Formed Tubes Southern, Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1966

156 N.L.R.B. 1476 (N.L.R.B. 1966)

1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a supervisor under Section 2(11) of the Act.3 Accordingly, we find
that Dick was an employee entitled to vote at the time of the present
election, and hereby overrule the challenge to his ballot. We shall,
therefore, direct that his ballot be opened and counted and a revised
tally of ballots served on the parties, and that the Regional Director
be directed to issue an appropriate certification based on the result
of the election.
[The Board directed that the Regional Director for Region 9 shall,
within 10 days of the date of this Direction, open and count the
ballot of Carroll Dick and serve upon the parties a revised tally of
ballots, and issue appropriate certification.]
9 Greenfield Components Corporation, 146 NLRB 757, 759; United States Gypsum Com-
pany, 148 NLRB 1640, 1641-1644.
Formed Tubes Southern , Inc. and Clemon Lauderdale , and Ben-
ford Holdbrooks, and Marvin Shook , and Ronald Glenn. Cases
Nos. 10-CA-6053-3, 10-CA-6053-4, 10-CA-6053-5, and 10-CA-
6053-6. February 15, 1966
DECISION AND ORDER
On November 9, 1965, Trial Examiner Rosanna A. Blake issued her
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudical error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in these cases, including the
exceptions and brief, and hereby adopts the findings, conclusions,'
and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
I In the last paragraph of section C, 1, of her Decision , the Trial Examiner speculates
whether sharing something more than a pint of Wild Cat homebrew was sufficient to in-
toxicate Lauderdale. We disavow this unnecessary speculation.
We also disavow the unnecessary speculations of the Trial Examiner in footnotes 6,
15, and 41 of her Decision.
156 NLRB No. 131.
FORMED TUBES SOUTHERN, INC. 1477
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon separate charges filed on March 29, 1965, by employees Clemon Lauder-
dale, Benford Holdbrooks, Marvin Shook, and Ronald Glenn, the General Counsel,
acting through the Regional Director for Region 10, issued a complaint on
May 24, 1965, in which it was alleged that Formed Tubes Southern, Inc., here at
times referred to as Respondent or the Company, had engaged in conduct which
violated Section 8 (a) (1) and (3) of the Act. In its answer, Respondent admitted
certain allegations of the complaint, such as the commerce allegations, but denied
having committed any unfair labor practice.
Pursuant to due notice, a hearing was held before Trial Examiner Rosanna A.
Blake at Haleyville, Alabama, on July 27, 1965. The General Counsel and Respond-
ent was represented by counsel and both were given full opportunity to present
evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs.
The parties waived oral argument and neither filed a brief.
Upon consideration of the entire record, and upon my observation of the witnesses
while testifying, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS AND CONCLUSIONS;
THE LABOR ORGANIZATION INVOLVED
Respondent , an Alabama corporation, has its office and place of business at Haley-
ville, Alabama, where it is engaged in the manufacture, sale, and distribution of
steel tubing, chiefly in the form of automobile tail or exhaust pipes. During the year
prior to the issuance of the complaint, a representative period, Respondent sold and
shipped products valued in excess of $50,000 to customers located outside the State
of Alabama.
Upon the foregoing undisputed facts, Respondent admits and I find that it is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
Respondent admits and I find that International Union of Operating Engineers,
Local 660, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The issues to be decided are primarily, although not entirely, factual. The com-
plaint alleges and the answer denies that Respondent, through its supervisors and
an agent, engaged in conduct which constituted interference, restraint, and coercion
and that it discharged employees Clemon Lauderdale, Benford Holdbrooks, Ronald
Glenn, and Marvin Shook in December 1964 because of their union membership and
activity. In most cases, there are substantial conflicts between the testimony of the
witnesses called by counsel for the General Counsel and those called by counsel for
the Respondent. All resolutions of credibility are based in part upon my observation
of the demeanor of the witnesses while testifying.
B. Background
An organizing campaign on behalf of the International Union of Operating
Engineers , Local 660, AFL-CIO, herein called the Union , was conducted in the
spring of 1964 among Respondent 's employees . The Board ., conducted an election
on June 11 , 1964, which the Union lost. Clemon Lauderdale served as the union
observer at the election . (The plant began operating in 1960 and the Union.also
lost an election in 1961.)
C. The alleged interference, restraint, and coercion
1. The visit to the home of Personnel Manager Yarbrough
About 3 p.m. on a day in early November 1964, Joe Self, who is a leadman under
Supervisor Charles McClelland, employee Clemon Lauderdale's foreman, told
Lauderdale that the Company knew that Lauderdale "sat" for the Union at the
election and that they wanted him to go and talk with" Plant Superintendent Joe
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hammond or Personnel Manager A. M. "Toby" Yarbrough.' Self said that if
Lauderdale wanted Self to go with him, Self would do so. Lauderdale agreed to go,
with Self to see Yarbrough.
Lauderdale met Self at a local service station about 7:30 and the two men drove
to Yarbrough's home in Self's car. Self blew the horn and Yarbrough came out and'
the three men sat in Self's car. Lauderdale asked what Yarbrough wanted to talk
about and Yarbrough said he wanted to talk about Lauderdale's job, saying, "I know
you sat and observed for the Union and I would like to save your job if I could."
Self spoke up to say that "it would help a great deal" if Lauderdale told them.
whether he voted for or against the Union. Lauderdale replied that the Company
knew he was the Union's observer and that he would not be believed whatever
answer he gave to the question about how he voted. Yarbrough said he would like
to see Lauderdale keep his job and would help all he could to save it. The meeting
lasted about 5 minutes. On the way back to the service station, Self said he though
talking to Yarbrough "about saving his job" would help Lauderdale "a lot." As set
forth infra, Lauderdale was discharged on December 10.
About 3 weeks after the interview, Self told Lauderdale during working hours
that "he was pretty sure" that the talk with Yarbrough would save Lauderdale's
job. A month or more after Lauderdale's discharge, he saw Self in town and Self
said he was sorry Lauderdale was discharged and wished he had Lauderdale "back
down there working."
The above findings are based on the credited testimony of Lauderdale. In credit-
ing Lauderdale's testimony and discrediting the versions of the incident given by
Respondent's witnesses, Self and Yarbrough, I have relied in part upon the demeanor
of the various witnesses, particularly Self, while testifying. Self was an uncom-
fortable witness who could not seem to recall very much of what was said but only
what was not said. In some cases, Self's answers were so evasive that I have con-
strued them as admission Yarbrough, like Self, told little about what either he or
Self said during the interview.
Although Self and Lauderdale admittedly went to Yarbrough's home in the fall
of 1964, Self denied that any management representative suggested that he arrange an
interview but, as indicated infra, was not so sure that he did not suggest the visit.
