Calumet & Hecla, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1968

172 N.L.R.B. 27 (N.L.R.B. 1968)

WOLVERINE TUBE DIVISION 27
Wolverine Tube Division , Calumet & Hecla, Inc.
and International Brotherhood of Boilermakers,
Iron Shipbuilders , Blacksmiths , Forgers and Help-
ers, AFL-CIO. Case 10-CA-6910
June 21, 1968
DECISION AND ORDER
BY MEMBERS BROWN, ZAGORIA, AND JENKINS
On November 13, 1967, Trial Examiner Harry R.
Hinkes issued his Decision in the above -entitled
proceeding , finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended , and recommending that
it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Ex-
aminer 's Decision . Thereafter , the Respondent filed
exceptions to the Trial Examiner 's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 Exainer's Decision and the entire record in
this case, including the exceptions and brief, and
hereby adopts the findings , conclusions, and recom-
mendations of the Trial Examiner only to the extent
consistent herewith.
We agree with the Trial Examiner that Respon-
dent violated Section 8(a)(1) of the Act by the in-
terrogation and statements made by supervisors.
However, we do not agree with the Trial Ex-
aminer's finding that employee Callaway was
discharged because of his union activities in viola-
tion of Section 8(a)(3) of the Act.
On March 22, 1967, Callaway became involved
in a fight with a former police officer, in the course
of which he broke the officer's nose and knocked
loose several of his teeth. Later, about 3:30 p.m.,
he reported for work. Callaway related this en-
counter to his foreman but was told to go to work
on his crane. About 4:15 p.m., an employee re-
ported to a supervisor of Respondent that Callaway
appeared to be under the influence of liquor. As
Respondent prepared to take action on the basis of
this report, police arrived at the plant about 5 p.m.
with a warrant for Callaway's arrest on assault and
battery charges.' Callaway was called to the
gatehouse where the arrest was made. He asked
Respondent's operations superintendent if he could
return to work after posting bond but was told not
to return that day but to report to the office on the
next morning. Callaway then asked the police if he
could post bond and was told that he could but
that, before being released, he would, under exist-
ing procedure, have to spend 5 hours in jail because
he was intoxicated. Testimony of the arresting po-
lice describes Callaway as having bloodshot eyes
and an alcoholic breath, slurred speech, and being
wobbly and "very intoxicated." Callaway denied
that he had been drinking, and at the hearing
claimed that he had consumed only a can of beer
around noon that day.
On the next day, Callaway reported as directed.
He was informed that he was suspended while
Respondent investigated events of the day before.
On March 29, Callaway was discharged. He was
told that he was being discharged for being on the
job under the influence of liquor and because he
lost time from work on account of his arrest. Also,
he was reminded of a reprimand in 1957 for being
under the influence of liquor while at work and a
warning at the time that he would be discharged if
that happened again . And, Respondent recalled an
occasion in 1963 when it warned Callaway that if
he was again involved in a violation of law which
affected his work he would be discharged.
As noted above, the Trial Examiner found that
Callaway was discharged because of his union ac-
tivities . In so concluding , he reasoned that "just
cause" for the discharge did not exist and that, in
any event, if such cause existed it served only as a
pretext for the discharge of a union adherent. We
have already indicated that we do not share this
view of the record.
If Respondent had reason to believe that Cal-
laway was under the influence of liquor on March
22, when he was arrested by police and taken away
from his work, it had ample cause to discharge him.
Significantly, the arresting police officers were of
the opinion that Callaway was intoxicated as
Respondent claims he was. The testimony given by
three policemen establishes Callaway's intoxicated
condition to our satisfaction. The Trial Examiner
did not regard their testimony as being "very
probative" for reasons such as that Callaway was
not charged with intoxication and the police
refused him a sobriety test, even at his own ex-
pense. However, the police explained that under
local law and practice they could not bring drun-
kenness charges against Callaway when they were
arresting him on private property for another of-
' Callaway was later convicted on these charges.
172 NLRB No. 5
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fense, and they do not give sobriety tests. We find
their testimony as to Callaway's condition about 5
p.m. on March 22 more persuasive than those con-
siderations which influenced the Trial Examiner to
accept Callaway's claim of sobriety.
