Andrews Wire Corp.

National Labor Relations Board - Board Decisions

Mar 19, 1971

189 N.L.R.B. 108 (N.L.R.B. 1971)

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Andrews Wire Corporation and United Steelworkers
of America , AFL-CIO. Cases 11-CA-4239 and
11-CA-4312
March 19, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 16, 1970, Trial Examiner Lowell
Goerlich issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging 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. He also recom-
mended that certain allegations of the complaint be
dismissed. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 briefs, and
the entire record in this case, and finds merit in certain
of the exceptions.' Accordingly, the Board adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent herewith:
1. We agree with the Trial Examiner's findings, for
the reasons stated in his Decision, that Respondent
violated Section 8(a) (3) and (1) of the Act by
discharging employee Brantley, and Section 8(a) (1)
by taking the organizer committee sheet from him and
by interrogating him concerning his union activities.
2. We do not adopt the Trial Examiner's finding
that the discharges of employees Tisdale, Altman,
Green, Nesbitt, and Casselman violated Section 8(a)
(3). All these discharges resulted from a common set
of facts and the same cause.
At the time the above employees were hired, they
were given safety glasses and hard hats which they
were told must be worn at all times. The hats are made
of metal and have a bright aluminum color. The
employee's name is affixed to the front of the hat
above the brim. The particular hat was chosen by
Respondent because of its bright lustre which made it
I We find no merit in Respondent 's exception to the Trial Examiner's
failure to make separate findings of fact and conclusions of law in this
consolidated proceeding The record shows , and the Trial Examiner found,
that Respondent was aware of all the issues raised in the consolidated
complaint, that its answer denied the commission of all unfair labor
easier to spot in the mull, where lighting is poor. It also
protects the employee from falling objects.
On July 2, 1970, some employees attached red
stickers with black lettering "Go, Steelworkers" to
their hard hats. At the request of a leadman, the
employees removed the stickers . On July 7, 1970,
employees on the third shift attached circular union
insignia , about 2 inches in diameter, to their hard hats.
The next day, Plant Superintendent Powell noticed
the insignia "all over [the] safety hats" of the third shift
employees. At the end of the shift, Powell observed
that the first shift employees had also appended the
insignia to their hats. He informed Plant Manager
Schlett of this fact. Schlett told Powell to tell the
employees who had attached the insignia to their hats
"to please remove them." Powell asked the employees
on the first shift who had attached the union insignia
to their hats to take them off. He said that the hat was
a safety hat and company property. He also threat-
ened to discharge employees who refused to remove
the insignia . Some employees said they would not
remove the insignia . Powell recounted this attitude to
Schlett who told Powell to "Go back and talk to them
like a damn Dutch Uncle and tell them to take them
off . . . Don't threaten them, just tell them to take
them off." Powell reported back to Schlett that some
employees still refused to remove the insignia. Schlett
then assembled the first shift employees, told them the
helmets were for their own safety, admonished them
not to "mark up safety glasses or the helmets," and
warned them that unless the stickers were removed by
12:30 p.m. that day, their jobs would be in jeopardy.
During his talk Schlett also told the employees that
they could wear a union badge or stickers anywhere
on their clothing, but not on the hat. After Schlett's
speech, employees Altman, Tisdale, and Green on the
first shift still refused to remove the insignia from
their hats when requested to do so. They were then
discharged. When General Foreman Haselden of the
second shift arrived, Powell acquainted him with the
discharges that had occurred among employees of the
first shift, and told him to advise his employees of
what had occurred on the first shift and try to have the
second shift employees remove the insignia from their
hats. Haselden assembled his shift employees, told
them of the employees discharged on the first shift for
refusal to remove the stickers, advised them to remove
the stickers, and threatened with discharge any
employee who refused to do so. All employees except
Nesbitt and Casselman removed the stickers. Nesbitt
and Casselman were thereupon discharged.
practices alleged in all pertinent paragraphs and subparagraphs therein,
and at the hearing Respondent was afforded every opportunity to present
evidence and introduce defenses The consolidation also was in accordance
with the Board's Rules and Regulations and resulted in no prejudice to
Respondent
189 NLRB No.24
ANDREWS WIRE CORPORATION 109
The Trial Examiner found that during the period of
the hard hat incident the employees had worn union
insignia on their clothing without restriction.
In Standard Oil Company of California, 168 NLRB
153, a case whose facts are practically identical with
those in the present case, the Board found that an
employer had not violated Section 8 (a)(3) and (1) of
the Act by disciplining employees who refused to
remove union emblems from their safety hats. The
Board explained:
"On the facts presented by this record, we cannot
say, as urged by the General Counsel and the
Charging Party, that the maintenance and enforce-
ment of the Respondent's rule against adornment of
the safety hats violated Section 8(a)(1) or (3), simply
because the decorations in issue were union emblems.
The Respondent established that it had a legitimate,
longstanding, and not unwarranted concern about the
threat to safety posed by the use of unauthorized
decorations on work hats. Furthermore, the evidence
shows that employees were freely permitted to wear
emblems signifying union affiliation on any part of
their clothing except their safety hats."
In the present case , as in Standard Oil, the
Employer showed that it had a legitimate and not
unwarranted concern about the threat to safety posed
by the use of unauthorized decorations on work hats.
Respondent picked the bright lustre for the safety hat
so that it could be seen in the dim light of the mill.
Respondent feared that if employees were permitted
to attach to the hat insignia of less bright colors, as
some employees did, visibility of the hat and conse-
quently the safety of employees would be impaired.
According to Respondent, employees had pasted
stickers all over their hats and they were not limited to
the ones illustrated by the Trial Examiner. In these
circumstances, we are not prepared to say that
Respondent's expressed concern with safety in direct-
ing removal of union insignia from the safety hats was
not legitimate. Although, in this case, unlike in
Standard Oil, the rule was not of longstanding, this
was because the plant itself was recently established.