He expressed the belief that he asked Lauderdale during working hours if he wanted
to go and have a drink after work. Self's version was that he and Lauderdale left
work together, went out and brought some Wild Cat, a local "home-brew," and sat
in the woods and drank more than a pint.' On direct examination, Self said that
during their conversation, Lauderdale said he wanted to talk to Yarbrough, that
Lauderdale did not know where Yarbrough lived, and that he offered to go to
Yarbrough's home with Lauderdale if the latter wanted him to.3 However, on cross-
examination, Self admitted that he was "not positive" that Lauderdale suggested the
visit and went on to say, "I don't know who brought the subject up to go talk to
Mr. Yarbrough, but, I would say that Mr. Lauderdale did ...." Self said that he
could not repeat what was said because he did not "remember that much of it." 4
They reached Yarbrough's home "around 6:00 or 6:30" and although the latter was
just leaving in his car, he pulled back into the driveway when Self and Lauderdale
said they wanted to talk to him.
According to Self, Lauderdale then told Yarbrough that "he did represent the
Union" but that no one knew how he voted and that he did not vote for the Union.
Self did not quote a single statement made by Yarbrough but did say that the latter
did not talk very much, that he did not ask Lauderdale anything about the Union,
and said nothing about saving Lauderdale's job. (When asked on cross-examination
what was said while the three men sat in the car, Self answered, "I couldn't say.")
Self also denied that Yarbrough said anything about drinking. Self estimated that
he and Lauderdale left Yarbrough' s home "around 7:00 or 7:30" which would mean
' The General Counsel does not contend that Self is a supervisor but alleges that he
was an agent of the Company . The supervisory status of Yarbrough and Charles
McClelland is admitted.
9 Self testified that they first bought a pint and after drinking it, bought a half pint.
8 Self stated that Lauderdale wanted to talk to Yarbrough because he "felt like . . .
Mr. Yarbrough was the cause of him representing the Union . . ." and this was what
Lauderdale wanted to talk to Yarbrough about. According to Self, he and Lauderdale
were together at all times between 4:30 and the visit to Yarbrough, Lauderdale did not
go home and they did not meet at the service station.
'At another point , Self -testified , "We just went out, had a few drinks, and started
talking about it."
FORMED TUBES SOUTHERN, INC. 1479
that they were there about an hour. When asked by Respondent's counsel "... after
you left Mr. Yarbrough, did you ever tell Mr. Lauderdale that you thought ... his
talking to Mr. Yarbrough had helped and that it would save his job," Self answered,
"I don't remember. I couldn't say yes or no."
Yarbrough testified that Self and Lauderdale arrived just as he was leaving for a
meeting, "probably" at 6:30 p.m. Yarbrough claimed that "they were both what
I consider drunk" and that he told them they both should go home and not be out
driving "on a night like this." 5 (Cf. Self's denial that Yarbrough mentioned that
Self and Lauderdale had been drinking.) Nonetheless, he admittedly talked to
them for about 45 minutes during which time Lauderdale stated that he wanted to
-explain why he "sat" for the Union and that his explanation was that the Union
had led him to believe that the Company had selected him for the job, that his action
did not indicate how he felt about the Union, and he "in fact did not vote for it."
Yarbrough was not asked and did not say what, if anything, he said in reply to
Lauderdale's alleged statements although it would seem that he would have said
something. Instead, Yarbrough merely denied having made the statements attributed
to him by Lauderdale.
Yarbrough denied that he told Self to bring Lauderdale to his home and I credit
his testimony.6 The fact remains, however, that Yarbrough admittedly talked to
:Self and Lauderdale for 45 minutes although he was assertedly leaving for a meeting
and, according to Yarbrough, Self and Lauderdale were drunk. More importantly,
neither Yarbrough nor Self claimed that Yarbrough told Lauderdale that he was not
interested in and did not want to discuss Lauderdale' s "sitting" for the Union or
how he voted when Lauderdale allegedly brought up these subjects. (Cf. the testi-
mony of Isaac Rasberry, an admitted supervisor, that the supervisors had been told
"to keep [their] ears open.")
I cannot believe that Lauderdale decided, about 5 months after the election and
for no apparent reason, to go to talk to Yarbrough about having acted as the union
observer. Respondent appeared to be suggesting that Lauderdale got drunk and
suddenly got the idea of going to see Yarbrough. Although Lauderdale admitted
that he had one drink, he and Wild Cat are by no means strangers (see infra) and
it is doubtful that he would have reached such a state even assuming that he and
Self had shared something more than a pint , as claimed by Self. In short, the facts
set forth above convince me and I find that it was Self who suggested that Lauderdale
talk to either Yarbrough or Plant Manager Hammond about having acted as the
Union's observer and that Lauderdale's account of the events of that evening is the
true one.7
2. Supervisor Rasberry's conversations with Benford Holdbrooks
About 2 or 3 months before the June election , Isaac Rasberry , an admitted super-
visor, asked Benford Holdbrooks what he thought about the Unions Holdbrooks
said that he "didn't know whether it would do us any good or not, [that] it might
help us on our job security." However, Holdbrooks did not say how he would
vote. In fact, Holdbrooks told Rasberry that he did not see "how the Union would
do [him] much good." Rasberry replied, "Well, we don't have much of that," i.e.,
job security, adding "they had told him to ask around to see how people felt about
it." 9
5 This latter comment suggests that it was not the kind of a night that Self and Lauder-
dale would have been likely to sit in -the woods for about 2 hours, as claimed by Self.
- ° Self did not tell Lauderdale who suggested the interview but Leadman Self and
Lauderdale ' s supervisor , Charles McClelland , are friends and it may have been the latter
who suggested the visit. When asked if the Company had been considering for some
time discharging Lauderdale , McClelland answered , "Well, I don ' t know." No supervisor
other than Yarbrough was questioned on the subject
7 Even the version of the interview given by Self and Yarbrough makes it clear that
Lauderdale went to see Yarbrough because he was worried about having acted as the union
observer , believed that it was a subject in which the Company was interested , and felt
that it was important to convince management that he was not in fact prounion and had
been "tricked " into acting as its observer . Such uneasiness , so long after the election,
would not have existed without cause and it has been taken into consideration in deter-
mining whether or not the Company in fact engaged in the conduct described by the
employees
8 When Rasberry was asked if he had asked Holdbrooks before the election what he
thought about the Union, he answered, "No, not on this last one."
6 As noted supra, Rasberry admitted that the supervisors had been told to "keep [theirl
ears open"
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About a month after the election, Holdbrooks asked Rasberry if he had heard that
"they were going to fire anybody over the Union election." Rasberry replied that
"they had talked it over and didn't know whether they were going to fire anybody
or not." However, Rasberry stated that "they might fire four or five later on."
When Holdbrooks asked if he [Holdbrooks] was one of the possible dischargees,
Rasberry said that he did not know anything about it.10
About 4 or 5 weeks before the December 1964 discharges (see infra), Holdbrooks
and Rasberry were again talking and Rasberry commented, "Well, [it] looks like we're
going to lose the best set-up man we got." Holdbrooks asked what Rasberry meant
and the latter answered, "Well, they've decided they are going to get rid of three or
four." Holdbrooks asked who would be discharged and Rasberry named Ronald
Glenn, Marvin Shook, and Charles Carruth. Holdbrooks inquired whether he was
one of those to be terminated and Rasberry replied, "No, why, did you vote for it?"