By March 22, Callaway had been engaged in
union activity for a considerable period of time
without reprisal from Respondent, and the Union
had just lost an election by a vote of 561 to 125.
But even more significant in our thinking on the
remaining issue of Respondent 's motivation for the
discharge is the fact that, long before the advent of
the Union, at a time when Respondent's demon-
strated concern and actions could not have been in-
spired by union considerations, it had warned Cal-
laway of discharge if he was again on the job under
the influence of liquor or was involved in a viola-
tion of law which affected his work, as we find he
was on March 22. Considering all the circum-
stances of this case , we believe that it was the
events of March 22 which motivated Respondent to
discharge Callaway. The Respondent's 8(a)(1) con-
duct may be some cause for suspicion but we do
not believe on the facts here, that it is sufficient to
establish that Respondent's motive was unlawful.
We therefore find that Callaway was discharged for
cause and we shall dismiss the complaint insofar as
it alleges otherwise.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, Wol-
verine Tube Division, Calumet & Hecla , Inc., its of-
ficers, agents , successors , and assigns , shall take the
action set forth in the Trial Examiner's Recom-
mended Order , as herein modified:
1. Delete in their entirety paragraphs 1(c) and
2(a), (b), (c), and (d) and reletter the other para-
graphs accordingly.
2. Delete the third, fifth, sixth, and seventh in-
dented paragraphs of the Appendix attached to the
Trial Examiner's Decision.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is , dismissed insofar as it alleges
that Charles Callawy was discharged in violation of
the Act.
MEMBER JENKINS dissenting:
My colleagues have devoted most of their atten-
tion to a graphic description of employee Cal-
' Callaway had passed out union authorization cards, handbilled the
plant , served as an observer at the Board -conducted election , and served
on the organizing committee
laway's alleged inebriated condition. The issue,
however, is not whether he was intoxicated or to
what extent, although the Trial Examiner noted
several facts which made the matter rather less cer-
tain than the majority seems to think. Instead, the
issue is whether Callaway was discharged for
reasons wholly or partly relating to his union activi-
ty.
On this issue, the Trial Examiner noted and
credited Callaway's testimony that in December
1966 or January 1967, Foreman Woodward asked
Callaway how he would like to lose his job and
work at a Decatur shipbuilding firm where they had
a Boilermakers union; that Foreman Woodward
stated he had been asked by "higher ups" how long
Callaway had been driving for the Roadway Ex-
press Company adding "is that where you get your
union stuff?"; that Woodward further stated that
"the Company has been awful good to you, you
know that we do not need a union in here."
Employee Coffey's credited testimony was that
several weeks after Callaway had been discharged
he inquired of Foreman Clem the reason for his
discharge and Clem replied "you knew that they
did not want a union out here ... [Callaway] kept
on antagonizing them until he gave them a good ex-
cuse and they let him go." As the Trial Examiner
noted "After considering all of the testimony and
observing the demeanor of the witnesses quite
closely," I am persuaded to credit the testimony of
Callaway and Coffey "rather than that of Wood-
ward and Clem."
Thus the evidence, credited on the basis of
demeanor, plainly establishes an admission by the
Employer that Callaway was discharged for his
union activity and that the asserted reason was a
pretext. I therefore see no alternative to finding a
violation of Section 8(a)(3) and must dissent from
the dismissal of the complaint.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY R. HINKES , Trial Examiner: The com-
plaint herein was issued on June 7, 1967, pursuant
to a charge by International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers
and Helpers, AFL-CIO, herein called the Union,
filed and served upon Wolverine Tube Division,
Calumet & Hecla, Inc., herein called the Respon-
dent or Company, on April 5, 1967. The Respon-
dent is alleged to have engaged in unfair labor prac-
tices by interrogating and threatening its employees
in violation of Section 8(a)( I) of the Act as well as
by the discharge of one of its employees, Callaway,
because of his union or concerted activities in
violation of Section 8(a)(1) and (3) of the Act. By
WOLVERINE TUBE DIVISION 29
answer duly filed Respondent admitted the jurisdic-
tional allegations of the complaint , the supervisory
status of the individuals alleged in the complaint to
be agents and supervisors of the Respondent, and
the discharge of employee Callaway but denied the
commission of any unfair labor practices.