Further, again as in Standard Oil, the Employer told
the employees that they could wear union insignia on
any item of clothing except the safety hat, and in fact
they did so.2 Finally, the reasonable efforts made by
Respondent to persuade the employees to comply
with the rule and to remove the union insignia from
the hats before resorting to disciplinary measures also
negates the Trial Examiner's conclusion that Respon-
dent instituted the rule against wearing union insignia
on safety hats, and discharged employees for refusing
to comply therewith, for the purpose of discouraging
membership in a labor organization. Accordingly, we
shall dismiss the allegation of the complaint based on
the rule and the discharge of employees who refused
to comply herewith.
AMENDED CONCLUSIONS OF LAW
Delete the names of George R. Tisdale, William L.
Altman, Sylvester A. Green, Julius B. Nesbitt, and
Richard L. Casselman from the Trial Examiner's
fourth Conclusion of Law.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Andrews Wire Corporation, Georgetown, South
Carolina, its officers, agents, successors, and assigns,
shall take the action set forth herein:
1. Cease and desist from:
(a) Discouraging membership in United Steelwork-
ers of American, AFL-CIO, or in any other organiza-
tion, by discharging any of its employees or discrimi-
nating in any other manner in regard to their hire or
tenure of employment or any term or condition of
employment.
(b) Unlawfully taking organizer committee forms
from employees.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the right to self-organization, to form labor
organizations, to join or assist United Steelworkers of
America, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of mutual aid or protection
and to refrain from any or all such activities.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer Robert T. Brantley immediate and full
reinstatement to his former position or, if such
position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss
of pay that he may have suffered by reason of the
Respondent's discrimination against him in accord-
ance with the recommendation set forth in the section
of the Trial Examiner's Decision entitled "The
Recommended Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
2 The Trial Examiner sought to distinguish the Standard Oil case on a
number of grounds , all of which we find to be without merit.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify immediately the above-named individual,
if presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Post at its Andrews, South Carolina, plant copies
of the attached notice marked "Appendix." 3 Copies
of said notice, on forms provided by the Regional
Director for Region 11, after being duly signed by the
Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous 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 11, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the amended complaint
be, and it hereby is, dismissed insofar as it alleges
violations of the Act other than those found in this
Decision.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to 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
The National Labor Relations Board, after a
hearing in which all parties were permitted to
introduce evidence, found that we discharged Robert
T. Brantley unlawfully in that by this discharge we
discouraged employees from becoming and remain-
ing members of the United Steelworkers of America,
AFL-CIO, and that this discharge violated the
National Labor Relations Act.
WE WILL give this employee back his job or, if
his job no longer exists, a substantially equivalent
job.
WE WILL restore his seniority and pay him the
backpay he has lost because we discharged him.
WE WILL NOT discharge any employee for the
same reasons for which the Trial Examiner found
that we discharged the above-named employee.
WE WILL NOT unlawfully discharge employees
for lawfully engaging in union activities.
WE WILL NOT take away any organizer commit-
tee forms from any employee without his consent.
The Act gives all employees these rights:
To organize themselves;
To form, join, or help unions;
To bargain as a group through a represent-
ative they choose;
To act together for collective bargaining
or other mutual aid or protection; and
To refuse to do any or all of these things.
All of you are free to become or remain or refrain
from becoming or remaining members of any labor
organization.
ANDREWS WIRE
CORPORATION
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named
individual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 16th Floor Wachovia Building, 301 North
Main Street, Winston-Salem, North Carolina 27101,
Telephone 919-723-9211, Extension 360.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: A charge in Case
11-CA-4239 was filed by the United Steelworkers of
America, AFL-CIO, herein referred to as the Union, on
May 19, 1970, and served on the Andrews Wire Corpora-
tion , the Respondent herein , on the same date . A complaint
and notice of hearing were issued on June 30 , 1970. In the
complaint it was alleged that the Respondent violated
Section 8(a)(1) of the National Labor Relations Act, as
amended, herein referred to as the Act, by unlawfully
interrogating an employee concerning his union sympa-
thies, activities , and desires and took without consent a
union authorization form from an employee . It is further
alleged in said complaint that the Respondent discharged
ANDREWS WIRE CORPORATION 111
Robert T . Brantley in violation of Section 8(a)(3) of the
Act.
The charge in Case I 1 -CA-4312 was filed by the Union
on July 13 , 1970, and was served on the Respondent on or
about the same date . An order consolidating cases,
complaint , and notice of hearing was issued on July 23,
1970, in Cases 11-CA-4239 and 11-CA-4312. The
consolidated complaint incorporated the allegations in the
complaint issued in Case 11 -CA-4329 and added allega-
tions that the Respondent had unlawfully threatened to
discharge employees who wore union insignia and had
unlawfully discharged George R. Tisdale , William L.
Altman , Sylvester Dock Green , Julius B. Nesbitt, and
Richard L . Casselman on July 8, 1970.1
The Respondent filed timely answer denying that it had
engaged in or was engaging in any of the unfair labor
practices alleged . The consolidated cases came on for
hearing on August 11, 12, and 13, 1970, at Georgetown,
South Carolina . Each party was afforded a full opportunity
to be heard , to call , examine , and cross-examine witnesses,
to argue orally on the record , to submit proposed findings
of fact and conclusions , and to file briefs . All briefs have
been carefully considered by the Trial Examiner.
Upon the whole record 2 and upon his observation of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT, CONCLUSIONS, AND
REASONS THEREFOR
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware corporation with a plant
located at Andrews, South Carolina, where it is engaged in
the manufacture and sale of wire. The Respondent during
the past 12 months, which period is representative of all
times material herein, received goods and materials valued
in excess of 50,000, which goods were shipped to its
Andrews, South Carolina, plant directly from points and
places outside the State of South Carolina. During the same
period of time Respondent produced and shipped goods
valued in excess of 50,000 from its Andrews, South
Carolina, plant directly to places and points outside the
State of South Carolina.
