Frederick Steel Co.

National Labor Relations Board - Board Decisions

Oct 20, 1964

149 N.L.R.B. 5 (N.L.R.B. 1964)

FREDERICK STEEL COMPANY 5
The Employer purchases water-softening devices within the Stag
from Culligan, Inc. It is apparent that the water-softening device is
not delivered to the Employer in the same form as when it enters the
State. The several items consisting of a tank, valves, fittings, and
rubber caps, which come to Culligan, Inc., from outside the State, do
not represent all the components of the water-softening device. To
them is added another component, a plastic jacket, which is manufac-
tured by Culligan, Inc., within the State and which serves to provide
insulation and appearance to the device. All these parts are then as-
sembled by Culligan, Inc., into a serviceable unit which constitutes the
product delivered to the Employer. In the light of the foregoing, al-
though the Board is here concerned with a less complicated product
than the automobile involved in the Kenneth Chevrolet case, the fact
remains, that, in both instances, the product was materially altered
through the assembly within the State of the components coming
from outside the State so as to render it usable and salable within the
State. I would, therefore, contrary to my colleagues, find that the
Kenneth Chevrolet case is controlling here. Accordingly, as the flow
in commerce was stopped when components of the water-softening
device entered the State, I would find that the water-softening de-
vices purchased by the Employer were not indirect inflow and that
the petition should be dismissed for lack of jurisdiction.
Frederick Steel Company and Truck Drivers, Chauffeurs and
Helpers Local Union No. 100 , International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of Amer-
ica. CaRe No. 9-CA-2979. October P20,1964
DECISION AND ORDER
On June 1, 1964, Trial Examiner Rosanna Blake issued her De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Decision. There-
after, the Respondent filed exceptions and a supporting brief, -
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
149 NLRB No. 1.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Frederick
Steel Company, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order.'
1 In adopting the Trial Examiner ' s determination that dischargee Kaylor is not a super-
visor, the Board finds it unnecess a ry to rely upon The G,eat Western Sugar Company,
137 NLRB 551 , and the Trial Examiner ' s remarks with respect thereto.
2 The Board includes as part of its order the "Armed Forces " provision now appearing
in the notice attached to the Trial Examiner 's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on October 2, 1963, by Truck Drivers, Chauffeurs and Help-
ers Local Union No. 100, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , herein called the Union , the General
Counsel , acting through the Acting Regional Director for Region 9, issued a complaint
on November 13, 1963, alleging that Frederick Steel Company, herein referred to as
the 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 practices.
Thereafter, pursuant to due notice, a hearing was held before Trial Examiner
Rosanna A. Blake in Cincinnati , Ohio , on January 13, 1964. All parties were rep-
resented and were afforded full opportunity to present evidence , to examine and
cross-examine witnesses , to argue orally, and to file briefs . The parties waived oral
argument . Thereafter, counsel for the General Counsel and counsel for the Re-
spondent filed briefs.
Having considered the entire record , the briefs , and from my observation of the
witnesses while testifying , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FACTS; THE LABOR ORGANIZATION INVOLVED
Frederick Steel Company, an Ohio corporation , is engaged at its Cincinnati plant
in the warehousing of steel . During the year prior to the issuance of the complaint,
a representative period , the Company had a direct outflow in interstate commerce
of goods and products valued in excess of $50,000, which were shipped directly
from its place of business to points outside the State of Ohio.
Upon the foregoing undisputed facts, I find , as Respondent admits, that it is and
has been an employer engaged in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
Respondent admits and I find that the Union is a labor organization within the
meaning of Section 2 (5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The basic issues to be decided are whether Respondent engaged in acts of inter-
ference , restraint , and coercion and discharged three employees because of their union
activity.' There are substantial conflicts in the evidence and the findings of fact and
I For the reasons set forth infra, I conclude that dischargee Edward Kaylor was an
employee and not a supervisor as contended by Respondent.
