Florida Steel Corp.

National Labor Relations Board - Board Decisions

Jun 19, 1961

131 N.L.R.B. 1179 (N.L.R.B. 1961)

FLORIDA STEEL CORP. (TAMPA FORGE & IRON DIV.) 1179
drivers have not, in practical effect, acted independently of the Em-
ployer in any material respect.
It has been frequently held that the resolution of such a question of
whether there exists an independent contractor relationship or an
employer-employee relationship depends upon the facts in each case,
and no one factor is determinative.6 In view of the entire record
herein, we are of the opinion that the relationship of the drivers to the
Employer has not changed by virtue of the individual lease agree-
ments, and that the leasing arrangement, particularly in light of the
actual practice and overall effect, amounts to little more than a paper
or bookkeeping procedure for the convenience of the Employer.'
Under the established tests for determining this issue,' we find that,
in material respects, the Employer retains the right to control the
manner and means by which the work of the drivers is to be accom-
plished. We therefore conclude that the lease drivers sought herein
are employees of the Employer within the meaning of the Act.
Accordingly, we find that the following employees at the Employer's
Mansfield , Ohio, operation, constitute an appropriate unit for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act :
All truckdrivers, including all drivers operating under lease agree-
ments, but excluding all other employees, office clerical employees,
professional employees, guards, and supervisors as defined in the Act .9
[Text of Direction of Election omitted from publication.]
6 American Broadcasting Company, et at., 117 NLRB 13, 18, and cases cited therein.
7 Cf. Shamrock Dairy , Inc., et at ., 124 NLRB 494.
8 See, e.g ., Albert Lea Cooperative Creamery Association , 119 NLRB 817, 821 ; National
Van Lines, 117 NLRB 1213.
8 During its busy season , the Employer often contracts for individual hauling jobs with
independent owner - operators . These owner-operators are not sought by the Petitioner ;
both parties agree that they are independent contractors.
Florida Steel Corporation (Tampa Forge and Iron Division)
and Shopmen's Local Union No. 741 of the International Asso-
ciation of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO. Case No. 12-0A-11231. June 19, 1961
DECISION AND ORDER
On September 22, 1960, Trial Examiner Lloyd Buchanan issued
his Intermediate Report 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
131 NLRB No. 143.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings,' conclusions,2 and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Florida Steel
Corporation (Tampa Forge and Iron Division), its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Shopmen's Local Union No. 741
of the International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO, or in any other labor organization
of its employees, by discharging any of its employees or discrimi-
nating in any other manner in respect to their hire and tenure of
employment, or any term or condition of employment.
(b) Interrogating employees concerning union activities or senti-
ment and promising benefits and threatening reprisals in connection
with concerted activities.
(c) In any other 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 Shopmen's Local Union No. 741
of the International Association of Bridge, Structural and Orna-
mental Iron Workers, 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 col-
i The Respondent contends in its exceptions that it was error for the Trial Examiner to
find employee V. R. Mace a basically credible and reliable witness after rejecting that
portion of his testimony concerning the extent of visibility of the parking lot We have
frequently pointed out that because of the unique position occupied by Trial Examiner in
observing the witness at a hearing, it is the Board's established policy not to disturb his
credibility findings absent persuasive evidence-not here present-that such findings are
clearly erroneous Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F. 2d 362
(C.A. 3). Moreover, as pointed out by the Court of Appeals for the Second Circuit in
N.L R B v. Universal Camera Corporation, 179 F. 2d 749, 754, "nothing is more common
in all kinds of judicial decisions than to believe some and not all" of a witness' testimony
2 Although the Trial Examiner found that V. It. Mace and James Haisten and 20 other
employees were discriminatorily discharged as a result of union organizational activities,
the Trial Examiner applied his finding of unlawful conduct only to Mace and Haisten
because the allegation in the complaint concerning the violation of Section 8(a) (3) of
the Act is limited to the two employees. In the absence of exceptions to the Trial
Examiner's recommendation that the 8(a) (3) findings not be extended to the 20 employees,
we adopt this limitation pro forma.
Member Rodgers agrees that this matter is not before the Board because there was no
allegation whatever concerning these individuals in the complaint.
FLORIDA STEEL CORP. (TAMPA FORGE & IRON DIV.) 1181
lective bargaining or other mutual aid or protection or to refrain
from any or all of such activities.
Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to V. R. Mace and James Haisten immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may have suffered by
reason of the discrimination against them, in the manner set forth in
the section of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to compute the amount of backpay due
under the terms of this Order.
(c) Post at its plant, in Tampa, Florida, copies of the notice at-
tached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Twelfth Region, shall,
after being duly signed by the Company's representative, be posted
by the Company immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Company to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twelfth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Shopmen's Local Union
No. 741 of the International Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO, or any other labor
organization of our employees, by discharging any of our em-
ployees or discriminating in any other manner in respect to their
hire and tenure of employment, or any other term or condition
of employment.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interrogate employees concerning union activities
or sentiment, or promise benefits or threaten reprisal in connec-
tion with concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Shop-
men's Local Union No. 741 of the International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-CIO,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities, or to refrain from engaging in such activities.
