Florida Steel Corp.

National Labor Relations Board - Board Decisions

Nov 26, 1974

215 N.L.R.B. 97 (N.L.R.B. 1974)

FLORIDA STEEL CORPORATION 97
Florida Steel Corporation and United Steelworkers of
America, AFL-CIO. Cases 12-CA-6032(1--4),
12-CA-6067-3, and 12-CA-6100
November 26, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On March 4, 1974, Administrative Law Judge Irving
M. Herman issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel and the Charging
Party filed exceptions and supporting briefs, and Re-
spondent filed separate briefs in answer to the General
Counsel's and Charging Party's exception.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
I THE ALLEGED 8(a)(1) CONDUCT
A. The Unlawful Interrogation of Purscell
The Administrative Law Judge found that the inter-
rogation of employee Richard Purscell was not an
8(a)(1) violation because, according to the credited tes-
timony, Purscell had already disclosed his union affilia-
tion to Foreman Hunziker before the alleged interroga-
tion by Superintendent Allen occurred.
The uncontroverted testimony of Purscell was that
about a week after May 16,' when he had told Fore-
man Hunziker that he was a union organizer, he was
called into Plant Superintendent Bill Allen's office.
Purscell testified that Allen said he wanted to find out
if Purscell was a "volunteer organizer" or had been
"persuaded" by someone else to support the Union,
and if he was really for the Union. When Purscell
answered in the affirmative, Allen responded by saying
that he could not understand that and was shocked that
Purscell had "turned against the Company," in light of
the wages and promotions the Company had given him.
We find that the Employer had no legitimate reason
for the interrogation and that it was strictly concerned
with Purscell's union activity. Considering that the
Employer failed to give Purscell assurances that no
reprisals would be taken against him for answering
i All dates herein are in 1973 unless otherwise noted
Allen's questions openly, we find that the purpose and
effect of the interrogation was to intimidate Purscell in
his pursuit of protected union activity, and was there-
fore coercive. Unlike our colleague who dissents as to
this finding,' we can perceive of no other reason for
Allen's interrogation of Purscell, nor does the Re-
spondent offer any evidence to justify Allen's actions.
In these circumstances, the fact that Purscell had ear-
lier voluntarily revealed his union affiliation to a com-
pany foreman does not, in our view, negate the coercive
nature of Allen's interrogation of him. Nor are we
concerned with whether Allen's conduct actually had
an intimidating effect on Purscell as the test is whether
it would tend to have such an effect on employees
exercising their statutory rights. Therefore, we find the
interrogation of Purscell to be unlawful under Section
8(a)(1) of the Act. See Uniroyal, Inc., 197 NLRB 1034
(1972).
B. Unlawful Interrogation of Cone and Sullivan
As to Cone and Sullivan, the Administrative Law
Judge concluded that "such isolated interrogation in a
campaign marked by an apparent general willingness of
employees to identify themselves openly for the Union
cannot suffice . . . to support an 8(a)(1) finding." The
record establishes, however, that at the time when
Cone and Sullivan were asked about their interests in
the Union none of the employees had voluntarily dis-
closed their support of the Union or their positions as
employee organizers to the Company. This self-disclo-
sure procedure did not begin until May 16, after the
discharge of employee Cone.
On the morning of April 18, after the first union
meeting, according to the uncontested testimony of
Cone, Foreman Williams approached him and asked
him if he knew anything about the Union's organizing
campaign. Cone replied that he had enough other prob-
lems "without worrying about the Union." And em-
ployee James Sullivan testified without contradiction
that on April 19 he was approached by his supervisor,
Stuart Shook, and asked if he was for "the Union bit"
to which Sullivan answered that he was.
It is obvious from the timing of the questions in-
volved herein that the Respondent was attempting to
find out the extent of union support among the em-
ployees following the first employee union meeting of
April 17. No other reason for such interrogation is
advanced or plausible. We find this, therefore, to be
2 Chairman Miller is of the opinion that there is insufficient evidence here
to find a violation of Sec . 8(a)(1) He fails to understand how Purscell could
possibly have been intimidated by questions about the union activity which
he freely had volunteered he was engaging in, and notes that his colleagues
offer no rationale whatever for their naked conclusion that the "purpose and
effect" was to intimidate Purscell It is clear that it had no such effect, in
the Chairman's view of the record, and he finds no evidence to support the
view that it was intended for that purpose.
215 NLRB No. 23
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogation of a coercive nature, as it tends to inter-
fere with the employees' exercise of rights statutorily
guaranteed.' In view of the fact that we are finding
that Respondent committed other violations of Section
8(a)(1) and (3) of the Act, we find, contrary to the
Administrative Law Judge, that these two incidents
were not isolated or insignificant.
C. Harassment by Excessive Surveillance
On May 16, rebar employees Martin, Clemens, and
Purscell informed their respective supervisors that they
were union organizers. The foreman on duty, Hun-
ziker, immediately telephoned Plant Superintendent
Allen at his home. Allen then came to the plant to
discuss the situation with the foreman and stayed until
11:30 p.m. that night. He returned early the next morn-
ing and contacted his superiors, Kampouris, Creed,
and Haney," all of whom came to the plant on the
next 2 days from their own offices located at least a city
block away, and spent considerable time on the floor in
the rebar area. In addition, Creed, on May 17, also
made a night visit to the rebar area of the plant.
According to the mutually corroborated testimony
of the three employees which was not discredited, dur-
ing the 2-day period following the employees' an-
nouncement that they were union organizers, these
supervisors watched them closely over long periods of
time. Such intense and constant supervision was totally
unprecedented and unexplained. The employees testi-
fied that they had never seen Creed before and had seen
Haney and Kampouris only once or twice before. After
May 18, they did not see these supervisors again.
The Administrative Law Judge found that the em-
ployees were subjected to an unprecedented vigil, but
that this did not constitute unlawful surveillance, as
there was no evidence that the employees' union activi-
ties rather than their work activities were being
watched. We disagree.
In view of the unprecedented nature of these visits
and their timing-2 days after Purscell, Clemens, and
Martin had announced their positions as volunteer un-
ion organizers-as well as the absence of any evidence
that the employees' work-related conduct warranted
such constant and prolonged policing; we find that
these visits had the purpose and effect of harassing and
3 Chairman Miller concurs in this finding for the reason that such interro-
gation is "interference" under Sec 8(a)(1) in that employees may well infer
that the employer 's purpose is to identify the union proponents so that they
may be subjected to improper pressures He rejects , however, the view that
an employer violates the Act merely because he wishes to determine "the
extent of Union support" a matter in which the Chairman believes an em-
ployer has a natural and legitimate interest
4 Respectively their positions with the Company were production
manager, Tampa Reinforcing Steel Division , division manager, Tampa
Reinforcing Steel Division , and general manager, Reinforcing Steel Florida
Region
intimidating the employees because of their union ac-
tivities. Accordingly, we find that by such conduct Re-
spondent violated Section 8(a)(1) of the Act.'
D. No-Solicitation Rule
The parties stipulated at the hearing that Respond-
ent has maintained, since 1968, the following rule 4
among its established plant rules:
No person will be allowed to carry on union
organizing activities on the job. Anyone who does
so and thereby neglects his own work or interferes
with the work of others will be subject to dis-
charge. Solicitation for membership, pledges, sub-
scriptions or the unauthorized collection of
money, or circulation of petitions or conducting
any outside business on the company's time, with-
out permission of the Manager is prohibited.
The Administrative Law Judge found the rule in
question to be presumptively valid on its face. The
General Counsel excepted to the prohibition against
soliciting "on company time" as an unlawfully broad
restriction on the employees' right to solicit union
membership and to circulate petitions during their non-
working time. We agree with the General Counsel.
The Board in KDI Precision Products, Inc., 185
NLRB 335, 336 (1970), held unlawful a rule prohibit-
ing employees from soliciting "on company time, or
while you are rang in on the card" (sic) as unduly
restrictive of their Section 7 rights and a violation of
Section 8(a)(1) of the Act. Also, in The Ohio Masonic
Home, 205 NLRB 357 (1973), the Board found invalid
an orally promulgated rule against solicitation or distri-
bution of union literature "on company time."' The
Board found that the phrase "on company time" was
ambiguous as it could reasonably be interpreted to
mean that an employee may not engage in solicitation
or distribution at any time the employee is on the clock
even at a time the employee had finished his work and
is in a nonwork area.
More recently, the Board held, in Essex Interna-
tional, Inc., 211 NLRB 749 (1974), that a rule prohibit-
ing solicitation "during working hours" unduly re-
stricts employees in the exercise of their Section 7
rights.' We find that the term "company time," like
5 See Ohio Hoist Manufacturing Co., 189 NLRB 685 (1971)
6 Chairman Miller, who dissented without comment from the finding that
the no-solicitation rule in The Ohio Masonic Home case was invalid, has
reconsidered his position concerning the presumptive validity of the rule in
that case and now adheres to the majority view therein as to that issue. See
QIC Corporation, 212 NLRB No 9 (1974), and KDl Precision Products,
Inc, supra
r The Administrative Law Judge herein found that a rule prohibiting
solicitation during working hours would be presumptively valid However,
subsequent to the Administrative Law Judge 's Decision , the Board came to
a contrary conclusion in Essex International, Inc., supra.
FLORIDA STEEL CORPORATION 99
"working hours" is unduly ambiguous and tends to
connote all paid time from the beginning to the end of
the work shift, and can easily be interpreted as a restric-
tion on solicitation during breaktime or other periods
when employees are compensated although not actively
at work. Therefore, considering also that there was no
evidence adduced that such a broad rule was necessary
to maintain discipline or production, and the rule was
not posted until after the union campaign began, we
find that this rule is unduly restrictive of the employees'
rights under Section 7 of the Act to engage in union
activities and is, therefore, presumptively invalid and
violative of Section 8(a)(1) of the Act.
E. Enforcement of the No-Solicitation Rule
The Administrative Law Judge found that the warn-
ing letter given to employee J. W. Sullivan for violation
of company rule 4 was not unlawful . We disagree.
Although rule 4 had been in existence since 1968,
according to the record it was not posted until 1-2
weeks after Sullivan had received his warning letter,
and no evidence was adduced that the employees were
ever made aware of this rule , prior to its posting.
Sullivan admitted that on May 21 , while he and two
other mechanics were waiting for some maintenance
employees to finish work on the "mag" cable , he asked
the employees how they felt about the Union. They
replied that if the Union got in they would sign up. This
was the entire extent of the conversation . Later that
morning, Sullivan was given a written reprimand from
General Foreman Hastings for soliciting on the job.'
It is important to note that there is no evidence that
Sullivan ever actually solicited another employee. In
our opinion, this was nothing more than a conversation
between two employees as there was no direct solicita-
tion or showing that the two employees at any time
stopped working . 9 Also, Sullivan 's conversation, to
which the warning apparently referred , was of a very
brief duration lasting no more than a few seconds and
it neither interfered with nor held up production. Fur-
thermore , the Board has found warnings against solici-
tation to be invalid where the employees soliciting were
not engaged in work but rather , through no fault of
their own , were waiting to perform work.10
Thus, in finding , contrary to the Administrative Law
Judge, that the warning notice to Sullivan interfered
with his Section 7 rights and violated Section 8(a)(1),
we rely upon the following factors:
8 The written reprimand stated that "On 5/21/73 you were soliciting
employees during their working time This is prohibited Further violations
of company rules will result in further disciplinary action up to and including
discharge."
9 Montgomery Ward & Co, Incorporated, 202 NLRB 978 (1973)
10 Exide Alkaline Battery Division of ESB, Inc, 177 NLRB 778 (1969),
and Mueller Brass Co., a Subsidiary of U V Industries, Inc, 204 NLRB 617
(1973).
(1) The rule was too broad and ambiguous; (2) it was
not posted until 1-2 weeks after Sullivan received the
warning letter and up until that time the employees
were unaware of its existence; (3) there was no evidence
that Sullivan actually solicited other employees or that
his conversation with the two employees interfered
with the employees' work; (4) the conversation was
only of a moment's duration; and (5) the issuance of a
warning of this nature was totally unprecedented.
Accordingly, we find that the issuance of a warning
letter to Sullivan was a violation of Section
8(a)(1) . "
II THE ALLEGED 8(a)(3) VIOLATIONS
The Administrative Law Judge concluded that the
discharges of employees W. C. Martin, Richard Pur-
scell, and Henry G. Blessing were not in violation of
Section 8(a)(1) and (3) of the Act. He found that they
were discharged not for their union activity but rather
because the Employer had good cause for terminating
them. We disagree.
A. The Discharge of W. C. Martin
The Administrative Law Judge held that employee
W. C. Martin was discharged solely for threatening
other employees. The record convinces us that Martin
was fired for his union activities.
According to the credited testimony, on or about
June 27, Martin, who had been employed at Respon-
dent's plant since 1966, notified his foreman that he
had signed a union card and was now trying to organize
for the Union. Martin testified without contradiction
that on June 29 he was called into Division Manager
Bodeman's office. Bodeman told him that he had heard
that Martin had threatened the employees by saying
that if they did not join the Union they would not have
i i Contrary to our dissenting colleague, we find that Sullivan was not
discharged for his union activities in violation of Sec 8 (a)(3) Our colleague
mistakenly states that "Sullivan was told by Hasting that he was fired for
breaking a company rule and damaging company property." Our colleague
implies that the "company rule" refers only to the no-solicitation rule
However, as more fully set forth in the Decision of the Administrative Law
Judge, neither the Employer's witnesses nor Sullivan testified that he was
fired for violating only the no -solicitation rule Rather , the credited tes-
timony was that Sullivan was discharged for his prior work record and his
negligence in causing an accident which resulted in extensive damage to
company property Thus, our colleague minimizes the fact that Sullivan had
previously received disciplinary reports for tardiness and an unexcused
absence in addition to one for violation of the Company 's no-solicitation
rule The dissent also ignores that the Administrative Law Judge discredited
the testimony of Sullivan and credited the testimony of the Employer's
witnesses regarding the extent of the damage to company property and
Sullivan's culpability therefor
Contrary to our colleague's view, the discharge of Martin, which we find
violative of Sec . 8(a)(3), is clearly distinguishable from Sullivan's termina-
tion Unlike Sullivan, Martin, who had worked for the Company for 6 years,
had no prior disciplinary record Also, in Martin's case, the Employer ad-
mitted that he was discharged for violating the Company's no-solicitation
rule
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a job when the Union did come in and that they would
be fired. 12 Although Martin denied making such a
threat and asked who his accusers were, Bodeman de-
clined to give that information and suspended him for
3 days and, thereafter, terminated him on July 3.
The Administrative Law Judge found that Martin
was suspended and discharged solely for threatening
other employees. The evidence does not support this
finding. Bodeman on cross-examination admitted that
Martin was suspended "for soliciting on company time
in violation of Rule 4" and in order to give Bodeman
and Department Superintendent Campbell time to in-
vestigate the charge against Martin regarding his al-
leged threats to employees. Also, the Company's disci-
plinary report regarding Martin's 3-day suspension
stated that Martin was suspended for "carrying on un-
ion organizing activities on the job" in violation of
plant rule 4.13
Martin testified that at the time of termination he
was told by Campbell that he was discharged for "talk-
ing union." While Campbell maintained that the pri-
mary reason for Martin's discharge was that he
"threatened the security of people at work," he did not
deny that he may have reprimanded Martin for "talk-
ing union" to the men on the job. Campbell also admit-
ted that during the discharge interview he informed
Martin "that he [Martin] had violated Company Rule
4 which prohibits solicitation or union activities on
company time." Furthermore, Bodeman on cross-
examination admitted that one of the reasons for Mar-
tin's dismissal was his violation of rule 4. Based on the
admissions of Respondent's witnesses, there is no ques-
tion but that Martin was terminated, at least in part, for
violation of Respondent's no-solicitation, no-distribu-
tion rule, which we have heretofore found invalid.