FREDERICK STEEL COMPANY
conclusions depend upon which group of witnesses is credited, i.e., those called by
the General Counsel or those called by Respondent. As the facts set forth below
indicate, I have credited generally the witnesses for the General Counsel and have
discredited Respondent's witnesses except in those cases in which they made admissions
against interest. My discrediting of the testimony of Respondent's witnesses is due in
part to the fact that their attitude and demeanor on the stand and their manner
while testifying convinced me that they were not testifying truthfully about what
happened, when it happened, or why it happened. Still another reason is that, as
noted infra, the testimony of Respondent's main witness, Carroll Sears, was frequently
evasive and at times self-contradictory. A final reason is Respondent's failure to
produce corroborating evidence of some of its claims although, if its assertions were
true, such evidence was clearly in its possession.
The demeanor of the witnesses for the General Counsel, on the other hand, caused
me to believe that they were testifying truthfully. Furthermore, their testimony does
not appear exaggerated, it is corroborated in part by that of Respondent's witness
Sears, and was in no case refuted by objective evidence.
B. Respondent's statements with respect to the Union and its discharge of
three union members
Sometime in August 1963, a number of Respondent's employees became interested
in obtaining union representation and on the afternoon of August 22, employee Ralph
East called Local 100 and a meeting was scheduled for 5:30 p.m. on Friday, August 23.
Six of the eight employees, including Edward Kaylor, Ralph East, and Donald Cooper,
attended the meeting and signed cards.
About 11 a.m. on August 23, employee Donald Cooper saw Supervisor Carroll
Sears talking on the telephone and immediately thereafter -heard Sears say, "I know
what they are trying to do. They are try' ing to get a union in here." 2 At noon the
-same day, Sears told a group of employees that Company President Abe Byer
was going to give all the employees a raise but "it looked like he's waited too late "
One of the men present, Edward Kaylor, commented, "Yes, he has. About three years
too late for me." 3
About 9 a.m., on August 24, Sears remarked to Kaylor, "I know what you guys are
trying to do . . You're trying to get the union." Although Kaylor denied that
he knew anything about the Union, he told Sears, "If they do, I'd vote for it."
Sears also told Kaylor that the Union had called President Byer but Kaylor expressed
the opinion that the Union would not have done that .4
August 24 was a Saturday and the employees quit work at noon. While several
of them were changing their clothes, Sears called on the telephone to say that he
wanted to see Kaylor and East in the office. A few minutes later, Sears came for the
two men and on the way to the office told them that the Company "was going to get
old blood out and new blood in," that it was cutting the payroll, and that President
Byer had directed him to get rid of the highest paid man which was Kaylor.5 Later in
the office, Kaylor told Sears, ",I know what it's for; it's on account of the union."
Sears made no reply.6 Cooper was not at work that day and was discharged on Mon-
day, August 26, by Sears who told him they were cutting the payroll and were letting
Cooper go because he was one of the youngest men?
2 The above finding is based on the credited testimony of Cooper. The complaint alleges
and Respondent's answer admits that Sears is a supervisor within the meaning of Sec-
tion 2(11) of the Act.
s The above findings are based on the credited testimony of Kaylor, Cooper, and
Hardwick.
4 The above findings are based primarily on the credited testimony of Kaylor. I also
credit the testimony of East that he overheard Sears tell Kaylor that he knew the em-
ployees were trying to get the Union and reject Respondent's contention that East's testi-
mony was based on a later conversation between himself and Kaylor. If Crawford had
In fact called Byer on the morning of August 24, I am sure that he would have so testified
which he did not
5 Sears testified that "the highest paid man was mentioned. Something, I forget who
said it, or how it was said, but the highest paid man was mentioned. That I do know.
Right."
I Sears testified that Kaylor asked If the discharges were "on account of the union?"
and he replied, "What union?"
7 The findings In the above paragraph are based on the credited testimony of Kaylor,
East, and Cooper.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly before noon on Saturday, Sears told employee Hardwick that he was going
to discharge two men but gave no reason. Hardwick asked if he was one of the two
and Sears said, "No." That afternoon, Sears called Hardwick at home and asked,
"You boys are trying to get a union in there, ain't you?" When Hardwick replied,
"Well, I guess so," Sears asked, "How do you feel about it?" Hardwick answered
that he had to "go along with the boys" and then asked why the men were dis-
charged. According to Sears, Kaylor was discharged because he was absent from work
too much, East because he had not been employed "long," and Cooper because he
"couldn't live up to his job." a
The Board conducted an election at Respondent's plant a few days before the
hearing. After East had voted, he stayed on the premises talking to a union rep-
resentative and President Byer came out and asked if he had voted. When East
said he had, Byer told him to "get [his] off of [Byer's] property."