WE WILL offer to V. R. Mace and James Haisten immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay suffered
by reason of the discrimination against them.
All of our employees are free to become, remain, or to refrain.from
becoming or remaining members in good standing of Shopmen's Local
Union No. 741 of the International Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO, or any other labor
organization.
FLORIDA STEEL CORPORATION (TAMPA
FORGE AND .IRON DIVISION),
Employer.
Dated---------------- . By------------------------ ---•----------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material,
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein, as amended, alleges that the Company has violated Section
8(a)(3) of the National Labor Relations Act, as amended, now 73 Stat. 519, by
discharging V. R. Mace and James Haisten on or about September 4, 1959, and
thereafter refusing to reinstate Mace, all because of their concerted activities, and by
conditioning the rehire of Haisten on his abandonment of such activities; and Section
8(a) (1) of the Act by said alleged acts and by interrogating an employee concerning
another employee's union sentiments, promising benefits if employees would refrain
from concerted activities, and threatening loss of benefits and employment if the
Union were voted in. Admitting the discharges, the answer as amended denies the
allegations of violation.
A hearing was held before the duly designated Trial Examiner at Tampa, Florida,
on March 1 and 2, 1960, and at the close the General Counsel and the Company
were heard in oral argument. Pursuant to leave granted to all parties, a brief has
been filed by the Company, the time to do so having been extended.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Florida corporation with principal
office and place of business in Tampa, Florida, is engaged at its Tampa Forge and
FLORIDA STEEL CORP. (TAMPA FORGE & IRON DIV.) 1183
Iron Division in Tampa in the manufacture and sale of structural iron ; and that
during 1959 it purchased goods and materials valued at more than $50,000 and
which were shipped to it in Tampa directly from points outside the State of Florida.
I find that the Company is engaged in commerce within the meaning of the Act.
It was admitted and I find that Shopmen's Local Union No. 741 of the International
Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO, is a
labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Supervisors and credibility
Before certain of the alleged violative acts are considered we must determine
whether Walter Libby and Audley McKenzie, who are charged with having com-
mitted those acts, were supervisors within the meaning of the Act. It is clear that
Libby did not have the authority to hire or fire; nor did he effectively recommend
such action . Neither did he transfer employees from one shift to another . Accord-
ing to the Company, he was a fitter and working leaderman without supervisory
status.
Dan McKenzie, the shop superintendent , testified that Libby performs duties as
told, with the help of necessary men, and that, if necessary, "there would be" 2, 3,
or 4 welders to help Libby; and that as many as 30 men may work with Libby.
While Dan McKenzie assigned the various duties to Libby, and the foreman arranged
to have men doing the work for Libby during the day, only Libby could determine
how many men there would "be" (a euphemism for "he would call upon") to help
him on various tasks as the need arose when he worked at night.
Several employees cerdibly testified that, when hired by Patterson, admittedly a
supervisor and at that time assistant shop superintendent and now operations man-
ager, they were told to report to Libby or to the timekeeper, who then directed them
to Libby. This stands uncontradicted alothough Dan McKenzie testified that he told
new employees to report, not ".to Libby," but "to where Libby worked." At that
hallowed spot it was evidently unnecessary for anyone to direct the new employees!
They were not told to report to anyone. The value of such testimony lies (no pun
intended ) in its assistance on the issue of credibility generally. Employee witnesses
testified further that as new men they waited for Libby to assign them to work and
that he did that after he had taken care of other matters. (There is no evidence of
prior instructions to Libby, of which more, infra, which could or were intended to
cover men hired later in the day.) Libby also checked the work of the other em-
ployees; he criticized work and made men change it or do it again ; and he scolded a
man for not helping another when finished with his own portion of a job.
That orders were given and supervision exercised over the men on the job during
the second shift is clear from the testimony of Dan McKenzie and Patterson that the
latter and Krumpler, another supervisor , stayed on into the night shift , frequently
returned to the plant at night, and made and received many calls to and from Libby.
One can hardly picture a telephone call to the home of the shop superintendent or
another supervisor every time an employee had to be given some orders on the night
shift when those who are admittedly supervisors were not at the shop . But even so,
it was Libby's decision that a call was necessary, and his function to tell the men
what the orders were; and this being done to such an extent, i.e., exclusively by Libby
when the plant's executives were not on the job during the night shift, his duties were
clearly supervisory. This is aside from such testimony as Patterson's that the latter
instructed Libby to authorize overtime for the men if it became necessary; the de-
cisions as to necessity, made on the spot, were an important attribute of supervisory
status, directly affecting employees ' earnings.