The Trial Examiner finds that the Respondent is now and
has been at all times material herein an employer engaged
1 While the Respondent posed no objection at the heanng to the
simultaneous receipt of evidence in respect to the consolidated cases, the
Respondent objected to the trial of the cases as consolidated cases The
Respondent maintained that since the complaint in Case 11 -CA-4312 had
not been withdrawn , a tnal should have been conducted in each case and a
separate decision drawn for each case
The Trial Examiner overruled the Respondent's objections at the
hearing with the stipulation that the Trial Examiner would reconsider his
ruling if the question was raised at the close of the hearing and would draw
two decisions as requested by the Respondent in the event it was his
opinion that the Respondent 's objections were well taken In its brief to the
Trial Examiner the Respondent has stated
Respondent at the hearing and at the present time does not assert
that the cases should be severed for purposes of hearing On the
contrary, Respondent agrees that such a severance would create
unnecessary cost or delay What Respondent contends is that each
case should be considered on its merits standing alone with separate
findings of fact and conclusions of law To hold otherwise,
Respondent contends that it has been denied substantive and
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, is now and
has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Discharge of Robert T. Brantley
Robert T. Brantley was hired by the Respondent on
March 2, 1970, and was discharged on May 11, 1970. At the
time of his discharge he was performing the work of a
pickler. In performing this job, Brantley used an overhead
crane to place wire in an acid tank where the wire was
cleaned of rust. After the rust was removed, the wire was
rinsed and put in Borax or lime to preserve the wire from
further rusting. It was then placed in a dryer for 15 minutes
after which it was hung on racks. While the wire lay in the
acid it was Brantley's responsibility to see that it did not
bum .3 Since the job did not require constant attendance,
Brantley had considerable free time . Out of the 8-hour day,
Brantley estimated that he worked 5 hours. When his work
was caught up "most of the time, [he] would just walk
around the mill or sit back in the crane."
Brantley had no established time during the 8-hour
workday which was specifically set aside for a luncheon
break. This was also true of other employees who were
permitted to take a 15-minute luncheon break at any time
during the 8-hour workday providing that they were
relieved by another employee and their jobs were
continued. By reason of the nature of Brantley's job, he
needed no relief during his luncheon break.
Brantley normally took his luncheon break in no
particular place . Sometimes he ate in the crane; other times
he walked outside the plant to eat. Most of the time he ate
at 12 noon; however, he had no set lunchtime nor had he
been instructed where or when to eat his lunch.
Brantley joined the Union on April 25, 1970. On May 10,
1970, Brantley attended a union meeting and signed an
"organizing committee sheet." He carried a similar sheet to
the plant on Monday morning, May 11, 1970.
On Monday morning, about 10:30 a.m., Brantley ran out
procedural due process of law
At most the objections which are raised by the Respondent are technical
objections which do not raise a matter which may be deemed to be
prejudicial to the Respondent In respect to the issues raised in the
consolidated complaint, as well as the complaint originally issued in Case
11-CA-4312, it is clear that the Respondent has been afforded every
opportunity to present evidence and introduce defenses The consolidation
of the cases appears to have been in accord with the Board's Rules and
Regulations Accordingly, since the Trial Examiner finds no prejudice to
the Respondent in the consolidation and hearing of these cases the
objections of the Respondent are overruled
2 General Counsel's motion to correct transcript is granted and the
transcript is corrected accordingly.
3 Daniel W Schlett, general manager of the Respondent, testified in
reference to Brantley's job "That job is a little unusual in that respect, that
if you had matenal in the acid , you don't have to stand over and watch it,
but should be aware that it's there and close by to take care of it , because it
could bum "
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of work and, having heard that "they had run some bad
wire over on the graveyard shift Friday," he departed to ask
somebody about it. As he proceeded through the plant,
General Manager Schlett, who with several others was
inspecting reject wire, motioned him to come to him.
"Robert," Schlett said, "I understand you're hot and heavy
for the Union." Brantley replied, "I wouldn't say I'm hot
and heavy for it. I'm a member of it, would you like to see
my card?" Schlett said, "No sir, that's okay."
During the conversation Schlett asked Brantley why he
wanted a union "to come to Andrews Wire." Brantley
answered, "[S]eniority and the hike in pay." Schlett
commented that "he had worked in mills that didn't have
Unions and he found that they always got along better
without a Union."4
At 12 o'clock Brantley went to the canteen where he
obtained a drink and a sandwich. He walked out of the
back door of the plant where he met employee Jimmy
Ward. Ward said that he understood that Brantley had a
paper for him to sign . Brantley replied that Ward could not
sign it then because he was working but that he would
"catch" him after work. Brantley returned to the canteen
for another sandwich and a drink. He again passed Ward
who told him that there was a boy in his car who was eating
his "dinner" and wanted to sign the paper. Brantley
proceeded to the car. While Brantley and the boy, employee
Richard L. Casselman, were seated in the car finishing their
lunch, Chasteen M. Powell, plant superintendent, ap-
proached the car. The organizing committee sheets lay on
the front seat between Brantley and Casselman. Powell
"reached through the window and grabbed the paper" and
said, "Let me see this." Brantley said, "No" and grabbed
for the paper. In this contest the paper was torn. Powell was
able to retain the paper which he delivered to Schlett.
Brantley finished eating his "dinner" and returned inside
the plant about 12:15 p.m.
Powell reported to Schlett6 that he had observed Brantley
and Casselman sitting outside the plant in Jimmy Ward's
car with a piece of paper; that he had reached into the
automobile and said, "Robert, I want that piece of paper";
that he had picked up the paper and walked away. At 1
4 Schlett testified "I said, Robert , there's a rumor around here that
you're hot for the Union I said , Now, I don't put much stock in
unions-or, rather, rumors-and you don't have to answer me about it,
you don 't have to tell me anything , but if you are, then there 's reason for
complaint Do you have any complaints? He said , No He said, But I am
interested in the Union, I'll even show you my Union card I said, No, no
problem He said , I worked at another plant that had a union and I prefer
to have one here I said, Well, that's your decision You've been a good
worker Continue to be a good worker "
5 The following appeared on the organizing committee sheet
I hereby request to be a Voluntary Organizer for the United
Steelworkers , AFL-CIO This will authorize the Representative for said
Union to use my name for the purpose of organizing Andrews Wire
Corp This will include sending my name to the Company with a copy
to the National Labor Relations Board . Also to be used in the signing
of leaflets
Name Date
6 Schlett testified that Powell called him and said that Brantley was in a
car parked outside the plant with Casselman soliciting for the Union
When asked whether Brantley was doing the soliciting , Powell answered
"Apparently so "
r Schlett testified-
Robert , this could be serious Do you want a witness in here or
anybody to listen to what 's going on? And he said, No I said, Do you
realize you're not allowed to carry on activities for the Union on
o'clock Powell returned the paper to Brantley on Schlett's
instructions, at which time Powell directed Brantley to go to
Schlett's office.
