Florida Steel Corp.

National Labor Relations Board - Board Decisions

Sep 11, 1975

220 N.L.R.B. 225 (N.L.R.B. 1975)

FLORIDA STEEL CORPORATION 225
Florida Steel Corporation and United Steelworkers of
America, AFL-CIO. Cases 12-CA-6556 and
12-CA-6562
September 11, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On March 31, 1975, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Florida Steel Corporation, hereinafter called Respondent,
committed unfair labor practices within the meaning of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
Thereafter, Respondent filed an answer denying those alle-
gations. Representatives of all parties were present and
participated in the hearing. A brief was received from the
Respondent.2
Based on the entire record, including my observation of
the witnesses, and after due consideration of the brief filed
by Respondent, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent is a Florida corporation with its principal
office and place of business located at Tampa, Florida,
where it is engaged in the business of manufacturing and
selling structural iron and steel products. During the 12
months preceding issuance of the complaint herein, a rep-
resentative period, Respondent purchased goods and mate-
rials valued in excess of $50,000 which were shipped to its
Tampa, Florida, plant directly from points located outside
the State of Florida. Respondent admits, and I conclude,
that it is, and was at all times material herein, an employer
as defined in Section 2(2) of the Act, engaged in commerce
and in operations affecting commerce as defined in Section
2(6) and (7) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Florida Steel Corpora-
tion, Tampa, Florida, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd . 188 F 2d 362 (CA. 3, 1951). We have carefully
examined the record and find no basis for reversing her findings.
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA , Administrative Law Judge: This pro-
ceeding under Section 10(b) of the National Labor Rela-
tions Act, as amended (29 U.S.C. § 151, et seq.), hereinafter
referred to as the Act, was heard before me at Tampa,
Florida, on January 28 and 29, 1975. Based on charges
filed on October 29 and November 1, 1974, a complaint
issued on December 19, 1974,' presenting allegations that
1 Unless otherwise indicated all dates are in 1974.
II. THE LABOR ORGANIZATION
Respondent admits, and I find, that the Charging Party,
United Steelworkers of America, AFL-CIO, hereinafter re-
ferred to as the Union, is and at all times material herein
has been a labor organization as defined in Section 2(5) of
the Act.
2 The General Counsel filed a motion to strike certain attachments con-
sisting of correspondence between Respondent and the Regional Office re-
lating to various charges not involved herein which were either withdrawn
or dismissed for lack of sufficient substantiating evidence , on grounds of
irrelevancy , and certain additional attachments consisting of written repri-
mands issued to one of the individuals involved herein in the course of his
employment , on the ground that these were not introduced into evidence at
the hearing and their presentation at this time is an attempt to relitigate the
case In its opposition to the motion , Respondent asserts that the first group
of documents was submitted in response to the indication by the Adminis-
trative Law Judge at the hearing, upon granting a motion by the General
Counsel that she take judicial notice of certain adverse Board decisions
involving Respondent, that she would be delighted also to look at any that
the Board had dismissed , and that the second group of documents cover
matters inquired into by the Board at the time of its investigation but were
not encompassed by the complaint In view of the circumstances giving rise
to the submission of the first group of documents, and without ruling that
any of those documents submitted were within the intent of my remarks at
the hearing or have any relevant impact upon the issues herein, the motion
to strike with respect thereto is denied The motion is granted insofar as it
relates to the second group of documents which I find both untimely to
Respondent's defense in this case and irrelevant to the reasons for discharge
advanced by Respondent.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Larry C. Pitts was a supervisor within the
meaning of the Act and , therefore , his interrogation and
discharge for union activities were outside the protection of
the Act.
2. Whether the union activity for which Duane M.
Roach was discharged constituted an attempt to bribe or
induce a fellow employee to steal an employee list and was
unprotected for that reason.
B. The Evidence
1. Larry C. Pitts
The most recent period of employment with Respondent
for Pitts commenced in October 1973 as a warehousemen
helper . He was promoted to warehouseman in January
1974, and to loading coordinator , the last position held, in
mid-July 1974. Pitts was discharged on October 17, 1974,
after Respondent interrogated him admittedly for his
union activity of attending a union meeting.
a. Supervisory status of Pitts
Admittedly, as a coordinator, Pitts did not possess au-
thority to hire, transfer, suspend, lay off, recall, promote,
discharge, reward, adjust grievances, or effectively to rec-
ommend any of the foregoing actions. Nor could he disci-
pline other employees or change their shifts. The conten-
tion is that Pitts assigned work to employees in the
warehouse, responsibly directed them in such work, could
make effective recommendations for disciplinary action
and retention of employees on the shift, and, therefore, was
a supervisor within the meaning of the Act.
The facility involved is known as the Tampa Structural
Steel Depot where Respondent stocks and supplies steel for
its warehouses located in Miami, Jacksonville, and Orlan-
do, Florida, and sells steel at wholesale to commercial cus-
tomers. This facility consists of a warehouse building run-
ning north-south joining at one end with a warehouse
building running east-west, a yard behind these buildings
and a yard across one of the streets. The depot foreman's
office and the office of the manager of Tampa Steel Service
Center and of Tampa Structual Steel Depot, generally re-
ferred to as the warehouse superintendent, as well as the
sales offices and sales counter , are located where the two
buildings join. Other warehouse facilities of Respondent
located in Tampa are also under the supervision of the
warehouse superintendent. The depot operation is under
the direct supervision of Foreman John Raulerson.