C. Respondent's contentions with respect to the discharges
1. Respondent's denial that it knew about the union activity
Respondent's initial contention is that it did not learn of the union activity until
after the decision had been made to discharge Kaylor, East, and Cooper. However,
the credited testimony of the employees discloses that Sears knew that the em-
ployees were "trying to get a union" even before the union meeting was held.
2. Respondent's testimony concerning the reasons for the discharges
According to Respondent's witnesses , about 11 a.m. on August 24, President
Byer spoke to Warehouse Superintendent Sears about "complaints" from the Com-
pany's sales force concerning deliveries and told Sears that some changes would
have to be made.1e Sears testified that he told Byer that the trouble was that
he did not have "qualified" men whereupon Byer told him to "get rid of some of
them. Let's get some new blood in. Let's get someone that can help you."
Sears testified that he told Byer that Kaylor was absent too much, that Cooper
was slow and incompetent, and that East had damaged a truck a few days before.ii
East testified that on Friday, August 23, he was driving a truck loaded with 9
tons of steel and the brakes failed. He was unable to stop the truck but managed
to slow it down by getting it in low gear. He was "right in the middle" of the
street, the parking lanes were full he was sure the truck would be "tagged" if
he left it, and it would have cost 10 or $15 to have the truck towed in even if
he had been able to leave it to go call a wrecker. Under these circumstances, he
drove it in low gear about 5 miles an hour the 10 to 15 blocks to the plant. East
testified without denial that he had never been given instructions about what to do
if such a situation arose.ia
According to Sears, the truck, a 1948 model, was in good condition having been
reconditioned 2 or 3 months earlier after not having been driven for "a few years." 13
8 The above findings are based on the credited testimony of Hardwick. Sears testified
that he called Hardwick in part to find out "what [he] thought of what I did." When
Sears was asked whether he questioned Hardwick about the Union, his answers were
evasive and he first testified that the "word ' union ' 11 was not mentioned until after
August 24. However, almost immediately thereafter he admitted that "the word was men-
tioned [in the conversation with Hardwick] after I got home from work on August 24th."
Sears also admitted that he had never called Hardwick before with respect to discharge.
8 The above findings are based on the credited testimony of East.
18 Respondent's witnesses did not name either the salesmen or the customers who had
made the complaints and even more significantly did not state when the complaints had
been received. The salesmen were not called as witnesses.
11 Although Byer testified that Sears told him that "some of the men in the warehouse
are not doing the right thing by me," he did not testify concerning the nature of Sears'
criticisms of the men.
12 There is no basis in the record for the statement in Respondent's brief that East "re-
fused" to follow a "directive" to notify the Company if a major equipment problem arose.
11 When Sears was first asked the "state of repair of the truck," he answered, "what do
you mean by that?" Sears testimony that the truck had been reconditioned is not credited,
in part because of the Company's failure to produce any records indicating that any work
had been done on the truck.
FREDERICK STEEL COMPANY 9
Sears also testified that East's action in driving the truck after the brakes failed
"tore the wheel up" and that it cost the Company $100 or more to have it repaired.
He also testified that the Company should have the bill but it was never produced.
On cross-examination , Sears was asked the following questions and gave the fol-
lowing answers:
Q. And you told [East] about this when you fired him? You said, "Now
I'm letting you go because you tore up the truck?"
A. I don't think I brought that out at the moment I laid him off.
Q. As a matter of fact, you told him you were letting him go because he
was the youngest man, or something like that , to cut the payroll?
A. No. No. I don't think that was the way it was mentioned. I men-
tioned it in some manner, as-to be honest with you I don't remember the
exact words.
Q. Well, did you tell him it was for tearing up the truck?
A. I told him it was one of the incidents.
Q. Oh, you did tell him? I thought you said you didn't tell him that.
A. Well, it was more or less a conversation for about two or three minutes
and I don't remember what all I did tell him, but I'm almost positive that
that was one of the things I did tell him. I also told him he was the youngest
man there , which was true.
