darling agree
that the latter discharged Sharp when he first returned
from the Grunke site . Neither witness testified that, as
McClintock asserts, Sharp had resumed work in
Respondent's yard after returning from the Grunke job.
Sharp was discharged when he walked in the door, and he
"There is no claim or evidence that the truck got stuck because the load
shifted or that it would not have become mired but for that fact. What
evidence there is is that some plywood had fallen into the center of the
truck, a fact that would scarcely be a factor in the later event of the truck
becoming stuck . There is no claim or evidence that Sharp should have
known that the ground was dangerously soft and that he should not have
entered the construction site where he did, or that his becoming stuck
could only be explained as gross negligence.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then punched his clock and left. This was around 8:30
a.m. Grunke did not come to the yard and did not see or
speak to Darling until about 10 : 30. Darling admitted that
this was after Sharp ' s discharge and that he told Grunke
that he had already discharged the driver , Sharp. If
McClintock ' s testimony , abovedescribed , is read in the
light of the established facts, it is abundantly clear that his
testimony is extremely inaccurate and distorted and
evinces an effort to build up and overstate the factors in
the discharge.
In at least one other respect, described earlier in this
decision , we were unimpressed by McClintock 's testimony.
He was, however , Respondent's principal witness in
depicting the past faults or deficiencies of Sharp as an
employee . In our opinion , he was not a reasonably
objective witness regarding Sharp although we believe that
Sharp had his faults as an employee . The only past
dereliction of Sharp described by Darling was the rock
tossing incident , above , considerably before July 29. On
the actual discharge of Sharp on July 29, McClintock's
overextension and twisting of the facts cannot but cloud
the credibility of Respondent ' s motivation in the entire
matter of the discharge.
A careful consideration of all the evidence and the
reliability or unreliability of the witnesses , either
comparatively or otherwise , persuades me that Sharp's
testimony , regarding what he said and what Darling said
when Sharp was discharged on July 29, is credible and we
so find. The situation, therefore, was that although
Darling was displeased about what he knew at about 8:30
a.m. of Sharp 's delivery to the construction site , Darling
did not consider that the fact that Sharp 's load had shifted
as he crossed the tracks enroute , or the fact that the truck
got stuck in the soft ground of the site and had to be
pulled out, as conduct that merited outright discharge at
that point . However , because Sharp had been less than an
exemplary employee in the past and because of his
apparent careless failure to insure the July 29 load against
shifting and the trouble entailed in having to extricate the
truck , Darling , in effect , said that, the next time Sharp
did not tie down his load or otherwise was out of line as
an employee, he would be discharged ." Thus, although
Darling could have legitimately discharged Sharp at that
point for the reasons described above , he did not do so
but gave Sharp a warning that if Sharp transgressed again
he would be discharged.
If the foregoing had been the extent of the situation or
even if Darling had discharged Sharp instead of
disciplining him, we would perceive no violation of the
law. However , Darling proceeded to, in effect , interrogate
Sharp about union activity among the men and the fact
that Darling had heard that Sharp was the union
instigator ." Sharp gave an evasive answer and avoided
entirely a response as to whether or not he was the union
instigator . Darling then , implying that he knew or believed
that there was union activity going on and that Sharp was
the instigator and that Sharp should have admitted the
union situation and his own role therein , discharged
Sharp . In our opinion , under the rights guaranteed under
Section 7 and Section 8(axl) and (3) of the Act, Sharp
was under no obligation to inform Darling regarding the
existence of union activity among the employees or of his
own leading role in such activity . We find the discharge to
be a violation of Section 8(a)(3) and (1) of the Act.
"As we have seen , Darling had asked Sharp if his load had shifted and
when Sharp admitted that it had, Darling said, "If it happens again, it will
be your last one."