Steel, in 20-to-40 foot lengths, is stored in racks or is
stacked in bins in the warehouse buildings. Pipe and other
steel items are stacked in various locations in the yards.
There are three loading bays in the warehouse area, two
5-ton hand-operated cranes, a 2-ton crane, and other heavy
moving equipment, including a forklift which is used in the
yard where trailer-trucks are brought in for loading and
where occasionally extra trailers are parked.
The five warehousemen and helpers, together with the
coordinator, receive, ship, load, and unload Respondent's
trucks and trailers and those of commercial customers who
pick up orders placed through the sales office on the prem-
ises . The warehousemen are cross-trained to perform every
function in the warehouse but, in accordance with the
foreman's designation, usually work in section crews, one
located in the yard and the other operating inside the
buildings. The work at the depot is performed in accor-
dance with established priorities with customer orders
being handled first and Respondent's trucks and trailers
destined for the various company warehouses loaded next.
When there are none of these to load and no unloading to
perform the warehousemen and helpers move stacks of
steel as required, sort steel, or clean up the warehouse.
Shipping order tickets are made up by the foreman each
afternoon for the work to be performed the following day.
These are in the nature of invoices and are made up from
information received from the Miami, Orlando, and Jack-
sonville warehouses as to what items they wish to have
delivered. Standing orders or "preorders" are also on file
from those locations for certain items. After receiving tele-
phone orders of quantities and types of steel desired at
these locations, the foreman calculates the weight of the
steel involved and makes up complete loads adding from
the standing orders sufficient quantities to utilize the full-
load weight for the trucks or trailers required and then
requests the trucking equipment needed from the truck
dispatcher's office. All of the specific information is placed
on the loading ticket which is then used as the work order.
As loading coordinator, Pitts arrived at the depot at
about 7:40 a.m., unlocked the gate and the office, prepared
new timecards for the day by inserting the name and job
code, completed the timecards from the preceding day by
totaling the hours on each and placing the foreman's ini-
tials on it ,3 and made up the batch ticket showing the num-
ber of cards and the total number of hours, which he then
signed , dated, and sent to the Respondent's offices. By the
time Pitts had completed this duty, Foreman Raulerson
and the warehousemen and helpers would have arrived and
the foreman would be in the depot instructing the men
concerning their work assignments for the day. In doing so
the foreman turned over to the warehousemen the work
order tickets prepared the evening before and, following
established routine, they proceeded to fill those orders in
accordance with the information contained thereon.
It was part of the coordinator's job to be outside the
depot office with the activities and to perform the checking
and paperwork involved in the processing of the orders, in
receiving steel supplies, and to assist in any of the opera-
tion where he was needed. Consequently, only a quarter to
a half of his working day was spent in the depot office
performing the paperwork for which he was responsible.
Thus, when the loading of a truck was completed, the
warehousemen brought the ticket to Pitts who would go to
the truck and check the load against the ticket to make sure
that the load had the correct item, the correct number or
3 When he was instructed in the performance of this function , Pitts was
told by Raulerson to use the foreman's initials because the cards would not
be accepted with his own initials
FLORIDA STEEL CORPORATION
quantity, and the proper weight. If it was incorrect, the
change had to be made to conform with the ticket. Such
errors occurred only a couple of times during the period
Pitts was coordinator. When the load was correct, Pitts
then took the ticket into the office and completed the infor-
mation required thereon, filling in the code number, the
total weight, the identity of the vehicle used, and who load-
ed it. Pitts then initialed the ticket, made the appropriate
distribution of the various copies, and entered the informa-
tion in the log record kept in the office from which Pitts
prepares daily tonnage reports.
When steel arrived, Pitts counted the number of each
type of item, checking this against the shipping invoice,
and filled out a receiving report reflecting the date re-
ceived, where the steel came from, the code number, de-
scription of the steel, and the number of pieces, appropri-
ately distributed the copies and entered this information in
the office records. Then Pitts went back to the truck and
helped unload and store the steel.
Pitts also helped load trucks wherever he was needed.
Usually he performed rigging duties or landed the steel,
positioning it on the truck as it was being lowered by crane.
There were occasions when the warehousemen were unable
to locate the steel specified on an order. On such occasions
they came to Pitts and if he was unable to locate the item
he sought out the foreman. In this connection, Pitts was
very familiar with the layout of the racks and where the
various types of steel were stored as he was involved in
constructing the racks and did all of the welding of them 4
during his earlier period of employment when Respondent
acquired this facility. In addition, as coordinator he was
involved with all receiving and knew where those items
were placed.