Holdbrooks answered, "No" and Rasberry assured him, "Well, you haven't anything
to worry about then." 11 Rasberry also told Holdbrooks to tell Glenn that "they
were going for him" and if Glenn wanted to, that they would give him a chance to
quit. Shortly thereafter, Holdbrooks told Glenn what Rasberry had said about
Glenn. As set forth infra, Clemon Lauderdale was discharged on December 10,
Holdbrooks and Glenn were discharged on December 11, and Shook was discharged
on December 18. There is no evidence that Carruth was discharged.12
Rasberry warned Holdbrooks that if anyone said that he told Holdbrooks that
the Company would give Glenn a chance to quit; he would deny it and he in fact
denied having made any of the statements attributed to him by Holdbrooks. How-
ever, Rasberry appeared not to enjoy having to do so. He seemed a friendly man who
might well "tip-off" Holdbrooks about what was going to happen so that Glenn,
and perhaps the others, could quit and thereby avoid being discharged. Accord-
ingly, I discredit Rasberry's testimony and credit Holdbrooks' testimony concerning
the statements made to him by Rasberry. Rasberry did admit that not long before
Holdbrooks was discharged, he heard Holdbrooks say that he might be fired but
that it would not be because of the Union but because of Leadman Self. Therefore,
as in the case of Lauderdale, Respondent's own testimony indicates that Holdbrooks
was doubtful about his job security in the fall of 1964 and that he had considered
the possibility that his prospects were related to the Union.
I also note that there are significant omissions in Holdbrooks' testimony which
I cannot believe would exist if he had been willing to testify falsely in order to help
his own case-and the General Counsel's case generally. Thus, Holdbrooks did not
claim that Rasberry warned him that he was one of the men to be discharged, or
that he told Rasberry that he voted for the Union, or that Rasberry indicated that
the Company'knew about Holdbrooks' attitude toward the Union. On the contrary,
he admittedly told Rasberry that he voted against the Union.
D. The allegedly. discriminatory discharges
1. The discharge of Clemon Lauderdale
Clemon Lauderdale began working for the Company in August 1961 and was dis-
charged on December 10, 1964 13 He operated an air press and his supervisor,
Charles McClelland, described him as a "diirn good worker." As noted supra,
Lauderdale acted as the union observer at the June 1964 election.
It is common knowledge that Lauderdale drinks and he admittedly had been
arrested on several occasions for drinking and/or possessing liquor.14 Leadman
Joe Self had also been arrested for similar misconduct and on one occasion Super-
10 The two conversations set forth above occurred more than 6 months prior to the
filing of the charges and are used only " to shed light upon" events occurring within the
statutory period Local Lodge No. 14 2 4, International Association of Machen%sts (Bryan
Manufacturing Co.) v. N L.R.B., 362 U.S. 411, 416.
13 Rasberry testified that Holdbrooks told him that he did not vote for the Union.
However, he did not state when Holdbrooks made the statement or what else was said
during the conversation.
12 Charges were also filed by employees Orbie Bass , Arnold Wayne Clark, and Benton
Chanley (Cases Nos. 10-CA-6053-1, 10-CA-6053-2, 10-CA-6053-7), but the complaint
contains no allegations with respect to their discharges.
1a Lauderdale was laid off briefly in 1961 and 1963 because of lack of work.
14 The county in which Haleyville is located is a "dry" county and possession of liquor
is a per se offense Respondent 's counsel stated the Company was not claiming that
Lauderdale was discharged, even in part, because of the arrests. Counsel stated that the
questions were asked for the purpose of credibility only There is no claim that Lauder-
dale did not answer the questions truthfully.
FORMED TUBES SOUTHERN, INC. 1481
visor McClelland admittedly got Self out of jail about 6 am After going home
briefly, Self went to work about 7 a.m.
It was noted at the hearing that Lauderdale's face is normally very red and that
a very red face does not indicate that he is or has been drinking. Although Lead-
man Self and two other employees testified that on earlier occasions they had
smelled liquor on Lauderdale's breath either before work or during the day, there is
no evidence that in the more than 3 years Lauderdale had been employed any
management representative had ever charged or even suspected that Lauderdale had
been drinking before coming to work or that he had taken a drink during working
hours.15
According to Supervisor McClelland, the company handbook provides that "any
time anybody has been drinking and comes on the premises-or is drinking on the
premises, [he] is to be fired immediately." 16 Respondent's witness employee Ralph
Stegall testified that he knew what the handbook says on the subject and that an
employee will be "fired" if he is "caught drinking on the job." In the words of
Leadman Self, another witness for Respondent, "the men are not supposed to drink
on the job when they are working," the reason being that they could get hurt. The
handbook was not introduced into evidence.
The machinery operates at high speeds and under high pressure and efforts to
install safety devices have been unsuccessful . As a result , serious accidents are
fairly common. Unquestionably, the chance of an accident is greater if an employee
is or has been drinking. However, Supervisor McClelland admitted that he had
never considered Lauderdale a "safety risk" and there is no evidence that either of
Lauderdale's two very minor injuries was attributable, even in part, to his off-the-job
drinking. On the contrary, as noted supra, McClelland described Lauderdale as a
"durn good worker," and there is no evidence that he had been criticized in any
respect in the more than 3 years he worked until the day on which he was discharged.
. The day shift begins at 6 a.m. and Lauderdale regularly worked a 10-hour shift.
On December 10, Lauderdale worked at his regular job, i.e., as a high-speed operator,
without comment or criticism until shortly before quitting time; i .e., about 4.30.
He denied that he had anything to drink before work or during the day on Decem-
ber 10. He testified that he worked in McClelland's "vicinity" that day and it is
undisputed that neither McClelland nor anyone else said anything about his drinking
until shortly before 4:30 when McClelland gave him his check, saying that Lauder-
dale was fired for having "come in drunk." 17 When Lauderdale said that he had
not been drinking, McClelland did not reply.
McClelland denied that he was near Lauderdale on December 10 between 6 a.m.
and about 4 p.m. He went on to say that when he finally saw Lauderdale he con-
cluded that Lauderdale "had been drinking." His conclusion, McClelland said, was
based on two facts: he could "smell it" on Lauderdale's breath and the latter's face
was "a little redder than usual." 18 He promptly went for Lauderdale's check and
is I suspect that Lauderdale drank more some nights than he admitted and that he may
have "smelled" of Wild Cat a few mornings . However, the absence or any complaint by
any management representative prior to December 10 causes me to conclude that Lauder-
dale had never had a drink in the morning before work.