Q. And you were cutting the payroll?
A. That I'm not sure of.
Q. Well, could you have said that?
A. I wouldn't have said I was cutting the payroll; that wouldn't be the way
I was putting it. I would put it in some other manner . The same reason I
told Donald Cooper that the reason I let him off, I didn't come out and tell
him he was strictly no good for nothing, if that's what you have reference to.
In view of the foregoing testimony , I find that Sears did not mention the truck
incident when he discharged East and that, instead, he told East that the payroll
was being cut and East was selected for discharge because he was one of the youngest
men 14
Cooper had been employed by Respondent for about a year and I credit his
testimony that there had been no complaints about his work . In July 1963 he
wanted to buy a house and applied for a loan to be guaranteed by the Veterans
Administration . He was given a request for verification of employment to be
filled in by his employer which he showed to Sears who told him that the book-
keeper, Hoenemeyer, would have the information. Cooper took the form to
Hoenemeyer who later returned it-filled in and bearing Hoenemeyer 's signature.
One of the questions asked was "Probability of continued employment ..." and
the word "good" had been written in the space provided.is
In a conversation with Sears about the same time , Cooper commented that he
wanted to get "established" to which Sears replied that he did not know "how it
will be 20 years from now." When Cooper asked, "How are my chances now?"
Sears said , "They're good." 10
Cooper was hired as a ahearman and Sears admitted that he could shear steel
but asserted that he was too slow and was generally incompetent . However, he
cited only one example of Cooper 's slowness and the incident to which he referred
occurred the previous October. 17 Although the record indicates that Cooper was
'A East was hired in May 1968. It is undisputed that Respondent hired two new em-
ployees the week of August 26 and began employing "spot " or part-time men more fre-
quently than in the past.
36 Although Respondent raised the question of whether the bookkeeper had authority to
state what Cooper ' s job prospects were , it did not deny that Hoenemeyer had, such author-
ity and did not claim that Hoenemeyer did not in fact know what Cooper 's job prospects
were in July 1963 . That Hoenemeyer had some personnel functions is disclosed by the
fact that he interviewed Cooper when the latter first applied for a job.
16 The findings with respect to Cooper 's loan application and his conversation with Sears
are based on Cooper ' s undenied and credited testimony.
17I credit Cooper's testimony that the only time^he did a job for Hoenemeyer was
8 weeks after he was hired and I discredit Sears ' testimony that Cooper did the job for
Hoenemeyer only a few weeks before Cooper 's discharge . Hoenemeyer was not a witness.
I also discredit Sears' testimony that in early August he suggested to Cooper that he look,
for another job because he would never get "established" at Frederick Steel.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
somewhat slow, I credit his testimony that he never took an "abnormal length of
time" to do a job and that he was "careful to lay out his work" because he "love[d]
the quality of work" and "hate[d] to see truck loads of steel go out and come back."
In any. event, I am convinced and find that Cooper's job prospects were "good"
before he joined the other employees in trying to get a union and that he was not
discharged because he was slow or incompetent. See also Sears' testimony, set
forth supra, which indicates that he did not tell Cooper that he was being discharged
because of his poor work record.
Kaylor had worked for Respondent for 7 or 8 years and its records show that
throughout the entire period be had frequently been absent for several days at a
time. Its records also show that he was absent several days during each of the
last 3 weeks before his discharge.18 That Kaylor's recent absences were not suf-
ficiently unusual to impress themselves on Sears' mind is revealed by his admission
that he could not recall whether Kaylor had been absent "recently." He then
added, "Yeah, he had been off recently. Just how much, I'm not sure." Sears
testified that he told President Byer that:
If [Kaylor] was to work everyday then it would be much easier on me and
I could, maybe wouldn't have had complaints, maybe I would have corrected
them whatever they were. Maybe I had too much work at the time or some-
thing. I'm not sure. [Emphasis supplied.]