The need for Libby to give orders was not lessened by the fact that his work was
planned and set up for him and that he himself welded. That he came in 30 minutes
early each day suggests that he received instructions which he was to carry out and
transmit and whose execution by some 20 men he was to supervise. Here we should
not overlook Audley McKenzie's testimony and similar testimony by other com-
pany witnesses that instructions were given by day-shift supervisors to each of the
employees at the beginning of the night shift. We are asked to believe that there was
a truly Goldbergian arrangement: instructions to the leaderman before the second
shift commenced, but the leaderman was not to supervise; instructions to each of
some 20 1 men at the beginning of the second shift by supervisors who had worked a
'Careful to point out that the men worked with Libby, as we have noted, not under him,
Dan McKenzie said that there were as many as 30 such men.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior -shift; and later return to the shop by those supervisors in addition to telephone
calls to and from them at home-all allegedly because there was no supervisor in the
plant at night! This is unbelievable, aside from the positive evidence that Libby per-
formed supervisory duties. Lewis, at that time manager of the Tampa Division and
now a vice president of the Company, Dan McKenzie, and Patterson have too
much experience and are too competent as administrators even to attempt such an
impossible arrangement, and they did not.
Recalling,the testimony that Libby checked the employees' work and, if necessary,
had them redo it, we realize that the mere right to check defective products does not
indicate supervisory status in an inspector who works under a chief inspector.2 But
here there allegedly was no chief inspector on that shift,3 and Libby's duties went
beyond rejection as he directed changes or redoing, and performed other duties as
described supra.
The testimony that there was no supervisor on the night shift, during which 45 to
55 were employed in the south shop and elsewhere on September 4, 1959, strains
credulity and serves but to reflect on the credibility of those so testifying. I find
that such testimony reflects the attempt to use words to avoid the definition and
concept of supervisory authority in the face of the facts. Some additional light on
Libby's status may be cast by the testimony that Haisten approached him first when
he sought reinstatement, and that the latter finally accompanied Haisten into the
office to see Dan McKenzie.
As for Audley McKenzie, the plant superintendent's brother, the testimony indi-
cates that on the day shift he replaced Paine, the former supervisor, who now went
back where the material was cut. Although Audley McKenzie testified that Paine
was his foreman, he did not deny that Paine was now assigned to duties elsewhere.
According to McKenzie, Paine stayed over into the night shift "quite often" to assign
work to the men on the night shift; but Lewis did not even include Paine as a super-
visor. Audley McKenzie told employees what job to work on and what to do,
checked their work, and reprimanded. The testimony concerning his duties and
authority is not as detailed or lengthy as that concerning Libby's; it need not be.
(In another connection it was incidentally i marked and scarcely noted that Libby
gave Wallace his paycheck.) We can rely on his brother's summary that Audley did
the same work as Libby. Although other and higher ranking supervisors were
present while Audley McKenzie worked on the day shift, his duties and the extent
of his responsibilities can thus be judged by this comparison with Libby's. It was re-
liably testified by witnesses on both sides that Audley McKenzie and Libby would
"jump in" and help with the work (Dan McKenzie emphasized that Libby is a good
and a fast welder), but this does not minimize the authority which they had and
exercised. I find that Audley McKenzie and Libby were supervisors within the
meaning of the Act. It is unnecessary to compare the circumstances and operations
here with those at another of the Company's plants or divisions to see whether the
Board's holding, in a case involving the latter, that leadermen are supervisors can
properly be extended or applied to the instant situation.
The relatively great deal of attention directed to the testimony concerning super-
visory status here pays dividends, as noted, on the issue of credibility concerning the
acts alleged as violative. Of the General Counsel's witnesses, Mace appeared to
pattern his testimony according to what he believed necessary to prove the case.
He volunteered that the parking lot is visible from the south shop, and in too pat a
manner testified that he saw someone looking out of a top floor office window while
he was getting cards signed in the parking lot. In fact, only a small portion of the
parking lot is visible from the office building, and from a small portion of the build-
ing at that. The other witnesses called by the General Counsel appeared to be
reliable. Thus Wallace, testifying concerning a threat by Audley McKenzie, de-
clared that the latter did not threaten beyond the fact that he said what he did. (I
have not overlooked the fact that Wallace appeared to be uncertain throughout with
respect to time.) Similarly Haisten, testifying to interference, purported to quote
Audley McKenzie, as we shall see, without expressly mentioning the Union even
though the question put to him called for such mention; that Haisten's rely was
less pointed than called for suggests his honesty. Aspects of unreliability in the
Company's witnesses have been and will be noted as the testimony is otherwise de-
tailed and as circumstances warrant.
z Mayfair Industries, Incorporated, 126 NLRB 223
$ Cf. Redwing Carriers, Inc., 125 NLRB 322, at foot•iote 2, with reference to employee
Klein.