There were occasions when Foreman Raulerson also did
manual work in the warehouse such as operating the crane
or the towmotor or helping unload. In view of the estab-
lished priorities and the fact that Pitts was the one general-
ly on the scene , it was part of Pitts' duties to inform Rau-
lerson of the outside activities. Thus, when a customer's
truck arrived, if the warehousemen were occupied in other
tasks, Pitts would inform the foreman of the truck's arrival
and Raulerson would decide which crew members would
leave their tasks and load the customer's truck. Similarly, if
the work piled up in one area the foreman would be ad-
vised and he would assign a man from the other area to
assist in the backlog. On those occasions when the foreman
was not present and this situation arose, Pitts would do so.
On 2 days a month, Foreman Raulerson attended super-
visory seminars. Raulerson would prepare the tickets for
work orders on the preceding afternoon and leave them for
the men. On the second day it was Pitts' function to obtain
the information for the delivery tickets, prepare the tickets,
and distribute them the following morning. This was the
only function of the foreman which Pitts performed in
4In addition, after Pitts became coordinator he built all the additional
racks, as needed , and at the time of his discharge Respondent was putting in
an addition to one of the buildings and Pitts was building the storage racks
for this addition. Billy N. Stracke, who became the superintendent on Octo-
ber 10, testified that he consulted with Pitts in connection with the rack
system for the new structure because of Pitts' previous contribution in this
area.
227
Raulerson's absence. When Raulerson anticipated being
away he left orders and instructions with Pitts. If any disci-
plinary problem arose Pitts was required to call the super-
intendent.
During the period that Pitts was coordinator the fore-
man had one occasion to hire a warehouse helper. He
asked Pitts to take the man out into the warehouse and
yard and show him the operation. Later he asked Pitts how
the man was getting along. Pitts reported the man was
doing fine. Pitts instructed the new employee how to run
the forklift. Pitts was familiar with all the equipment used,
having had experience in performing every function in the
depot warehouse, and had, on occasion, given other ware-
house employees pointers on how best to perform those
functions.
Neither Pitts nor the employees were ever told, as coor-
dinator, Pitts had any supervisory authority over them.
Pitts was never asked for a recommendation in setting up
the work, or in making the work assignments. He had no
part in determining who would work overtime, and did not
inspect the warehousemen's work for quality but merely
checked the completed load for accuracy.
Pitts was never told he had authority to recommend dis-
ciplinary action or recommend any action that would af-
fect where an employee was assigned to work. On one oc-
casion Pitts reported a safety violation to the foreman
because one employee, while operating the crane, had
knocked the employee acting as loader off the truck twice.
Pitts made no recommendation, and has no knowledge of
whether anything was done but did observe that the em-
ployee involved continued to operate the crane.
Pitts received phone calls from employees reporting that
they would not be at work for whatever reason they gave
and relayed such messages to the foreman but he had no
authority to and has never excused absences. Pitts was nev-
er told he had authority to grant time off and has never
done so.
Like warehousemen and helpers at the depot, the coordi-
nator is hourly paid,5 punches the timeclock, and receives
employee benefits established for all hourly paid plant em-
ployees of Respondent, such as participation in a tuition
refund plan, a monthly investment plan, a savings plan,
and a life and medical insurance plan. On the other hand,
the foreman, like all other operating supervisors of Re-
spondent, is paid a salary and receives such benefits as
long-term salary contingent insurance, life and comprehen-
sive major medical insurance, a dental care plan, and a
retirement plan. Respondent's industrial relations manager
for the Tampa area, John W. Kachel, testified that Pitts
5 Wage rates for warehouseman helpers were not given. It was stipulated
when Pitts was promoted to warehouseman on January 6 he was paid $3.15
per hour. This was increased on February 10 to $3.35 and on April 21 to
$3.64 Then he was promoted to coordinator on July 28 with a raise to $3.93
He received a step increase on September 8 to $4.14 and on October 6 to
$4 28 Respondent emphasized the wage differential between the base rate
for warehousemen and the base rate for coordinator as indicative of super-
visory status. However, the wage differential is considerably less significant
when the beginning rate for coordinator is compared with the rate Pitts was
receiving in the lower classification when he was promoted In this connec-
tion, Pitts testified that he did not know whether a supervisor's recommen-
dation was required in order to receive the within-classification wage in-
crease and that he had never been asked for such recommendation with
respect to warehousemen and helpers while he was a coordinator
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other coordinators are paid on an hourly basis because
of a Federal wages and hours law requirement that if over
20 percent of an employee's worktime is spent performing
manual labor he must be compensated on an hourly basis
with overtime pay and that foremen and managers are ex-
empt from this requirement and are paid on a semimonthly
basis . He admitted that coordinators are the only "supervi-
sors" in Respondent's plant department who are paid on
this basis for this reason and that the law does not require
that hourly paid supervisors otherwise receive benefits nor-
mally given nonsupervisory hourly employees rather than
fringe benefits normally provided for supervisors who are
salaried and for management personnel.