In sum, finding that Martin was discharged for en-
gaging in protected Section 7 activities, we rely upon
the following factors:
(1) Martin was never told who had accused him of
making threats and the Employer failed to present any
witness to testify to having been threatened by Martin;
(2) the undisputed evidence that Campbell had accused
Martin of "talking union" and the admission by Camp-
bell and Bodeman that Martin was fired for violating
rule 4; (3) as stated above, prior to the advent of the
union campaign, rule 4 was never posted, and the issu-
ance of a written reprimand or a discharge for violation
of this rule was totally unprecedented; and (4) the re-
12 Bodeman was informed of the alleged threats by Rolling Mill Supenn-
tendent Campbell
13 The disciplinary report in the part entitled "Statement to Employees"
stated, "During the week ending 6/30/73 while working as Mill Craneman,
you were in violation of Rule #4 when you carried on union organizing
activities on the job and threatened employees' loss of jobs You are hereby
suspended from work for 3 days pending further investigation and will
return to work on Tuesday July 3, 1973 at 8.00 a.m. to determine final
disposition of this matter "
cord does not establish that Martin had ever solicited
any employee, nor was there,any evidence that Martin
made comments regarding the Union to any employees
during his or their worktime or that he in any way
caused production or discipline to be impaired.
In these circumstances, we find that Respondent's
alleged reason for the discharge was pretextual and
Martin was discharged for his union activity in viola-
tion of Section 8(a)(3) and (1) of the Act.
B. The Discharge of Richard Purscell
The Administrative Law Judge found that Purscell,
who was hired in August 1972, and fired June 11, was
discharged because of his involvement in four separate
disciplinary incidents. We disagree.
On May 18, 2 days after his announcement on May
16 that he was a union organizer, Purscell received a
warning letter and a 1-day suspension for operating a
forklift on May 15 at an unsafe speed and in an unsafe
manner. No one had mentioned this infraction to him
on May 15, when the incident allegedly occurred. Pur-
scell's second safety infraction, for which he received a
verbal warning on June 6, was riding on the side of a
truck. The Administrative Law Judge neither credited
nor discredited Purscell's testimony that he had done
the same thing in the past without criticism as had "just
about anybody that had worked there," including his
foreman. On June 8, Purscell received another safety
warning for an accident in which he damaged a tractor.
The undisputed evidence discloses that, before the
union drive began, employees Alvarez and Sanders
were involved in similar accidents which had caused
more extensive damage than Purscell's accident, yet
they received no discipline whatsover.
In the meantime, on May 23, Purscell had received
a written warning for being absent from work without
a doctor's excuse. Purscell's uncontroverted testimony
was that he became ill while at work on May 21 and
his foreman allowed him to leave work early. On May
22, he called Superintendent Allen's office and told
Allen's secretary that he was still sick and would be
absent that day. She replied that was all right. On the
following day, May 23, he reported to work without a
doctor's excuse for which he received a written warn-
ing. According to Purscell's uncontradicted testimony,
he had also been out sick in March and returned to
work without a doctor's excuse, but was not given a
reprimand at that time.
The record discloses that Purscell had been the sub-
ject of special scrutiny, interrogation, and harassment
from the first day following his announcement that he
was a union organizer. Indeed, at about the same time
that he received the written reprimand for his unex-
cused absence, Allen had interrogated him regarding
FLORIDA STEEL CORPORATION 101
his union activities, as discussed supra. The record fur-
ther shows that the treatment given Purscell changed
after he announced his union involvement. Thus, prior
to his union involvement he was not given a warning
for being absent without a doctor's excuse. In addition,
the treatment accorded Purscell with regard to his acci-
dent was different from the treatment two other em-
ployees received who were involved in similar acci-
dents. Further, we find significant the fact that all the
alleged rule infractions occurred after the Company
learned that Purscell was a union organizer. Prior to
this, Purscell had had a clean record, except for one
written warning which he had received 6 months previ-
ously. Indeed, Purscell had recently received a promo-
tion and several raises. In these circumstance, we find
that the four alleged disciplinary incidents relied upon
by Respondent as reasons for terminating Purscell were
seized upon as pretexts to conceal the real reason for
the discharge, namely, Purscell's union activity. Ac-
cordingly, we find that Purscell was discharged for his
union activity in violation of Section 8(a)(3) and (1) of
the Act.
C. The Discharge of Henry E. Blessing
The Administrative Law Judge found that the Com-
pany discharged Blessing for attempting to strike Fore-
man Shook. We disagree with this finding.
Henry Blessing was hired in July 1972 and dis-
charged on May 31. He worked directly under Fore-
man Shook, whose immediate supervisor was General
Foreman Hastings . Blessing notified Hastings on May
23 that he was a volunteer organizer for the Union. On
May 28, Blessing and Shook got into a verbal spat
during which Blessing told Shook, "God dammit quit
pushing so hard. Back up a little bit." Blessing testified
that after his remark Shook told him that "He wasn't
going to allow one to cuss at him or no one else, and
that he didn't have to take it." Shook credibly testified
that Blessing , in uttering his remarks, drew back his left
fist as if to strike him. Shook further testified that he
did not report the incident to his superior, General
Manager Hastings . Another foreman, however, in-
formed Hastings of the incident and, on May 30, Bless-
ing was called into Hastings' office. Hastings told
Blessing that he had heard about Blessing 's cursing and
threatening Shook, that he would not allow it, and that
Blessing should report back the following morning
when he would receive disciplinary action. The next
day Blessing was called into Hastings' office again
where Shook, under orders from Hastings, told him he
had to terminate him because "if Blessing got away
with it" everybody else would expect similar treatment.
We find that the stated reason for Blessing's
discharge-his threatening gesture toward
Shook-was pretextual and Blessing was discharged
for engaging in protected conduct under Section 7 of
the Act. In reaching this conclusion, we have consid-
ered the Respondent's known hostility to the Union,
the fact that Blessing had received no prior disciplinary
warnings, and the timing of Blessing's discharge, 8 days
after he announced his involvement in the union organ-
izing effort. We also consider significant Shook's tes-
timony that he had not thought that Blessing's act was
"that serious" and that he told Blessing, "I want you
to know I had nothing to do with turning you no."
Therefore, we find that the Respondent, by discharging
Blessing, violated Section 8(a)(3) of the Act.14
CONCLUSIONS OF LAW
We adopt the Administrative Law Judge's Conclu-
sions of Law to the extent that they are consistent with
the following additional conclusions which we hereby
make.
1. By promulgating and maintaining a no-solicitation
rule which prohibits employees from soliciting for the
Union in work areas during their nonworking time and
by giving out a warning letter for violating this prohibi-
tion, Respondent has violated Section 8(a)(1) of the
Act.
2. By interrogating employees with regard to their
union membership and activities, Respondent has vi-
olated Section 8(a)(1) of the Act.
3. By harassing employees by extensive surveillance
and policing of employees who are known union sup-
porters, Respondent has violated Section 8(a)(1) of the
Act. ,
4. By discharging W. C. Martin, Henry E. Blessing,
and Richard Purscell, Respondent has violated Section
8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, we shall order Respondent to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
14 Chairman Miller would agree with the Administrative Law Judge's
finding that Respondent fired Blessing for threatening Foreman Shook and
not because of his union activities Whether Shook viewed the threat as a
serious disciplinary offense is , in the Chairman 's view , irrelevant to the issue
of whether the company management can legally and properly maintain
plant discipline by discharging an employee for this kind of activity The
Chairman believes it can, and did There is no showing that other employees
were permitted to engage in such threats with impunity and hence the
Chairman sees no ground for finding it pretextual
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that Respondent issued an unlawful
warning letter to J. W. Sullivan, we shall order that the
Respondent rescind that notice and expunge any refer-
ence to it from Sullivan's personnel files.
Having found that Respondent has violated Section
8(a)(3) and (1) of the Act by discharging W. C. Martin,
Henry E. Blessing , and Richard Purscell, we shall or-
der Respondent to offer them immediate and full rein-
statement to their former jobs, or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privi;
leges , and make them whole for any loss of earnings
they may have suffered as a result of the discrimination
against them by paying to each a sum of money equal
to that which he would have earned as wages , from the
date on which he was discharged to the date of Respon-
dent's offer of reinstatement, less his net earnings dur-
ing said period.
Backpay shall be computed in the manner described
in F W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 136 NLRB 716
(1962).
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Florida Steel
Corporation, Tampa, Florida, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees as to their union mem-
bership and activities.
(b) Harassing employees by extensive surveillance
and policing of the employees who are known union
supporters.
(c) Discharging employees, or otherwise discriminat-
ing in regard to their hire or tenure of employment, in
order to discourage membership in United Steelwork-
ers of America, AFL-CIO, or any other labor organi-
zation.
(d) Promulgating, maintaining in effect, enforcing,
or applying any rule or regulation prohibiting its em-
ployees from soliciting on behalf of any labor organiza-
tion in work areas during their nonworking time, and
distributing union literature in nonwork areas during
their nonworking time.
(e) Reprimanding or giving warning letters for viola-
tion of an unlawful no-solicitation rule.
(f) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
to self-organization , to form, join, or assist labor organ-
izations, including the above-named organization, to
bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to W. C. Martin, Richard Purscell, and
Henry Blessing immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of pay they
may have suffered as a result of the discrimination
practiced against them in the manner set forth in the
section of this Decision entitled "The Remedy," with
interest thereon at 6 percent per annum.
(b) Rescind the rule against solicitation on company
time.
(c) Rescind the unlawful warning letter issued to
employee J. W. Sullivan and expunge from his person-
nel file any reference thereto.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its plant in Tampa, Florida, copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 12, after being duly signed by an authorized
representative of the Respondent, shall be posted by
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 Respondent to insure that said notices
are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be dismissed
as to those allegations not specifically found herein.
MEMBER FANNING, concurring in part and dissenting in
part:
I agree that Respondent violated Section 8(a)(1) and
(3) as set forth by my colleagues in their majority opin-
ion. In addition, however, I would also find that Super-
visors Allen's and Breglar's interrogations of Fer-
is In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
FLORIDA STEEL CORPORATION 103
raraccio were coercive in nature and violative of
Section 8(a)(1).
Moreover, I would further find that Sullivan was
discharged in violation of Section 8(a)(3). In my opin-
ion Sullivan's discharge is a classic example of a pretex-
tual discharge. Sullivan joined the Union at its first
meeting and was among the admitted union
organizers.16 He was unlawfully interrogated as early
as April 19, and admitted he was for the Union. On
May 21, 1973, he received a disciplinary report from
Hastings for violation of rule 4, "soliciting employees
during their work times.""
On Sunday, July 22, Sullivan had an accident when
his crane's boom cables hit a smoke control duct. Ac-
cording to uncontradicted and corroborated testimony,
the brakes were bad on the crane, and Sullivan had
earlier in the evening reported the bad brakes to the
proper management officials. Immediately after the ac-
cident, Ringley accused Sullivan of "hotrodding." Sul-
livan replied it would be impossible to "hot rod" the
crane. Sullivan was corroborated on this point by Bas-
sett, another crane operator who also testified that on
occasion he had also hit the smoke pipe and had en-
countered frequent problems with the brakes.18
After the accident, General Foreman Hastings took
no immediate action, but said he would look into the
matter. Sullivan worked the next day; at the end of his
shift he was called over to a furnace by Superintendent
Weidman who, after Sullivan repeated his account of
the accident, asked Sullivan if he had ever received a
disciplinary report before. Sullivan replied that Hast-
ings had written him up for "soliciting on company
property." Weidman said he would have to look into
that and would let Sullivan know the next day. The
next day Sullivan was told by Hastings that he was fired
for breaking a company rule19 and damaging company
16 It should be noted that ultimately the Respondent for one reason or
another terminated all the union organizers.
17 Note we have found not only that the no -solicitation rule was presump-
tively invalid on its face , but that enforcement of the rule against Sullivan
violated Sec 8 (a)(1).
18 Although the Administrative Law Judge makes much of the fact that
Bassett may actually have hit a different pipe, in my view , even if it were,
true, it has little bearing on the real issue herein
19 In my opinion , contrary to the majority's position , this was a clear
reference to Sullivan 's disciplinary report for "soliciting on company prop-
erty ." Thus, when Sullivan told Weidman , pursuant to Weidman's inquiry,
that he had been written up for "soliciting on company property," Weidman
said he would have to look into that. The majority states that I failed to note
that Sullivan had received a disciplinary report for tardiness and an unex-
cused absence In so doing , however, the majority neglects to mention that
this disciplinary report was given to Sullivan in October 1972, 9 months
prior to his July 1973 discharge Respondent, in my opinion, was not con-
cerned in July 1973 with Sullivan 's tardiness or unexcused absence of almost
a year past, particularly since there is no indication that Sullivan had been
other than an exemplary employee in that regard or that such past deficien-
cies had not been corrected . Generally, such outdated or stale reasons
assigned for discharge are found pretextual in nature On the other hand,
Respondent was concerned with union activity and particularly soliciting
for the Union Thus, Martin was discharged for soliciting for the Union
although the Respondent contended that the discharge was for threatening
property. Hastings testified that in light of Sullivan's
prior disciplinary reports he was terminated for destruc-
tion of company property.
The Administrative Law Judge discredited Sul-
livan's version of the accident primarily because of Sul-
livan's low estimate of the damage and, substituting his
own judgment, concluded Sullivan was not sufficiently
careful with the crane. He found that it cannot be
concluded that Sullivan's discharge was motivated by
his union activity. He further found that Respondent's
consideration of Sullivan's prior disciplinary record in-
dicated only that Sullivan's record was not good
enough to justify his retention after his accident. He
noted that "even if the determining factor were Sul-
livan's union solicitation that had resulted in his May
21 reprimand, the unprotected nature of such conduct
would prevent reliance thereon as a basis for finding a
violation in the discharge."
I believe Sullivan's discharge was clearly pretextual
in nature. Sullivan was a leading union adherent. He
had been interrogated in violation of Section 8(a)(1).
The invalid no-solicitation rule had been dis-
criminatorily enforced against him in violation of Sec-
tion 8(a)(1). He, like all the other union organizers, was
discharged. The crane's brakes were admittedly bad.
There is no evidence that other employees had been
discharged for accidently damaging company property
except for Purscell, whose termination we find was
violative of Section 8(a)(3). Sullivan was not discharged
immediately, in spite of the alleged extensive damage to
company property. Rather he was discharged only,
after Weidman told Sullivan he would look into Sul-
livan's disciplinary report for "soliciting on company
property." This clearly indicates to me that the acci-
dent in and of itself was not considered by Respondent
serious enough to warrant discharge .2' However, Sul-
livan was discharged because he had broken a company
rule or had prior disciplinary reports, and had damaged
company property, as was confirmed by Hastings.
The Administrative Law Judge found the no-solici-
tation rule presumptively valid and that it was not
discriminatorily enforced against Sullivan. He there-
fore indicated that he would not find Sullivan's dis-
charge violative of the Act even if the determining
other employees In addition, I note that Respondent ultimately terminated
all of the employee union organizers herein Moreover, Respondent's hos-
tility to unionization and, in fact, this Union is further evidenced by its
conduct at its Charlotte, North Carolina, plant where it committed numer-
ous violations of Sec 8(a)(1) and (3) See Florida Steel Corporation, 214
NLRB No 59 (1974) There the Respondent engaged in a similar campaign
to eliminate union sympathizers The Board found that 14 union adherents
were discharged in violation of Sec 8(a)(3) As here, the reasons given for
the discharges were clearly pretextual in nature.