It is probably true that Sears had on occasion complained to Kaylor about his
absences but I do not believe that he had "warned" Kaylor that he would be dis-
charged if his attendance did not improve.19 Sears had tolerated Kaylor's absences
for years and the reason is plain. i e., that Kaylor was, as Sears admitted, a very
good workman. In other words, Kaylor was sufficiently valuable when he was
present that Respondent was willing to retain him despite his habit of being
absent more or less frequently. Moreover, the credited testimony of Kaylor and
East shows that Sears did not refer to Kaylor's recent absences when he discharged
Kaylor.
3. The supervisory question
As stated supra, Kaylor had been employed by Respondent for 7 or 8 years at the
time of his discharge. His rate of pay was $1.85 an hour, 15 cents an hour more than
that received by any man in the shop other than Supervisor Sears. He was hired
originally as a truckdriver but did "everything" around the shop including running
the burner and the crane and weighing and filling orders.
Kaylor testified that he, along with Sears, had a key to the plant and that he
substituted for Sears when the latter was on vacation or went to the doctor or was
late getting to the plant because of snow. He further testified that Sears told him
that at such times he could fire the employees if he wanted to but that when Sears was
present he had "no right to fire nobody." It is also clear from his testimony that
Kaylor "directed" the men when Sears was absent and did so at times when Sears
was present.
Sears, on the other hand, testified:
I used Ed Kaylor more nor less as a foreman under me. I would give him orders,
for example, to fill and be would fill them and take the men and instruct them.
When I was on vacation he would do the same thing. Occasionally he would
call me at home if something came up, or if I had to be out for something . .. .
He was a good man, he was a good leader. I could give him orders; we have an
outside department more or less. We don't work out there all the time, maybe
on the average of an hour a day, two or-three men. He would take men, go out.
get beams, load my truck and give me the tickets back. In most cases, I would
fill them out , give them to the driver and that was it.20
18 Employee Hardwick testified that Kaylor's work record was no worse than that of
some of the other employees . Respondent presented no evidence concerning the attend-
ance records of-the other employees and did not contend that Kaylor's record was the
worst or even one of the worst.
1e Although Sears testified that he had warned Taylor , he did not state when he had
done so.
20 Sears also testified that Respondent 's attorney asked him if Kaylor was "more or less
a supervisor under me, and I stated yes." At another point, Sears testified that Kaylor'
"was used as a leader more or less for the men, and so was I . . . I would work the
orders , Ed and I together." -
FREDERICK STEEL COMPANY 11
According to Sears, when he went on vacation , he told the men that Kaylor "was
the boss, he had the right to fire [ the] men if they didn't work for him as he seen
fit during the time that I was off . Any other time , if he had complaints , he would
come to me and present them ... " 21 Sears then went on to say that Kaylor had
complained about Cooper but it is clear that Sears took no action based on Kaylor's
complaints.22
Sears' testimony convinces me that when Sears was present , Kaylor was nothing
more than a leadman who carried out Sears ' instructions and whose job amounted to
nothing more than "keep [ ing] all hands busy ." In other words , "the discretion given
[Kaylor] appears to be routine in the natural sense of that word ." Precision Fabrica-
tors v . N.L.R.B., 204 F . 2d 567, 568, 569 (C.A. 2).
In Sears' absence, Kaylor's responsibilities were certainly greater than they were
when Sears was present and in theory at least he had the authority to discharge.
Sears' absences , except for his vacation , were clearly limited to a few hours now and
then when he had to go to the doctor or was late getting to work because of snow.23
Moreover , Sears' testimony that Kaylor called him at home "if anything came up,"
indicates that Kaylor 's authority even during Sears' absences was limited to handling
routine matters and carrying out Sears ' orders . Thus, unlike the control operators
whose status was an issue in Ohio Power,24 Kaylor did not "engage regularly" in the
"basic act of supervision ." At most , he substituted "sporadically" for a supervisor
and the Board has held that such substitution does not make an employee a super-
visor . Webb Fuel Company , 135 NLRB 309, 310-312. Cf. United States Gypsum
Company , 114 NLRB 523, 526, 527; Archer Mills, Inc ., 115 NLRB 674, 676; Sears,
Roebuck & Company , 112 NLRB 559, 562.