In Schlett's office Schlett said that he couldn't under-
stand Brantley's "carrying a paper around the mill on
company time and trying to get signatures on it." Brantley
replied that he wasn't on company time, that he was on his
luncheon break. Powell remarked that Brantley had not
been relieved for dinner, to which Brantley responded, "I
had never been relieved for dinner and that I didn't have a
reliever." Powell observed that that made no difference,
"you still haven't been relieved for dinner." Schlett added,
"I can't tolerate this, you carrying a paper around the mill
trying to get signatures on it. If I let you get by with it,
everyone in the mill will be wanting to do it." He looked at
Powell and said, "[C] all up his time." Brantley responded,
"Mr. Schlett, this is the first time I've ever been fired off a
job." Schlett replied, "you're a good worker, I'll recom-
mend you to anotherjob.... I'm letting you go on account
of you was performing Union activities on Company
time." 7
In his testimony Schlett cited the following reasons for
the discharge of Brantley: "Interfering with production of
the plant, engaging in other than company activities on
working hours. . . . Soliciting for the Union. . . .
Acquiring names for union support."
The Respondent maintained no defined break periods
but as noted above allowed employees a 15-minute eating
break during the 8-hour workday to be taken when jobs
were properly relieved. As was also noted above Brantley's
job neither required a relief nor constant attendance.
Additionally, the Respondent did not maintain a solicita-
tion rule of any kind.
Based upon the credible record, the Trial Examiner is
convinced that at the time Brantley was engaged in
soliciting employee Casselman as a signer of the organizing
committee sheet, he and Casselman were properly on their
luncheon breaks, a fact which Schlett knew when he
discharged Brantley.8However, even though the Respondent
did not know that Brantley was on his luncheon break but
Company time? He said , Well, they told me I could do it I said, Who
told you? He said, The Union. I said, They told you you could do this
on Company time? And he didn' t answer He said , Well, they told me
I could do it on lunch and break I said, Were you on lunch? He said,
No, but I was on break.
I looked at Chasteen , said, Was he on break? And he said , No I said,
Robert, I find that hard to believe because I saw you walking around
the mill this morning myself as long as your normal lunch or break, so
how could you be on break? And he didn't say anything I said, I'm
going to have to discharge you, and I said, I won't blackball you, I'll
refer you to another job , but if I let you get away with this, then
everybody will be doing whatever they want on Company time. Do
you think that 's fair? And he said , Yes And he left and got his,check
He told me he wasn 't talking about Union to Winston Boyd He
said, You can believe me or not, I was talking to those people about
something else You can believe that or not . I said , Well, that's
immaterial.
Powell's testimony was substantially the same as that of Schlett . He noted
that Schlett asked Brantley whether he was "on lunch " According to
Powell Brantley did not answer
In drawing his findings, the Trial Examiner has not considered Schlett
as a reliable witness
a The Trial Examiner credits Brantley's testimony that he related to
Schlett that he was on his luncheon break and credits Casselman's
ANDREWS WIRE CORPORATION 113
mistakenly believed he was not, the Respondent may not
escape from being charged with a violation of the Act.
"In sub Section 8(a)(1) is violated if it is shown that the
discharged employee was at the time engaged in a protected
activity, that the employer knew it was such, that the basis
of the discharge was an alleged act of misconduct in the
course of that activity, and the employee was not, in fact,
guilty of that misconduct." N.L.R.B. v. Burnup and Sims,
Inc., 379 U.S. 21, 23. Brantley, in fact, was not guilty of the
misconduct charged and at the time when his cause for
discharge was alleged to have arisen, he was engaging in
activities protected by Section 7 of the Act as was
evidenced by the paper purloined by Powell.9 Thus his
discharge must be deemed unlawful. Accordingly, in that
the discharge of Brantley for engaging in protected union
activities discouraged membership in a labor organization,
the Respondent thereby violated Section 8(a)(1) and (3) of
the Act.
The Trial Examiner further finds that the Respondent, by
Schlett's coercive interrogations of employee Brantley as
above detailed, interfered with, restrained, and coerced
employees in rights guaranteed by Section 7 of the Act to
and thereby the Respondent violated Section 8(a)(1) of the
Act.
The Trial Examiner further finds that the Respondent, by
Powell's purloining of the union authorization form as
detailed herein, an act inherently destructive of important
employee rights, interfered with, restrained, and coerced
employees in rights guaranteed by Section 7 of the Act and
thereby the Respondent violated Section 8(a)(1) of the Act.
B. The Hard Hat Incident and the Discharges of
George R. Tisdale, William L. Altman, Sylvester
"Dock"11 Green, Julius B. Nesbitt, and Richard L.
Casselman
At the time employees George R. Tisdale, William L.
Altman, Sylvester A. Green, Julius B. Nesbitt, and Richard
L. Casselman, among others, were hired they were handed
hard hats. These hard hats resembled a helmet with a bill
and were of an aluminum color. The employee's name in
white letters on red plastic tape about one fourth inch high
appeared above the bill. According to General Manager
Schlett the hat was chosen because of its bright lustre which
made it "easier to spot" than most of the other hats
considered. Schlett explained the dual purpose of the hats:
"Number one, for identification and you can see the man;
number two, if something should fall on him or hit him on
the head, he's protected. It's a dual purpose, I would say the
former more so than the latter. Because there are areas
when you're dealing with a lift truck that somebody could
be missed and hit with a boom."
The credible evidence reveals that the employees were
given no specific instructions governing the wearing of the
hats. Employee Tisdale had pasted a small red sticker on
the back of his hat inscribed with black letters,
testimony that Brantley came to the car with a drink and a sandwich in his
hand
9 Sect,on 7 grants employees, inter alia, "the right to self-organization,
to form, join, or assist labor organizations " N L R B v Burnup and Sims,
Inc, supra, 23
iii Schlett's interrogations were oppressive They served no legitimate
"Flammable , close valve when not in use." Employee
Jimmy Haselden 's hat bore a green sticker on the back with
the words "lard ass" on it . Leadman Walter Fulton and
employee Douglas Lambert painted Lambert's hat black.