A hearing was held before me at Decatur,
Alabama, on July 26 and 27, 1967, at which all
parties were represented and were afforded full op-
portunity to participate , examine witnesses , and ad-
duce relevant evidence . All counsel waived oral ar-
gument at the conclusion of the hearing , expressing
a preference to submit written briefs . Only counsel
for the General Counsel , however , has submitted a
brief which has been given careful consideration by
me. Upon the entire record in this case I make the
following:
FINDINGS OF FACT
1. JURISDICTION
The complaint, as amended , alleges that the
Respondent is and has been at all times material
herein a Michigan corporation with an office and
place of business located at Decatur , Alabama,
where it is engaged in the manufacture and sale of
copper tubing . During the past calendar year,
which period is representative of all times material
herein , Respondent sold and shipped finished
products valued in excess of $50,000 directly to
customers located outside the State of Alabama.
The complaint alleges , Respondent 's answer ad-
mits , and I find that Respondent is and has been at
all times material herein an employer engaged in
commerce in the meaning of Section 2(6) and (7)
of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , Respondent 's answer ad-
mits , and I find that the Union 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. Background
At the outset of the hearing it was stipulated
between counsel that the plant involved in this
matter has not heretofore been " involved in any
violations of the Act and has had no complaints
prior to the immediate complaint involved herein
that have ever been issued against this plant."
It was further stipulated that "the Charging
Union commenced an organizational campaign of
the Respondent 's Decatur , Alabama, plant in mid-
1965, and that pursuant to a stipulation or consent
election an election was held on March 10, 1966.
The results of such election were as follows: 561
ballots against , 125 ballots for, 2 void ballots and 1
challenged ballot. On April 23, 1966, Charles
Graves, International Representative of the Charg-
ing Union, sent a letter to the Respondent 's plant
manager , R. L. McGregor, advising Respondent
that the Charging Union had a continuing campaign
at the Respondent's Decatur, Alabama, plant."
B. The Alleged 8(a)(1)
Charles Callaway testified that in December
1966, or January 1967, Respondent's Foreman
Woodward asked Callaway how he would like to
lose his job and work at a Decatur shipbuilding firm
where they had a Boilermakers union . Around the
same time Woodward told Callaway he had been
asked by "higher ups" how long Callaway had been
driving for the Roadway Express Company adding
"is that where you get your union stuff?" Callaway
replied that he couldn 't join their union if he
wanted to and that what he did on his own time was
not the concern of Woodward. Woodward added,
however, that "the Company has been awful good
to you, you know that we do not need a union in
here."
On another occasion in January 1967, while Cal-
laway was handing out union literature at the edge
of railroad tracks outside the Wolverine property,
Woodward told him, "I guess you are trying to get
the Union in again." To this Callaway replied,
"Yes, I was back with them and I had not left
them." Woodward then reminded him how good
the Company had been to him and told him that
,.we did not need the Union ." He added that the
Union "caused brothers to turn against brothers
and so forth."
Employee James Coffey, who is still employed by
the Respondent , testified that in November 1966,
he and Callaway were riding together to work.
Foreman Woodward told him , " I see you are riding
with Callaway again . What are you trying to do, put
the Union back on the railroad track?" Coffey also
told of a conversation he had with Respondent's
Foreman Clem to whom Coffey is related. Callaway
had been discharged in March 1967, and several
weeks later Coffey came to Clem and asked him
why Callaway had been discharged. According to
Coffey, Clem said, "you knew that they did not
want a union out here ... [Callaway] kept on an-
tagonizing them until he gave them a good excuse
and they let him go." When Coffey observed that
he did not have any "mark" against him , adding
that " if they ever get rid of me they will have a fight
on their hands ," Clem told him "be careful." Cof-
fey also had a conversation with Woodward in
January . Woodward walked up to him and said,
,.you don't think that we really need a union in here
do you?" adding, "you know that we have had
brothers getting mad at brothers and a lot of good
friends falling out and it even gets down to a loss of
jobs."