Immediately after he became coordinator, Pitts was re-
quired to attend a meeting with Raulerson called by Ware-
house Superintendent Jim Foster. Present were three other
warehouse foremen and three other coordinators. The sub-
ject matter of the meeting involved how to make better use
of the equipment through interchange between locations
and how to improve the operation. Foster indicated that
similar meetings would be held on a regular weekly basis,
but this did not occur. Within a few days the warehouse
superintendent summoned Raulerson and Pitts to attend a
meeting at Respondent' s Miscellaneous Office Building on
Fifth Avenue, Tampa. Present at this meeting of July 30
were Industrial Relations Manager Kachel, Foster, the
four coordinators and the four foremen, the company law-
yer identified as Bob Lanquish, and another individual
named Jim Sidman but not otherwise identified. After
being introduced by Kachel, attorney Lanquish conducted
the meeting confining it to the subject of the Respondent's
present troubles with the Union at Charlotte, North Caroli-
na and in Indian Town. In his talk, the attorney gave those
present "a list of do's and don'ts" with respect to the
Union including a caution not to attend union meetings.6
After they left this meeting, Pitts expressed to Raulerson
his view that he could not see why he could not attend a
union meeting, and questioned the foreman as to what "ex-
empted" coordinators from attending union meetings since
they were not foremen. Raulerson could give no reason but
agreed with Pitts that coordinators were not foremen. Also
about this time Pitts asked Raulerson to see the job de-
scription for coordinator and Raulerson showed him a sin-
gle sheet that contained the job duties for all employees in
the depot. This description was not the one received in
evidence as Respondent's exhibit?
The job description presented by Respondent states that
the coordinator "follows prescribed procedures and stan-
dard loading methods . . ." and that the work is "repeta-
tive [sic] in nature requiring the use of judgment to proper-
ly sequence shipping tickets and safely load trucks . . . as
required and directed." The coordinator is to "detect and
report faulty material, improper operations; refer question-
6 Further details with respect to what was said and what occurred at this
meeting are relevant for credibility purposes only and are not set forth
herein.
7 Resp . Exhs. I and 2 are titled "Job Rating Specifications for Structural
Group Warehouse for Loading Coordinator ." It is ink-dated July 22, 1974,
and initialed CEM, otherwise not identified There is no indication as to
when, how, or whether it has been put into effect at the depot , and there is
no assertion it was ever shown to Pitts
able matters to proper supervision" and to "make effective
recommendations for disciplinary action and retention of
employees on the shift." The substantiating data attached,
devoted largely to a description of the job characteristics,
emphasize the heavy and dangerous manual labor in-
volved, and indicate that the coordinator is "responsible
for [the work of] normally five to seven persons as crew
fluctuates," without indicating in what way he is responsi-
ble. Pitts had never seen these documents before the hear-
ing nor was he ever informed of his responsibility for the
work of the crew beyond the accuracy of the load, or that
he had authority to recommend discipline or transfer.
In connection with the foregoing, I do not credit the
testimony of George C. Peon, former coordinator and pres-
ently night foreman at another warehouse, that when he
was coordinator he granted warehouse employees up to 30
minutes off during the day to attend to personal matters
and thereafter reported that fact to the foreman. He was
not able to name a single personal matter a warehouse
employee could accomplish within the designated time
frame or a single specific incident when this was done. He
admitted that if the foreman was there he would refer any
such request to the foreman. Repeatedly his testimony
was couched in terms of "we," meaning he and the fore-
man, and it was made apparent by cross-examination that
for the most part Peon was including himself in the activi-
ties carried out by the foreman. I am convinced that this
was a deliberate effort to distort the nature of his responsi-*
bility, and I find his testimony as a whole unreliable for
purposes of establishing either what responsibilities he had
as a coordinator or what authority was vested in Pitts as a
coordinator. Accordingly, I have placed no reliance upon
Peon's testimony except to the extent that it corroborates
or in a consistent manner elaborates upon the facts set
forth herein which are based substantially upon the testi-
mony of Pitts whom I credit. Further, it is not without
significance that Raulerson, who was the foreman over
both Pitts and Peon as coordinators and who would be
most conversant with what authority was given to and/or
exercised by the coordinator, did not testify.8
While Pitts did attend two special meetings with the
foreman during the week after he became coordinator, he
was not, during the entire period as coordinator, included
in any of the established regular supervisory seminar meet-
ings. I find that the first meeting Pitts attended was not by
its nature directed to supervisory functions alone. Further,
the mere inclusion of coordinators with the foremen in a
meeting with the company lawyer at which the definition
of supervisor is read from the Act and those in attendance
are instructed, among other things, to report any union
contact which comes to their attention, and also what not
to do, does not establish the supervisory authority of coor-
dinators.9 It merely indicates that at that time Respondent
viewed this as a possible means of keeping coordinators
8 Further, it is noted that, with a superintendent and foreman on the
premises, the supervisor-employee ratio would be 3-5 if the coordinator
were found supervisory and 1-3 if he were not
Nor does it establish that Respondent really believed or was advised by
its lawyer that coordinators were supervisors within the meaning of the Act.
And even if it did, this would not deprive coordinators of their rights as
employees because of Respondent's erroneous advice or belief
FLORIDA STEEL CORPORATION 229
out of the union activity and of obtaining reports on the
activities of employees by individuals who had continuous
contact with warehousemen.