FLORIDA STEEL CORP. (TAMPA FORGE & IRON DIV.) 1185
B. The alleged violation of Section 8(a) (3)
Mace went to work for the Company as a welder on August 24, 1959. Two or
three days later he asked and spoke with several of the other men about organizing
the plant. They appeared to favor it, and Mace thereupon got in touch with the
Union's office and then on August 28 called Platt, the organizer or special repre-
sentative in Jacksonville. The following Monday morning, August 31, Mace met
Platt in Tampa and arranged for a meeting that afternoon at the union hall. Five
other employees met with Platt and Mace. The latter signed a union card and,
sitting out at the plant parking lot that evening and continuing during lunch time,
got 25 to 30 others to sign On September 4, without warning and with no reason
given to the men, Mace and 21 others were discharged.
Mace's organizational efforts were begun and evidently centered in the south shop
and on the second shift, on which he and Haisten were employed, since in addition
to his direct efforts in connection with union cards he talked to other men during
worktime while waiting for jobs. Paralleling this is the fact that the terminations
on September 4, almost all on the second shift, centered in the south shop. Here
indeed is a suspicious circumstance. But what besides this suspicion is there to
warrant a finding of discrimination because of union activities?
Lewis explained that shipments had allegedly fallen off and customers were com-
plaining that deliveries were not being made, because of improperly welded joists.
He testified that about August 26, more than a week before the discharges, he gave
orders to get rid of men who were standing around talking and those who were
doing improper welding. Not until September 3, after most of those slated for
discharge had been listed, did he learn about the union activity.
It was not claimed that there was less need for men. On the contrary, more
production and shipments were called for. But it was claimed that the men on
hand were not turning out work in the quantity and quality desired; and more than
half of those in the shop on that shift were selected for discharge.
As far as quality was concerned, there is no evidence that Marc's or Haisten's
work was deficient. Mace's ability was conceded when the General Counsel under-
took to prove his qualifications, and Haisten's was not questioned. While they may
nevertheless have willfully or carelessly done poor work, there is no evidence that
they did.
To stress the importance of proper welding (which could be conceded), Lewis
testified that after 11/2 years of submitting designs and of investigation by the Steel
Joist Institute and the American Institute of Steel Construction, the Company
achieved membership. Whether the work done in August 1959, including the many
alleged rejects, was thus approved we do not know. Despite the alleged necessity
to check to see who was doing the poor work, the Company never did get Mace or
various others to put their number on their welds.
Lewis testified that there was a rule of several years' standing that men mark
their welds so that the welder on each piece could be identified. This rule appears
not to have been enforced, and Dan McKenzie testified that about the month of
July 1959 he told the men to put their clock number on the side of their joists.
This was before Mace was hired; Mace, like others, did not mark his welds. As
we have already noted, there is no evidence that the Company remonstrated with,
warned, or threatened Mace, Wallace, or other welders who did not mark their
welds. In fact Mace testified that he was never told to mark his welds, and that
he never saw any other welder do that. On the other hand, Boyette, who had been
hired in March, put his number on his welds and heard instructions to do that given
to men hired after he was. Whatever the rule concerning marking, it is not claimed
or shown that the discharges were based on violation of any such rule.
Although an intelligent witness, Assistant Shop Superintendent Patterson replied
with a most uncertain sound when asked why the terminations were made on
September 4: the group was terminated because of the quality and quantity of the
work done. On what basis more than half of the men on the shift in that shop
were selected we do not know, nor whether those who had been observed talking
were responsible for the defective work, or even whether the Company knew who
had done such work; as for Mace, his work was not under attack but he was ter-
minated because he was talking and because the group's work was not of the desired
quality and quantity.
On the credibility of the explanation offered by the Company, a supervisor would
in normal course attempt to correct shortcomings, would remonstrate with talkers
who neglected their work (would do so while paying them even during their last
week on the job), and would advise or assist those who needed help. This is in-
deed the Company's practice. Dan McKenzie testified that if he sees something
599198-62-vol. 131-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wrong, he talks to the foreman and the latter talks to the men about it . But although
Patterson allegedly observed men talking when they should have been working, and
production was needed, he did not himself talk to them about it or have anyone else
do that. On one occasion , about a week before September 4, he asked a group of
men who were talking what the trouble was; he was told that there was no trouble,
and apparently no more was said although among the group were "several who
shouldn't have been in the shop." Since we have testimony that men waited and
talked between jobs, there was no basis for any assumption that the men whom
Patterson thus observed were loafing; and I do not believe that he himself thought
they were loafing , Mace among them, as he does not appear to have scolded or even
criticized them.
I do not credit the reason assigned for the mass discharge of September 4. No
real effort had been made to obtain improvement where it was allegedly needed,
i.e., to have the men stop talking. Instead of attempting to stimulate production,
the Company discharged the producers when more output was needed! Lewis
himself testified that the workload from July through the month of September was
greater than ever before.