20 While the Administrative Law Judge discredited Sullivan 's low esti-
mate of the property damage, it appears to me that , if the damage was as
extensive as the Administrative Law Judge concluded it was, Respondent
could have fired Sullivan immediately for that reason alone without finding
it necessary to also rely on Sullivan' s past disciplinary reports.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factor were Sullivan's union solicitation which had re-
sulted in the reprimand.
However, contrary to the Administrative Law
Judge, we have found not only that Respondent's no-
solicitation rule was invalid on its fact but that it was
unlawfully enforced against Sullivan. Sullivan's dis-
charge, by Respondent's own admission, was based in
part, as was Martin's, on the unlawful disciplinary re-
port which in turn was the result of the unlawful no-
solicitation rule. Since Sullivan's union solicitation, if
not the determining factor, played at least a significant
part in his discharge, it is clear that Sullivan's discharge
violated Section 8(a)(3). Indeed, I am unable to under-
stand the different treatment accorded Martin and Sul-
livan by the majority. The majority, with which I con-
cur, finds that Martin's discharge was violative of the
Act because "there is no question but that Martin was
terminated, at least in part, for violation of Respon-
dent's no solicitation, no distribution rule, which we
have heretofore found invalid" (emphasis
supplied)." I am convinced that Sullivan's discharge,
like Martin's, was clearly pretextual and that Sullivan
was fired for his union activities in violation of Section
8(a)(3).
21 Indeed , even if Respondent also considered Sullivan 's 9-month-old
tardiness and unexcused absence , which I doubt, he was still terminated at
least in part for violation of the unlawful no-solicitation rule
WE WILL NOT reprimand or give out warning let-
ters to employees for violating an unlawful no-
solicitation rule.
WE WILL NOT engage in excessive policing and
harassment of our employees because they support
a union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the rights guaranteed in Section 7 of the National
Labor Relations Act, as amended.
WE WILL offer immediate and full reinstatement
to W. C. Martin, Henry E. Blessing , and Richard
Purscell to their former positions or, if those jobs
no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or previous
privileges.
WE WILL make W. C. Martin, Henry E. Bless-
ing, and Richard Purscell whole for any loss of pay
they may have suffered as a result of our discrimi-
nation practiced against them with interest at 6
percent per annum.
All our employees are free to become, remain, or
refrain from becoming or remaining members of the
above-named or any other labor organization.
FLORIDA STEEL CORPORATION
DECISION
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which both sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the law and has or-
dered us to post this notice; and we intend to carry out
the Order of the Board, and abide by the following.
WE WILL NOT discharge our employees from
work, or otherwise discriminate in regard to their
hire and tenure of employment in order to discour-
age their membership in United Steelworkers of
America, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT interrogate our employees as to
their union membership and activities, and those
of their fellow employees.
WE WILL NOT enforce company rule 4 which the
Board has found to be invalid, or any rule which
prohibits employees from soliciting on behalf of
any labor organization in work areas during non-
working time or distributing union literature in
nonwork areas during their nonworking time.
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge: This con-
solidated case was tried before me on October 30-31 and
November 1-2, 1973,' at Tampa, Florida. The charges were
filed by United Steelworkers of America, AFL-CIO, herein
called the Union, and duly and timely served on Respondent.
Complaint issued August 15 and was amended October 15.
The primary issues are whether Respondent violated Section
8(a)(1) of the National Labor Relations Act, as amended (29
U.S.C., §151, et seq.), herein called the Act, by interrogating
its employees concerning their union activities , maintaining
surveillance over such activities , and maintaining and giving
effect to a no-solicitation , no-distribution rule; and violated
Section 8(a)(3) of the Act by the issuance of disciplinary
letters to J.W. Sullivan and W.C. Martin and the discharge
of said employees as well as Gerald W. Cone, Henry E.
Blessing , and Richard L. Purscell.
Upon the entire record,' including my observation of the
witnesses, and after due consideration of the brief filed on
behalf of Respondent,' I make the following:
1 All dates are in 1973 except as otherwise stated
2 The stenographic transcript contains numerous errors but none of suffi-
cient significance to affect the resolution of any substantial issue For the
purpose of clarity, however, p 1119, l 7, is corrected by substituting "Wil-
son" for "Russell," and p 1131, 1 9 , is corrected by substituting "where"
for "we have "
3 The General Counsel failed to file a brief Nor did he attempt to cover
any of the numerous factual issues in his closing statement at the hearing,
a not unwise decision considering the improbability of according the issues
adequate treatment in that manner As a result , however, it has become
necessary to resolve the issues without the benefit of knowing the General
FLORIDA STEEL CORPORATION 105
FINDINGS AND CONCLUSIONS
I RESPONDENTS BUSINESS
The complaint alleges, the answer admits, and I find that
Respondent is a Florida corporation with its principal office
and place of business at Tampa where it is engaged in manu-
facturing and selling structural iron and steel products; that
during the 12-month period immediately preceding the issu-
ance of complaint, a representative period, Respondent pur-
chased goods and materials valued in excess of $50,000 which
were shipped to Tampa directly from points located outside
of Florida; and that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
11 THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Facts
1. Organization of the employees
On April 17 a group of employees numbering somewhere
between 10 and 16 met at a Holiday Inn, signed union mem-
bership cards, and agreed to serve as volunteer organizers.
They held two more meetings within the next month, mean-
while signing up some additional employees. A number of the
employees announced their union affiliation to their supervi-
sors.
According to at least one supervisor (Williams), the super-
visory personnel had been briefed at a staff meeting as early
as January or February about the possibility of a union drive.
On May 18 the employees of Respondent's Tampa Steel Mill
Division were sent a letter by the Corporation urging them
not to sign union cards.
2. The 8(a)(1) conduct
a. Interrogation
Employee Grady Lawhorne,` a crane operator, testified
on direct examination that the day before the first union
meeting he was called to the office of Jim Hastings , general
foreman of melting and casting, where the following ensued.
A. He asked me if I had heard the grapevine rumor
about the union . I told him I had. He asked me if I knew
anything about it, and I told him I did. He asked me
what I thought about it. I told him I felt the unions were
good for everybody, at this particular meeting.
Q. Do you know whether or not he made a statement
about whether or not a meeting was going to take place?
Counsel's position concerning the evidentiary conflicts and the contentions
of Respondent
An 8(a)(3) charge based on his discharge was withdrawn
A. He asked me if I was going to attend the meeting.
And I told him I would be at the meeting. He asked me
if I knew when it was. He said he already knew when it
was.
Lawhorne's version of this conversation on cross-examina-
tion was as follows:
Q. When you got to his office what did Mr. Hastings
say?
A. He asked me if I knew about the union movements.
Q. What was your reply? To the best of your recollec-
tion were those the words that he used?
A. I am not going to say those were his exact words.
But he asked me about the union meeting.
Q. The union, or union meeting?
A. Union meeting. If I knew there was a movement
for a union meeting.
Q. He didn't ask you about the union in general terms.
He asked you specifically about the meeting?
A. No, he asked me about both of them. He asked me
to start with about the union, and then he asked me if
there was supposed to be a meeting.
Q. When he asked you about the union , what did you
say?
A. I said, "Yes, I know about it."
Q. When he asked you about the union meeting what
did you say?
A. I told him I knew about that also.
Q. What else did he say?
A. He told me he would talk to me the following day.
Q. Didn't he, at that time, ask you what you thought
about the union?
A. No, sir, he asked me the following day what I
thought about the union.
Q. He didn't ask you at that time?
A. He asked me what I thought about the union?
Q. Yes.
A. Yes.
Q. Didn't you tell him you thought it was a good idea?
A. Yes, I did.
Q. So, you let him know at this meeting-the first
conversation you had with him, that you thought the
union was good, because it was a good idea. I think that
is what you said, isn't it, sir?
A. Yes, sir.
Lawhorne also testified on direct to a further conversation
with Hastings the day after the April 17 union meeting as
follows.
Q. What, if anything, did he say at that time to you?
A. He asked me who was at the meeting and if we had
a good turn out, and if I thought they had a good chance
of winning.
Q. What did you tell him?
A. I told him I thought they had a good chance of
winning , and that I was present at the meeting.
On cross, however, his testimony concerning this conversa-
tion was:
Q. He asked you to come in? What was said at that
time?
A. He asked me how many were at the union, and'
asked if I knew how many. I said, " I was."
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. All right. When he asked about how many were at
the meeting, did he ask you for numbers?
A. Right. I said I was at the meeting.
Q. Did you tell him how many were at the meeting?
A. No, sir, I told him I thought we had a good turn
out.
Q. But you didn't tell him how many other than it was
a good turn out?
A. Right.
Q. Did you tell him who was there other than your-
self?
A. No, sir.
Q. What else did he ask?
A. He asked me what I thought the union chances
were.
Q. That is when you told him that you thought it was
pretty good?
A. Yes, sir.
Q. Did he make any comment to that?
A. He said he thought it was pretty good also. He said,
"what would you think if I told you I thought it was
pretty good, too?"5
A third conversation with Hastings, according to Law-
home, occurred sometime in May "after the second [union]
meeting ." On that occasion , Lawhorne testified on direct:
A. I was asked about a list which, in turn , later he said
he already had the list.
Q. He told you he had -
A. I said an employee had asked me a copy of the list
for phone numbers-Dale Ringley-he wanted to con-
tact some people. And, I was asked for a copy of this list.
My wife copied the list and gave it to him and Mr.
Hastings later ended up with it.
Q. You are saying Mr. Hastings' later statement to
you was that he had a list?
A. Yes, and that he knew who was at those meetings.
Q. When did this occur? Was this after the first meet-
ing?
A. No, this was after the second meeting.
Q. What had prompted Mr. Hastings , if anything, to
say that he had this list? Did he bung it up out of the
blue?
A. No, he had asked me about the list; and he had
asked me how many people were at the meeting and
who.
Q. When he asked you `who was at the meeting,' what
did you tell him?
A. I told him that I was there and I thought we had
a good turn out.
Q. After you said that, what, if anything, did he say?
A. Nothing. We talked about the chance of the union.
He made the statement that he thought the union might
win, too.
On cross, he failed to mention Hastings ' reference to the
Union's chances being good, and when Respondent's counsel
5 In his cross-examination Lawhorne placed this conversation as "the
following day" after the first conversation, which was obviously in error
since it related to the union meeting on tfiie intervening day
specifically asked about it Lawhorne replied that that had
occurred only in the April 18 conversation.
Hastings testified that he had had only one conversation
with Lawhorne about the Union and that this occurred at the
latter's work station as follows?
THE WITNESS: Mr. Lawhorne came up to me and asked
me was I aware that the employees were getting a union
and I told him I was not, and he informed me that it was
so and that there was to be a meeting, I believe, that
night. I told him that I did not know nothing about this
and that he had no reason for telling me and I was not
asking him about anything that pertained to the union
activities, if there was such. He then informed me that
he thought it was-that I should be aware of what was
going on with the job that I had. That was the end of the
conversation.
He denied that he had heard anything about a union meeting
prior to such conversation.
The morning after the first union meeting shortly after the
start of work, according to employee Gerald Cone, his fore-
man, Bob Williams, approached him and asked whether he
knew anything about the Union's organizing campaign, to
which Cone replied that he had enough other problems
"without worrying about the union." Williams flatly denied
any such conversation
The following day, according to employee James Sullivan,
his foreman, Stuart Shook, approached him near his work-
place and asked if he was "for the union bit," to which
Sullivan answered he was, and that Shook replied that he
should go ahead if that was what he wanted. Shook denied
asking Sullivan whether he favored the Union. He testified
that at some unidentified time Sullivan approached him while
he was sitting in a chair when one of the furnances was down,
and "he started talking. He said something about union and
I couldn't hear him too good. He said something about union,
and I said: Well, if that's what you want, go get it. And I got
up and left."
Employee Richard Purscell testified that about May 16 he
and Michael Martin went to the office of Bill Allen, plant
superintendent of the rebar shop, and in his absence told
Foreman Wally Hunziker that they were organizers for the
Union; that about a week later Hunziker told Purscell that
Allen wanted to see him; that he went to Allen's office where
Allen said he wanted to find out if Purscell were a "volunteer
organizer" or had been "persuaded" by someone else because
he did not understand why Purscell, who had recently re-
ceived a promotion and several raises would have "turned
against the Company"; that Purscell told Allen that some of
the employees were not satisfied, Allen asked what the prob-
lems were , Purscell attempted to explain, Allen said he knew
almost everyone was satisfied, Purscell replied that perhaps
he (Purscell) should talk to more people , and Allen said in
effect, "You have to do it on your own time . You can't do
it on Company time."
Allen denied asking Purscell if he were a volunteer organ-
izer, stating that the other employees were satisfied, or men-
tioning solicitation. He admitted calling Purscell to his office
but testified he told Purscell he was not inquiring into his
union activities but that as plant manager he wanted to know
whether there was some unresolved grievance that motivated
FLORIDA STEEL CORPORATION 107
Purscell's seeking outside help; that Purscell said he had no
problem but that some of the older employees deserved a
better pension program and that the hourly employees should
have a voice in management ; and that he replied that Purscell
was misinformed and that as long as Allen was manager he
would like to make the decisions.
Employee James Ferraraccio6 testified that about May 16
he and Alvarez stopped Superintendent Allen in the cafeteria
area and Alvarez volunteered the information that he and
Ferraraccio were union organizers, and that Allen said he did
not want to discuss it, turned around and walked off. On
several occasions during the remainder of his shift that day,
according to Ferraraccio, he noticed Allen observing him
closely, and near the end of the shift Allen came up to him
and asked if he was "one of them"; Ferraraccio said he was,
and Allen turned around and walked away. Allen admitted
being told that Alvarez and Ferraraccio were organizers but
denied any further conversation concerning their union ac-
tivities.
Ferraraccio also testified on direct examination that about
April 10, before joining the Union, he asked Foreman Fred
Bregler at the Royal Castle' restaurant' if he had heard any-
thing about the Union, saying that he (Ferraraccio) had
heard they were organizing; and that about a month later,
after he had joined, but before May 16,8 Bregler came up to
him in the Rebar office and asked if he had heard anything
more about the Union, to which Ferraraccio responded nega-
tively. On cross, Ferraraccio added that in response to his
question at the Royal Castle, Bregler had said, "No, but it has
caused me a lot of trouble, though," and that he (Ferraraccio)
had said that if everyone else went for the Union he would
too. Bregler's account of the Royal Castle conversation on
direct examination was that Ferraraccio said in substance
that "they were out to get [him] for forming a union," and
that Bregler replied that he "did not want to know the par-
ticulars because of what would happen to me in the execution
of my job " On cross, Bregler testified that Ferraraccio had
said certain jobs were too difficult, and the following ensued:
Q. (By Mr. Barford) How did the union come
into-did the union get in there, someway that he
brought it up?
A. He brought the subject up. He was talking about
Don Mackabee-his involvement with the Union.
Q. What did he tell you about Don? Can you recall?
A. He just said Don Mackabee and some of the other
jobs in the Shear ought to form a union.
Q. Did he indicate whether or not Don Mackabee or
some others had asked him to join?
A. No, he didn't indicate that at all.
Q. Do you know whether or not he indicated that he
might join if everybody else did? Do you recall that?
A. He said nothing about his position that I remem-
ber. He said nothing significant about his position one
way or the other.
Q. Okay. And your only comment to him was that you
did not want-in effect, you didn't want to discuss it
6 An 8(a)(3) charge based on his discharge was dismissed by the Regional
Director , and an appeal therefrom was denied
7 His statement taken during the investigation stated the incident oc-
curred on April 21 at the Crystal Restaurant
8 The complaint (par. 5(h)) puts this at June 1
because it might interfere with the performance of your
job?