I am convinced by the testimony presented that Pitts did
not make work assignments to warehouse employees ex-
cept indirectly through the preparation of the information
on the work tickets in the absence of the foreman 1 day a
month and that this was a routine function following estab-
lished procedures reflecting the order requests received
from the various warehouses. I find further that any direc-
tion which he gave warehouse employees were either on
instruction from the foreman or were so routine in nature
as to constitute no more than that given by a more experi-
enced employee or group leader and did not involve the
exercise of independent judgment required for responsible
direction under the definition of supervisor. Finally, even
if, as of the date thereon, the job description which Pitts
never saw and/or was told about existed, I find no evi-
dence that it was ever put into effect. Accordingly it is not
established that Pitts could make effective recommenda-
tions for disciplinary action or for the transfer of ware-
house employees. On the contrary, even his reporting of
dangerous conduct had no effect upon the work assign-
ment of the employee involved and as there was no second
shift there was no situation in which retention of employ-
ees on the shift could come up. Accordingly, on the basis
of the entire record, including the foregoing, and the fact
that his foreman confirmed his belief that he was not a
supervisor 10 when he had reason to question this, I find
that Pitts was not a supervisor within the meaning of the
Act at any time material herein.
b. Interrogation and discharge
Pitts signed an authorization card and attended a union
meeting . On Wednesday, October 16, his attendance was
reported to Bill Stracke who had just assumed the position
of warehouse superintendent. Stracke reported this to Ka-
chel, arranged for the latter to join him, and called Pitts
and Foreman Raulerson into a meeting at about 1 p.m.
Kachel interrogated Pitts, asking, among other questions,
whether he attended the union meeting, why he had done
so, whether anyone with the Company asked him to go to
the meeting , whether any company employees were there,
whether he recalled attending the meeting at which compa-
ny lawyer Lanquish talked, and whether he understood
Lanquish had said supervisors could not attend union
meetings ." Kachel testified that he also asked Pitts wheth-
er he was a supervisor and that Pitts replied that he really
did not think he was. Pitts testified he denied to Kachel
that he was a supervisor. Kachel informed Pitts that the
matter was not closed, that they were going to investigate
the matter further and would let him know sometime later
10 Although they talked in terms of foreman , I find that Pitts and Rauler-
son were referring to supervisory authority in that conversation as the rec-
ord establishes that the titles foreman and supervisor were used interchange-
ably
1 Kachel indicated the lawyer had referred to all those present as supervi-
sors, but Pitts differed with him , asserting that the lawyer had referred to
them as coordinators at this meeting . They did agree that the lawyer said
supervisors could not attend union meetings.
that afternoon. At the end of the day, Stracke told Pitts the
matter was still under investigation, that he had caused the
Company great embarrassment, and that they would let
him know sometime the next day.
At about 10:15 the following morning, October 17, Pitts
was summoned to Stracke's office where Raulerson in-
formed Pitts he was terminated as of that time and to turn
in his equipment and keys. 12
c. Conclusion
As I have found that Pitts was not, at any time material
herein, a supervisor within the meaning of Section 2(11) of
the Act I find that by the particular parts of the interroga-
tion of Pitts set forth above, Respondent interfered with
the Section 7 rights of its employees and restrained and
coerced them in violation of Section 8(a)(1) of the Act. I
further find that by discharging Pitts for exercising the pro-
tected right of attending a union meeting Respondent dis-
criminated against its employees with respect to tenure of
employment because of his union activities in violation of
Section 8(a)(3) and (1) of the Act.
2. Duane M. Roach
The last period of employment with Respondent began
for Roach in September 1973 at which time he was classi-
fied as a switchman on the railroad. Roach signed a union
card on September 20 and, thereafter, was on the union's
voluntary organizing committee, in connection with which
he engaged primarily in soliciting union memberships and
authorization cards. Roach was discharged on October 28,
1974, for activity engaged in while pursuing his organizing
efforts.
12 Stracke testified he made the decision to terminate Pitts and that he did
so because as a supervisor Pitts' actions in attending the union meeting had
possibly exposed the Company to possible charges Kachel testified he, to-
gether with Stracke , made the discharge decision and that the reason was
that Pitts was a supervisor and had attended a union meeting knowingly
after he had been told he was a supervisor and showed no remorse about
having gone . There is testimony that the investigation involved obtaining
legal advice I regard the differences in the way the reason for discharge was
phrased as insignificant as both add up to discharge for attending a union
meeting. However, I have not generally utilized Stracke's testimony as he
was singularly unimpressive as a witness . His overdeveloped sense of drama
raised serious questions about his ability to distinguish from reportorial fact
and the fiction inherent in dramatic display
In this connection , I credit Pitts' version of the conclusion of the dis-
charge interview. Pitts testified that he did not tell Raulerson , "Baby, you've
had it . ", instead he said to Raulerson , "You're in trouble too" and that
he had reference to the fact that Raulerson had also signed a union card and
he. Pitts, intended to "file a grievance" over this matter. Pitts further testi-
fied that Stracke asked what he meant by this statement and Pitts made no
reply, Stracke then asked for his uniforms as well as the keys he had surren-
dered to Raulerson and Pitts assured Stracke those would be turned in.