We have some slight and general testimony by one employee, Boyette, that a few
men were thereafter hired. These certainly did not replace the 22 discharged and
further account for the marked increase in shipments which was noted for the
month of September. Even if we accept as good faith hyperbole Lewis' statement
that goods were being shipped "with the paint still wet," it is clear that some time
elapsed after the welding of the joists, while they were further processed, made
ready for shipment, and painted; at least part of the greater shipments in September
consisted of a correspondingly greater amount of work done prior to the discharges.
But whatever the details, it is also clear that after allegedly observing that the men
failed to work (Lewis had earlier observed from his office in another building that
not a spark was struck for 10 minutes one evening), he and Patterson for a week or
more considered and discussed the discharge and finally did discharge more than
half of the employees in the south shop on the second shift without any attempt to
stimulate the men to the greater production which was needed or even telling them
to work instead of talking!
The need or opportunity for greater production was evident to the Company when
it increased the work force in July and August. There as no evidence at all that it
attempted in August or September to get Mace or Haisten or any other employees
to improve their work or that it pointed out the allegedly sudden drop in efficiency
and any consequent fall in shipments. These steps were not taken prior and up to
September 4 to meet the need which Lewis described; certainly the discharges did
not achieve his objective of increased production and shipments.4 Here again it
must be noted that Mace's and Haisten's ability is not questioned, and there is no
evidence that their output was deficient in either quality or quantity. No adequate
or reasonable basis for their selection for discharge was shown. The reasons given
for the discharge are not supported by the evidence adduced, and I find that the
Company discriminated in order to undermine organizational activities.
The Company's explanation for the discharges thus discredited, we return to the
fact that those discharges were. centered in the shop and on the shift in which or-
ganizational activities had commenced a few days before. In the absence of other
credible evidence and because the explanation offered is not credited or reasonably
credible, the inference is warranted 5 and I find that the discharges were motivated
by the organizational activities. With rejection of the Company's explanation, the
discharges are a measure of its discrimination .6
This finding is based on the evidence of organizational activities generally among
the employees in the south shop on the second shift without any need to identify
Mace as the moving spirit. The Company in one move eliminated the focal point of
A The Company's figures which show that with approximately two-thirds the work force
its sales in September were approximately one and one-half times those in August demand
explanation which was not vouchsafed us; for those figures, without explanation, indicate
that production per payroll dollar more than doubled in September No such claim was
made by Lewis or by any other witness Whatever further investigation of the figures
might indicate, they cannot be relied on since they prove too much, far more than was
suggested by those who were most critical of August production and shortcomings
8 Hartsell Mills Company v N L R B , 111 F. 2d 291, 293 (C A. 4) ; N L R.B. v. Christian
A. Lund 4/b/a C A Lund Company, et al, 103 F 2d 815, 819 (C.A 8) ; J S. Aber-
crombie'Conipany . 83 NLRB 524
6 Tlie finding of discrimination is of course limited to Mace and Haisten as alleged in
the complaint • ,
FLORIDA STEEL CORP. (TAMPA FORGE & IRON DIV.) 1187
union infection. As it was unnecessary for it, in this sweeping action, to identify
each of the union adherents, so is it unnecessary here to show that each employee
discharged was an adherent or otherwise active. The action against them having
been taken for discriminatory reasons, the violation would be as plain against all
who were discharged. including any who did not support the Union but were in-
cluded in the Company's estimate. Such action was intended and did tend to in-
hibit and interfere with organizational activities of employees and was discrimina-
tory in violation of the Act.
The record sufficiently indicates company knowledge of the organizational activi-
ties. If we accept Libby's statements to Mace that he had been a unionman himself
and that he sympathized with Mace, Libby also said that he did not want to "get
mixed up" in the situation, and wanted to protect his job. This conversation al-
legedly took place on August 27 or 28, after Mace had spoken to others about
organizing but before the first union meeting, on August 31. Perhaps because he did
not want to get mixed up directly with Mace, the active union protagonist, Libby
told Boyette on September 1 or 2 to tell Mace "to watch out and be on his toes.
They wanted him to pull his card and he wouldn't do it. And that they was after
him, something to that effect." Boyette testified that he had no business where
Mace was working so he told another man to tell Mace. The latter testified that
Libby "sent word through" Boyette, not by Boyette, and was therefore not contra-
dictory. On September 2 or 3 Mace told Libby that he had heard that the Company
was trying to get Libby to discharge him; and Libby replied that he had argued
against it, saying that Mace was a good worker. Even without Mace's testimony
concerning this conversation with Libby, it is apparent that Libby knew of Mace's
union activities and, from his statement to Boyette, that his superiors also knew.
Whether from one source or another, the testimony thus points to such knowledge
by the Company. Without selecting one of various means by which knowledge
of union activities was acquired, or excluding others, it can be noted that in this
case the supervisor who spoke of union activities, Libby, was not remote from
Patterson, the one who selected those to be discharged.