Foremen Woodward and Clem testifying on be-
half of the Respondent, contradicted the testimony
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Callaway and Coffey. Specifically, Clem denied
saying that they did not want a union or that Cal-
laway had antagonized the Company until they
found an excuse to get rid of him and Woodward
denied telling Callaway about losing his job and
working at the Decatur shipbuilding company. He
also denied telling Coffey that he saw Coffey and
Callaway riding together again or asking them if
they were going to put the Union back on the rail-
road tracks. He also denied the alleged remark
about brothers falling out with brothers.
The witnesses on behalf of counsel for the
General Counsel were quite positive in their
testimony. Equally positive were the denials of the
witnesses called on the behalf of the Respondent.
After considering all of the testimony and observing
the demeanor of the witnesses quite closely I am
persuaded to credit the testimony of Callaway and
Coffey rather than that of Woodward and Clem.
Although some of the remarks made by the
foremen would appear to be superficially harmelss
and innocent or, at most, a permitted expression of
opinion, the same cannot be said of Woodward's
asking Callaway how he would like to lose his job at
the Respondent and work for another company,
and the threat to both Callaway and Coffey that the
Union caused brothers to turn against brothers and
even a loss of jobs. Equally lacking in innocence is
Clem's statement to Coffey that Callaway had been
discharged for antagonizing the Company by his
union activities. In the absence of the safeguards
required in employer interrogation (Johnnie's
Poultry Company, 146 NLRB 770), the remarks
and questioning engaged in by Foremen Woodward
and Clem must be deemed coercive and threaten-
ing to the exercise of the rights of employees
guaranteed in Section 7 of the Act, in violation of
Section 8 ( a)( I ).
C. The Alleged 8(a)(3)
Charles E. Callaway was hired by the Respondent
in September 1951. He continued in the Respon-
dent's employ until March 29, 1967, when he was
terminated. His last classification was that of an
overhead crane operator, which job involved the
operation of a 5-ton crane transferring stock and
loading trucks.
On March 22, 1967, Callaway met a person with
whom he had had previous difficulties. Words were
exchanged and Callaway struck him. Later that af-
ternoon Callaway reported to work about 3:30 p.m.
There he mentioned his fight to Lentz, one of the
employees, as well as to Vince Kantola, his depart-
ment foreman. Callaway asked Kantola if he should
check out so that he could post bond on an assault
and battery charge which he expected to be lodged
against him and then return to work. Kantola ad-
vised him that in all probability nothing would hap-
pen and that he should go up on the crane to work,
which he did. Kantola left the plant some time
between 4 and 4:30 p.m. at which time the foreman
of the next shift, David Taylor, took over. About
5:15 p.m. Taylor instructed Callaway to come down
and go to the gatehouse where he was wanted. Cal-
laway estimated the distance from the crane to the
gatehouse to be several hundred yards. Respon-
dent's Labor Relations Supervisor John Bates esti-
mated that distance to be about one-third of a mile.
Billy Chapman, Respondent's Supervisor of Opera-
tions on the second shift, estimated that distance to
be about one-fourth of a mile. Callaway got on a
bicycle and rode to the gatehouse. There he found
three Decatur policemen with a warrant for his ar-
rest. Supervisors Bates and Chapman were also
present. Callaway asked Chapman if he could make
bond and return to work but Chapman replied
"no" and instructed him to come back the next
morning at 9 a.m. Callaway then inquired of the po-
lice whether he could put up bond but was in-
formed that they would detain him for 5 hours
because he had been drinking. Callaway denied
drinking except for a 12-oz. can of beer which he
had consumed around noon of that day and asked
to be given a sobriety test. When the police refused,
he then offered to pay for a sobriety test but the po-
lice again refused.
Callaway was detained by the police for 5 hours
after which he was allowed to make bond for the
assault and battery charge and released. He was not
charged with intoxication or for being under the in-
fluence of liquor.
Callaway reported to work the next morning at 9
a.m. and was told by Bates and Chapman that they
had received a report from another employee to the
effect that Callaway had been drinking on the job
the previous day. When Callaway denied drinking
except for the can of beer, they told him they
would investigate the incident but that he would
have to leave the premises until they recalled him.