On July 2, 1970, some employees attached red stickers
with black lettering "Go, Steelworkers" to their hats.
Leadman Fulton relayed to these employees that Foreman
Haselden was going to ask them to take them off and that
"he wasn 't ordering [them] to take them off , but if any
Company official saw it , it might get him in hot water." The
employees removed the stickers because they "didn't want
to get Mr . Haselden in any trouble."
A circular union insignia , about 2 inches in diameter,
appeared for the first time on July 7. Employees on the
third shift had appended the insignia to their hard hats. The
2-inch diameter insignia was of paper composition, white,
edged in blue with a 1-1/4-inch-diameter blue circle in the
center . In the blue circle appeared the word "Join" in white
letters. Around the insignia in the surrounding white
surface was inscribed "AFL-CIO-CLC United Steel
Workers of America" in red letters. An exact copy, except
for the coloring , is set out below.
About 3 o'clock on the morning of July 8, 1970, Plant
Superintendent Powell noticed "practically all of the third
shift with union stickers and insignia all over their safety
hats." About 10 o'clock , some time after the third shift had
ended, Powell informed Plant Manager Schlett that
first-shift employees had appended union stickers to their
hard hats. Schlett instructed Powell to "tell those people
that had union stickers on their safety hats to please remove
them." About 10 first-shift employees were displaying the
union insignia on their hats.
According to Powell, he first spoke to Altman, whom he
told to remove the union insignia from his hat; "that this
was a safety hat and company property." Altman added
that Powell said, "If you want yourjob, you'll have to take
employer purpose but sought information most useful for discrimination
and for combating union organization See Professional Tape Company,
Inc, 171 NLRB No 61, affd N LR B v Professional Tape Co, Inc, 422
F 2d 989 (C A 7).
ii "Dock" was a nickname
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that sticker off your hat." Nearby were George Martin and
Randy Tisdale 12 who were also wearing the union insignia
on their hats. Martin removed his insignia. Powell asked
Tisdale to inform "Dock" Green to remove his stickers.
Next Powell asked employees Hemstraw, Rudolph,
Cooper, and Brand "to remove the Union stickers off their
safety hats, that this was Company property and we
couldn't allow to have Company property-it was jeopard-
izing our insurance." 13 All of these employees removed
their insignia.
Powell then approached "Dock" Green and "asked him
to remove his Union stickers from his safety hat." Green
refused. Whereupon Powell said, "Dock, you have until 12
o'clock to take them off." 14
Powell also instructed Leadmen Radcliffe and Harring-
ton "to make sure that everybody in the plant got the word
to remove the stickers from their safety hat." Harrington
reported to Powell that all the men under his supervision
had removed their insignia; Radcliffe reported that
Altman, Green, and Tisdale continued to display the
insignia on their hard hats. Powell informed Schlett.
According to Schlett he told Powell to "Go back and talk
to them like a damn Dutch Uncle and tell them to take
them off. . . . Don't threaten them, just tell them to take
them off." Powell reported that the employees refused.
Schlett gave instructions to get the shift together.
A meeting of the entire first shift was held in the dyeroom
at which Schlett addressed the employees.
On cross-examination Schlett testified that he said:
Take those things off your helmets for your own good,
for your own safety. Don't ever mark up safety glasses
or the helmets. I said to have them off by 12:30 or you'll
jeopardize your job. They still refused to take them off.
13
I told them we got that color of helmet because it has
a good lustre. I said, if you mark them up or you put
Union stickers on there or Joe's Diner signs on there-if
you mar those things up and lift truck hits you, the first
thing the insurance company will say to us is why did
we let you do it, and I'm not going to answer that.
You're going to take them off.
On direct examination, which occurred after the General
Counsel had produced other witnesses on the point, Schlett
remembered that he said that his talk was not "regarding
union or management" but was "regarding an attitude
which [he thought was] apparent"; they were "acting like
high school kids." He said, "We asked you several times to
take those damn things off your helmets and you wouldn't
take them off." Schlett continued:
That's a safety device for your own protection. The
color is that color for a reason , and if we let you put
those stickers on-because I saw them at this
time-somebody could put Joe's Diner on the damn
thing . Now, just take them off. I told them that I was
damn dissatisfied with the attitude. I said, It doesn't
bother me one damn bit-if you want a union, you
12 Tisdale testified, "He . asked us to take them [ union insignia] off,
it was Company property .. It means your job."
13 Powell 's testimony
deserve it, but I didn't like the attitude or the way they
were going about it.
I said I was under the impression that I'd moved to a
rural area where people were independent. Most of
them were used to work, they'd work on the farms, and
I couldn't understand this attitude to save my ass.
I told them there's been rumors of threats about logs
falling on people, and I said if somebody threatened me
like that, I'd knock them flat on their ass right now.
I told them they had until 12:30 to get their stickers
off. I said, Don't jeopardize yourjob with something so
damn idiotic. I said, You can wear them on your ass,
you can wear them on your shirt, you can wear them on
your shoes, but not on your helmet. It's our property
and it's safety equipment. Two things you don't fool
with are safety glasses and those helmets. I told them
they had until 12:30. I said, Get them off.
I said that we will manage this plant. If they get me in
the corner they're going to have a damn tiger by the tail
because we'll still manage it, union or no union. I said,
If you want a union, get it, but don't act like a damn
high school kid.
Altman remembered that Schlett had said that "he would
rather none of us would try to back him up in a corner
because if we did he would knock us, our damned ass, on
the floor. Even if it cost him his job." Schlett said, "Pull the
stickers off your hats or hit the road."
Tisdale remembered that Schlett said that they were
green and greedy and a bunch of farm boys "who didn't
know what they wanted." "He didn't know what [they]
wanted the Union for." Schlett also said, "nobody was
going to back him up in the comer and if they did they had
a tiger by the tail. And if anybody tried it, he'd knock them
on their ass. And he didn't give a f- who did it, even if it
meant his job." Schlett said that the employees could wear
union insignia on their "clothing," or their "shoes," and on
their "butts" but not the hard hats. Schlett also told the
employees that the hard hats were issued for safety
purposes. At one point Schlett said whether the employees
had a union was up to them.