19 At least one warning prior to discharge is given for less serious offenses.
17 The above finding is based on Lauderdale 's credited testimony . Lauderdale filed a
claim for unemployment compensation and his claim was first disallowed on the ground
that he had been discharged because of "misconduct ." He appealed , a hearing was held,
the original decision was reversed , and the report of the appeals referee states that Lauder-
dale's "foremen told [Yarbrough] and reported to the personnel office, that [Lauderdale]
had reported to work drinking " As stated infra, at the instant hearing , McClelland
claimed only that Lauderdale "had been drinking" when he saw Lauderdale just before
quitting time. ( On the advice of counsel , Respondent does not appeal adverse rulings
in such cases .) There is also some conflict between , the referee 's report and portions
of Lauderdale's testimony at the instant hearing. Thus, Lauderdale testified that Yar-
brough told the referee that he was "close" to Lauderdale "several times" on December 10
and saw nothing that indicated that Lauderdale had been drinking However, the referee's
report states that Yarbrough "was not in close contact with" Lauderdale on Docember 10
and could not testify about the latter's condition. Yarbrough testified at the instant
hearing that although he was in the plant that day, he was not "close to" Lauderdale. I
have no doubt that Lauderdale was mistaken about Yarbrough's testimony at the State
hearing but I do not consider that he was knowingly testifying falsely and do not, there-
fore, discredit his testimony generally.
18 McClelland said "it" smelled like Wild Cat but would not say on whose breath he
had smelled Wild Cat previously his reason being that it was a "personal" matter Per-
haps it was Leadman Self 's breath when McClelland got Self out of jail. ( See supra.)
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told Lauderdale that he was discharged "for drinking." McClelland conceded that
he could not say that Lauderdale had "come to work drinking" and could not say
when he had taken a drink. Nor would McClelland say that Lauderdale was "drunk"
nor would he estimate when Lauderdale had taken a drink. (Cf. the statement in
the Alabama referee's report that Yarbrought testified at that hearing that Lauder-
dale's foreman, McClelland, "told him and reported to the personnel office, that
[Lauderdale] had reported to work drinking.") On the other hand, Respondent's
Exhibit No. 7 shows that its records state that Lauderdale was discharged because of
"Intoxication-Violated a company rule." (The exhibit was prepared by an office
employee under the direction of Personnel Manager Yarbrough.) Yarbrough claimed
that this statement is an "error" because the reason really was "drinking on the job."
When asked where the employee got the word "Intoxication," Yarbrough replied that
he did not know. The record itself was not introduced into evidence.19
I do not credit McClelland's testimony that he smelled liquor on Lauderdale's
breath or that he had reason to or did believe that Lauderdale had been drinking.
Assuming, arguendo, that McClelland had not been near Lauderdale during the 10-
hour day, which I doubt, not a single witness , other than McClelland, testified that
he had any reason to believe that Lauderdale had anything to drink on Decem-
ber 10.20 Thus, neither Leadman Self, whose job it is to check on the employees when
McClelland is busy elsewhere, nor any other employee so testified. I recognize that
Self and the employees would be unlikely to take the initiative in reporting that Laud-
erdale had been drinking, but I am certain that once McClelland had "discovered"
Lauderdale's "condition" and discharged him, one or more of the others would have
testified that he, too, knew that Lauderdale had been drinking on December 10 if
such had, in fact, been the case'.
In sum, I credit Lauderdale's testimony that he had nothing to drink on Decem-
ber 10 and find that McClelland did not learn late in the day that Lauderdale had
been drinking. I therefore conclude that Lauderdale was discharged for some other
reason.21
2. The discharge of Benford Holdbrooks and Ronald Glenn
Benford "Benny" Holdbrooks was hired in August 1960 and was a setup man for
the air or mechanical presses. Ronald Glenn was hired in July 1960 and was a
hydraulic setup man . Both men signed union cards about a months before the elec-
tion and both were discharged on December 11, 1964.
The job of setup man requires considerable experience and skill and Supervisor
McClelland testified that Holdbrooks and Glenn "were as good [setup men] as you'll
find," that the Company lost its best setup man when Holdbrooks was discharged, that
he was the best setup man in town, and that he realized when he discharged Hold-
brooks and Glenn that they would be hard to replace.22
At the close of work on December 11, 1964, the day after Supervisor McClelland
discharged Lauderdale, he discharged Holdbrooks and Glenn, the stated reason being
"too much talking." When Holdbrooks commented that it "looked like a poor excuse"
to him, McClelland made no reply. Glenn remarked that it seemed "sort of funny"
to him and, in his words, asked "wasn't this sort-well I used a stronger word-but
a heck of a place to work and [McClelland] said he couldn't say anything." A few
minutes later, Holdbrooks asked Supervisor Rasberry what he thought about the
discharge and Rasberry said that he did not know.
Holdbrooks and Glenn testified without denial that McClelland had said nothing to
them earlier that day about talking. Holdbrooks admitted, however, that once, about
2 months earlier, he had been talking to Glenn for about 3 or 4 minutes and McClel-
land told him he would have to cut down on his talking. Glenn, who admitted that
he talked "some" to Holdbrooks, likewise admitted that McClelland had spoken to
19 In view of McClelland's statement to Lauderdale, the State referee's report, and
Respondent's exhibit, I am convinced that McClelland originally claimed that Lauder-
dale came to work drunk, a claim that was later modified when considered in the light
of the fact that no one commented about it until after Lauderdale had worked nearly
10 hours.
21 McClelland has only 25 employees in his department.
a When asked if the Company had been considering for sometime discharging Lauder-
dale, McClelland answered, "Well, I don't know."
ze Cf. Holdbrooks' testimony that Supervisor Rasberry predicted about a month earlier
that it "looks like we are going to lose the best set-up man we got." Haleyville has a
population of about 4,000 and is located in a predominately rural area. Standard High-
way Mileage Guide, Rand McNally & Company, 1961.
FORMED TUBES SOUTHERN, INC. 1483
bun' in' the past about talking. The first time was about 2 months before the dis-
charges when he had been talking to Holdbrooks and McClelland said he would have
to stop it. McClelland talked to him on the same subject the' next day and Glenn
complained that McClelland had been "on" him before and told McClelland that if
he did not want Glenn to continue to work, to get his check. McClelland left without
saying anything. ,
A few days later, Glenn timed a conversation between Leadman Self and setup
man Harlan Cox and found that they talked about 20•minutes.23 Supervisor McClel-
land admitted that Glenn reported the Self-Cox conversation and that he thereafter
:watched Self and Cox, but "didn't find them talking that long at any one time."
[Emphasis supplied.], Glenn told McClelland that if Self and Cox were allowed to
stand around and talk "like that, everybody else should be allowed, to talk, some."
During the same period, McClelland called a meeting of all, of; the' setup men and
told them that the then Plant Superintendent Downing had been watching and
thought there was too much. talking. McClelland quoted Downing -as saying he
wanted more production and less talking and that Downing instructed him to "fire"
anybody he caught talking. Holdbrooks spoke up to say that it looked like the men
had to "talk some" if they were to get the job done. The meeting lasted about 5 mm-
utes. Both Glenn and Holdbrooks denied that McClelland accused them of talking
thereafter until the afternoon of December 11 when he discharged them.