Offered as indicating company knowledge of Mace's activities, and whatever the
effect of Mace's impression that it was "a friendly gesture," the remarks by Libby
which have just been noted, have not been alleged as violative of Section 8(a)(1)
of the Act. Whether it feared that he might be too sympathetic to the erstwhile
employees (Libby called Boyette at the end of October and said that he was no
longer a supervisor and wanted to talk to the union organizer), or that his testi-
mony would be factual but unfavorable, we need not speculate; the Company did
not call Libby as a witness to deny what was testified concerning him. But of the
8(a) (1) violations alleged, only one involves Libby: it does not appear that he has
been "used" by the General Counsel or the Union.
Libby knew of the union activities. Whether from him; from the talk among
the men on that shift at night, the operation being relatively small 7 and observable
by other supervisors who attended part of the time, and there being no attempt to
hide this talk; from Mace's solicitation of cards in the parking lot; or from other
employees, as infra, knowledge of the organizational activities is readily inferred.
This is not to say that any discharge which follows knowledge of the commence-
ment of organizational activities is necessarily discriminatory. The findings of dis-
crimination here is based primarily on the Company's knowledge of organzational
activities generally and its attempt to fight the fire by throwing all (or half) of the
furniture out of the window-in this case the otherwise unexplained mass discharge.
It was allegedly on or about August 25, certainly not later than August 26, that
Lewis told Patterson to get rid of those who were standing around talking and doing
poor welding. This, of course, appeared to be before the commencement of or-
ganizational activities, yet at the latest time before so that there would be no need
to explain any great delay between the alleged decision to discharge and the actual
discharges. But Lewis' observation of no sparks struck for 10 minutes, supra, had
occurred early in August; and although the need for turnout was then great, he
merely called the matter to the attention of Patterson or Dan McKenzie (he did
not recall which of the two) the next morning; nothing appears to have been said
to the employees about it, and no discharges were effected for a month thereafter.
Talking and poor production evidently became important enough to call for action,
and extreme action at that, only near the end of that month.
After receiving Lewis' instructions, Patterson proceeded to prepare a list of those
who should be discharged. Why this took about 10 days is not explained. If the
7 Wiese Plow Welding Co., Inc., 123 NLRB 616.
1188 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Company wanted to see whether the men would do better, they were not urged to
do so or warned about discharge. According to Lewis, they had several discussions
during the week and Patterson submitted the list on the afternoon of September 3
(this was about the time that Lewis allegedly heard a "rumor" of union activity,
infra), but said that he had a few snore names he wanted to bring in. He did bring
the list to Lewis on the morning of September 4, and the discharges were then
"made up." Patterson, in his testimony, improved on Lewis' timing. He testified
that it was on September 2 (the day before the rumor of September 3) that he
brought a list to Lewis; they discussed it further on the afternoon of September 3,
and Patterson gave Lewis the final list on the morning of the 4th. When various
individuals were placed on the list we do not know. It was maintained that Lewis
and Patterson discussed no individuals for discharge, and Lewis insisted that he
had no knowledge of union activity before that day. Without denying knowledge
of union activity, Patterson testified that he did not know whether any of the men
on his list had engaged therein. -
To pinpoint discharges and effect them against active union protagonists because
of such activity is discriminatory. It is no less discriminatory to discourage organiza-
tion by wholesale discharges, for to strike thus with such timing at even those who
were not so engaged is sufficient but unlawful warning, deterrent, and discrimination.
I do not credit Lewis' testimony that he had not heard of any union activities
until some 10-day shift men called on him on September 3; they had not been ap-
proached by any union and did not know what union this was; they did not say
that organizing was going on or that a strike was imminent ; they had merely heard
some rumors and, having crossed the picket lines during a strike at the plant called
by another union in 1954, they now told him that they would not want to cross a
picket line (all of this allegedly speculative but anticipatory to the point of being
unbelievable); and Lewis himself concluded that this was only a rumor. Certainly
the fact that the Union's first formal demand to bargain was by letter dated Oc-
tober 21 does not indicate that the Company had no prior knowledge of union
activities.
With company knowledge and discriminatory attitude and motive found, it be-
comes unnecessary to consider again Mace's activities and knowledge thereof speci-
fically. As for Haisten, his union activities appear to have been confined to signing
an authorization card. Were the finding of discrimination here to be based on
individuals' organizational activities, it could be made only with respect to Mace.
But as noted, the discrimination here consisted of the Company's broadside effort
to prevent organization of the employees.
The defense is hardly supported by the testimony that Libby said that he had
saved Boyette and two or three others from being fired "because they were good
workers." Boyette had asked why he had not been fired since he was a unionman
also, and Libby explained that he had "talked them out of running off" these few.