A. No, I think I said something to the effect that I did
not think a union was appropriate at Florida Steel and
I'd rather not hear the particulars about it.
Bregler denied ever discussing the Union with Ferraraccio on
any other occasion.
b. Surveillance
Starting shortly after 9:30 on the evening of May 16, by
prearrangement among themselves, various employees in the
Rebar Shop informed several of the supervisors of their status
as organizers for the Union. Foreman Hunziker, apparently
the first to be so advised, telephoned Superintendent Allen at
home.' Allen immediately repaired to the plant where he
discussed with his foremen the various reports they had re-
ceived from the employees. Although he remained at the shop
until after the 11:30 shift change he returned again early the
following morning because of that new development and re-
ported the matter to his superiors, George Kampouris,
Thomas Creed, and Donald Haney,10 all of whom came to
Allen's office during the next 2 days from their own offices
at least a city block away and spent some time on the floor
in the rebar area. Their testimony" was that they did noth-
ing more than observe the flow of production as they had
normally done before and continued to do after. Allen testi-
fied similarly. His office opens on the rebar work area where
according to him, he spends the "major portion of [his] time."
Creed and Kampouris conceded they were "concerned" over
the men's interest in the Union. Creed, whose normal work-
ing hours are 8 a.m. to 6 p.m., testified on direct examination
that 2 or 3 days after receiving Allen's report concerning the
Union's progress he had "occasion to visit the rebar area after
[his] normal workday".
A. The occasion that took me there was the fact that
I had gone to a civil engineering meeting in Bradenton
that night and-which was down Route 41-and on the
way back it was not much out of my way to stop by the
plant and go into the plant.
He was unable to recall how long he stayed but "guess[ed]
that it was probably 20 minutes." On cross he first responded
affirmatively to General Counsel's question whether his visit
occurred 3 or 4 days after receiving Allen's report but then
said he believed "it was within a week I think it was two or
three days after. I did not apply much significance to it at the
time. That's the reason I don't recall." He later conceded it
could have been the night he received the report from Allen,
and that he might have been there the next day too12 and
might have stayed 30 minutes or an hour. As for the period
prior to the night of the civil engineers ' meeting , he first
testified that he "definitely had" spent time at night in the
9 Allen testified that the call came from Hunziker or Bregler and that he
believed it was the latter However, he also testified that the foreman told
him that his informants had been Martin and Clemens And Martin had told
Hunziker, not Bregler, while Clemens did not tell Bregler about it until after
11 30, by which time Allen had already arrived at the plant
1s Respectively, according to Respondent's answer, production manager,
Tampa Reinforcing Steel Division, division manager, Tampa Reinforcing
Steel Division, and general manager, Reinforcing Steel Florida Region
II Haney did not testify
12 Martin and Clemens placed him there both nights
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rebar shop but then qualified this categorical assertion as
follows:
A. I feel sure that I have been. The only reason I say
that I feel that I have-the only reason that I recollect
that one night is because I tie it specifically to the meet-
ing but, again because of having three shifts and coming
new to the shop, I wanted to make sure to get out to see
the men, see the foremen on all the shifts and I feel
certain probably that in the month of April and May
prior to this occasion, I probably had
Three rebar employees (Purscell, Clemens," and Michael
Martin) testified that they were under particularly close and
constant observation by numerous supervisors during those
2 days unlike any other period of time.14 At one point Pur-
scell testified that Kampouns stood there observing him and
nobody else for a 4-hour stretch According to Purscell, he
had seen Kampouns and Haney only once or twice before in
the rebar area and he did not see them after May 18. Michael
Martin, who is still employed at the Company, substantially
corroborated this on direct examination, applying it to Creed
as well (as did Clemens), and adding that even Allen did not
normally appear on the floor. He also testified that these
supervisors even used the employees' lunchroom contrary to
normal practice. Finally, he testified that his immediate fore-
man, Hunziker, and Foreman Bregler continued to observe
them closely from this time on, and that indeed these fore-
men, who had never used the employees' washroom, "must
have had dirty hands because they started washing their
hands a lot with us." On cross he conceded having seen these
supervisors on the floor somewhat more often but maintained
that when they were there, apart from the 2 days in question,
it was not to observe the men but only to walk through or to
do something specific like making some measurements.
c. The No-Solicitation Rule
It was stipulated at the outset of the hearing that Respond-
ent has maintained at least since 1968 the following rule 4 of
its "established plant rules":
4. No person will be allowed to carry on union organ-
izing activities on the job. Anyone who does so and who
thereby neglects his own work or interferes with the
work of others will be subject to discharge. Solicitation
for membership, pledges, subscriptions or the unauthor-
ized collection of money or circulation of petitions or
conducting any outside business on the Company's time
without permission of the Manager is prohibited.
Three employees gave testimony bearing on the adminis-
tration of this rule. William Martin, overhead crane operator
in the hot bed department of the rolling mill, testified that at
the time of his discharge on July 3 Superintendent Campbell
read from a piece of paper, as at least one reason therefor, that
he "had been organizing, or talking union on company
time."15 He also testified that although he himself "didn't
think [he] was allowed to on company time," i.e., while he
13 An 8(a)(3) charge filed on his behalf was dismissed by the Regional
Director , and an appeal therefrom was denied
14 As shown above, Ferraraccio's surveillance testimony was limited to
the conduct of Allen.
"was operating the crane" or "was working," he did not
recall ever having been so advised by the Company, and he
never saw the Company's plant rules until they were shown
him by the Union after his discharge.
Sullivan, D.E crane operator in the melt shop of the rolling
mill, testified on direct examination that notwithstanding he
confined his union solicitation to his own time," on May 20
General Foreman Hastings told him that he "had been hand-
ing out union literature, and soliciting on company prop-
erty," i.e., in the transportation and welding departments,
that he protested he had not and told Hastings that he had
talked to an employee in the canteen during his lunch break,
and that Hastings replied that "he would not have
[Sullivan] passing out union literature on company property.
And, he would not have [Sullivan] soliciting for the union on
company time," that he "could do it outside the company
property or in the parking lot, and not during the working
hours or the working area," that he was supposed to do it "on
[his] own time." On the following morning Sullivan was
standing in the melt shop beside the boom of the D.E. crane
which had broken down. With him were two mechanics from
the transportation department who were there to repair the
crane . While they were waiting from some maintenance em-
ployees to finish their preliminary work on the "mag"
cable," Sullivan asked the transportation employees how
they felt about the Union and they replied that if the Union
got in they would sign up. Later that morning, according to
Sullivan's direct examination , he was told to go to Hastings'
office where Hastings said that he had been warned "about
soliciting on company time-company property for the
union , passing out union literature and he was going to
have to write [ Sullivan ] up for it ." Hastings then gave
Sullivan a disciplinary report, which Sullivan signed18
reciting that Sullivan had been "soliciting employees dur-
ing their working time," a "prohibited" act. At the same
time, according to Sullivan , Hastings "asked me did I
know this was against company rules-soliciting on com-
pany property?" Sullivan further testified that Hastings
directed Sullivan ' s attention to the list of rules on the
bulletin board in the canteen and by the timeclock but
that the rules had not been posted and were not posted
until about a week or two later when he saw them in
both places.
On cross, Sullivan's account of the pertinent part of his
May 20 conversation with Hastings was as follows:
A. And, then he come in saying that I had been pass-
ing out union literature on Compnay property on Com-
pany time and I had been soliciting for the Union on
Company time on Company property.
Q. Did he tell you that or did he ask you that?
A. He told me that.
Q. He said, "You have been passing out union litera-
ture"?
15 The disciplinary report given him on June 29, suspending him for 3 days
pending further investigation of the matter, accused him of "carrying on
union organizing activities on the job and threatening employees ' loss of
job."
16 He initially stated, also, that such activity occurred only "[i]n the
canteen or sitting outside the canteen "
17 The cable that carries the electric current from the crane to its magnet
18 Sullivan testified Hastings told him he would be given another chance
if he signed.
FLORIDA STEEL CORPORATION
A. On Company property and Company time.
Q. And, had been soliciting -
A. On Company time.
Q. What did you say to that?
A. I said, "No, sir, I have not. I spoke to no one except
over in the canteen on my break time."
s s s s s
Q. Excuse me. Wait a minute. You
said-apparently you told him that the only people you
spoke to were in the canteen?
A. Right. That was in the canteen or during my break
time.
Q. What did he say to that? Did he say that was
wrong?
A. No. He said that he was not going to put up with
this on Company property and Company time and he
would have to write me up for it if I kept it up.
Q. What kind of instructions did you get from the
union-Steel Workers about soliciting?
A. Not to have people sign the cards in a working
area.
Q. What about what type of hours?
A. There weren't any certain hours.
Q. Didn't they tell you that you were not to solicit on
Company time?
A. Right. On Company time.
Q. And, you followed those instructions?
A. Yes, sir.
Q. And, that was the same instructions that Mr. Hast-
ings gave you, wasn't it?
A. Well, he told me not to be soliciting on Company
property or Company time. Well, he accused me of it,
see.
Q. He accused you of doing it while you were work-
ing?
A. He accused me while I was working.
Q. And, you said you didn't do it while you were
working. The only time that you did it was when you
were in the canteen?
A. Right.
s * * s 11
Q. You weren't to do it while working?
A. Right.
s s s s s
Q. He told you not to do it while you were working.
Isn't that correct?
A. Right.
Sullivan's version on cross of the reprimand interview with
Hastings the following day was as follows:
Q. What did Mr. Hastings say?
A. He said, "You have been soliciting and passing out
union literature on Company time on Company prop-
erty and I am going to write you up for it." that I had
broken a Company rule -
Q. Excuse me. You said soliciting and passing out
union literature on Company time and property? Is that
what he told you?
A. Right.
Q. And, then what did he say?
A. He told me once before that he wasn't going to put
up with this on Company time and Company property
109
and that he was going to have to write me up for it. This
was against Company rules, he said.
Q. That is when he explained the rule to you again?
Is that correct?
A. That is the first time that he explained it.
Q. The first time that he explained the rule?
A. Right.
Q. Did he explain it to you?
A. He dust said that it was against the Company rules
to solicit on Company property.
Q. Did he explain to you that you weren't to do it
while you were working or while any employee was
working?
A. He said any time outside the Company property or
Company premises.
Q. That is not the way that he explained it to you the
day before?
A. No.
Q. The day before he told you that he didn't want you
to do it while you were working?
A. Right?
Q. And, now it is your testimony that the next day he
changed it?
A. He didn't come out and say the day before that he
didn't want me to. He dust accused me of doing that.
Q. But, he changed the rule between Monday and
Sunday according to your testimony.
A. Well, it was clear that he didn't want me doing it
on Company property or Company time.
Q. Did he point to a specific time in which he thought
you were doing it?
A. Yes, sir. He said I had been doing it in the Melt
Shop and the Transportation Department.
Q. How did you know it was clear, Mr. Sullivan, that
he didn't want you to do it on Company property and
on Company time? I'm a little confused.
A. Well, he stated before that he didn't want me to do
it on Company property or Company time.
Q. Well, I understand your testimony of before that
you said that he told you the same thing that you were
not to do it while you were working. You were not to do
it on Company time. Is that what he told you?
A. Right. He has told me that, right.
Q. That is what he told you again on Monday, wasn't
it?
A. He told me-yes.
Q. That is when he handed you that reprimand?
Right?
A Right.
Q. And, that is Counsel's Exhibit No. 4. That is what
he handed to you? Right?
A. Yes, sir.
Q. And, he read it to you. He said that you were
soliciting employees during working time and this is
prohibited. Further violation of Company rules will re-
sult in further disciplinary action up to and including
discharge. Is that correct?
A. Right.
s • s s
Q. And, you signed it, didn't you?
A. Yes, I signed it.
•
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. What else did he say at that time?
A. Before I did sign it I said , "I didn 't know this was
against Company rules."
Q. You said that you didn 't know anything about it
and you didn 't know it was wrong?
A. I didn 't know that they had a Company rule of no,
soliciting on Company property on Company time.
s s s * s
Q. When you signed it and he said, "Here sign this and
I will give you another chance," that was the end of the
conversation?
A. No, sir. He told me that there was a rule posted by
the time clock and a rule posted over in the Canteen
about soliciting on Company property.
As indicated above, Richard Purscell, another of the al-
leged 8(a)(3)'s, testified that Superintendent Allen had told
him that any conversations he had with other employees
about dissatisfaction with working conditions would have to
be on his "own time," not on "Company time."
General Foreman Hastings' testimony on direct examina-
tion concerning Sullivan's infractions of rule 4 was that he
had received a call at home on Sunday (May 20) from a
foreman, Donovan, to the effect that Sullivan was soliciting
and distributing union literature "on the job"; that he went
to the shop where he orally reprimanded Sullivan because by
"passing Union literature and soliciting during working
hours" he had "interfered with his as well as his fellow work-
ers' working time; that this could be done on his break or off
Company property when he was not working"; that the next
day he was informed by Plant Manager Bodeman that Sul-
livan had solicited Wilson "while Mr. Wilson was working"
on Sullivan's crane, and this time he gave Sullivan a written
reprimand, explaining "that it was against Company rules to
solicit or pass out union information during working hours
while he was working." On cross, Hastings' testimony was:
Q. All right, sir. Going back earlier to-in connection
with Mr. Sullivan-back when you first had some infor-
mation that he was possibly soliciting on Company time,
I'll ask you a few questions about that: You've stated
that, I believe, the first time that you had any informa-
tion was from a Mr. Donovan. Is that correct?
A. Yes.
Q. And what exactly, as best you can recall, did Mr.
Donovan say? What did he report to you had happened?
A. He reported to me that Mr. Sullivan was going
from furnace to furnace soliciting and passing out Union
literature
s * s s s
Q. Do you recall the two days that you first gave him
a verbal warning and then the written warning the fol-
lowing day? Do you recall that second day pointing out
to Mr. Sullivan that there was a rule posted on the
bulletin board?
A. I pointed-on the first day, on Sunday when I
talked to Mr. Sullivan at his job site in the scrap yard,
I told him that there was a rule against soliciting
for-against talking Union on the job. I
suggested-he informed me that he did not know that
there was such a rule. I suggested that he read the Com-
pany rules. I did not mention bulletin board or anything.
I just suggested that he read the Company rules.
Q. Where would he normally read the rule?
A. Oh, that would have been on the bulletin board.
Q. Did you later look at that bulletin board to deter-
mine if, in fact, that warning was posted?
A. Yes. I don't recall going directly at this time, but
later when I chose to look at the board, they were not
there.
Q. All right, sir. Now after-going back to Sullivan
again, you got the report from Mr. Donovan that they
were passing out Union literature by the furnaces and
soliciting-the following day is it correct that you were
called into Mr. Bodeman's office?
A. Right.
Q. And what did he inform you at that time, sir?
A. That Mr Sullivan had attempted to solicit Mr.
Wilson and get him to sign union card while he was
working on Mr. Sullivan's crane.
Q. Did you yourself talk to Mr. Wilson?
A. No, sir.
Q. And was it your testimony that at this time he had
a reprimand typed up at this time for Sullivan?
A. I did.
s s s s,
Q. Did you tell him at that time that he had violated
the rule for-I believe your testimony was soliciting dur-
ing working hours. Is that -
A. I told him that I had just talked to him the day
before" about soliciting on working time; that it was
against the rules.
Q. All right, sir. Did you then state that he said some-
thing? Just what did he say at that time?
A. He said someone must have told him wrong.
Q. And you don't recall at that time whether or not
you might have pointed out that he could look at the
bulletin board for the rule?
A. No.
Q. Might you have said that?
A. I might have, but I remember suggesting that he
read the Company rules and the bulletin board don't get
in there, but normally that's where they have been for
years.