It is undisputed that the work of the setup men takes them around, the plant and
that there are times when the work, requires that they talk to other employees. It is
also undisputed that Holdbrooks and Glenn often use the same setup tables for sev-
eral hours at a time or even for most of a day and that there is no rule against talking.
McClelland insisted that what he objected to .was the `.`excessive" amount of talking
by Holdbrooks' and Glenn which he said; begain in October.,' The change in their
attitude, he said, began when Holdbrooks became dissatisfied when he asked for and
did not get a raise.24 Thereafter, McClelland said,,Holdbrooks did about a third of
the work he should have done and both men interfered with 'the work of other employ-
ees. (At another point, McClelland said Holdbrooks' work dropped about half.) In
addition, McClelland said that Holdbrooks and Glenn "resented" having Leadman
Self checking their work.
It was during this period, McClelland asserted, that the two men began talking
excessively and that he talked to them about it "limitless" times. On October 23,
McClelland spoke to the two men and reported his action to Personnel Manager
Yarbrough who placed a note in the file of each man. (Neither note states that the
warning was the "final" one, or that the employee would be discharged if he was
guilty of the same thing again.) It was shortly theieafter that McClelland spoke to
all of the setup men about talking.25 McClelland went on to say that on three later
occasions, he talked to Holdbrooks and Glenn on the same subject. Then, according
to McClelland, he saw them talking for 10 or 15 minutes on December 11 and dis-
charged them. He admitted that one of them commented that McClelland knew that
their talking was not the reason for the discharge. However, McClelland denied that
he knew anything about the union activity of either man or how he voted in the
election.
Holdbrooks and Glenn work a 10-hour shift during which they set up machines
and check them and the tubes to see that everything is working properly. They are
not production workers and their work takes them around the plant. There is no
objective evidence that their talking ever caused a delay in completing a job or caused
a mistake. Although McClelland described Holdbrooks as "rather [the] quiet type,"
i.e., not "talkative," he called Glenn "talkative." However, no one other than
McClelland testified to having seen or heard Holdbrooks and Glenn talking "exces-
sively," that they talked more frequently than the other setup men, or that they had
seen them 10 to 15 minutes on December 11. Thus, McClelland's claim is based on
his subjective judgment alone as is his assertion that he concluded that Lauderdale
"had been drinking" the day before.
23 Neither Self nor Cox denied that they had ever talked for 20 minutes during working
hours
24 McClelland explained that he tried to get Holdbrooks a raise but that the latter was
already receiving the highest rate in his classification and that the only way Holdbrooks
could get more pay was to bid on and get a different job. Holdbrooks admitted that he
was unhappy when he did not get a raise and considered going to Georgia
z4 As noted supra, both Holdbrooks and Glenn admitted that McClelland reprimanded
them about talking about 2 months before their discharge and that talking was the sub-
ject of a meeting.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum , I do not credit McClelland 's claim that Holdbrooks and Glenn talked
excessively , i.e., more than the other setup men , either generally or on December 11,
and I find that he, in fact , discharged them for some other reason.20
3. The discharge of Marvin Shook
Marvin Shook began working for Respondent in July 1960 and was discharged by
Supervisor Jay Ebell on December 18, 1964; 27 i.e ., about 1 week after Lauderdale,
Holdbrooks , and Glenn were discharged . He was a welder and his rate of pay was
$1.80 an hour . He signed a union card about a month before the June 1965 election
and about 10 days before the election , Supervisor Ebell asked Shook what he thought
about the Union. Shook replied that he did not know "the least thing about it" but
added that he thought it was every man's ,privilege to vote as he pleased28 About a
month before his discharge , Shook was transferred to a different job and commented,
in the presence of Supervisor McClelland, that "a man working without a Union was
like a barefooted man." Shook saw McClelland immediately go over and talk to
the Plant Superintendent Downing 20
On the afternoon of December 18, 1964, Supervisor Ebell told Shook that he was
discharged , that he just was "not giving satisfaction ." Shook asked what the trouble
was and said he would like to know why he was being fired and that he would like to
make amends . Ebell answered that Shook was going to the bathroom too many times,
and Shook asked if three times a day were too many. Ebell did not answer Shook's
question . Ebell also stated that Shook had not oiled a basket of tubes 30 Shook
acknowledged that he had not oiled a basket of tubes immediately after he had fin-
ished welding them and also told Ebell that he had reported to Leadman Elmer
Wallace that he had not sprayed some tubes, that he could not find the spray can, and
had set the basket aside. Leadman Wallace did not tell Shook to go back and oil the
tubes. (Wallace was not called as a witness so that Shook 's testimony in this respect
is undenied .) In addition , Shook told Ebell that he had later checked the tubes and
found that they had been sprayed.31 Finally, Shook said that he knew why he was
being fired, that it was because Ebell thought that he had voted for the Union. Ebell
did not comment on any of Shook's statements.32
There are about a dozen welders and some of them work in one room, some in
another. According to Shook, part of the time there was only one spray and it was
often difficult to find it. He also asserted that the leadman sprays the tubes from time
to time. (Supervisor Ebell testified that there were two sprays, but recognized that
they were not always where they were supposed to be and admitted that the leadman
sometimes sprays the tubes.) As noted above, Shook's testimony that he had noti-
fied Wallace about the unsprayed tubes is undisputed and Ebell refused to say that
the tubes had not been oiled at the time Shook was discharged. When asked this
question, Ebell answered, "I couldn't swear to it " Later, he stated, "I don't believe
they were oiled. I am not sure .... I am not positive." These facts convince me
and I find that Shook reported the unoiled tubes to Wallace and that he checked them
21 Both Holdbrooks and Glenn filed a claim for unemployment compensation and neither
appealed the adverse finding at the first level.
27 Ebell testified that he discharged Shook without consulting anyone and I find that
he is a supervisor within the meaning of Section 2 ( 11) of the Act.
21 Shook testified that he was "against" the Union at the time of the 1961 election.
ai Cf. Supervisor Rasberry 's testimony that instructions were issued to the supervisors
"to keep [their ] ears open " I do not credit McClelland ' s testimony that he did not
hear Shook ' s remark.
m The tubes are sprayed after welding to prevent rust Respondent does not claim
that it is necessary to spray the tubes instantly although, if the humidity is high, -they
can rust if they sit overnight without being sprayed. In the summer of 1964 , an order
of tubes was returned by a customer because of rust Rusted tubes must be wire -brushed
individually , a time -consuming operation . At the time the order was returned , all of the
welders were reminded to spray the tubes.
sz Ebell admitted that the tubes were still in the welding room although , as suggested
by counsel ' s question, he testified that Shook had "pushed them away."
s, The above findings are based upon Shook's credited testimony. Ebell's testimony
is so uncertain about a number of critical facts that I cannot accept it as a credible
version of his conversation with Shook.