No sufficient reason having been given for the mass discharges and the selection
of Mace and Haisten, or no reason which can withstand analysis (unlike the case
cited in the Company's brief), the evidence here unlike that in other cases 9 does
not contain proof of serious economic need, actual defects in the work, or of com-
plaints by customers. We have only a general statement that complaints were re-
ceived. The time needed for processing subsequent to the welding and delivery in-
dicates that complaints concerning defective welding would refer to work done a
considerable time before the action was taken against the night shift men, aside
from the fact that there is no evidence to connect any alleged defects with those
men generally 9 or specifically with those discharged. Claims of individual defi-
ciencies are pretextual and "afterthought" in nature . Thus, as we have seen, that
Mace was never spoken to about the absence of a marking on his welds and his
discharge was not connected with this, and that there is no issue concerning the
quality of his work or of even a single joist which he welded-all of this indicates
8 Cf Sealtest Southern Dairies Division, National Dairy Products Corporation, 126
NLRB 1223.
9 Referring to the night shift generally, Lewis testified that its joists were checked the
next day. This would indicate that the Company at least knew to which shift defective
work could be charged. But he at the same time testified that (despite the alleged long-
standing rule) he gave instructions that card numbers be placed on the joists so that
individuals could be identified by their work. The fact that neither Lewis nor anyone
else testified to any such identification suggests that there was no such checking and not
even any attempt to check ; Indeed that there was no need to check and that the testimony
concerning rejects, which were not mentioned to individual employees, was made of the
whole cloth.
FLORIDA STEEL CORP. (TAMPA FORGE & IRON DIV.) 1189
that the reasons given were afterthoughts and that there was no valid reason for the
discharges . The wide excision from the south shop second shift was based on the
Company's discovery of the union activity which was centered on that shift and in
that shop.
In N.L.R.B. v. WTVJ, Inc.,10 the reasons assigned for the discharges were found
to be mere pretexts , and the inference drawn that they were due to union activities
despite the presence of good cause . Whereas in WTVJ the employees' alleged
failure to perform adequately was cited but rejected , in the instant case no such
charges were preferred against Mace or Haisten and no basis was shown for any
charges.
We do not rely on subsequent events to find that the Company 's action on
September 4 was discriminatory . But later events do further support the finding as to
Haisten. When he was laid off on September 4 he asked Libby for the reason, and
the latter replied that he did not know but would find out. Libby then went into the
office and , on emerging , told Haisten to return on Monday , September 7: "I will
see what I can do about getting you back on ." On September 9 Libby asked Haisten
whether he would return to work "and forget what was going on." Questioned
about this, Libby replied, "You know what I mean." We too can know that he was
here referring to union activities . During this period Libby took Haisten in to see
Dan McKenzie , who did not discuss why he had been laid off but said that he would
check and see when he could use him. Finally Haisten on September 17 told Libby
that some of the men were going down to make a complaint and that he would
himself do so also; Libby told him to tell that to McKenzie , and called the latter out
to speak with Haisten . Libby appears here to have "sympathized" with the Company
also.) McKenzie then told Haisten to return the following day, at which time Mc-
Kenzie told him that he had previously been on probation (he had been hired on
July 8, 1959 ); he was going to put Haisten back to work since the latter 's wife was
pregnant and he needed the job; but he was to work harder. McKenzie also said
that Haisten had been talking too much.
Here McKenzie was being circumspect ; he made no mention of the Union, Libby
having exacted the promise from Haisten the week before. The advice to work
harder was unnecessary and meaning less since throughout the 2 weeks which inter-
vened before Haisten returned to work on September 21, Libby had told McKenzie
that Haisten had done good work and was busy most of the time. The background
for Haisten 's return to work includes his promise , in response to Libby, to forget the
Union , his threat to file a complaint or charge , the alleged sympathy with respect
to his personal affairs, and McKenzie 's unwarranted and pretextual reference to
working harder.
The argument has been made that Haisten's reemployment indicates that his dis-
charge was not motivated by antiunion considerations ; else, why rehire him? Here
again too much is proved , for the same argument could be offered and the same
question asked if it be maintained that Haisten was discharged for poor work, for
talking, or for any other reason ; why rehire him? If, as found , the Company felt
that it had taken adequate measures to cure the infection , it could now reinstate
Haisten , whose union activity had in fact been limited.
C. The alleged independent violation of Section 8(a) (1)
We have already noted and credited Haisten's testimony that on September 9, in
connection with his requests for reemployment , Libby stated the condition that he
forget or desist from union activities . This constituted interference in violation
of the Act.
The other violations , as testified by Wallace, were committed by Audley McKenzie.