3. The 8(a)(3) conduct
a. Blessing
Henry Blessing, hired in July 1972 as a melt shop employee
and part of a 3-man crew whose main job was to bum out the
tundish,19 was discharged on Thursday, May 31. He worked
directly under Foreman Shook whose immediate supervisor
was General Foreman Hastings. Blessing joined the Union
around the end of April. He testified that on May 23, at 7:55
a.m., he and another employee20 informed Hastings that
they were voluntary organizers for the Union. About May 25,
19 A brick-lined twin funnel through which molten steel is poured into
molds forming two long ingots At certain intervals the tundish is removed
from over the molds by an overhead crane which sets it down on a cart
(operated by electric motor) which moves the tundish out of the main mill
area over to the side where the steel and slag adhering to it is burned out
with oxygen.
20 Brans, evidently still employed.
FLORIDA STEEL CORPORATION
according to Blessing, he arrived a couple of hours late, hav-
ing so notified Shook in advance. Shook walked up to him,
saying he was glad Blessing could make it, and asked whether
a pen attached to Blessing 's T-shirt was "the pen [he] got at
the meeting." Blessing did not ask what meeting Shook re-
ferred to. A few days later," as Blessing was sweeping his
work area, he testified on direct, Shook "called over to me to
get another area swept up. And, I walked over to him and
said, `God damn it, quit pushing so hard. Back up a little
bit"'; Shook said he would not allow him to "cuss" and he
did not "have to take it," and told Blessing that he could
either do the job or "hit the clock"; and he went back to his
sweeping: On May 30, Blessing was called to Hastings' office
where Hastings said he had heard about Blessing's "cussing"
and threatening Shook, that he would not allow it and to
report back the following morning when there would be disci-
plinary action. The next day he was called into Hastings'
office again where Shook told him he had to terminate him
because if Blessing "g[o]t away with it" everybody else would
expect similar treatment.
On cross-examination, Blessing's account of his run-in
with Shook was that at about 2 a.m., while working the
midnight to eight shift, he was told by Shook to sweep up his
work area (a regular part of his job), that he started doing it,
was interrupted by the need to burn out the tundish,22
resumed sweeping, that while so engaged around 4 or 5
a.m.,23 with the job about three-fourths done, Shook re-
turned and from about 15-20 feet away said, "Let's get this
area cleaned up," and that this precipitated his "cussing." He
denied clenching or raising his fist. His testimony concerning
the discharge interview included the following:
Q. Let me ask you something, Mr. Blessing. Why were
you smiling during this conversation?
A. Well, it was pretty much there since I had told him
I was a union organizer-that I wouldn't be around very
long.
Q. I don't understand. You were smiling because
of-why?
A. I wasn' t smiling . But it was pretty much there. If
you tell them you are a union organizer, you won't be
around very long.
Q. You were grinning and smiling during this conver-
sation , Mr. Blessing . Now let's be truthful. You are un-
der oath.
A. No, sir No more than what I am doing now.
Q. It is your testimony that you were not smiling, or
grinning, or taking this in a laughing matter?
A. No, sir. I didn't take it in a laughing matter.
Q. Or smile, or gun?
A. I may have gunned.
Shook's version of the incident was that he told Blessing at
2 a.m. to sweep the floor, that at 7 o'clock it had still had not
been done, and he walked up to Blessing who was standing
21 Blessing was not sure of the date Shook said it was the 28th.
22 There were apparently several such interruptions He testified on redi-
rect that a couple of tundish carts an hour come down, although on cross
he had said that he burned out the tundish about eight or nine times a day
on the average , which figure conforms to that mentioned by Shook Superin-
tendent Leedy testified it takes about 30 minutes to bum out a tundish
23 On redirect he testified that he did not have "any idea as to how many
hours" had intervened between Shook's two visits.
111
beside the tundish cart doing nothing and said, "You're going
to have to sweep this floor," whereupon Blessing said, "God
damn it, stop pushing me," and drew back his left fist as if
to strike Shook. Shook further testified that Blessing then
cleaned the floor. Shook mentioned the incident to another
foreman but did not tell Hastings about it. When Hastings
learned of it, he reprimanded Shook for not reporting it, said
that Blessing would have to be fired because they could not
tolerate threats from employees, and ordered Shook to do the
firing because he had not officially reported the matter to
Hastings. Shook testified on cross that he should have
brought the incident to Hastings' attention because Blessing
had threatened him, which was "serious," even though he
personally did not think it was "that serious," a phrase intro-
duced by the cross-examiner. Shook denied ever asking Bless-
ing about a pen but testified that he had addressed such a
question to Brans.
Both Shook and Hastings testified that threatening a super-
visor was unprecedented in this plant, and Hastings added
that because of this he discussed the matter with Bodeman
who agreed that such conduct could not be tolerated. Shook
and Hastings also testified that Blessing had a smile on his
face throughout the discharge interview.
b. Martin
William Martin was hired in 1966 and for the 6 years
immediately preceding his discharge on July 3 operated the
overhead crane in the hot bed department of the rolling mill
whose superintendent was Campbell. Martin signed a union
card around mid-June and so advised his foreman, W.F.
Johnson, near the end of June. Johnson said, "Well, that's
O.K."24 That day, or the next, according to Martin, while
he was up in the crane with an employee he knew as
Goldilocks,25 who had been sent up with him to learn to
operate the crane, Goldilocks pointed to certain employees on
the ground below and asked whether they had signed up for
the Union. Martin testified that he replied that he could not
tell him at that time but that if Goldilocks wanted to talk
about the Union or sign up he would be glad to do so in the
parking lot at the end of the shift.
Around June 29, Martin testified, which he thought was
about 2 days after his conversation with Johnson, he was
called to Bodeman's office. Bodeman stated he had heard that
Martin was threatening that employees who did not join the
Union would be fired when the Union came in. Martin denied
it. Campbell then came into the office and repeated the accu-
sation which Martin again denied. Bodeman told Martin he
was to take 3 days off to the following Tuesday pending
further investigation. When Martin returned on Tuesday, he
went to Campbell's office where, according to his direct ex-
amination, the following ensued:
Q. What did Mr. Campbell say to you at that time?
A. He told me I was being discharged. And, he read
off the reasons why off a piece of paper
about-something about carrying on a conversation
with someone. And, that was about it.
24 Johnson informed Campbell of the conversation
25 John Russell, who was in the Marine Corps at the time of the hearing
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did he tell you you had been organizing , or talking
union on company time? Is this what he told you?
A. Right
Q. Do you recall whether he made a statement to you
that you had threatened employees?
A. Not at that time.
Q. Might he have said that?
A. He might have, but I can't recall it.
Q. What did you say after he had told you all
this-if anything?
A. I asked for the man-the guy who had said this,
so I could defend myself. I felt that I should be able to
defend myself against this , and-that I had threatened
him 26
To Martin's request for the names of his accusers, Campbell
said he could not supply them but Bodeman might , so Camp-
bell went to Bodeman who said he did not know if he could
furnish the names at that time but that Martin should call
him Thursday and he would let him know if he could give
him the information. Martin did not call. In his testimony
Martin denied making the alleged threats, but on cross the
denial was somewhat less than categoric:
Q. You testified earlier, Mr. Martin, having recalled
that you didn't threaten an employee, and now you defi-
nitely say, "no."
A. I can't say definitely, because I can 't recall. It is not
my nature. I don't want to threaten anybody. I can't
understand this. I know I didn't threaten anyone.
Q. You testified that you didn't recall threatening
anyone. Wasn't that your testimony earlier?
A. I don't recall it-ever threatening anyone.
As to his talking to employees about the Union on company
time, as indicated supra Martin testified that he never solic-
ited anyone on company time because he felt that that would
have been wrong.
Campbell testified that after Foreman Johnson informed
him of Martin's statement that he had joined the union, a new
employee named John Russell told him that while he was
working on Martin's crane , Martin had warned him to join
up or lose his job because the Union would soon be taking
over. Campbell advised him of his right not to join under
Florida law and said he would talk to Martin. He then re-
ported the matter to Bodeman who told him to "check
around" to see if he could learn anything more about it.
Campbell then asked Roy Hunt, who had been working there
about 10 years and was a friend of Martin's whether he had
received any such threat, and Hunt said Martin had told him
that when the Union came in nonmembers would lose the
higher jobs. At Campbells' request, Hunt repeated this to
Bodeman . Martin was told to report to the office where he
was suspended till the following Tuesday pending considera-
tion of the disposition of the matter. Bodeman told Campbell
to check further. Over the weekend Campbell talked to se-
veral people who seemed hesitant to say anything. The fol-
lowing Monday he asked Hunt to give him a signed deposi-
tion, and Hunt wrote one out in Campbell's office,27 reciting
that while he "was obtaining a sample bar from the shear
26 His testimony on cross was similar
27 Campbell left him there for that purpose and it was ready when Camp-
bell returned 10 or 15 minutes later
Martin came by and wanted [him] to sign a union card and
said if the] didn't that [he] would be fired because after the
union took over it would be very hard then to sign up."28
Campbell gave the deposition to Bodeman and told him that
the other employees he had talked to had said they would
handle things in their own way. According to Campbell, he
made the decision to discharge Martin although Bodeman
had the power to revoke it. When Martin came back on
Tuesday, Campbell read him the disciplinary report to the
effect that he was being discharged "because of the threaten-
ing of the security of the people at work." He refused to give
Martin the names of his accusers, referring him to Bodeman
in that respect.
Bodeman's testimony essentially corroborated Campbell's
except for two points: He testified that Campbell rather than
he had suspended Martin; and that Campbell had discussed
Martin's discharge with him before the event.29
c. Cone
Gerald Cone, a welder in the maintenance department,
worked for Respondent from about 1970 until his discharge
on May 11, during which period he never received a discipli-
nary report. He was on a rotating shift and his duties included
all types of maintenance work, but primarily welding, as
needed, anywhere in the plant. He was the only welder on his
shift. His foreman was Robert Williams whose immediate
superior was Carl Hendry, general foreman of maintenance,
who in turn reported to Leonard Leedy, maintenance
superintendent.
Around Christmastime in 1972, Cone testified, in a conver-
sation at which a number of employees and Foreman Wil-
liams were present; Cone mentioned the benefits offered by
the Union,30 to which Williams, "very disturbed," re-
sponded that Respondent provided steady employment. Cone
signed up with the Union on April 17 at the first meeting and
attended two subsequent meetings held May 1 and May 10.
As shown above, Cone testified that the day after the first
meeting Williams asked him if he knew anything about the
Union's coming in, and Cone disavowed any such knowledge.
After the May 1 meeting, according to Cone, he happened to
be passing the melt shop office after finishing a job about an
hour after the start of his shift when he noticed through the
window several melt shop employees including Lawhorne,
standing there, and he entered because he wanted to find out
from Lawhorne whether he had signed up any men. He asked
Lawhorne what kind of a list Lawhorne was looking at, and
28 This document , or one identical to it, was received in evidence for the
purpose of showing Respondent 's state of mind at the time of the discharge
29 After Martin completed his testimony , counsel for Respondent, an-
nouncing that the testimony of Russell (Goldilocks), who was then taking
basic training in the Marine Corps at Parris Island, had become relevant and
material, proposed the following three alternatives in the form of a motion
(1) Admit an affidavit taken of Russell by the General Counsel in the course
of his investigation and without the presence of any representative of Re-
spondent, (2) take Russell 's deposition at a later date for incorporation in
the record , or (3) continue the hearing for Russell 's testimony in open court
either in Tampa or at some other location
I denied the motion for reasons stated on the record I thereafter granted
General Counsel 's motion to revoke Respondent 's subpena seeking Rus-
sell's affidavit.
30 Which he had known about as an employee of an Illinois steel company
for 12 years
FLORIDA STEEL CORPORATION
Lawhorne said it-was a list of those who had attended the first
meeting . Foreman Hetrick of the melt shop came in at this
point and asked what they were doing, Lawhorne replied that
he and Cone were trying to organize a union and asked
whether Hetrick wish to join, and Hetrick turned around and
walked out.31
Near the end of his shift (8 a.m.-4 p.m.) on May 10, Cone
testified, Williams asked him (and the rest of the crew) to
work an hour overtime because the employees on the next
shift were attending a safety meeting.32 He did, but Wil-
liams again asked him to stay over at 5 o'clock to replace a
coupling on the overhead mag crane .33 Cone did so without
protest,34 along with McLain, Summers, Davis, and
Adkins," the last of whom directed the work.36 After cut-
ting off the old coupling, Cone and McLain went to the
machine shop for a new one but were told that none would
be available that night. Without the coupling no further work
could be done on the crane. On the way back from the ma-
chine shop they were stopped by Adkins who said he had
called General Foreman Hendry after calling the machine
shop himself and that Hendry had "told him to tell the boys
to go on home since they can't get the part." Cone thereupon
prepared to leave. It was about 6:30. He put his dress pants
on, had his shirt off, and was washing up when Ramos,
maintenance foreman on the 4-12 shift approached him and
asked him to work on the tundish cart. Cone said he would
rather go home because he was worried about his wife who
was under a doctor's care and that he first had to take care
of a tire that was getting flat. Ramos said, "O.K.," and
walked away.37 Cone continued his dressing and punched
out. The next morning, as the maintenance men prepared to
punch in they discovered that three cards were missing, those
of Cone, Miller, and Davis.38 Williams walked up to them,
invited them into his office, saying, "All hell broke loose
around here last night," and told them that their cards were
in the main office and they should see Superintendent Leedy.
Miller and Davis simply left. Cone, however, headed for
Leedy's office, found Hendry in his office next door, and said
31 Lawhorne's testimony as to this incident (which he placed at 2 or 3 days
after the April 17 meeting) was that he told Hetrick he was trying to _
organize the union and that he did not mention Cone's name. Hetrick
testified that on apparently the same occasion he saw a list of names and
phone numbers in Cone's hands but that he said nothing at all and nobody
mentioned anything about unions
32 This was a normal request , occurring about once a month Safety
meetings last about 30-45 minutes
33 Neither was this an unusual request It was regular practice for the
maintenance crew !o lay over to complete work on breakdowns occurring
on their shift, leasing the succeeding shift free to work on the routine
maintenance
34 On cross-examination he stated variously that the crane had been
broken down, "for a couple of days ," "at least a day or so," and at least since
8-o'clock that morning Williams testified the breakdown had occurred
between 9 and 10 that morning
35 Miller, a maintenance mechanic, did not stay Cone testified Miller said
he was ill and asked to leave. Williams testified that Miller said his wife was
picking him up and he left
36 Adkins, concededly not a supervisor, was relief foreman, i e , the one
who took over for Williams in the latter's absence.
37 Ramos denied saying "0 K " or otherwise giving permission to leave.
38 On cross-examination , Cone testified that McLain was still working for
Respondent notwithstanding he left with Cone after replying to a request
that he stay, "Hell no, I'm going home " The only one who remained that
evening was Summers. According to Ramos, McLain asked and was permit-
ted to leave because he was ill.
113
he did not know what was happening because he understood
that Hendry had given Adkins permission over the telephone
the previous evening to send the men home. Hendry refused
to comment and referred Cone to Leedy. Cone then went to
Leedy's office, asked what was going on, recited his version
of the previous evening's events, and inquired if they were
being fired. Leedy said they were, for refusing to work on a
major breakdown. According to Cone, the tundish that had
been used in the past was the radial crane.39
On cross, Cone admitted that he had not been "that con-
cerned" about his wife but testified he wanted to get to a
phone to find out how she was.40 In fact he admitted that he
attended the union meeting that night at which Davis was
also present." He said he went after calling his wife and as-
certaining that she was all right. He also admitted that when
he laid over to the next shift he was under the foreman of that
shift but testified that in leaving he had acted on the basis of
Hendry's authority which was superior to that of Ramos. He
acknowledged that he had not looked for Ramos before de-
ciding to leave, after having first testified that he "couldn't
find him."