FORMED TUBES SOUTHERN, INC. 1485
later and found that they had been sprayed. It is undisputed that the tubes were not
damaged and, as Shook put it, "the main thing was to have them oiled" and "I didn't
leave without seeing that they were sprayed." 33
Supervisor Ebell testified that Shook failed to spray some tubes "once" before;
i.e., on December 3, 1964. (Ebell admitted that up to that time, i e., since July 1960,
Shook's work had been satisfactory.) Although there is no evidence that the tubes
were damaged on December 3, Ebell said that he reprimanded Shook that day and
told him that he would be discharged if it happened again. However, he could not
recall any of the details, such as how many tubes were unoiled or how long they
remained unoiled. In support of Ebell's testimony, Respondent introduced into
evidence a memorandum prepared by Personnel Manager Yarbrough. It is dated
December 3 and reads: "[Ebel]] talked to Shook again today about not oiling his tubes
after welding. [Ebell] told him that this was- his final warning -about not oiling
tubes." [Emphasis supplied.] 34 Admittedly, Ebell did not tell Shook that he had
reported the December 3 "failure" to Yarbrough and Shook was unaware of the
memorandum.35 Shook flatly denied that he failed to oil some tubes on December 3
and that he had received any warning on that date. (As set forth supra, Supervisor
Rasberry named Shook as one of the employees who would be discharged.)
Notwithstanding the memorandum, I doubt that Shook failed to oil tubes on
December 3 and that he was given a warning that day. Shook impressed me as an
honest witness. For example, he admitted that he was not the Company's best welder
and that he did not oil a basket of tubes promptly on December 18. In. addition, as
noted supra, much of his testimony is undisputed.36 Although I will assume that he
did not oil an undisclosed number of tubes for an undisclosed length of time on
December 3, it does not necessarily follow that his failure to oil a basket of tubes on
December 18 was the real reason for his discharge.
As noted above, it is undisputed that the oiling need not be done instantly but, at
most, must be done before the end of the shift. It is also undisputed that it is not
unusual for the leadman to oil a basket of tubes which the welder has not yet oiled and
that Shook reported the unoiled tubes to Leadman Wallace. Finally, it is clear that
Shook later checked the tubes and found that they had been oiled. It is thus apparent
that Shook did not leave the tubes unoiled as a practical matter and I cannot find
that Shook, an employee with only one previous error in nearly 41/2 years, was dis-
charged for the reason stated. On the contrary, I find that when Ebell saw a basket of
unoiled tubes, he promptly seized upon the fact as a pretext for discharging Shook.37
33 Although Shook testified on direct examination that Ebell mentioned the unoiled tubes,
his prehearing affidavit did not contain any reference to Ebell's comment about the tubes.
(Shook expressed the opinion thaat he told the Board representative about the tubes and
that it was not included in his statement due to an oversight.) Supervisor Ebell reversed
the order in which he recounted his conversation with Shook. Thus, Ebell testified on
direct examination that Shook was discharged for failing to oil the tubes. It was not
until cross-examination that Ebell testified that he also told Shook that he had been
going to the bathroom too often. Although I do not believe that Shook -mentioned the
tubes during his prehearing interview, I think he may well have believed that be had
done so. Be that as it may, his failure to mention the tubes in his prehearing affidavit
does not cause me to discredit his testimony generally.
as Although the memorandum implies that Shook had failed to oil tubes prior to
December 3, Ebell testified that Shook failed to do so only "once" prior to the day he
was discharged, i.e. December 18. At one point, Ebell attributed the tubes which were
unoiled in the summer to Shook but he quickly acknowledged that "some one" failed to
do so I also note that Ebell's estimate of the number of unoiled tubes on December 18
would mean, if true, that Shook had failed to oil any tubes that day and this I do not
believe.
se Cf. Yarbrough's testimony that it is "up to the foreman to tell the employees when
they report to personnel that it is a final warning and that the record goes [into] the
personnel folder"
361 also note that Shook did not seek to improve his case by attributing antiunion
statements to Ebell or any other supervisor and did not claim that any supervisor had
indicated knowledge of his attitude toward the Union.
37 Ebell testified that Shook told him, "If you [are discharging] me because I voted
for the Union, I didn't" and that he told Shook that the Union was not the cause of his
discharge. Ebell denied that he knew anything about Shook's union activity
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Analysis and conclusions - - -
1: The interference , restraint , and coercion
As `set' forth supra, Self told Lauderdale in November 1964 that "they" wanted
Lauderdale to talk to Personnel Manager Yarbrough or Plant Superintendent Ham-
mond about the fact that he acted as the union observer at the election . Lauderdale
clearly believed that Self was telling him the truth and agreed to go with Self to Yar-
brough's home. When they arrived, and when Lauderdale asked what Yarbrough
wanted to talk about, Yarbrough did not'say that he did not want to talk to Lauder-
dale as he surely^'would have done if the interview was Lauderdale's spur-of-the-
moment idea as claimed by Respondent. On the contrary, Yarbrough replied that he
wanted to talk about Lauderdale' s sitting as an observer and that he would like to
save Lauderdale's job if he could. Nor did Yarbrough protest when Self told Lauder-
dale that it would "help a great deal" if Lauderdale would say how he voted.
Indeed; as noted supih, even the Company's version of the interview discloses that
Yarbrough postponed going to a meeting to listen , at the very least, for about 45 min-
utes to Lauderdale 's explanation of how it came about that he acted as the union
observer. Yarbrough did not claim to have told Lauderdale that there was nothing to
discuss because the Company was not interested in what Lauderdale had done and
regarded it as immaterial whether Lauderdale acted voluntarily or was "tricked"
into doing so. ' Such conduct would surely cause Lauderdale to believe that the Com-
pany was in fact interested in learning whether or not his action represented his true
feelings vis -a-vis ' the Union 38
In view of the above facts, it is unnecessary to determine whether or not Self was
authorized to arrange the interview because when Self and Lauderdale arrived Yar-
brough did not say he did not wish to talk to Lauderdale but in fact discussed Laud-
erdale's acting as the union observer,'talked about saving Lauderdale's job, and by
his silence ratified Self 's statement that "it would help a great deal" if Lauderdale
would say how he voted in the election. In other words, because of the nature of
the interview, it is immaterial whether Self acted at the suggestion of management or
independently because of something he had heard.39 By his actions, Yarbrough made
Respondent responsible for what was said and the reasonable inferences which can
be drawn therefrom, i.e , that Lauderdale could justifiably believe that his union activ-
ity was a matter in which the Company was interested and which was related to his
continued employment. Law, et al. d/b/a E. B. Law and Son, 92 NLRB 826, 828-
829, enfd. 192 F. 2d 236 (CA. 10). See also N.L.R.B. v. Birmingham Publishing
Company, 262 F. 2d 2, 8 (C.A. 5), in which the court recognized that responsibility
can be created by knowledge and failure to disavow. Cf. International Association
of Machinists, etc. (Serrick Corp.) v. N.L.R.B., 311 U.S. 72, 80.