Green remembered that Schlett said that the employees
were a greedy bunch of farm boys who did not know what
they wanted; that "the Union didn't run that plant, that it
never will, that he run it." Green also remembered the tiger
simile . Employees were also asked to remove the stickers or
they "had to go." Schlett also said the hard hats were
"Company property."
Powell testified Schlett "started off by saying, Men, I am
surprised at you jeopardizing your job by not removing
such a small thing as a Union sticker from your safety hat.
He said, I don't know what you want by acting as greedy as
you're acting. He said, All these threats I've been hearing
about trees falling on people' s cars . He said, If somebody
backs me in a corner I'll knock them on their butt. (Except
he just said the other word.) . . . I want all the Union
stickers off the hats by 12:30. . . . These hats and glasses
14 Green testified that he told Powell that "if the rest of them pull off
theirs, I'll pull off mine."
ANDREWS WIRE CORPORATION 115
were issued to you for safety and they would be treated as
such.. . You can wear a Union badge or sticker anywhere
on your clothing-knees, feet, butt, shirt,-anywhere, as
long as you don't put it on your hat."
Employee Albert M. Lambert, a witness called on behalf
of the Respondent, testified Schlett said:
the hard hats were company property and you couldn't
wear anything on your hard hats other than your job
and your name. He gave everybody till 12:30 to get
them off there. . . . you could wear Union badges
anywhere on your body-your feet, your butt, your
elbow-it doesn't matter where you wore them other
than your hard hat. He said he'd heard threats about
trees falling on cars and things like that. He said nobody
was going to back him in a corner because if they did,
they'd have a tiger by the tail and he'd knock them on
their ass . . . He said . . . something about "green and
greedy."
After Schlett's speech Foreman Henry G. Radcliffe, Jr.,
approached Altman and according to Radcliffe, Jr., he
said, "Bill, I see you've taken the stickers off your hat."
Radcliffe, Jr., described the incident. "And he kind of
smiled and put his hat back on his head like that and said
yep, and it was under the brim." 15 Radcliffe, Jr., also
contacted Tisdale and Green and reported to Powell that
the three employees had refused to remove the union
insignia from their hats. Powell then went to each employee
and asked him whether he was going to remove the insignia.
Each answered in the negative. Powell then requested them
to report to the office where, according to Powell, he asked
them whether they understood the speech of Schlett
"pertaining to them removing the Union stickers from their
hats." All answered, "Yes." Whereupon the employees
were instructed to punch out and leave their hats on the
desk. They placed their hats on the desk but Tisdale refused
to punch his timecard. Powell signed out each employee,
making the appropriate entry on his timecard.
During the exit conversation Altman, whose union
insignia was concealed under the bill of his hat, said that he
"didn't see how the sticker could hurt." Powell replied, "I'm
not holding conversation. Take the sticker off your hat."
Altman said, "No." "Put your hat on the desk," responded
Powell.
When the general foreman of the second shift, William
Beckman Haselden, arrived at the Respondent's plant,
Powell acquainted him with the discharges which occurred
during the first shift and told him to advise his employees
"of the situation that had developed, and attempt to have
them remove these insignia from their hats." Three-fourths
of the employees on the second shift were wearing the
union insignia on their hard hats.
Haselden assembled the employees and asked them to
remove the insignia from their hats as they had done before.
He called attention to the fact that three men on the
15 Altman testified that he placed the union sticker under the bill
because he "didn't think there was any harm in it "
16 The time in the letters to Altman, Tisdale, and Green was stated as
12.45 p in
17 See Republic Aviation Corporation v N L R B, 324 U.S. 793, fn 7•
"the right of employees to wear union insignia at work has long been
recognized as a reasonable and legitimate form of union activity
Floridan Hotel of Tampa, Inc, 137 NLRB 1484, 1486, enfd as modified on
morning shift had been fired for refusing to remove the
union stickers from their hats. He said, "I'm just telling you
you're going to have to take them off . . . or you can be
fired . .. I'm going to let you all talk it over among
yourselves. Let me know what you decide to do." The
reason given by Haselden for removing the stickers was
"the hats were company property." Haselden also said that
"the best thing to do would be to take them off because
what the Company was trying to do was postpone [the]
election t i o n .
The employees discussed the matter among themselves
and all removed the stickers except Nesbitt and Casselman.
Haselden then contacted Casselman and told him that in
his opinion "he was jeopardizing a good job over a piece of
paper that was inconsequential. The union election was I
week off, he should not do it, I though he was making a
grave error in judgment." Casselman responded that he
"thought he was doing right." Casselman's timecard was
punched out at 3:05 p.m. and Nesbitt's, at 4:16 p.m.
On the same date Lambert was requested by the
Company to remove the black paint from his hat which he
did by dropping it in an acid tank.
The employees had affixed the union insignia to their
hard hats upon the advice of the Union. During the period
of the hard hat incident the employees had worn other
union insignia without restriction.
Employees were not required to sign for the hard hats
when they were given to them nor were they required to
leave the hat when they left the Respondent's premises at
the end of a shift. There were no restrictions against
wearing the hat for fishing or hunting or "anywhere else."
The parties stipulated that a representation election was
conducted on July 15, 1970; 33 ballots were cast for the
Union, 18 against the Union, and 11 ballots were
challenged.