About a week later Bates called Callaway and told
him to report to the plant on March 29, 1967. On
that day Bates informed him that it was manage-
ment's decision to discharge him. Callaway was re-
minded that he had been reprimanded 10 years
earlier, in 1957, for drinking on the job and warned
that a repetition could result in his discharge. He
was also reminded that 4 years earlier, in 1963, he
had used his vacation to serve a jail sentence and
had been told that if he committed a violation of
law which affected his work he would be
discharged. He was then told that his discharge on
March 29, 1967, was the result of his being on the
job under the influence of liquor and being absent
by reason of his arrest on a charge of assault and
battery, both offenses after the final warnings of
1957 and 1963.'
Witnesses called on behalf of the Respondent
testified to more of the details surrounding Cal-
' The foregoing recitation of events concerning Callaway 's discharge is
based largely upon the testimony given by Callaway. There is. however, no
serious dispute on the events as related above
WOLVERINE TUBE DIVISION 31
]away 's discharge . As respects the drinking offense,
Respondent 's Employee Relations Manager Orr
testified that on February 8, 1957 , he had given
Callaway a warning for coming to work under the
influence of alcohol on December 21, 1956, and
that he was further warned that if this should recur
in the future it would then become necessary to
discharge him. Supervisor Bates testified that he
received a report from an employee , Spears, on
March 22, 1967 , around 4 : 15 p.m. that Callaway
was at the plant under the influence of liquor.
Spears told Bates that Callaway was under the in-
fluence of liquor because of his loud talk , his ap-
pearance, and because Callaway's tongue was green
as if he had been using "Clorets ." Spears , however,
was not presented as a witness in this proceeding.
Bates then called Orr and told him that Callaway
was under the influence of alcohol . Bates was in-
structed to come to Orr's office . Bates then " locked
up ... [his ] desk and left everything in order" and
walked to Orr's office , 1/10 of a mile away. Orr
also called Operations Manager Blackwell and Su-
perintendent Chapman . When all four were
present , Callaway's alleged condition was con-
sidered and "plans were formulated as to what
should be done and Mr . Orr outlined on paper in
pencil the steps that should be followed." It was de-
cided that Chapman would call Callaway's super-
visor and instruct him to send Callaway to the em-
ployment office where Chapman would meet him
and ascertain his condition . If Chapman found Cal-
laway intoxicated or under the influence of alcohol,
he was to go through "four steps":
(1) direct Callaway to clock out;
(2) as his superior , order Callaway to clock
out;
(3) suspend Callaway and order him to
leave;
(4) seek assistance of the plant protection
officer to escort Callaway off Company pro-
perty.
By this time it was about 5 p.m. and the company
officials knew Callaway had been working on the
crane since 4 p . m., allegedly under the influence of
liquor . Before Chapman could call Taylor, how-
ever , a telephone call was received from the
gatehouse informing them that the police had ar-
rived with a warrant for Callaway 's arrest. Chap-
man then called Taylor to send Callaway to the
gatehouse . Chapman and Bates then proceeded to
the gatehouse where they met the police and told
them that the police had saved them "a lot of
trouble " because the Company was in the process
of sending Callaway home . When Callaway arrived
at the gatehouse , Chapman told him not to return
until 9 a . m. the following day and , when Callaway
expressed some concern about leaving his car at the
plant , arrangements were made for Callaway to be
able to pick up his car later.
Bates testified that the next morning Callaway
was put on suspension while an investigation was to
be made . This investigation consisted of a search of
court records for other violations of law committed
by Callaway. The investigation , however , did not
include consultation with Foreman Kantola or
Foreman Taylor, the only supervisors who saw Cal-
laway at work and spoke with him . Moreover,
Bates, who did not see Callaway at work , admitted
that he took employee Spears ' judgment regarding
Callaway's alleged intoxication and, in turn, re-
ported to Orr that Callaway was under the in-
fluence of alcohol . Bates did testify that when he
saw Callaway at the gatehouse , he concluded that
Callaway's alleged intoxication and, in turn, re-
flushed appearance and redness of his eyes. Chap-
man also concluded that Callaway was under the
influence of liquor when he saw him at the
gatehouse . He based this conclusion upon the fact
that Callaway was unsteady as he dismounted from
the bike and had some difficulty leaning the bike
against a concrete column . Chapman admitted,
however, that he did not smell alcohol on Callaway
even when he stood a mere 1-1 /2 feet away from
him. Moreover , he admitted that Callaway had told
him he had been welding which would have caused
Callaway's eyes to be red normally.