According to Williams, Adkins and another employee had
worked on the crane during the day. He could not spare more
men from their routine duties. When he left for the day he
put Adkins "in charge" to see that the crane job got done.
That evening he received a call at home from Superintendent
Leedy informing him that the men had "left the job and the
crane was still broke down, and that he wanted to see me at
7:30 the next morning." The next morning Leedy "advised
[him] of what had happened that evening and that the men
had left the job unfinished." Because of this the timecards of
the three men were removed from the rack.
Ramos testified that his request of Cone to work on the
tundish cart occurred about 5 or 10 minutes after he had
granted McLain permission to leave, and that this was about
7 p.m., and that he telephoned Leedy about 8 or 9 o'clock and
told him "what had happened, that I didn't have enough
people to finish the job because they left." He also testified
that, as the foreman in charge that evening, he moved Adkins
and Chevillot from the crane to "another emergency job"
which he did not identify.
Hendry denied instructing Adkins as to whether the men
working on the crane should leave, but he testified that he
told Adkins "not to wait around" and that they would "have
to reassemble the crane in the morning"42 because the ma-
chine shop could not supply the necessary part until after
midnight and it would have violated the company policy
against working more than 16 consecutive hours to have had
Williams' crew stay beyond midnight. He also testified that
when Cone told him the next morning that Adkins had told
39 Maintenance Superintendent Leedy testified that he had never seen a
forklift used for this purpose although it "could conceivably" be done. He
agreed that the crane has been used in this connection but estimated it would
keep the crane from performing its regular functions about 2 hours a day
40 He never asked to phone from the plant
41 Miller did not attend the meeting
42 Hendry nevertheless denied that this was in effect telling Adkins he
could go home He testified that the foremen have authority to keep em-
ployees over after completion of an emergencyjob, or where no further work
on that job can be done, if "some other emergency or some other break-
down" occurs.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the men they could leave, he replied that Adkins had no such
authority, only the foreman did.
Leedy testified that Ramos told him in their phone conver-
sation that he "still had a crane down and still had a tundish
car down and he was going to have trouble getting them
fixed," and that he (Leedy) then called Williams, told him
that his men had "walked off the job, left the job undone,"
and order him to be at his office at 7:30 the next morning.
Williams, Hendry, and Leedy met at 7:30 and decided to
discharge Cone and Davis." Leedy denied that when Cone
talked to him later either of them mentioned Adkins' name,
and specifically that Cone said Adkins had told him he could
leave. He also denied that Cone had said anything about his
wife being sick, testifying that Cone in that connection had
said only "that he had to take his wife and fix a flat tire."
Leedy did not consider the tundish cart or even the crane as
a major breakdown but did deem them emergencies. But
although he thought an emergency breakdown required re-
pair "as soon as possible" with the additional assignment of
.,as many men [as] available," and he knew the tundish cart
had broken down at 2 or 3 o'clock the previous afternoon, no
extra men were called upon to work on the crane or tundish
cart.
d. Sullivan
James Sullivan was hired June 1, 1972, and after about 5
months was assigned to operate the D.E. crane,44 the job he
held as of the time of his discharge July 24, 1973. He worked
in the melt shop under Foreman Shook.
Sullivan joined the Union at its first meeting and talked up
the Union to other employees. Although he testified that his
soliciting efforts were confined to his own time, as appears
above, he received a disciplinary report on May 21 from
Hastings , General Foreman of Melting and Casting, for "sol-
iciting employees during their working time."
On Sunday, July 22, Sullivan had an accident. After load-
ing the buckets in the scrap yard with number two scrap
which, he testified, burns quickly so as to require fast action
to keep the furnaces charged," he started back to the melt
shop, pushing the cars in front of the crane. According to his
testimony, as he applied the brakes to slow down, he found
that he had "no brakes," so he reversed the friction motor,
feeding a little fuel to accelerate the diesel engine in order to
energize the friction motor to slow the vehicle down. Because
he was still unable to stop, the boom cables hit the smoke
control duct connecting the furnace to the bag house or dust
collecting house46 and bent it, damaging it to a length of 2
or 3 feet. 47 Because he had noticed, when he came to work
that night,48 that the brakes were weak, he was allowing 25
03 Leedy testified on direct examination that it was decided to fire Miller
at the same time . On cross his testimony was that the decision to fire Miller
had been made the day before when William told him that Miller had
dechned to stay over during the safety meeting
44 This crane runs on a track It hooks up to cars carrying "charge buck-
ets", i e ., buckets in which scrap is loaded behind the melt shop to be hauled
to the furnaces needing charging
45 There are three operating furnaces, numbers 1 , 3, and 4 'Sullivan
testified 4 was the one involved , Bassett identified it as the furnace 1, which
Strickland tended to confirm, Leedy and Hastings said it was 3.
46 This duct or pipe was variously described as about 30-36 inches and
5-6 feet in diameter, made of one-eighth -inch sheet steel and one-quarter-
inch rolled plate, and coming in sections about 20-feet long and without
joints See also Bassett's testimony , infra. Repair of the damage, performed
feet for stopping instead of the usual 15-20 feet. This worked
successfully on the several prior occasions he had moved the
crane back to the melt shop that night. He had reported the
weak brakes that night to Strickland, the maintenance me-
chanic, and to Ringley, the relief foreman on duty at the time.
Ringley referred him to transportation but they do not work
on weekends. Sullivan nevertheless called the transportation
foreman at home shortly after midnight, but while he re-
ported that the hoist brakes were bad, he did not mention the
traveling brakes. Sullivan first attributed the trouble to low
air pressure but later testified that the brake shoes were bad
and that could have caused the malfunction. But he admitted
that he had operated the crane one time immediately after the
accident and that the brakes worked, on redirect, however, he
reiterated that "the brakes weren't operating."49 He also ad-
mitted on cross that he had not observed the pressure gauge
at the time of the accident; but testified on redirect that he
did not "normally" look at the pressure gauge before stop-
ping the crane.
Immediately after the accident Ringley told Sullivan that
it sounded like [he] was "hot rodding" because he had heard
the engine "rev up" when the motor was reversed. Sullivan
replied it would be impossible to hot rod the crane.50 Ring-
ley also told Sullivan to wait around so that General Foreman
Hastings, who had been telephoned at home, could see him
when he arrived. Hastings came about 7:30 or 8 a.m. and
asked why Sullivan had hot rodded the crane. Sullivan denied
that he had. Hastings said, "if I ever catch you, I will fire your
ass." Then Ringley came walking up and said Sullivan had
burned out the mag cable two or three times that night and
derailed the crane. Hastings then asked him about that, and
Sullivan said a piece of scrap had fallen on the track and
that had caused the derailing." Hastings said he would
by a special erection crew of ironworkers required replacement of about 20
feet
47 He denied that he had broken the duct , testifying that there was no
more than the usual amount of smoke pouring from it when it leaks
68 He was working a`12-hour shift starting 8 p m The accident occurred
about 6 30-7 . 30 a m According to maintenance mechanic Strickland, the
12-hour shift was necessitated by a shortage of crane operators.
49 Thus on cross-examination , he testified
Q You operated the crane a couple other times since you had the
accident?
A Yes, one time.
Q One time What about the air pressure then
A It was still down, I reckon
Q When you operated the crane one more time did you have brakes?
A Yes, sir, I did
Q. So, it was lust this one incident that you did not have brakes?
A Right
But on redirect his testimony was:
Q. Now , at the time that you operated the crane again immediately
after the accident could you tell the Judge how you operated the crane
at that time? -
A. Yes, sir At a very low speed
Q And, what was the reason for that?
A Well, the brakes weren't operating
Q But, it was still possible for you to back another charge bucket in?
A. Yes, sir, it has nothing to do with the operation of the crane If
you knew the brakes were going to fail you could always slow down in
time to stop
50 Sullivan understood "hot rod" to mean "taking off fast or something
of this sort "
51 Sullivan testified that the derailing might have occurred the night
before, and that although he had not burned out any mag cables the night
of the accident he had twice the night Before
FLORIDA STEEL CORPORATION
check into the matter . Sullivan worked as usual Sunday
night. Furnace 4 was being operated. He testified on cross
that he did not notice any patch on the smoke control
duct or anything else unusual . On redirect , he admitted
that they had reinforced the duct "to make sure it didn't
fall on somebody." At the end of his shift, Monday
morning, Hastings and Weidman , the melt shop Super-
intendent , called Sullivan over to one of the furnaces
where they were standing , and Weidman , asked him what
happened . Sullivan repeated his account of the accident.
According to Sullivan, Weidman told Hastings to com-
pute the extent of the damage and said they would see
about taking it out of Sullivan's pay. Weidman then
asked whether Sullivan had ever received a disciplinary
report before. Sullivan said he had,S2 and Weidman said
they would have to look into that and that he would let
Sullivan know the following day. Sullivan worked again
Monday night. Tuesday morning, at the completion of his
shift, Weidman told him that he, Hastings, and Plant
Manager Bodeman were considering their decision and that
Sullivan should call him at 10 a.m. Sullivan did not call but
reported for work Tuesday night to find his timecard missing
from the rack. He went to the melt shop office where Fore-
man Hetrick told him that he was no longer employed there
and referred him to Hastings when he asked why. He tele-
phoned Hastings who told him it was because he had broken
a company rule and damaged company property. Weidman
later confirmed this. Sullivan protested that others still work-
ing there had caused much more damage with the crane, and
Weidman said, according to Sullivan, "Well, I have a job to
do."53
On cross-examination, Sullivan admitted that in addition
to his June reprimand for soliciting for the Union he had been
reprimanded "for being late for work" shortly after his hire.
In fact that reprimand was given about 5 months after his
hire54 and was for lateness "on many occasions" during the
preceding 2 months. Although that was the only prior repri-
mand and warning he could recall receiving, he had also been
given a 1-day suspension with a disciplinary notice on Octo-
ber 24 for failure to report off from work, containing a "final
warning" of "termination" for "any further offense of this
nature or like seriousness."55
J.W. Strickland, for 3 years the sole maintenance mechanic
in the melt shop area until he quit around the end of August
or early September, testified that he had performed "almost
daily" maintenance work on Sullivan's crane but that work
on the brakes was the job of the traffic or transportation
department. He was on duty when the cranes hit the smoke
control pipe.56 In the course of the shift, he testified, Sul-
livan told him about the bad brakes and that he had reported
52 On direct , Sullivan testified he said , "Jim Hastings wrote me up once
for something." On cross the following day, his testimony was, "Jim Hast-
ings wrote me up about a month ago about soliciting on Company property ',
In fact, as indicated above, it was for "soliciting employees during their
working time."
53 Hetrick testified that he had been instructed by Hastings to tell Sullivan
that he was fired for destruction of company property and he so informed
Sullivan.
54 It was dated October 20, 1972.
55 Sullivan testified that he had been told by Hastings that such notices
became inoperative after 6 months, and that Hastings thereafter put him on
crane work because of the excellent work he had done before
115
it to Ringley. Ringley later confirmed this to Strickland.
Strickland testified that Hastings had talked with him about
the brakes prior to the date of the accident and was aware of
their condition. According to Strickland, smoke did emanate
from the duct after the crash, and if the crane had continued
to move for some distance beyond where it stopped it could
have hit some 440-volt hot rails which might have caused
extensive damage, including loss of lives. They shut off the
smoke control motor which did not of itself require shutting
the furnace down. But although there was a time when the
furnace continued in operation as much as 2 or 3 days with
one smoke control device, "they were having a problem with
the smoke control people and they were beginning to tighten
up a little bit more on it."
Donald Bassett, a crane operator for 2 years still employed
by Respondent, and appearing under subpena, testified that
he had operated the D.E. crane about a year and a half during
which time he helped train Sullivan who became his replace-
ment . His description of the method of stopping the D.E.
crane when the brakes do not suffice was in accord with that
testified to by Sullivan. He also testified that he had ex-
perienced not infrequent derailings of that crane. He cor-
roborated Sullivan's assertion that the crane could not be
"hot rodded" because its top speed was only 7 or 8 miles an
hour. And he testified that it had to be operated "at top speed
at all times" in order to keep the buckets loaded for the
furnaces. He testified, finally, that there were "times" when
he hit "this smoke control pipe," the bottom pipe of a cluster
of three, and other " times" when he came within 12 to 6
inches of it.57 He continued, however, as follows:
Q. Did you hit that same pipe?
A. I hit that same pipe.
Q. Could you describe for the Judge what the pipe
looked like?
A. Yes, sir, it was a black iron pipe. It came off of the
building and came down at an angle like this-about a
45 degree-and then straightened out. It went on to the
bag houses.
All right , this , in turn , is where the crane cables comes
into this pipe when it comes down, and that is what
makes the cable and all come so close to the pipe
Q. What diameter would this pipe be-the pipe's
diameter that you observed would be?
A. The part that I observed, I would say, was about
24 inches in diameter.
Q. And, that is that particular section that was da-
maged? Can you estimate how long the section was?
A. Yes, sir , I would say the section was from six to
maybe seven feet long, that was actually damaged.
JUDGE HERMAN: There was some testimony , I under-
stood, that the part that was damaged was made of sheet
56 Strickland testified that the accident caused "a lot of damage" although
the same pipe had been hit before He also testified that the derailing had
occurred the previous night and confirmed Sullivan's explanation of the
reason
57 According to Bassett, when he saw the pipe after Sullivan's accident
it was "approximately half closed," and the section actually damaged was
6-7 feet long
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steel about one eight inch thick. Is that the same pipe
you are talking about?
THE WITNESS: That is correct, Your Honor.
JUDGE HERMAN: That you called black iron pipe?
THE WITNESS: I might say that I was a sheet metal
worker for nine years and I worked with this same type
of material. It is called a regular black iron piping.
Q. (By Mr. Barford) Mr. Bassett, there may have been
some testimony of the pipe being 36 inches in diameter.
Could this have been the same pipe that you saw?
A. No, sir, I don't believe it is the same pipe. I believe
this 36 inch pipe or 48 inch pipe-I believe this is an
entirely different pipe
Q. How many pipes are in that area where the booms
would hit a pipe? Is there more than one pipe?
A. That is correct. I believe I dust stated that there
were three pipes running through here-a cluster of
them.
Q. Was one of them-one of the three-a much large
pipe than the one that you just stated?
A. That is correct.
Q. Had that pipe also been hit in the past, to your
knowledge?
A. The large pipe?
Q. Yes, sir.
A. No, sir. Not to my knowledge, it had not been.
Q. The only thing-the only pipe that had any dents
in the past had been smaller pipe that you were talking
about?
A. That is correct. If you might let me explain about
these pipes. These two larger pipes are over top of this
bottom pipe that was hit. In order to get to those you
would have to tear the bottom clear off.58
Leedy testified that the accident mashed the pipe flat for
a distance of about 10 feet and broke it "in two" at one point
so that "a lot of smoke" poured out around the furnace.
Contrary to some employee testimony, Leedy credibly stated
that each furnace has its own independent smoke control
system in no way interconnected with the others, so that the
broken duct could not lie bypassed. As a result, the damaged
section was replaced 2 days later by an outside construction
crew of ironworkers in Respondent's employ, and for about
the 12 hours it took for the installation of the new section the
furnace was down. Leedy was unaware of any prior injury to
the smoke control ducts.
Hastings testified that when he inspected the duct after the
accident it was about "two-thirds collapsed" and that the
58 In this connection Maintenance Superintendent Leedy testified as fol-
lows
Q How many pipes were in the area where this crane comes up to
the melt shop? Would it be correct to say there are three9
A Four
Q Could you just briefly describe the size of those different pipes
there'[
A One of them is approximately seven feet in diameter ; there is one
that is six inches in diameter , two 36 inches and one 32 inches in
diameter . I believe that's the correct measurements of them
Q. And are these steel or black iron pipe or what are they made oil
A They are made out of rolled plate
JUDGE HERMAN All of them made out of the same material?