The circumstances presented in this case , however, are
such that , in our opinion , a further element must be
considered . Sharp's credited testimony makes it clear that,
on July 29, around 8:30 a.m., when his conversation with
Darling took place , Darling gave him what, in our
opinion, was a legitimate warning , unrelated to union
activity , that if Sharp was careless or "slipped up" again
in his work performance , he would be discharged . Having
been discharged very shortly after this warning, as we
have above described , Sharp never , literally , performed
another act as an employee. In that sense , therefore, the
conditions of the warning , never actually occurred at least
in the literal sense of another breach of Sharp's duties as
an employee. But, in our opinion, the facts show that a
substantial equivalent of what Darling had warned Sharp
about did occur.
About 2 hours after Darling discharged Sharp, Grunke
came to Respondent's yard and reported and complained
to Darling in strong terms about the fact that the lumber
delivered to his site that morning by Respondent was
strewn all around the site and that some or much of it was
splintered and broken . Grunke threatened to take his
patronage elsewhere if the conditions of the July 29
delivery were to be what he could expect from
Respondent. Respondent then undertook to see that the
material was properly stacked on the site and to replace
the damaged pieces . For reasons heretofore described, we
are satisfied that this was the first time that Darling
learned of the strewn and damaged condition of the
lumber delivered by Sharp. There is little doubt in our
mind that if Darling had had Grunke's report prior to the
discharge of Sharp , Darling would have discharged the
employee because of the manner in which he had left the
delivered material, coupled with the more limited facts
that by themselves had prompted Darling to give Sharp a
warning of discharge if even the relatively limited
circumstances known to Darling at 8:30 a . m. were
repeated . It is our opinion that such a discharge would not
have been illegal."
As indicated, Sharp's credited testimony is, in
substance , that on July 29, Darling warned him that if
there was one more instance of carelessness in the
discharge of his duties , Sharp would be discharged. We
regard Grunke ' s report and complaint to Darling , 2 hours
after the discharge , as furnishing, an additional and
"It is reasonably clear that when Darling said to Sharp , " I heard there
was some union talk going around and I heard you instigated it," that he
expected a responsive answer from Sharp on the foregoing.
"It appears unlikely that if Darling had had Grunke's report at 8:30
a.m. he would have done anything else but discharge Sharp. The discharge
on these legitimate grounds would have not only eliminated Sharp as a
deficient employee but would have , from Darling 's standpoint, carried the
bonus of eliminating the union instigator . We therefore would regard it as
improbable that Darling would have said anything about the Union to
Sharp if he had discharged him in such circumstances . It was when Darling
limited himself to a warning to Sharp , with the latter continuing as an
employee, that Darling then went into the union matter. Perhaps he felt
that the fact that he had not discharged Sharp would lead the latter to
respond revealingly or favorably regarding the union situation or that
Sharp, continuing as an employee, was therefore a continuing union
problem requiring talking to on the union subject . As to the legal
implication of some of the foregoing observations we understand the law to
be that an employer , presented with a legitimate ground for discharge and
who discharges an employee for that legitimate reason , is not acting
illegally even though the dischargee is a union leader and even though the
employer may be glad that the legitimate cause for discharge was
presented . Those cases where an ostensibly legitimate reason is used as a
pretext in order to discriminate against a union employee are in a different
category.
THE LIMA LUMBER COMPANY 703
relatively aggravated instance, of Sharp 's carelessness. If
Darling had had such information 2 hours earlier , it is our
opinion that he would have discharged Sharp . The strewn
and broken condition of the material delivered and left by
Sharp was in fact a new instance of misconduct since it
was not previously known by Darling . The fact that it was
part of the basic delivery on July 29 for which Sharp was
warned does not alter this conclusion . This is not the
situation of the employer having an afterthought and
conjuring up a justification for a discharge that did not
exist at the time of the discharge . The consequence of
further or additional misconduct by Sharp was clearly
stated by Darling on July 29 as being a discharge. The
statement was premised on legitimate factors in the
employer-employee relationship . In our opinion, the
foregoing were prior to, separate from , and not motivated
by the later discharge for union activity. Within 2 hours,
and as part of the legitimate res gestae of Sharp's
performance as an employee , additional or further
misconduct was revealed to Darling and, in our opinion,
the previously announced condition for the employee's
termination became operative . And, in the circumstances
of this particular case, we do not believe that we would be
justified in recommending Sharp's reinstatement. He was
discharged illegally , as found above, on July 29 at
approximately 8:30 a .m. It is our opinion that he is
entitled to the pay he lost from 8:30 to 10:30 a.m., at
which latter time the full extent or an additional instance
of his careless work performance was revealed to Darling
by Grunke's report and complaint. This additional
instance in our view made Darling's prior warning of
discharge operative at least to the extent of precluding
reinstatement.