Perhaps the strongest support for the argument
that Callaway was discharged for being under the
influence of liquor at work is the testimony of the
three policemen who arrested Callaway that day.
They testified that Callaway's eyes were bloodshot,
that he was wobbling, and that he had an alcoholic
breath . Despite their apparent disinterest in this
case, I do not regard their testimony as very proba-
tive. It is significant to me that although these po-
licemen thought Callaway was under the influence
of liquor and, as one put it , "very intoxicated," no
charge was lodged by them against Callaway on
that ground . Moreover , their refusal of a sobriety
test to Callaway even at Callaway 's own expense
discredits their conclusion that he was intoxicated. I
also note with interest their testimony that even one
drink of beer renders a man under the influence of
alcohol . As one of them testified , " anytime we
smell any alcoholic beverages on a person, we do
detain them ," even if he is not intoxicated. This
same officer stated that he could smell the odor of
alcohol on Callaway's breath when he was "2 or 3
inches away " from him . He also testified that he ex-
amined Callaway closely after Bates or Chapman
told him Callaway had been drinking and wanted to
know "if there was something we could hold him
for."
After considering all the testimony touching
upon the issue of whether Callaway was under the
influence of liquor I have come to the conclusion
that the Company's explanation for his discharge
was pretextuous and not the real reason for the
discharge . It is undisputed that Callaway was quite
active in union matters . He passed out union
authorization cards , handbilled the plant , served as
an observer at the Board -conducted election and
served on the organizing committee . Moreover, Su-
pervisor Bates knew that Callaway was perhaps the
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
most active employee in this respect. Indeed, Em-
ployee Relations Manager Orr admitted discussing
Callaway's union attitude with the Respondent's
lawyer.
The fact, however, that Respondent knew of Cal-
laway's union activity and was guilty of interfering
with the exercise of its employees' rights by the in-
terrogation and statements of its supervisors
referred to earlier would not protect Callaway from
a discharge if just cause existed and motivated the
discharge. I find, however, that just cause did not
exist. I base this conclusion not only upon Cal-
laway's testimony that he was not under the in-
fluence of liquor on March 22, 1967, nor only upon
the testimony of his fellow employee Lentz who
corroborated Callaway's testimony, but upon the
events themselves. I find it incredible that Respond'
dent 's Foremen Kantola and Taylor who saw Cal-
laway and spoke with him would permit him to go
up on the crane, a potentially lethal instrument, if
they had the slightest suspicion of Callaway's intox-
ication . I find it incredible to believe that Callaway
would be able to ride a bicycle for as much as one-
third of a mile without mishap if he were under the
influence of liquor. I find it incredible to believe
that Callaway would have the presence of mind to
arrange for the disposition and future pickup of his
car if he were under the influence of liquor. I find it
incredible that Callaway would be able to discuss
the availability of a sobriety test and the terms of
payment therefor if he were under the influence of
liquor. In short, I find Callaway was not under the
influence of liquor the afternoon of March 22,
1967. This conclusion is strengthened by the fact
that the Respondent reached its conclusion that
Callaway was under the influence of liquor without
bothering to investigate Callaway's condition with
the only two supervisors who had had personal con-
tact with Callaway at work. It is further
strengthened by the fact that when word was al-
legedly received that Callaway was under the in-
fluence of liquor Respondent's supervisors
proceeded to close desks, walk distances, discuss
leisurely plans of handling the situation and engage
in other matters which consumed at least 45
minutes during which time they would appear to
have permitted Callaway to continue operating a
crane under the influence of liquor. It seems much
more reasonable for me to believe that if the
Respondent's supervisors were really concerned
about Callaway's alleged intoxication, they would
have immediately got in touch with Callaway's su-
pervisor to call him down from the crane so as to
avoid any dangerous condition.