THE WITNESS : Yes, sir
JUDGE HERMAN How thick is that plating9
THE WITNESS About a quarter inch plate
damage could not have been caused by the cables.59 Shortly
after Hastings got there, he testified, and after Sullivan had
gone home, a garage mechanic, called earlier by Ringley,
arrived. The mechanic and the D.E. crane operator on the
next shift checked the crane, and the mechanic and Hastings
agreed that the crane "could have stopped had it been under
control." The furnace was down about 2 hours while an
emergency maintenance crew tied up the duct on Sunday to
keep it from falling. The following day the furnace was down
for 6 to 8'hours while the new part was installed, holding up
the production of over 100 tons of steel. Hastings credibly
confirmed Leedy's testimony that the ducts were not inter-
changeable, testifying that each furnace has its own in-
dividual bag house connected by a single line, and that trying
to bypass a broken duct would be a more difficult task than
the replacement of the broken portion. He denied that he or
Weidman had mentioned the possibility of taking the dam-
ages out of Sullivan's pay, calling this "asinine" because Sul-
livan could not earn that much in years.
Hastings testified that in light of Sullivan's prior discipli-
nary reports60 that he would be terminated for destruction
of company property through his failure to keep his crane
under control and that he instructed Hetrick to so advise
Sullivan.
e. Purscell
Richard Purscell was hired in August 1972 and fired June
11, 1973. He was a shipping checker in the independently
managed rebar shop which fabricates reinforcing bars from
steel produced in the mill located in a separate building about
a block away. His job was to see that the customers' orders
for finished products were properly filled and shipped This
entailed checking off the materials so that they could be
hooked up to the crane for loading on trucks. His foreman
was Hunziker who in turn was under Allen, superintendent
of the shop. Shortly after his hire Purscell received a warning
letter, following oral reprimands, for not wearing safety
glasses on the job. Also prior to any union activity was a
subsequent warning letter for not coming to work. His excuse
on that occasion, that his car had broken down, was rejected
notwithstanding he reported it prior to his starting time on
the ground that he could have taken a cab or made other
arrangements although he lived 30 miles.away.
He signed a union card and was with Michael Martin on
May 16 when Martin told Hunziker that they were union
organizers, after which allegedly came the surveillance de-
scribed above. A few days earlier, according to Purscell, he
had been told to learn from Joe Sanders to pull trailers so that
he could take over that job when Sanders went on vacation.
This training process took place during the last 2 hours of his
shift.
On May 18 Purscell received a warning letter and a 1-day
suspension for driving a forklift on May 15 "at an unsafe
speed in an unsafe manner" in violation of company rule 13.
Nobody had mentioned any such infraction on the 15th,
according to him. But he did not deny the accusation when
59 Leedy testified that the damage had "probably" been caused by the
cables
60 Which Hastings said remain operative for a year, and he denied ever
saying otherwise
FLORIDA STEEL CORPORATION
he was given the letter.61 On May 23 he received a written
reprimand for an unarranged absence without a doctor's ex-
cuse. He testified that Hunziker had let him leave halfway
through his shift on the 21st because of a cold and that he
called in on the 22d and told Allen's secretary that he was still
ill and would be absent. She replied that was all right. Around
March, according to Purscell, he had been out ill for 2 days
without incident although he had no doctor's certificate.62
About the same time that he received the reprimand, Allen
allegedly interrogated him concerning his union activity, as
recited above. On June 6, Hunziker orally reproved him for
riding on the side of the yard tractor, known as a "mule." He
testified he had done it in the past without criticism as had
"just about anybody that has worked there," including
Hunziker.63 On Friday, June 8, Purscell had an accident
with the mule. He and Martin were checking and had to
change trailers,64 so they got Sanders to pull a trailer for
them. When they later needed another trailer, and Sanders
was not around, Purscell got the yard tractor to pull the
trailer out. In pulling it he got the rearend caught on the
headboard of the next trailer and bent it. He called Hunziker
to check the damage and was told to go back to work. After
about 45 minutes, Hunziker told him to go to Allen's office.
Allen told him he was being written up for driving a company
vehicle without authorization and damaging company prop-
erty, and to return at 8 a.m. Monday to learn the outcome.
He had driven such tractors before with Sanders at his side.
When he reported Monday, as ordered, Allen read his termi-
nation notice. Purscell simply said, "Okay," and turned in his
gear.
Purscell testified on redirect examination that on at least
one occasion-when his car broke down-he had refused to
sign a disciplinary report; and that the reason he did not
refuse to sign the report concerning his unarranged absence
without a doctor's certificate was that he wanted to take the
report to the union organizer so that they could file charges.
Employee Shelton testified that he saw Sanders involved in
numerous accidents at the plant, with damage to the trailer,
but he "didn't see him hit the trailer a number of times" and
did not know the extent of the damage.
Employee Alvarez, a rebar employee65 whose primary job
from the previous Christmas to April was pulling trailers (on
the shift after Sanders'), testified that in February or March,
while pulling out a 60-foot trailer, he sideswiped a tractor
truck causing about $1,800 worth of damage, and that he
received no reprimand, either written or oral. Nobody was
around at the time. When his supervisor, Bally, came around
a few minutes later Bally remarked "that he thought the
tractor truck was sticking out a little bit too far-that they
didn't park it back enough It was still on the road a little bit."
He told Bally at the time that his brakes had failed to hold
because only one hose was connected to the brakes. Accord-
ing to Alvarez, 2 or 3 days later, when Bally told him of the
61 He conceded this on cross, adding, "but I didn't say that I did it either "
62 He admitted on cross that he did not mention this at the time he was
reprimanded on May 23
63 Hunziker denied ever having done this or having seen any others do
it
64 A different trailer is needed for each customer
65 A charge based on his discharge of September 25 was dismissed by the
Regional Director, and an appeal therefrom was denied
117
extent of the damage he "kind of laughed and said, `When
you do something, you do it good, don't you?"'
Bally testified that Alvarez had had very little training in
pulling trailers as of the time of his accident and that manage-
ment felt it was to blame for permitting him to do the work
on his own in the face of his inadequate training; and that the
accident immediately led to the institution of a comprehen-
sive training program in which Alvarez became one of the
first trainees.
Superintendent Allen testified that at the time of Purscell's
discharge he read the reasons to him from the final discipli-
nary report which was based on Purscell's operation of a
company vehicle by himself after instructions not to do so,
and, through misuse , damaging company property. He also
testified that the only other trailer accident in the past 18
months besides Purscell's and Alvarez' was one involving
Sanders which had been due to faulty brakes.
Hunziker testified that he had told Purscell not to drive
alone except for practicing backing in and out in the dealer's
stock area when no stock or other vehicles were present; and
that his recommendation for Purscell's discharge flowed
from Purscell's disregard of such safety instructions in light
of his entire safety record
B. Analysis
Respondent quite correctly urges that an employer's union
animus, standing alone, cannot support an unfair labor prac-
tice finding. I do not understand General Counsel to contend
otherwise. The question remains, however, whether such ad-
mitted animus here led to other conduct which was violative
of the Act.
1. The alleged interrogation
Lawhorne testified to three separate conversations with
General Foreman Hastings involving unlawful interrogation.
In the first, according to his direct testimony, allegedly occur-
ring April 16, Hastings asked him if he knew anything about
the Union and what he thought about it; and that Hastings
also asked him if he was going to attend the meeting, stating
he knew when the meeting was to be held. On cross, he
testified first that Hastings did not ask him what he thought
about the Union until the next conversation, but soon re-
tracted this. And instead of asking whether he was going to
attend the meeting, he testified Hastings asked him "if there
was supposed to be a meeting " In his account of the second
meeting (April 18) on direct examination, Hastings asked
him "who was at the meeting," but on cross, Hastings' ques-
tion became, "how many" had attended. His direct version
of the third conversation (after the second union meeting)
was in part a reprise of his account of the April 18 conversa-
tion which he conceded on cross did not occur in the third
conversation. In view of these numerous inconsistencies I am
unable to credit Lawhorne's testimony over Hastings' simple
account of a single conversation in which Lawhorne had
volunteered to Hastings the news of the approaching meeting
of April 17, and Hastings had disavowed any inquisitive in-
terest.
Whether or not the remaining interrogative conversations
alleged occurred as testified to by General Counsel's wit-
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nesses, I find the evidence insufficient to sustain an 8(a)(1)
finding. All but two of such incidents concerned employees
who admittedly had already volunteered to their supervisors
the knowledge of their union affiliation or who had at least
opened the subject. Thus, Purscell's testimony at best was
that shortly after disclosing his affiliation to Foreman Hun-
ziker, Superintendent Allen, to whom Purscell had initially
intended to make the disclosure, inquired as to the reason
underlying Purscell's turn in that direction. Similarly, Fer-
raraccio testified that Allen asked him if he was "one of
them" near the and of the very shift on which Ferraraccio had
informed Allen he was a union organizer . As for Ferraracci-
o's prior alleged conversation with Foreman Bregler in which
the latter asked whether Ferraraccio had heard anything
more about the Union, this appears to have been merely a
follow-up on their earlier conversation at the Royal Castle
restaurant where Ferraraccio had concededly introduced the
subject by telling Bregler that he had heard the Union was
organizing and asking whether Bregler had heard anything
about it. In context, Bregler 's alleged question could hardly
have instilled in Ferraraccio the fear implicit in the kind of
interrogation that contravenes employee rights under the
Act.
This leaves at most, therefore, Foreman Williams' alleged
inquiry as to whether Cone knew anything about the union
campaign, and Foreman Shook's alleged question whether
Sullivan was "for the union bit." Such isolated interrogation
in a campaign marked by an apparent general willingness of
employees to identify themselves openly with the Union can-
not suffice, in my opinion, to support an 8(a)(1) finding.
2. The alleged surveillance
As the factual recital demonstrates, there was sufficient
"concern," upon the rebar employees' disclosure on May 16
of their prounion leanings, to rouse Allen from home at night
and to cause him to notify his superiors early the following
morning. The admitted concern of Division Manager Creed,
moreover, renders questionable the casualness of his visits to
the plant the next night and the one after, as he testified
thereto. But even assuming the truth of the testimony that
this led to the maintenance of an unprecedented vigil over the
rebar employees66 as they performed their work the next 2
days,67 no basis is perceived for a finding of unlawful sur-
veillance. As Respondent's brief urges there was no evidence
that the employees' union activities were being watched or
indeed that aught but their work activity was being
observed.68 No authority has been cited, nor am I aware of
any, holding such conduct to constitute unlawful surveillance
as alleged.
66 No such watch was alleged to have been kept over the mill employees.
67 Some of the testimony seems contrived , as, e.g, Purscell's statement
that Kampouns stood observing him and no one else over a 4-hour period
At least two employees on the same shift and in the same area who appeared
as witnesses (Shelton and Alvarez) gave no testimony concerning the al-
leged surveillance
68 1 do not credit Michael Martin 's testimony suggesting that the alleged
surveillance extended to the lunchroom and the washroom He was the only
employee so to testify His testimony that the surveillance persisted beyond
the 2 days also contradicted that of the other employees
3. The no-solicitation rule and its enforcement
There is no contention here that rule 4 was discriminatorily
promulgated or disparately enforced.69 Nor, despite some
testimony that the rule was not brought to the attention of
certain employees until after they breached it, does General
Counsel urge a finding of an 8(a)(1) violation based on the
failure to publish. General Counsel confines his attack to the
third sentence of the rule and particularly to the prohibition
of solicitation "on the Company's time."70 I find the rule
presumptively valid and that the record fails to establish its
unlawful enforcement.
a. Presumptive validity
The basic ground rules applicable are spelled out in Walton
Manufacturing Company, 126 NLRB 697 (1960)," and so
far as the imposition of time limits is concerned a prohibition
restricted to "working time" is presumptively valid while one
that extends to "nonworking time" is presumptively invalid.
Although this seemingly facile dichotomy has proved less
easy to apply the application must always further the Act's
object to provide full scope for the exercise of the Section 7
right circumscribed only by the employer's legitimate interest
in continuity of production and maintenance of
discipline.72 While the Board's decisions often appear dif-
ficult to reconcile, the central thread seems to be that the
employer may proscribe solicitation at such times as it is
entitled to the labor of the particular solicitor or solicitee
regardless of the work status of the rest of the plant. More-
over, the mere fact that the solicitor or solicitee or both may
be "on the clock" at the time is not decisive. An employee on
a paid coffee break, for example, must be free to solicit or to
be solicited because he is not expected to be working during
such period.73 To the extent that the language of a no-solici-
tation rule accords such protection it is presumptively valid
and vice versa. The crucial question then, is whether the
prohibited period of the rule extends beyond what Walton,
supra, calls "working time," resolving ambiguities "against
the promulgator of the rule rather than against the employees
who are supposed to abide by it." N.L.R.B. v. Miller, 341
F.2d 870, 874 (C.A. 2, 1965) .71
No case has been cited by the General Counsel, nor has my
research disclosed any, denying presumptive validity to a rule
banning solicitation "on company time." On the contrary,
the Board has rejected that position. Cussins & Fearn Co.
Inc., d/b/a Buckeye Mart, 170 NLRB 1, 4 (1968).75 The
69 Although General Counsel elicited from Bodeman the fact that Re-
spondent sponsors annual solicitation for the United Fund, there is no
evidence that this occurs on company time
70 The first two sentences of the rule are identical to language approved
by the Board Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 527, 528
(1965)
71 See also Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962)
72 N.LR B. v. Babcock & Wilcox Company, 351 U S. 105, 113 (1965)
73 E g , Olin Industries, Inc. v N.LR.B., 191 F.2d 613, 617 (C A. 5).
74 Subject, however, to collateral evidence as to the rule's interpretation
and application R G Barry Corporation, 162 NLRB 1472 (1967), Fergu-
son-LanderBox Co, 151 NLRB 1615 (1965)
75 See also Campbell Soup Company, 159 NLRB 74, 81-82 (1967), where
the trial examiner, whose decision was adopted by the Board, found imper-
missibly broad the phrases " during employees ' working time on Company
property" and "during Company working hours" as infringing on the right
FLORIDA STEEL CORPORATION
common meaning of "company time" 76 is the opposite of
the employees' time, so that even if the employees are on a
paid break, they are generally understood to be on their own
time, as indeed the employee testimony here indicated."