The latter denied making the statements thus attributed to him . The question or
credibility in this connection presents little problem: McKenzie proved himself un-
reliable in his testimony concerning supervisory authority during the day and at night;
Wallace impressed me as a credible witness. I find that Audley McKenzie did inter-
rogate, promise , and threaten as alleged and as follows:
McKenzie asked Wallace whether he knew how employee Thomas, who had been
laid off a week or two after September 4, stood with the Union . Wallace first
placed this conversation as having taken place 3 to 5 weeks after September 4, but
then maintained that it was in November . Wallace was uncertain as to dates
throughout , but apparently reliable. Attacking Wallace's credibility the Company
in its brief urges that there is no other evidence that Thomas was laid off. There
20 268 F . 2d 346 , 348 (C.A. 5).
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was no denial of such a layoff; corroboration was unnecessary. Were Wallace mis-
stating the fact, company records could readily have shown that. As for Thomas not
being included among the 12 named in the charge as laid off on September 4, Wallace
testified that Thomas was laid off a week or two later.
During this same conversation, McKenzie said that he would like to call Thomas
back or have Wallace call him back, but he "wanted (Thomas) to be right," reference
having been made to the Union, before he was called back.
A week or two later, apparently also in November and apparently repeated several
times, McKenzie threatened that if the Union came in, the Company would cut the
hours to 40 per week and breaks could be taken away.
On the day of and just before a Board-conducted election in the plant on January
29, 19,60, McKenzie, handing Wallace his paycheck, said, "I guess you know if
things don't go right, there would be legal ways of getting rid of you."
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section II, above, occurring in connec-
tion with the operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
IV. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist
therefrom and take certain affirmative action in order to effectuate the policies of
the Act.
It has been found that the Company, by discharging Mace and Haisten, discrimi-
nated against them in respect to their hire and tenure of employment in violation of
Section 8(a)(3) of the Act. I shall therefore recommend that it cease and desist
therefrom and from infringing in any other manner upon the rights guaranteed in
Section 7 of the Act. I shall further recommend that the Company offer to Mace
and Haisten 11 immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other rights and
privileges, and make them whole for any loss of pay sustained by each of them
by reason of the discrimination against them, computation to be made in the
customary manner.12 I shall further recommend that the Board order the Company
to preserve and, upon request, make available to the Board payroll and other records
to facilitate the checking of the amount of backpay due.
It has been further found that the Company, by interrogation, promises, and
threats, interfered with, restrained, and coerced its employees in violation of Section
8(a)(1) of the Act. I shall therefore recommend that the Company cease and
desist therefrom.
Upon the basis of the above findings of fact, and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Shopmen 's Local Union No. 741 of the International Association of Bridge,
Structural and Ornamental Iron Workers , AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of its em-
ployeees, thereby discouraging membership in a labor organization , the Company has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. By such discrimination and by interrogating an employee concerning another
employee's union sentiments, promising benefits if employees would refrain from
concerted activities , and threatening loss of benefits and employment if the Union
were voted in, thereby interfering with , restraining , and coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged
11 In view of the condition, that he avoid union activities, imposed on Haisten prior to
his return to work on September 21, reinstatement as here described is recommended so
that he will not be ,prejudiced in the exercise of his rights and privileges
12 The Cha8e National Bank of the City of New York, San Juan, Puerto Rico , Branch,
65 NLRB 827; Ci ossctt Lumber Company, 8 NLRB 440; Republic Steel Corporation v
N L R B , 311 U.S 7: F W Woolworth Company, 90 NLRB 289, 291-294
G. A. RAFEL & CO., ROBT. L. TEETS AND GEORGE RAFEL 1191
in and is engaging in unfair labor practices within the meaning of Section 8(a) (1)
of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
G. A. Rafel and Co., Robert L . Teets and George Rafel and
Local 9, International Brotherhood of Electrical Workers.
Cases Nos. 13-CA-3462 and 13-CA-3462-2. June 19, 1961
DECISION AND ORDER
On August 30, 1960, Trial Examiner James T. Rasbury issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel and the Charging
Party filed exceptions to the Intermediate Report and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
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
Intermediate Report and the entire record in this case, including the
exceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, to the extent consistent with
our Decision herein.'
[The Board dismissed the complaint.]
i While we agree with the Trial Examiner that the Respondent has not violated Section
8(a) (3) and ( 1) of the Act , we do so solely on the ground that the General Counsel failed
to prove by a preponderance of credible evidence on the record as a whole that Respond-
ent required union referral or clearance for employment . Moreover , assuming that an
understanding existed between the Respondent and the Unions involved which provided
for union referral without Mountain Pacific safeguards , we are precluded from finding a
violation by the recent decision of the Supreme Court of the United States in Local 357,
International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of
America v . N.L.R.B . ( Los Angeles -Seattle Motor Express ), 365 U . S. 667.
INTERMEDIATE REPORT AND RECOMMENDATION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before the duly designated
Trial Examiner in Chicago, Illinois, on May 17, 1960, on complaint of the General
Counsel and answer of G. A. Rafel and Co., Robert L. Teets and George Rafel,
131 NLRB No. 154.