The following day Pitts called for and was granted a meeting with Stracke
who arranged for Kachel's presence At this meeting, Pitts vigorously assert-
ed his nonsupervisory status. In contrast to the day of his interrogation and
the discharge interview, Pitts displayed some anger On this occasion he was
told he was not entitled to certain rights because of his discharge for cause,
including his right to accumulated vacation time, and he informed the offi-
cials that he was filing charges against them with the NLRB
I find nothing in the meetings to warrant any reflection upon Pitts' rein-
statement rights.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. The activity involved
Roach made the acquaintance of Kathi Gilbert some
time in the past through her brother and knew her socially.
Gilbert who is an engineering clerk whose duties were to
fold, mail, and file prints and drawings, and figure weights
of steel on "bill pages," worked in the office at
Respondent's plant No. 14 across the street from plant No.
15, both facilities other than the one where Roach worked.
In early September, Roach called Gilbert at her work on
two occasions for social purposes. On his third call, Roach
informed her of his interest in the union organizing activity
and told Gilbert she was eligible to sign a union card be-
cause she had nothing to do with management . Gilbert
said she was interested. After this conversation Roach hap-
pened to meet Gilbert at a gas station. On that occasion, in
talking with Gilbert, Roach spoke of his interest in organiz-
ing. Roach and Gilbert disagree as to whether he asked her
to sign a card, but Roach recalled that he had no union
card with him, and Gilbert still indicated some interest.
Gilbert testified that after this encounter Roach called her
at the office on October 3 and asked her as a favor to him
to get the names and addresses or phone numbers of em-
ployees who worked at the same plant. She further testified
that he indicated the Union would pay her for such a list.
The following day he called her and asked about the list of
names . Gilbert told Roach that she did not know anyone in
the plant, only office employees. He said maybe they could
join, but he would have to ask the Union about this. Gil-
bert told Roach she would think about the list. Gilbert
admitted that as far as she knew and understood the list
Roach had reference to was one that she would make up
and that several times she told him that she really did not
know anyone in the plant to put on such a list . Gilbert
admitted that Roach did not ask her "to steal a list"; that
she had no access to any list of plant employees; that any
such records are in the personnel files to which she has no
access ; and that she had no access to any payroll records.
Gilbert further testified that there is a Christmas list of the
names and addresses of office employees which the super-
visors make up and distribute among the employees so
they can mail Christmas cards to each other. Such lists are
not recalled after Christmas by the supervisors. Gilbert in-
dicated that she was afraid someone would overhear, or the
telephone operator might hear, her conversation with
Roach relating to the Union because she knew of
Respondent's opposition to the Union and was afraid she
would get into trouble.
Roach again called Gilbert at which time she informed
him that she was busy and would have to call him back.
When she did not call, Roach called her twice, leaving his
name and phone number at the first and his name only in
the last call. Gilbert had told a fellow employee of the
union subject matter of her conversation with Roach. This
fellow employee told Gilbert that if she did not go to their
supervisor, Roland Goode, and tell him about -this that
employee would do so and Mr. Goode "would be mad at
me." On Friday, October 4, Gilbert reported Roach's
phone calls regarding union organizing to Goode who
asked her the details of what Roach had said, then called
Kachel and told him.
On Monday, October 7, Goode called Gilbert to his of-
fice and asked her if she would be willing to call Roach
back and pose to him certain questions which would be
supplied her, with management recording their conversa-
tion. Later Gilbert agreed to do this and the call of October
8 was arranged , with Goode standing by Gilbert who was
armed with the specific questions, a recorder attached to
the phone and a secretary, Ann Hicks, on an extension
taking the conversation in shorthand. Kachel was in the
area observing the recording of the conversation and was
controlling the recorder. When the conversation ended,
Kachel was handed the record and transmitted it to the
secretary for transcription, and stood by while she made up
a transcript from her notes and the tape. Kachel then lis-
tened to the tape. The tape and transcript were then placed
in an envelope and sealed by Hicks. In the phone call to
Roach, the following conversation took place:
Roach: Hello.
Gilbert: Roach: Is this Roach?
Roach: Yeah.
Gilbert: This is Kathi . . . Gilbert
Roach: Yea, How ya' doin?
Gilbert: All right-and uh, remember what we talked
about last week?
Roach: Uh huh.
Gilbert: Well, I've been thinking about it, and-and I
just want to know some more-you know, more de-
tail about it. And, uh, I wanta know-couldn't I get
in a lot of trouble if I got caught?
Roach: Well, if you got caught, yea-It's hard to get
caught, if you're quiet about it.
Gilbert: Umm-Well-tell me exactly what-they-
what you want me to do.
Roach: Well, you just fill out a card that uh-gives
your home address and phone number, and what
department you work in, how much you make, uh
when you started workin'. It authorizes the United
States Steelworkers to uh-what they say, uh, make
contracts in your benefit and uh-
Gilbert: Is that all I do is fill out a card?
Roach: You fill out a card and uh-turn it in to the
man, and uh-when they have an election you
vote-
Gilbert: Um hum-well, uh, what about this list you
were telling me about?