For instance, William Martin testified that "company time"
meant while he "was operating the crane" or while he "was
working"; and Sullivan testified that when Hastings told him
he could not solicit "on company time" or "during the work-
ing hours" he could "on [his] own time."78 "Company
time," in my opinion, has none of the ambiguity lurking in
the phrase "working hours" which latter could well mean all
of the time the employees are on the employer's premises or
even off the premises within the workday.79 Yet the Board
holds a prohibition against solicitation "during working
hours" presumptively valid. Logan Manufacturing Company,
162 NLRB 1586-87, 1599 (1967).80
The only cases in which the Board has found fatal am-
biguity in respect to "company time" have been where that
phrase was conjoined with "company property," as in Mar-
lene Industries Corporation, 166 NLRB 703 (1967) ("on com-
pany time and on company property"), or WIPO, Inc., 199
NLRB 649 (1972) ("on company time on company prop-
erty"). Such treatment by the Board, however, fully conforms
to that which it has given to "working time" and "working
hours" when those phrases appear in conjunction with "com-
pany property" or a like term. Thus, despite the presumptive
validity of "working time," and "working hours," the Board
has found the following prohibitions of solicitation invalid:
Campbell Soup Company, 159 NLRB 74, 81-82 (1966) ("dur-
ing employees' working time on Company property");"
Glassmaster Plastics Company, 203 NLRB 944 (1972), fn. 1
("on company property during working time");82 Southern
Electronics Co., Inc., 175 NLRB 69, 72 (1968) ("on company
property during working hours"); G.C. Murphy Company,
171 NLRB 370 (1968) ("on store premises during working
hours"); Daylin Inc., Discount Division d/b/a Miller's Dis-
count Department Stores, 198 NLRB 281 (1972) ("on these
premises during paid working hours"). Hence cases like Mar-
leneand WIPOdo not negate the presumptive validity attach-
ing to a prohibition limited to "company time" when that
phrase, as here, stands alone.83
to solicit "not on company time " Indeed, in its lead case, Peyton Packing
,Company, 49 NLRB 828, 843-844, enfd 142 F 2d 1009 (CA 5), cert
denied 323 U.S 730, the Board used "company time" interchangeably with
"working time" and "working hours "
76 Or, as here, "the Company's time "
77 Note the union's recognition in Campbell Soup Company, 170 NLRB
1547, 1555-56 (1968), that "company time" was properly beyond the pro-
tected period
78 Indeed such inhibition as these employees thus felt was narrower than
the permissible prohibition which of course extends to the working time of
the solicitee as well as of the solicitor
79 It is common, e.g., to refer to one's "working hours" as 9 to 5 rather
than 9 to 12 and 1 to 5, to say nothing of break period in addition to the
lunch hour
80 Despite some references to "company time" in Logan (id at 1589), the
Board treated it as a "working hours" case
8i Set aside in this respect, 380 F 2d 372 (C A 5, 1967)
82 An identical rule was held not violative in Campbell Soup Company,
170 NLRB 1547, 1555-56 (1967), by resolving the acknowledged ambiguity
in the employer's favor. on the basis of evidence that the parties understood
that its applicability was limited to "company time "
83 Wholly inapposite in this connection are Fasco Industries, Inc., 173
NLRB 522 (1968), and Uniroyal, Inc, 197 NLRB 1034 (1972), both cited
in General Counsel's closing statement. The former involved a rule which,
b. Enforcement of the rule
119
Respondent's application of the rule was equally lawful. As
recited above, of the testimony of the three employees bearing
on the issue, that of two (William Martin and Purscell) shows
that the rule was invoked in terms identical to those as writ-
ten, and, when related to specific conduct, as in Martin's case,
involved actual working time, to wit, when he was operating
his crane. Sullivan likewise conceded that his reprimands
related to his working time84 although he attributed to Fore-
man Hastings some statements going beyond the written rule
so as to preclude solicitation on company property even dur-
ing nonworking time. Sullivan's testimony, however, was
quite confusing and self-contradictory. While his testimony
on direct examination was that Hastings had initially berated
him on May 20 for "handing out union literature and solicit-
ing on company property," and that when he denied it Hast-
ings said he could not be "passing out union literature on
company property [a]nd . . . soliciting for the union on com-
pany time," he testified on cross-examination that what Hast-
ings had accused him of was both distribution and solicitation
on both company property and company time, but a few lines
later the solicitation accusation narrowed briefly to "com-
pany time," only to expand two pages later to include com-
pany property again.
Similarly, Sullivan's direct examination as to May 21 has
Hastings saying he had warned Sullivan "about soliciting on
company time," which Sullivan immediately changed to
"company property"; and, consistent with the latter, has
Hastings, at the very moment of handing Sullivan a discipli-
nary report based on Sullivan's "soliciting employees during
their working time," asking Sullivan if he knew that "solicit-
ing on company property," was against company rules. On
cross, however, he testified that Hastings had accused him in
this conversation of having solicited and distributed literature
on both company time and property, but that in explaining
the rule to him Hastings had "just said that it was against the
Company rules to solicit on Company property." Then, on
after banning "all solicitation [without authorization] during working
time," required authorization for solicitation "on nonworking time
except as permitted by Federal and State statutes and applicable court
decisions thereunder, and then only if it does not interfere with the produc-
tion of other employees or create safety or disciplinary problems" (173
NLRB at 524) This rule, which would have taxed the skill of a labor law
expert with a library at his disposal, was of course held presumptively invalid
as not "understandable to the employees " The two rules involved in
Uniroyal, on the other hand, asserted by General Counsel to be "very
similar" to that in the instant case, were quite understandable. One simply
and clearly barred all solicitation "on company property", and the other,
with equal clarity, barred solicitation of funds without permission "on Com-
pany premises at any time " (197 NLRB 1034 (1972) )
84 General Counsel's reliance, in this connection, on Exide Alkaline Bat-
tery Div. ofESB, Inc, 177 NLRB 778 (1969), and Mueller Brass Co., 204
NLRB 617 (1973), is misplaced Those cases hold that nonworking time
during which solicitation may not be barred includes not only scheduled
breaks but such other nonwork time as standing in line at the time clock
waiting to punch out at the end of the day (Exide) and waiting for a work
assignment at the beginning of a shift (Mueller) This does not encompass
every momentary diversion from normal duties Extension of the principle
to times when employees are at their workplaces in the middle of a shift
ready to perform an assigned operation subject only, like the transportation
department mechanics here, to the imminent completion of a preliminary
operation by others, would, in my opinion, render wholly valid no-solicita-
tion rules impossible of enforcement
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being pressed, he went on to acknowledge that when Hastings
handed him the reprimand he told Sullivan that what was
prohibited by the rule was soliciting on "company time" or
"working time," but reverted yet once again to the theme that
Hastings told him of the rule "about soliciting on company
property."
Hastings, on the other hand, gave a consistent account of
reprimanding Sullivan for soliciting on company time which,
he made clear, meant working time." Since this account
squared generally with the testimony of Martin and Purscell
concerning Respondent's interpretation of the rule, and in
view of the internal inconsistencies in Sullivan's testimony
and most particularly the statement that Hastings asked him
if he was aware of the rule against soliciting "on company
property" at the precise time that he issued Sullivan the
written reprimand for "soliciting employees during their
working time" consistent with the language of the rule, I am
unable to credit Sullivan's testimony, and I accordingly find
that the General Counsel has failed to sustain his burden of
establishing a violation in respect to Respondent enforcement
of its no-solicitation rule.
4. The 8(a)(3) allegations
a. Cone
activity notwithstanding such activity was not outstand-
ing. The credible evidence indicates that as of the time Cone
agreed to Williams' request to lay over and work on the crane
the tundish cart had also broken down and needed repair, and
that Williams had so advised Ramos; that both the crane and
the tundish cart were worked on during Ramos' shift; that
another emergency job arose that required the reassignment
of at least two men (Adkins and Chevillot) from the crane;
that when Ramos asked Cone to work on the tundish cart he
had already granted McLain's request to leave because of
illness; that Ramos did not authorize Cone to leave; 16 that
even crediting Cone's testimony concerning Adkins' message
from Hendry the message was "to go on home since they
can't get the part"; that the inability to get the part for the
crane was immaterial to the need to complete the tundish
cart; that the performance of that job was within Ramos'
jurisdiction to which Cone was subject, at least until midnight
when he would have been on duty for 16 hours; and that
Davis and Miller were fired simultaneously with Cone.
In all these circumstances I am unable to find that the
stated reason for Cone's discharge was pretextual for the
purpose of masking an unlawful motive.
b. Blessing
Cone was the first dischargee of those alleged in the com-
plaint. He was also the only one as to whose union activity
Respondent denies prior knowledge. The only possible record
basis for an inference of such knowledge consists of Cone's
testimony (1) that around Christmas, 4 months before the
Union's appearance, in a conversation with a number of other
employees at which Foreman Williams was present, Cone
mentioned the Union favorably; (2) that the day after the first
union meeting Williams asked him if he knew anything about
the Union's coming in to which he responded negatively; and
(3) that after the May 1 meeting Lawhorne answered Fore-
man Hetrick's inquiry as to what the men were doing gath-
ered in the melt shop office by saying that he and Cone were
trying to organize a union. In my opinion, the Christmas
incident, which antedated the Union's appearance by about
4 months and merely involved an expression of general ap-
proval by Cone does not furnishparticularly strong support
for a finding of motivation based on union activity in a dis-
charge almost 5 months later. Nor may a finding of company
knowledge be deemed to rest on Cone's later denial to Wil-
liams that he knew anything about the Union's campaign.
And the difficulty with the Hetrick incident is twofold: First,
Lawhorne's denial that he mentioned Cone's name on that
occasion; and second, what would have amounted to unusual
and inexplicable forbearance in Respondent's failure to en-
force its rule 4 had it known that union activity was involved
because the incident occurred during the working time of the
numerous employees present including, by his own admis-
sion, Cone.
Moreover, Respondent's stated reason for Cone's discharge
was not so farfetched as to warrant an inference that the
discharge could only have been motivated by Cone's union
85 In addition to his specific use of the phrase, "working time," Hastings
mentioned "going from furnace to furnace," "on the job," and "while he was
working on Mr Sullivan's crane "
I find the evidence insufficient to establish that Blessing's
discharge was for other than good cause. He admitted re-
sponding to Shook's second order to sweep up with "God
damn it, quit pushing so hard. Back up a little bit." I credit
Shook's testimony that Blessing also threatened him by draw-
ing back his fist.87 I am unable to find that either the giving
of the order or Respondent's reaction to Blessing's violent
response thereto was motivated in any way by Blessing's
protected activity. I find instead that Shook was ordered to
discharge Blessing because his superiors felt that to tolerate
such an unprecedented assault by lesser discipline would ex-
pose management to unwarranted risk in the future.
c. Purscell
Purscell's employment record was marked by numerous
reprimands and warnings starting well before the Union's
appearance. Indeed the incident involving the breakdown of
his car on the way to work, suggests a possibly unreasonable
or highhanded approach in the Company's treatment of its
employees quite unrelated to union activities. In the brief
period following disclosure of his union affiliation to Re-
spondent he was involved in no less than four separate disci-
plinary incidents all but one of which concerned matters of
safety and one of which resulted in his suspension. While he
86 Despite Cone's testimony that Ramos said , "0 K.," Cone did not
mention this to Hendry or Leedy. Nor did Cone tell Ramos that Hendry had
approved his leaving
87 An element undermining Blessing 's credibility, in my opinion, was his
repeated denial that he had grinned during his discharge interview before
admitting that he "may have " Noted in this connection was his facile
assumption that "since I had told him I was a union organizer-that I
wouldn't be around very along " This at a time when only one of the
8(a)(3)'s alleged in the complaint (Cone) had been fired I do not believe that
the voluntary disclosures of union affiliation on the scale here practiced
were in contemplation of discharge I suspect, on the contrary, that they
were designed precisely to avert that result
FLORIDA STEEL CORPORATION
attempted to explain away his speeding the forklift he
conceded he had not denied the accusation when he was
suspended therefor, asserting only that he had not admitted
doing it either. In view of this record, to find a violation based
on the accident resulting from his unauthorized operation of
the muleH" would in effect afford immunity from discharge
to any employee who joins a union.
d. Martin
Martin was discharged, according to Respondent's tes-
timony, because it had received employee information of
threats by Martin that employees who failed to join the Union
would suffer in respect to job tenure when the Union came
in. I am unable on the instant record to find that it did not
receive such information or that Martin's discharge was not
attributable thereto. The crucial issue here thus reduces to
whether the General Counsel has sustained the burden of
proving that Martin did not make such threats. N.L.R.B. v.
Burnup and Sims, Inc., 379 U.S 21, 23, fn. 3 (1964).
Martin did not impress me favorably as a witness. And in
at least three significant respects I found his testimony either
internally irreconcilable or at odds with other General Coun-
sel testimony. He testified that he was not aware of Respon-
dent 's employee rules until after his discharge when the
Union showed them to him. Sullivan testified, however,
that the rules were posted on the bulletin board in the
canteen and by the timeclock by the end of May or the
first week in June, approximately a month before Mar-
tin's discharge, weeks before the incident precipitating it,
and even prior to Martin 's joining the Union.
Similarly affecting Martin's credibility, in my view, was his
equivocal testimony concerning the reasons given to him dur-
ing his discharge interview. Although his own testimony
showed that Respondent's main concern at the time he was
suspended on June 29 pending further investigation was his
reported threats, he testified that all he was told in essence,
when the reasons were read off to him the following Tuesday,
was that he was being discharged for organizing on company
time. After flatly denying that any statement was made on
that occasion about threats, he qualified the denial to the
extent of saying that they "might have" been mentioned but
that he could not recall it. Yet he nevertheless proceeded to
request the identity of those who had accused him of
"threaten[ing]" them.
Perhaps most telling of all was Martin's own lack of total
certainty that he had made no threats. "I can't say definitely,
because I can't recall. It is not my nature. I don't want to
threaten anybody." is hardly an adequate predicate for a
finding that the General Counsel successfully carried the
burden of proving that no threats had in fact been made.
I accordingly find the evidence insufficient to establish that
either the issuance of the disciplinary report to Martin on
June 29 or his subsequent discharge violated the Act.
88 Clearly distinguishable from the prior accidents involving Alvarez and
Sanders
e. Sullivan
121
I have already found, as indicated in section B,(3),(b),
supra, that Sullivan's account of the reprimands given him in
May for violating rule 4 was entirely incredible. I find equally
lacking in credibility much of his version of the accident in
July that culminated in his discharge. In the first place his
low estimate of the extent of the damage was wholly incon-
sistent not only with the testimony of other witnesses includ-
ing Strickland, who had been called by the General Counsel,
but also with the extensive repair work the accident actually
entailed. Moreover, Sullivan's own explanation of the manner
in which the accident occurred indicates culpability on his
part to a degree sufficient to negate a finding of antiunion
motivation based upon the statutory requirement of a pre-
ponderance of the evidence.
He testified that at the time of the accident his crane had
"no brakes," as distinguished from merely weak ones, and he
evidently thought the situation extraordinary enough to war-
rant calling the transportation foreman at home after mid-
night although he was aware that it was not customary for
the transportation department to work on weekends. Yet
admittedly he failed to mention the traveling brakes to the
transportation foreman, confining his report at the time to the
condition of the hoist brakes. He also admitted that he had
not observed the air-pressure gauge at the time of the acci-
dent. And while he attempted to explain this away by saying
he did not "normally" look at the pressure gauge, the admit-
tedly abnormal character of the occasion would seem to have
required the exercise of greater care than "normally." More-
over, whatever the condition of the brakes, he had managed
them adequately for hours preceding the accident and he was
also able to control them immediately after the accident,
which suggests that the accident was attributable to some
miscalculation on Sullivan's part.
In any event, it cannot be concluded from this record that
Sullivan's discharge was motivated by his Union activity. I do
not credit Sullivan's testimony that Weidman suggested at
one point that Respondent recover the damages out of Sul-
livan's pay. I do not believe Weidman would have
entertained-much less voiced-a notion so palpably infeasi-
ble in view of the extensive damage and lost production. Nor
did Respondent's consideration of Sullivan's prior discipli-
nary record necessarily indicate more than that the record
was not good enough to justify his retention in the fact gf his
serious accident.89
For all of the foregoing reasons, I find that the General
Counsel has failed to sustain his burden of proof and shall
recommend dismissal of the complaint.
CONCLUSIONS OF LAW
1. Florida Steel Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. United Steelworkers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
89 Even if the determining factor were Sullivan 's union solicitation that
had resulted in his May 21 reprimand, the unprotected nature of such
conduct would prevent reliance thereon as a basis for finding a violation in
the discharge
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. General Counsel has failed to establish by a preponder- alleged in the complaint.
ance of the evidence that Respondent violated the Act as [Recommended Order omitted from publication.]