Supervisor Rasberry 's statements to employee Holdbrooks during the same period,
when considered in the light of their previous conversations , likewise constitute, at
the very least , a warning that employees were in danger of being discharged because
of the election . In the summer of 1964, Holdbrooks asked Rasberry if anyone was
going to be discharged "over the Union election." At that time, Rasberry said that
the question had beeen discussd , that no decision had been reached , but that four or
five men might be fired "later on." Then , about a month before the discharges, i.e.,
BAs Rasberry admitted , the supervisors had been told to "keep [their ] ears open."
Assuming , arguendo, that Self was telling Lauderdale the truth when he said the Com-
pany wanted to talk to Lauderdale about his sitting for the Union , it is understandable
that Self did not tell Lauderdale who had suggested that Self arrange an interview. If
Self was telling the truth, his principal was probably someone who had authority to set
policy and to discharge , such as Plant Manager Hammond or Self's friend and Self's and
Lauderdale 's supervisor , McClelland . It is possible that McClelland and/or Leadman
Self had heard , as had Supervisor Rasberry , that it had been decided to discharge several
employees because of the Union and that Self decided on his own to persuade Lauderdale
to talk to someone in authority about his acting as the union observer. , ( Cf. Self's
testimony that he told Lauderdale several times that he smelled liquor on Lauderdale's
breath and that he did so because he "thought a lot of [Lauderdale ] as a friend and
didn't want to see him lose his job.") Finally, when , Self was asked if he told Lauder-
dale on the way home that the interview had "helped" and that it would "save his job,"
Self replied , "I don't remember , I couldn't say yes or no "
sa Under the circumstances set forth above, it could be found that Lauderdale had
"just cause to believe ," as he in fact did, that Self was telling him the truth when he
said that "they" knew that he sat for the Union and wanted him to talk to either
Yarbrough or Plant Manager Hammond. Cf . International Association of Machinists v.
N.L.R.B., supra.
FORMED TUBES SOUTHERN, INC. 1487
within the statutory period, there was a clearly followup conversation between Ras-
berry and Holdbrooks. This time, Rasberry, told Holdbrooks that "they" had decided
to discharge three or four employees and on being asked, named three, of whom two
(Glenn and Shook) were in fact discharged in December. Rasberry also left no doubt
that the discharges would be motivated by the employees' union activity. -Thus, when
Holdbrooks asked if he was going to be fired, Rasberry replied, "No, why, did you
vote for it?" Holdbrooks answered "No" and was told that he had "nothing to worry
about then."
Having considered Personnel Manager Yarbrough' s statements to Lauderdale in
November 1964, Leadman Self's statement to Lauderdale during the same conversa-
tion, without protest from Yarbrough, and Supervisor Rasberry's statements to and
questioning of Holdbrooks in November, I conclude that a preponderance of the evi-
dence supports the allegations of the complaint that Respondent, as the result of the
conduct of Personnel Manager Yarbrough, Leadman Self, and Supervisor Rasberry
engaged in interference, restraint, and coercion within the meaning of Section 8 (a) (1)
of the Act. N.L.R.B. v. Cameo Inc., 340 F. 2d 803, 804 (C.A. 5); N.L.R.B. v. Dan
River Mills, Incorporated, 274 F. 2d 381, 384 (C.A. 5), and cases cited therein.
2. The discriminatory discharge of employees Lauderdale, Holdbrooks,
Glenn, and Shook
The December discharges meant that, within a period of 8 days, the Company lost
the services of four of its most experienced employees. Included were press operator
Lauderdale who Supervisor McClelland described as a "durn good worker" and
Holdbrooks and Glenn, two of its admittedly best setup men, and men who would
be difficult to replace. Although welder Shook was not particularly outstanding, he
worked for more than 4 years (i.e., July 1960 to December 3, 1964) without criti-
cism.40 An employer does not discharge four such employees within a short period
without powerful reasons, and the facts set forth supra have caused me to conclude
that none was discharged for the reason asserted by Respondent. It must be deter-
mined, therefore, whether the record supports the allegations of the complaint that
the men were discharged because of their union membership and activity.
Concededly, it is unusual for an employer to continue to question employees and
to talk about the need to "save" jobs and the possibility of discharges once the Union
has lost an election and there is no talk of another campaign. In this case, however,
employer interest in the union activity and employee uneasiness (the latter revealed
by Respondent's own testimony) occurred after, rather than before, the election.
Thus, as set forth supra, about a month after the election, Holdbrooks asked Super-
visor Rasberry if the latter had heard whether the Company was going to discharge
anyone "over the Union election." Rasberry admitted that the subject had been
discussed and no decision reached although four or five men might be' discharged
"later on." In November, Rasberry told Holdbrooks that it had been decided to dis-
charge three or four men and commented that it "looks like we are going to lose our
best set-up man." (McClelland so described Holdbrooks.) In addition, Rasberr
named three of the men to go and two of them, Glenn and Shook, were in fact dis-
charged.41 When Holdbrooks asked if he was included, Rasberry revealed the under-
lying reason for the decision by replying, "No, why, did you vote for it?" On being
given a negative answer, Rasberry assured Holdbrooks that he had nothing "to worry
about then." 42
Likewise in November, Self and Lauderdale visited Personnel Manager Yarbrough.
Even Respondent's version of -the visit reveals that Lauderdale was worried because
he had been the. union observer 5 months earlier and was anxious to convince the
Company that he had been "tricked" into taking the job.and that his action did not
mean that he was prounion. In, actuality, the visit was suggested by Self and when
they arrived, Yarbrough talked to Lauderdale about his role in the election and
*o The plant opened in 1960. Holdbrooks, 'Glenn, and Shook were all hired that same
year and Lauderdale was hired the following year
41 As noted supra, there is no evidence that one of the men named by Rasberry, Charles
Carruth, was 'discharged. Carruth and Holdbrooks were the two setup men on the air
presses and it,may be that Respondent-changed its mind about Carruth in view of the
difficulty of finding qualified setup men.
42It was during this period that Holdbrooks revealed that he had considered the-pos-
sibility that be-would be discharged because of the Union by commenting according to
Rasberry, that if he was fired, it would not be because of the Union but because of Lead-
man Self -
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assured Lauderdale that he would like to "save" Lauderdale's job. In addition, Yar-
brough did not deny Self's assertion that "it would help a great deal" if Lauderdale
would say how he voted. Lauderdale, however, did not say how he had voted.
About a month later, Lauderdale was discharged allegedly because he had come in
drunk. Holdbrooks and Glenn were discharged the next day, allegedly for excessive
talking. A week later, Supervisor Ebell discharged Shook the asserted reason being
that he had failed to oil some tubes.
It is difficult to understand why the Company decided, so long after the election,
to discharge employees because of their union activity and it is also difficult to under-
stand why the Company selected Holdbrooks, Glenn, and Shook, none of whom had
played an active role in the union campaign and/or the election. However, it is
impossible to ignore Supervisor Rasberry's virtual admission that the Company had,
decided to discharge several men "over the election" and his assurances to Holdbrooks
that he had nothing to worry about when he said that he had voted against the Union.