Each of the employees were given a letter which read:
Your employment with Andrews Wire Corporation is
terminated as of 3:00 p.m.,16 July 3, 1970. Reasons for
termination of employment are as follows:
1. Defacing Company Property
2. Willfully disobeying orders to take corrective
action
3. Insubordination
Based upon precedent and the ruling case law prior to
Standard Oil Company of California, Western Operations,
Inc., 168 NLRB 153, the Trial Examiner would have had
little difficulty m concluding that the discharge of Tisdale,
Altman, Green, Nesbitt, and Casselman was unlawful 17 for
a rule against wearing union insignia on hard hats, in order
to have been valid, must have been, in the absence of
special circumstances, necessary to maintain production
and discipline. According to Schlett the hard hats were
worn "for identification and you can see the man" and "if
something should fall on him or hit him on the head he is
other grounds 318 F 2d 545 (C A. 5) "The promulgation of a rule
prohibiting the wearing of buttons constitutes a violation of Section 8(aXl)
in the absence of `special circumstances' showing that such rule is
necessary to maintain production and discipline " Harrah's Club, 143
NLRB 1356, Webb Furniture Corporation, 158 NLRB 1003; Serv-Air Inc, 161
NLRB 382, 416-417, Portage Plastics Company, 163 NLRB 753, 759 See
also Halliburton Company, 168 NLRB 1091, which was decided shortly after
Standard Oil Company of California, supra
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protected." As to the latter, the adornment of the hard hats
by union insignia did not impair the protective features of
the hats against impact nor did the insignia interfere with
the identification of the wearer since all hats were alike and
the union insignia was not placed so as to conceal the
employee's name plate. Thus the pertinent question
remains whether the visibility of the hats was obscured by
the union insignia adornment. A visual examination of the
hats would lead an ordinary reasonable human being to
conclude that there was no diminution of the hats' visibility
but, as viewed by the General Counsel, "If the red, white,
and blue stickers affect the visibility of the hats at all, it is
by making them more visible." General Counsel's brief,
page 4. Moreover, the Respondent has not satisfactorily
explained how the visibility of Altman's hat was impaired
by the placement of the union insignia out of sight under its
bill. Thus, if Floridan Hotel of Tampa, Inc., supra, and the
cases cited above were followed, the Trial Examiner would
be compelled to find a violation of the Act since no "special
circumstances" are present showing that the rule was
"necessary to maintain production and discipline."
But in footnote I of Standard Oil Company of California
the Board has opined:
" On the facts presented by this record, we cannot say, as
urged by the General Counsel and the Charging Party, that
the maintenance and enforcement of the Respondent's rule
against adornment of the safety hats violated Section
8(a)(1) or (3), simply because the decorations in issue were
union emblems. The Respondent established that it had a
legitimate, longstanding, and not unwarranted concern
about the threat to safety posed by the use of unauthorized
decorations on work hats. Furthermore, the evidence shows
that employees were freely permitted to wear emblems
signifying union affiliation on any part of their clothing
except their safety hats. But while we agree with the Trial
Examiner that the complaint should be dismissed for the
foregoing reasons, we do not adopt or rely upon his
alternative finding that because no union organizational
campaign was in progress at the time the rule was enforced,
this in itself is a separate reason for finding that no
protected purpose could be served by the employees who
wore the union decals."
While there may be some doubts, after reading of the
Trial Examiner's Decision in Standard Oil Company of
California, supra, the Trial Examiner concludes that it is
controlling in the instant case. Thus the Trial Examiner
must consider whether the "true purpose" or "real motive"
of the Respondent in promulgating the rule and precipi-
tously discharging employees Tisdale, Altman, Green,
Nesbitt, and Casselman for wearing union insignia
adornments on their hard hats unlawfully discouraged
membership in a labor organization. In this regard it is
significant that the Board has said "even assuming such
special circumstances existed, it was incumbent upon the
Respondent to advise the employees why it was ordering
them to give up a protected right." Mayrath Co., 132 NLRB
1628, 1630.
18 Schlett testified "Number one, for identification and you can see the
man, number two, if something should fall on him or hit him on the head,
he's protected It's a dual purpose, I would say the former more so than the
latter Because there are areas when you're dealing with a lift truck that
somebody could be missed and hit with a boom." (Emphasis supplied )
In the defense of its promulgation of the rule the
Respondent insists that the preservation of the hats'
visibility was its prime concern, of even greater importance
than the protective cover afforded by the hats.18 However,
in Powell's warning to Altman this was not mentioned
Moreover, Schlett's alleged instructions to Powell were "Go
back and talk to them like a Dutch Uncle and tell them to
take them off...Just tell them to take them off." Credited
testimony does not indicate that Schlett touched on the
subject at all when he addressed the first shift.19 Neither
was the subject mentioned to the second shift. The reason
given for the removal order was "the hats were company
property." Whether the hats were company property is
irrelevant here since the Respondent has advanced no
credible reason drawn from its need to enforce the rule in
order to insure efficient and orderly operations and serve
production and discipline as the basis for curtailing
protected Section 7 rights. Cf. N.L.R.B. v. Floridan Hotel of
Tampa, Inc., 318 F.2d 545, 546 (C.A. 5). Moreover, "an
employer's rights cannot outweigh the equal rights of
employees to associate freely, as those rights are embodied
in Section 7 and protected by Section 8(a)(1) and the
proviso in Section 8(c)" and thus the property rights of an
employer must yield to the overriding rights given
employees under the Act. Cf. N.L.R.B. v. Gissel Packing
Co, Inc., 395 U.S. 575.
The Board stated' in Mayrath Company, supra, 1630, by
"the preemptory order" the Respondent "conveyed to the
employees the idea that they had no right to wear the [union
insignia ] at work and gave them a Hobson's choice of either
foregoing the protected rights or being discharged." Such
language is equally applicable to the instant case.
Assuming, arguendo, that the Respondent's rule was a
valid exercise of management's right to serve production,
order, and discipline, such rule, nevertheless, may not be
"promulgated or utilized in order to prevent or impede the
organization of [an employer's] employees." Avondale
Mills, 155 NLRB 840, 841.
Upon the examination of the record as a whole and with
the demeanor of the witnesses in mind, the Trial Examiner
is of the opinion that the Respondent instituted the rule
against wearing union adornment on hard hats and
discharged employees Tisdale, Altman, Green, Nesbitt, and
Casselman for the purpose of discouraging membership in
a labor organization. Of controlling importance in reaching
this conclusion are the following factors: (1) The Respon-
dent, without adequate explanation, well knowing that a
representation election would occur within 7 days and
being cognizant of the effect of its action,20 nevertheless,
promulgated a rule banning the use of union insignia on
hard hats which rule as administered bore no relevance to
the preservation of efficient and orderly operations or
production and discipline, yet the Respondent, until the
union insignia had appeared, had tolerated incongruously
other decorations on its hard hats and permitted one
employee to wear a hat which was painted black. (2) The
Respondent directed its prohibition primarily against the
10 See particularly Powell's and Lambert's testimony
20 General foreman of the second shift , Haselden , in reference to the
union stickers , told employees that "the best thing to do would be to take
them off because what the Company was trying to do was postpone [the I
election " Uncontroverted and credited testimony of Nesbitt
ANDREWS WIRE CORPORATION 117
adornment of union insignia on hard hats leaving it unclear
as to whether other types of decorations were also banned.