CONCLUSIONS OF LAW
As found hereinabove , Respondent is an employer
engaged in commerce within the meaning of the Act and,
on July 29, 1968, it interrogated employees regarding
union activity and threatened and warned employees of
economically detrimental steps that it would take against
employees - if a union came into the plant. This conduct
was in violation of Section 8(axl) of the Act. Respondent
violated Section 8 (a)(3) and (1) by discharging employee
Sharp in disregard of the employee 's rights as guaranteed
by Section 7 of the Act.
1. Cease and desist from:
(a) Interrogating employees regarding union activities
and stating to employees that the advent of a Union
would result in Respondent curtailing work or hours of
employment.
(b) Discriminating against any employee for his union
activity.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Reimburse employee Daniel Sharp for the wages he
lost from the time of his discharge to the time he would
have been discharged for legitimate reasons , as described
in the decision hereinabove.
(b) Post at its premises copies of the attached notice
marked "Appendix."" Copies of said notice, on forms
provided by the Regional Director, Region 8, after being
signed by Respondent's representatives, 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 other material.
(c) Notify the Regional Director for Region 8, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
"In the event this Recommended Order be adopted by the Board, the
words "a Decision and Order" shall be substituted for the words, "The
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board's Order be enforced by a decree of a United States
Court of Appeals, the words "a decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event this Recommended Order be adopted by the Board, this
provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , it will be recommended that
Respondent cease and desist therefrom and take certain
affirmative action . For the reasons set forth in the
decision hereinabove, we do not recommend that
Respondent be ordered to reinstate the discharged
employee, Sharp. Although the amount of money involved
is obviously small, we see no reason to omit the
requirement that Sharp be reimbursed for his wages from
the time of his dischar*e at 8:30 a.m., July 29, until 10:30
a.m., July 29, when, in our opinion , Sharp would have
been terminated for nondiscriminatory reasons.
RECOMMENDED ORDER
Based upon the findings and conclusions hereinabove,
and upon the entire record , it is recommended that
Respondent , its officers , agents, successors, and assigns,
shall:
Pursuant to The Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act we hereby notify our employees that:
WE WILL NOT coercively question our employees
regarding their union activities or state to them that if a
union comes into our plant we will reduce the work or
the hours of work of our employees.
WE WILL NOT discriminate against any employee
because of his legitimate union activities whi4h are
protected by the law.
WE WILL reimburse employee Daniel Sharp for the
pay he lost , as described in the Trial Examiner's
decision.
Our employees are free to join Truck Drivers,
Warehousemen and Helpers Union, Local 908, affiliated
with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, or any other
union , or to engage in union or cgncerted activities or to
refrain from union membership or the foregoing activities,
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in accordance with the provisions of the National Labor This notice must remain posted for 60 consecutive days
Relations Act. from the date of posting, and must not be altered,
defaced , or covered by any other material.
THELBIALUMBER If employees have any question concerning this notice
COMPANY or compliance with its provisions , they may communicate
(Employer) directly with the Board's Regional Office , 1695 Federal
Dated By Office Building , 1240 East 9th Street , Cleveland, Ohio
(Representative ) (Title ) 44199 , Telephone 216-522-3738.