In short, this is one of those rare cases in which there is direct evidence that the dis-
charges were related to the union activity.
Notwithstanding Personnel Manager Yarbrough's statement that he would like to
"save" Lauderdale's job, Self's statement that it would "help" if Lauderdale said how
he voted, and Rasberry's statements to Holdbrooks, it might be found that one or more
of the four was discharged for cause if any of them had in fact been guilty of miscon-
duct of the type for which employees are normally discharged. But it has been
found that Lauderdale had not been drinking on December 10 and McClelland's
claim that Holdbrooks and Glenn had been talking excessively is not supported by
the record. Finally, at most, Shook delayed oiling a basket of tubes which were in
fact sprayed when he checked them later.
Having considered the Yarbrough-Self-Lauderdale interview, Supervisor Rasber-
ry's statements to Holdbrooks and the fact that the reasons given by Respondent for
the discharges do not stand up under scrutiny, I conclude that a preponderance of the
evidence supports the allegations of the complaint that Respondent discharged
employees Lauderdale, Holdbrooks, Glenn, and Shook because of their union mem-
bership and activity. It follows, therefore, and I find that Respondent thereby vio-
lated Section 8(a) (3) and (1) of the Act 43
III. THE REMEDY
Having found that Respondent committed certain unfair labor practices, I shall
recommend the customary cease-and-desist order and the affirmative relief which is
normally ordered in cases of this kind. Any backpay found to be due employees
Lauderdale, Holdbrooks, Glenn, and Shook as the result of the discriminatory
discharge of each, shall be computed in accordance with the formula set for in
F W. Woolworth Company, 90 NLRB 289 and Isis Plumbing & Heating Co., 138
NLRB 716.
Because Respondent discriminatorily discharged employees Lauderdale, Hold-
brooks, Glenn, and Shook because of their union membership and activity and
because such conduct goes to the very heart of the Act (N.L.R B. v. Entwistle Mfg.
Co., 120 F. 2d 532, 536 (C.A. 4) ). I shall also recommend that Respondent cease
and desist from infringing in any manner upon the rights guaranteed by Section 7
of the Act.
CONCLUSIONS OF LAW
1. Formed Tubes Southern, Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers, Local 660, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By his silence, Personnel Manager Yarbrough ratified Leadman Self's statement
during the November 1964 interview that it would "help a great deal" if Lauderdale
would state how he voted in the Board-conducted election.
4. By interrogating Lauderdale about how he voted, in an interview which also
mentioned saving his job, by telling Holdbrooks in November 1964 that it had been
decided to discharge employees, by telling Holdbrooks that he had nothing to worry
about when he said, in answer to a question, that he had voted against the Union,
Respondent engaged in conduct which constituted interference, restraint, and coercion
within the meaning of Section 8 (a) (1) of the Act.
43 Cf N L R B. v. Griggs Equipment, Inc., 307 F. 2d 275, 278 (C A 5), in which the
court pointed out that an "inference" of "discriminatory motivation Is sustained and is
buttressed by the fact that the explanation for the [Company's action] failed to stand
under scrutiny."
FORMED TUBES SOUTHERN , INC. 1489
5. By discharging employees Clemon Lauderdale, Benford Holdbrooks, Ronald
Glenn, and Marvin Shook because of their union membership and activity, Respond-
ent violated Section 8(a) (3) and (1) of the Act.
6. Respondent is not responsible for any statements by Leadman Self except the
one made in the presence of Personnel Manager Yarbrough.
7. The unfair labor practices in paragraphs 4 and 5 above are unfair labor practices
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I
recommend that the Respondent, Formed Tubes Southern, Inc., its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their union activity and
warning employees that their jobs are in jeopardy because of their union membership•
or activity.
(b) Discouraging membership in and activity on behalf of International Union of
Operating Engineers, Local 660, AFL-CIO, or any other labor organization,
by discharging employees or by discriminating against them in any other manner.
(c) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form, join, or assist International
Union of Operating Engineers, Local 660, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing, or to engage
in other concerted activity for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activity.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer Clemon Launderdale, Benford Holdbrooks, Ronald Glenn, and Marvin,
Shook immediate and full reinstatement of their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges, and make
each of them whole for any loss he may have suffered by reason of the discrimina-
tion against him in the manner set forth in the section of the Trial Examiner's Deci-
sion entitled "The Remedy." Notify Clemon Lauderdale, Benford Holdbrooks,
Ronald Glenn, and Marvin Shook if serving in the Armed Forces of the United States
of their right to full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
(b) 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 records necessary or appropriate to,
analyze the amount of backpay due Clemon Lauderdale, Benford Holdbrooks, Ronald
Glenn, and Marvin Shook
(c) Post at its plant in Haleyville, Alabama, copies of the attached notice marked
"Appendix." 44 Copies of said notice, to be furnished by the Regional Director for
Region 10, shall, after being duly signed by the Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be-
taken by the Respondent to ensure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 10, in writing, within 20 days from
the date of this Trial Examiner's Decision, what steps Respondent has taken to comply
herewith.45
It is further recommended that, unless Respondent shall, within the prescribed
period, notify the said Regional Director that it will comply with the foregoing
Recommended Order, the National Labor Relations Board issue its Order requiring
the Respondent to take the aforesaid action.
"If this Recommended Order is adopted by the Board, the words "a Decision and^
Order" shall be substituted for the words " the Recommended Order of a Trial Examiner"
in the notice . If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
45 If this Recommended Order is adopted by the Board, this provision shall be modified to-
read: "Notify the Regional Director for Region 10, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith"
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate against employees because
of their membership in or activity on behalf of International Union of Operating
Engineers , Local 660, AFL-CIO, or any other labor organization.
WE WILL NOT interrogate employees concerning their union activity.
WE WILL NOT warn employees that their jobs are in jeopardy because of their
union membership or activity.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist the above-named labor organization, or any other labor organization, to
bargain collectively through representatives of their own choosing, and 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 activity.
WE WILL offer Clemon Lauderdale, Benford Holdbrooks, Ronald Glenn, and
Marvin Shook immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other rights and
privileges, and will make each of them whole for any loss he may have suffered
by reason of the discrimination against him.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of the above-named or any other labor organization.
FORMED TUBES SOUTHERN, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees serving in the Armed
Forces of his right to reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military and Service Act, as amended, after dis-
charge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone
No. 526-5741.
Sheboygan Sausage Company, Inc. and Meat and Allied Food
Workers, Local Union No. 248, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO
Sheboygan Sausage Company, Inc. and Local Union No. 248,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO
Sheboygan Sausage Company, Inc. and Meat and Allied Food
Workers, Local Union No . 248, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO.. Cases Nos.
30-CA-84,30-RC-30, and 30-CA-146. February 15,1966
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
On July 7, 1965, Trial Examiner Laurence A. Knapp issued his
Decision in the above-entitled proceeding, finding that Respondent
156 NLRB No. 130.