Roach: Oh. It's just if you coulda got a list of some of
the employees that work for Florida Steel-not
whitehats-but-you know, regular people like me
and Andy-if you could get a list like that with
some uh, addressesjust phone numbers would be
good enough , ya know-phone numbers-the man
would, uh-he told me if anybody got a list like
that, he'd give 'em an early Christmas.
Gilbert: How much?
Roach: I don't know.
Gilbert: Umm. Well, uh, if I could get this list, when
do you think he'd want it?
Roach: Right away. He-he told me-3 o'clock-2
o'clock in the morning-call him in his room.
Gilbert: Uh, huh. Will he pick it up, or-whadda I do
FLORIDA STEEL CORPORATION 231
with it-after I get it, you know, if I-
Roach : We could go down there together and give it
to 'em or you could give it to me and I'll give it to
'em, and I 'll give 'em your name and address and
he'll get in touch with you.
Gilbert: Uh huh. What if they-well, let's say I want-
ed to take it to them-whadda I-how-?
Roach: You take it to Quality Court Motel on 50th
Street-
Gilbert: Uh, huh,-
Roach : Where the Interstate is-
Gilbert: Uh, huh-
Roach: Room 146-
Gilbert: Uh, huh-
Roach: And the guy's name is Estes Riffe.
Gilbert: Uh, huh.
Roach: Tell him that Roach sent you.
Gilbert: O.K. Uh, well, lemme think about it and uh-
O.K.?
Roach: Awright.
Gilbert: And, uh-I'll let you know somethin'.
Roach: O.K.
Gilbert: O.K. Bye, Bye.
Roach: Be cool.
Gilbert: Awright.
Roach: Bye.
Gilbert: Bye.
Roach denied that at any time he asked Gilbert to steal
anything from Respondent's files or made any reference to
company records. He asserted that he asked her to supply
the names of friends and other employees she knew who
worked at the plant where she worked, and who might be
interested in joining the Union. He wanted her to supply
their names , and their addresses and/or phone numbers so
that the Union could approach them at their homes for
organizational purposes . Roach recalled that in addition to
the "early Christmas" 13 he mentioned to Gilbert in their
last conversation 14 he also indicated to her that if she
would get together for him a list of people from her plant
who might be interested in the Union he, in turn would
take her and her husband out to dinner. He denied that he
ever offered Gilbert money for such a list of names.
card. Hastings referred him to his foreman, Dusty Rhodes.
Roach found Rhodes in the mill office with his timecard
on the foreman's clipboard. Roach asked Rhodes whether
he was being terminated. Rhodes told him that personnel
had told him to have Roach with him in the melt shop
office at 8 a.m. Roach went over to the melt shop office. At
8 o'clock Rhodes arrived with Kachel. The three joined
Hastings in the latter's office. Kachel told Roach that he
had information that Roach had violated company policy
and that Florida Steel no longer needed his services; he
was terminated. Roach asked for the reason. Kachel stated
he could not give Roach that information because it was
confidential. Roach asked where they obtained informa-
tion for which he was being terminated and Kachel told
him "from a confidential informer." At no time did Kachel
tell Roach what he had done wrong and refused to give
Roach any information other than that the discharge was
based on confidential information from a confidential in-
former. 15
c. Conclusion
It is Respondent's position that the evidence establishes
that Roach wanted Gilbert to prepare a list of employees
from company records because there was no possible way
Gilbert could supply a list of the production employees at
the plant except through the Company's confidential rec-
ords. I find no indication either that Gilbert had access to
any confidential company records or that the individuals
involved contemplated that such a list should be construct-
ed from any type of company records. The taped conversa-
tion offered by Respondent 6 as support for its contention
rather substantiates the testimony of both Roach and Gil-
bert that it was intended that she make this list up from
names of friends and other employees whom she knew. In
these circumstances I find, as alleged in the complaint, that
the Respondent discharged Roach for activity protected by
Section 7 17 of the Act, namely his organization activities
on behalf of the Union and it thereby violated Section
8(a)(3) and (1) of the Act.
b. The discharge
When Roach arrived at the plant at 7:20 a.m. on Octo-
ber 28, 1974, his timecard was not in the rack. He went into
the melt shop office and asked Assistant Superintendent
Jim Hastings if the latter knew anything about his time-
13 Roach denied that any official from the Union ever authorized him to
offer on their behalf an "early Christmas" or any money or gift for procur-
ing or supplying a list of employee names and addresses-asserting that this
was his own idea.
14 Roach denied that he thereafter called Gilbert who asserted that he had
called her after his discharge , refusing to state his name but identifying
himself as her brother's friend and advising that he had been fired I am
inclined to credit Roach in this disagreement . Gilbert displayed consider-
able confusion in her testimony, and there is no dispute but that Roach had
in the past sent messages to Gilbert through her brother, an avenue presum-
ably still open , and there was no need for him to choose such anonymous
approach in a call to her at the office if he wished to get the message to her.
15 Roach testified that when he applied for unemployment, the official
there called Respondent to ascertain the reason for discharge and was re-
fused information on why Roach was terminated.
16 As the General Counsel indicated at the hearing his intent to urge as
independent 8(a)(1) conduct only the interrogation of Pitts , I make no find-
ing based on the surveillance involved in taping this conversation.