It appears to me that the Respondent seized upon
a convenient excuse and resurrected a 10-year-old
offense to create ostensible grounds for discharge.
In so doing it merely masked the real reason for
Callaway's discharge which was, as Foreman Clem
told Coffey, to rid itself of a union activist who kept
on "antagonizing them until he gave them a good
excuse."
As respects the second reason advanced by the
Respondent's witnesses for the discharge of Cal-
laway, his absence from work following his arrest
on March 22, Employee Relations Manager Orr
testified that in 1963, Callaway had been convicted
on a criminal charge and was sentenced to serve
time in jail. Callaway took his vacation and served
his jail sentence while on vacation. Orr admitted, of
course, that Callaway's supervisor had approved
the leave of absence requested by Callaway, that
the leave of absence had been earned by Callaway,
and that Supervisor Bates had also approved it. Su-
pervisor Bates testified that when he approved Cal-
laway's leave of absence, he was not aware that
Callaway was to serve a jail sentence during his va-
cation. He admitted, however, that the leave of
absence had been approved by Callaway's super-
visor. Callaway testified that Supervisor Kantola ap-
proved Callaway's request for a leave of absence
after Callaway told him that he intended to spend
his vacation serving time in jail . Callaway's
testimony stands uncontradicted and I credit it.
Even Respondent's witnesses appear to agree with
the way in which the leave of absence was handled.
Their only criticism was directed against the higher
company officials who did not take the trouble to
ascertain the purpose of Callaway's leave of
absence. As Supervisor Orr testified, the Company
made an error when it allowed Callaway to take a
vacation., Nevertheless, Callaway was told in 1963
that he would be fired if he was away from work
thereafter because of a violation of law.
It appears to be the Respondent's position that
Callaway was absent from work on and after March
22, 1967, because of his arrest on a charge of as-
sault and battery and that, accordingly, his
discharge was fully warranted. I do not agree. I note
that one of the Decatur policemen testified that
Bates or Chapman wanted to know if there was
something the police could hold Callaway for.
Moreover, when Callaway asked if he could make
bond and return to work that evening, Chapman
told him to report the next morning instead. It
seems clear to me that the Respondent's super-
visors were intent upon preventing Callaway from
working that evening. His absence that evening
cannot, therefore, be attributed to any violation of
law but must be attributed to the direct instructions
of the supervisors. This is also true of Callaway's
absence between March 23 and 29, during which
time he was involuntarily suspended by Respon-
dent's supervisors. Indeed, Respondent's super-
visors admitted that Callaway's absence after
March 22 was due entirely to their instructions to
him to stay away from work. Accordingly, I can-
not conclude that his absence was due to any vio-
lation of law about which he had received a final
warning several years ago.
Even were I to assume that Callaway's absence
on and after March 22 was the result of a violation
of law, I am not convinced that such absence was
the real reason for his discharge. Orr testified that
WOLVERINE TUBE DIVISION
another employee , Turner, was permitted to serve a
jail sentence on weekends with the approval of
company officials. Orr further testified that from
the standpoint of company policy there was no dif-
ference between an employee in jail on his vacation
or on weekends , both periods being regarded as be-
longing to the employee. Nevertheless, Callaway's
vacation in jail in 1963 is the alleged reason for the
final warnin* given him at that time and forms the
basis for his dismissal in 1967, when he was
detained for several hours by the police upon the
assault and battery charge. This disparity of treat-
ment accorded Callaway vis-a-vis employee Turner
fortifies my conclusion that Callaway was
discharged , not for cause, but for his union activi-
ties . Southwire Company, 159 NLRB 394; Shattuck
Denn Mining Corporation v. N.L.R.B., 362 F.2d
466 (C.A. 9). Having regard for the fact that Cal-
laway was quite active in union matters (of which
Respondent 's supervisors were admittedly aware)
and considering the contemporaneous conduct of
the Respondent aimed to discourage union activi-
ties discussed previously, I conclude that Callaway
was discharged for his union activities in violation
of Section 8(a)(3) of the Act. N.L.R.B. v. Dan
River Mills, Incorporated, Alabama Division, 274
F.2d 381, 384 (C.A. 5).