(3) The short deadline set for the removal of the union
insignia and the severity of the threatened penalty was of
such an arbitrary nature in view of the exigencies of the
situation as to imply to the employees that the Employer's
disapproval was aimed against the union msignia.21 (4)
While only three employees refused to obey orders, Schlett,
instead of dealing with these alleged culprits individually,
utilized such circumstance to assemble all first-shift
employees, at which assemblage he availed himself of the
opportunity not only to threaten the employees with
discharge for wearing union insignia on their hats but also
to tell them that they were "green and greedy," that he
"couldn't understand this attitude to save [his] ass," that he
didn't know what they wanted the Union for," that "he
would rather none of [them] would try to back him up in a
corner because if [they] did he would knock [them, their]
damned ass on the floor"; that "the Union didn't run that
plant, that it never will, that he run it" and that "nobody
was going to back him into a corner if they did, they'd have
a tiger by the tail and he'd knock them on their ass." 22
(5) Schlett's speech to the first-shift employees was not
confined to advising "the employees why it was ordering
them to give up a protected right" (see Mayrath Co., supra)
but included a discourse on the Respondent's attitude
toward the Union and the employees who supported the
Union and was thus calculated to set the stage for the
discharge of the few employees whom the Employer must
have known retained the courage to assert their protected
rights for the Employer and must have known that the three
employees who had already refused to remove their union
insignia upon threat of discharge would have persisted even
though lectured by Schlett. (6) The Respondent revealed
the speciousness of its position when it discharged Altman,
even though he affixed his union insignia where it would
have been impossible for it to have diminished the visibility
of his hard hat. (7) The employees on the second shift were
given no valid reasons for the removal of the union insignia
from their hard hats.
The Employer's unreasonable and unnatural conduct as
revealed in the record lacks explanation, unless it is viewed
as an attempt to discourage employees' affection for the
Union. Although it may have been within the Employer's
province, it made no clear disclosure of the Employer's
alleged real reason, i.e., the diminution of the visibility of
the hard hats, to the concerned employees. In promulgating
and enforcing what might have been a valid rule (see
Standard Oil Company of California, supra) the Respondent
21 It seems inconceivable that employees would have been discharged
with such dispatch had the emblem been, for example, an American flag
Moreover, that the Employer condoned the wearing of union insignia
elsewhere, when viewed in the light of Schlett' s manner of commune ation,
would not necessarily lead employees to believe that such representations
of the Employer were sincere, but might well deter an employee from
wearing any union insignia or cause an employee to believe that he was
acting at his peril in wearing union insignia Indeed no representations
were made to the second shift at all that they could wear union insignia
elsewhere
22 The pertinent question is "what did the speaker intend and the
listener understand." N L R B v Gissel Packing Co, Inc,395 U S 575
Schleti's revelations, in which employees could read his animosity against
the Union and his antagonistic attitute toward its advent, colored his order
to remove the union insignia with coercive implications from which
overstepped and tumbled over the brink . Moreover,
assuming arguendo that the Respondent did not intend the
consequences , which the Trial Examiner finds to be
unlawful discouragement of employee membership in a
labor organization , the intent nevertheless is presumed
since the natural consequence of the Respondent's conduct
was to discourage membership in a labor organization in
violation of Section 8(a)(3) of the Act.23 As promulgated
and administered the Respondent 's rule was void of valid
business considerations and was inherently destructive of
important employee rights . Cf. N.L. R.B. v. Great Dane
Trailers, Inc., 388 U.S. 26.
Accordingly the Trial Examiner concludes and finds that
by the discharges of George R. Tisdale , William L. Altman,
Sylvester A. Green, Juluis B. Nesbitt , and Richard L.
Casselman on July 8, 1970 , the Respondent discriminated
against them in violation of Section 8(a)(3) and (1) of the
Act.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meamng
of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act for jurisdiction to be
exercised herein.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them by Section
7 of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. By unlawfully discharging Robert T. Brantley on
May 11, 1970, and George R. Tisdale, William L. Altman,
Sylvester A. Green, Julius B. Nesbitt, and Richard L.
Casselman on July 8, 1970, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meamng of Section 2(6) and (7) of the
Act.
THE RECOMMENDED REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. It
having been found that the Respondent unlawfully
discharged Robert T. Brantley, George R. Tisdale, William
employees could well denve that the prohibition of union adornment on
hard hats stemmed from Schlett's antipathy toward the Union and the fact
that the adornment was union insignia and not from any alleged safety
considerations The effect was clearly to dissuade employees from openly
displaying their union affection and the prohibition, an inextricable part of
Schlett's remarks, tended to discourage employees' continued adherence to
the Union
23 " an employer's protestation that he did not intend to encourage
or discourage must be unavailing where a natural consequence of his
action was such encouragement or discouragement Concluding that
encouragement or discouragement will result, it is presumed that he
intended such consequence . In such circumstances intent to encourage is
sufficiently established " The Radio Officers' Union of the Commercial
Telegraphers Union, AFL [A H Bull Steamship Company] v N L.R B, 347
US 17,45
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L. Altman, Sylvester A. Green, Julius B. Nesbitt, and
Richard L. Casselman and thereby violated Section 8(a)(3)
and (1) of the Act, it is recommended that the Respondent
remedy such unlawful conduct. It is recommended in
accordance with Board policy24 that the Respondent offer
each of the foregoing persons immediate and full reinstate-
ment to their former positions or, if such positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may
have suffered as a result of the discrimination against them
by payment to them respectively of a sum of money equal
to the amount they would have earned from the date of
their discriminatory discharges to the date of an offer of
reinstatement less net earnings during said period to be
computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289, and
including interest at the rate of 6 percent per annum in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716.
[Recommended Order omitted from publication.]
24 See The Rushton Company, 158 NLRB 1730, 1740