See Ridgely Manufacturing Company, 207 NLRB 193 (1973), and South-
ern and Western Lumber Company, 212 NLRB 668 (1974), cited by the Re-
spondent but which I find support the conclusion herein
In this regard Respondent also emphasizes the inducement of an "early
Christmas ," a dinner, or an unstated amount of money as placing Roach's
request for the list beyond the protection of Sec. 7. However, Respondent
cites no authority for so holding. Clearly, this was not a matter of vote
buying but rather was in the nature of compensating a fellow employee for
assisting in organizing . There is nothing unlawful about paid organizing and
nothing unlawful about receiving gifts or compensation for information or
efforts in obtaining names and addresses of individuals who might share a
mutual interest, short of purloining confidential information. I find nothing
in such conduct to cause forfeiture of the employee 's protection in pursuit of
union organizing activities
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the Respondent's op-
erations described in section I, above , have a close, inti-
mate , and substantial relationship to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
Upon the basis of the above findings of fact and upon
the entire record in this case , I make the following:
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 la-
bor organization within the meaning of Section 2 (5) of the
Act.
3. By discharging Larry C. Pitts and Duane M. Roach
because of their activities and in order to discourage activi-
ties on behalf of the Union, Respondent committed unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
4. By interrogating employee Pitts , Respondent violated
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent discriminatorily dis-
charged Larry C. Pitts and Duane M . Roach in violation of
Section 8(a)(1) and (3) of the Act , I shall recommend that
Respondent cease and desist from such unfair labor prac-
tices and be required to take certain affirmative action
which is deemed necessary to remedy and remove the ef-
fects of such unfair labor practices and to effectuate the
policies of the Act. I shall recommend that each be offered
immediate and full reinstatement to his former position or,
if such position no longer exists, to a substantially equiva-
lent position , without prejudice to his seniority or other
rights and privileges , and be made whole for any loss of
pay he may have suffered by reason of the discrimination
against him from the date of the discrimination to the offer
of reinstatement . Loss of pay shall be computed as pre-
scribed in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest as prescribed in Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962). I shall also recommend that
Respondent be ordered to make available to the Board,
upon request , payroll and other records in order to facili-
tate the computation of backpay due.
Since a discriminatory discharge of an employee goes to
the very heart of the Act (N.L.R.B. v. Entwistle Manufac-
turing Company, 120 F.2d 532, 536 (C.A. 4, 1941), I shall
recommend that Respondent be ordered to cease and de-
sist from in any manner infringing upon the rights guaran-
teed employees in Section 7 of the Act.
On the findings, conclusions, and the entire record, it is
hereby recommended that the Board issue the following
recommended:
ORDER'S
The Respondent , Florida Steel Corporation , Tampa,
Florida , its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with , restraining , and coercing its em-
ployees and from discouraging membership in United
Steelworkers of America , AFL-CIO, or any other labor
organization by interrogating its employees concerning
their union activities and those of fellow employees and by
discharging or otherwise discriminating against its employ-
ees because of their union activities.
(b) In any other manner interfering with , restraining, or
coercing employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist
the above -named or any other labor organization , to bar-
gain collectively through representatives of their own
choosing, and to engage in any other concerted activities
for the purposes of collective bargaining or other mutual
aid or protection or to refrain from any or all such activi-
ties.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Larry C. Pitts and Duane M. Roach, re-
spectively , immediate and full reinstatement to his former
job, or if that job is no longer in existence , to a substantial-
ly equivalent position , without prejudice to his seniority or
other rights and privileges , and make him whole for any
loss of pay which he may have suffered as a result of the
discrimination against him in the manner set forth in the
section herein entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents, for examination and copying , all pay-
roll records, social security payment records , timecards,
personnel records and reports , and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its depot , warehouses , and plants in Tampa,
Florida, copies of the attached notice marked "Appen-
dix." 19 Copies of said notice , on forms provided by the
Regional Director for Region 12, after being duly signed
by Respondent 's authorized representative , shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter , in con-
spicuous places, including all places where notices to em-
ployees are customarily posted . Reasonable steps shall be
18 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
19 In the event that the Board 's 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
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 12, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence , the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice and we intend to carry out
the Order of the Board and abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
their choosing
To act together for collective bargaining or other
233
mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT question or do anything else that inter-
feres with , restrains , or coerces employees with respect
to these rights.
WE WILL NOT discourage membership in United
Steelworkers of America , AFL-CIO, or any other la-
bor organization by discriminatorily discharging our
employees because of their asking other employees to
sign authorization cards for the Union and their seek-
ing the names , addresses , and phone numbers of fel-
low employees in connection therewith and because
they attend union - meetings or for engaging in any
other union activity.
WE WILL offer Larry C . Pitts and Duane M. Roach
immediate and full reinstatement in their former posi-
tions or , if these are no longer in existence , to sub-
stantially equivalent positions , without prejudice to
their seniority or other rights and privileges, and WE
WILL make each whole for any loss of pay which he
may have suffered as a result of the discrimination
against him.
FLORIDA STEEL CORPORATION