CONCLUSIONS OF LAW
1. Respondent has committed unfair labor prac-
tices within the meaning of Section 8(a)(1) of the
Act by the interrogation and statements of its su-
pervisors , Woodward and Clem, in November and
December 1966, and January and March 1967.
2. Respondent has committed unfair labor prac-
tices within the meaning of Section 8(a)(3) of the
Act by the suspension and dismissal of employee
Callaway in March 1967, for his union activities.
3. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that. the Respondent has engaged
in certain unfair labor practices , it is recommended
that it cease and desist therefrom and from in any
like or related manner infringing on the rights of
employees guaranteed by Section 7 of the Act.
Since I have concluded that the suspension and
dismissal of Callaway in March 1967 was motivated
by the Respondent 's antiunion animus, I shall
recommend that it be ordered to make him whole
for any loss of earnings suffered by reason of the
discrimination against him by payment of a sum of
money equal to that which he normally would have
earned as wages from the date of his suspension to
the date of Respondent 's offer of reinstatement or
the date of his return to duty, whichever is earlier,
less any net earnings during said period (Corssett
Lumber Company, 8 NLRB 440), and in the
33
manner prescribed in F. W. Woolworth Company,
90 NLRB 289, together with interest thereon at the
rate of 6 percent per annum as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law , I recommend that the Respon-
dent, Wolverine Tube Division , Calumet and Hecla,
Inc., its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees concern-
ing their union activities and attitudes.
(b) Threatening losses to the employees if the
employees join the Union.
(c) Discouraging membership in and activity on
behalf of the International Brotherhood of Boiler-
makers, Iron Shipbuilders , Blacksmiths , Forgers
and Helpers , AFL-CIO, or any other labor or-
ganization by dischargin* or refusing to reinstate
employees or by discriminating against employees
in any other manner in regard to their hire or
tenure of employment or any term or condition of
employment.
(d) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of their right to self-organization , to form,
join , or assist the Union or any other labor or-
ganization , to bargain collectively through
representatives of their own choosing , or to engage
in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion , or to refrain from any or all such activities.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Offer Charles Callaway immediate and full
reinstatement to the position held by him prior to
March 22 , 1967, or a substantially equivalent posi-
tion , without prejudice to seniority or other rights
and privileges.
(b) 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 Ser-
vice Act and the Universal Military Training and
Service Act , as amended , after discharge from the
Armed Forces.
(c) Make Charles Callaway whole for any loss of
earnings suffered by reason of the discrimination
against him in the manner set forth in the section of
this Decision entitled "The Remedy."
(d) 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 relevant and necessary for a
determination of compliance with paragraphs (a)
and (c ) above.
354-126 O-LT - 73 - pt. 1 - 4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its plant in Decatur , Alabama, copies
of the attached notice marked "Appendix. "2 Copies
of said notice , on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondent's representative, shall be posted by the
Respondent 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 the
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 10,
in writing , within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.'
' In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT interrogate you unlawfully
concerning your union activities or attitudes.
WE WILL NOT threaten losses to you if you
join the Union.
WE WILL NOT discourage membership in and
activity on behalf of the International Brother-
hood of Boilermakers , Iron Shipbuilders,
Blacksmiths, Forgers and Helpers , AFL-CIO,
or any other labor organization by discharging
or refusing to reinstate employees or by dis-
criminating against employees in any other
manner in regard to their hire or tenure of em-
ployment or any term or condition of employ-
ment.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the
exercise of your right to self-organization, to
form , join , or assist the Union or any other
labor organization , to bargain collectively
through representatives of your own choosing
or to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection or to refrain from any
or all such activities.
WE WILL offer Charles Callaway immediate
and full reinstatement to the position held by
him prior to March 22, 1967, or a substantially
equivalent position without prejudice to his
seniority or other rights and privileges.
WE WILL notify Charles Callaway 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 Train-
ing and Service Act, as amended, after
discharge from the Armed Forces.
WE WILL make Charles Callaway whole for
any loss of earnings suffered by reason of the
discrimination practiced against him.
WOLVERINE TUBE,
CALUMET AND HECLA,
INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 730 Peachtree Street, NE., Room 701, At-
lanta, Georgia 30308, Telephone 526-5760.