As the Board pointed out in The Great Western Sugar Company , 137 NLRB 551,
552-553 , to hold that employees who spend the "bulk" of their working time as rank-
and-file employees are not entitled to the benefits of the Act would deny them the
right to ,bargain collectively for the terms and conditions of employment which govern
their basic relationship with their employer . In the instant case , it is clear that there
was no change in Kaylor's rate of pay , hours, or other benefits during the infrequent
and brief periods when he substituted for Supervisor Sears. It is also clear that
he was not acting as a supervisor at the time he was discharged and there is no
evidence that he had substituted for Sears anytime recently.
On the basis of the facts and for the reasons set forth above , I conclude that Kaylor
was not a supervisor within the meaning of Section 2 ( 11) of the Act 25
D. Analysis and conclusions
On August 22, employee East called the Union and arranged for a meeting after
work on August 23. Six of the Company's eight employees attended the meeting and
signed cards. Respondent learned , even before the meeting , that the employees were
trying to get a union in the plant and on the day after the meeting decided to discharge
Kaylor, East, and Cooper , three of the six men who had attended the meeting the
night before and signed cards . Before the discharges, the Union represented six of
the Company 's eight employees , a clear majority : after the discharges , the Union rep-
resented only three of seven employees , a clear minority.2e
' Employee Hardwick was given a key to the plant after Naylor was discharged and
testified that he did not know whether or not Naylor had authority to hire or fire. He
agreed that Naylor "directed the work" but added. "He wasn't no boss that I--know of."
92 Sears testified that Naylor had complained about Cooper and then added:
I don't remember the exact date. I don't remember when -it happened., I don't
even remember the incident. I don't remember what it was, but Ed came to me once
and mentioned some relations to Cooper not being a good employee.
Sears later estimated that the Naylor report came "within thirty days or two weeks of
the time of the layoff."
m Although the record does not indicate clearly how much vacation Sears took, it sug-
gests that it was only a week.
54 Ohio Power Company v. N.L.R.B., 176 F. 2d 385, 387 (C.A. 6), cert. denied 338
U.S. 899.
se Naylor testified that he was "quite sure" that he began substituting for Sears prior
to an election conducted by the Board about 5 years earlier and that he voted in the
election. Sears likewise testified that Naylor's duties had been the same throughout most
if not all of his employment.
2$ As set forth supra, two new employees were hired the week of August 26.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The decision to discharge Kaylor, East, and Cooper was made shortly before noon
on August 24 and Respondent's own testimony shows that until that time there had
been no discussion about discharging anyone. According to Respondent, however, on
the morning after the union meeting, President Byer reported "complaints" from un-
disclosed salesmen and when Sears attributed the difficulties to Kaylor and Cooper, at
least, Byer told him to get rid of the "old blood" and get in "new blood." Although
coincidences do happen, I am unable to conclude that the -decision to discharge the
three men was wholly unrelated to their union activity.27
If the complaints had been serious or if they had just been received, I am sure that
Respondent's witnesses would have named names and dates instead of testifying only
in generalities. I am even more certain that Respondent's failure to produce the bill
for the repairs on the truck allegedly damaged seriously by East was due to the
fact that Sears' testimony concerning the damage was greatly exaggerated.
In assessing the explanation for the discharges given by Respondent's witnesses at
the hearing, it is also significant that Sears at first admitted that he did not mention the
truck incident at the time he discharged East and I have found that he did not tell
Kaylor that he was being discharged for absenteeism or Cooper that he was being
discharged because he was incompetent. On the contrary, Sears told the men that the
Company was cutting the payroll and that Kaylor was selected because he was the
highest paid man and Cooper and East because they were relatively new employees. It
is therefore apparent that the reasons given by Respondent's witnesses for the dis-
charges were afterthoughts put forward after the event in an effort to justify the
Company's action. Cf. N.L.R.B. v. Sawyer Downtown Motors, Inc., 213 F. 2d 514,
516 (C.A. 7).
Moreover, Kaylor's absences were nothing new but had occurred so frequently
over the years that Respondent must have come to expect and accept them as a
necessary evil. As one court pointed out long ago in a similar case , the "dif-
ficulties" inherent in Kaylor's case "only became seriously unsupportable to his
employer" when he joined with the others in trying to get a union in the plant.
Agwilines, Inc. v. N.L.R.B., 87 F. 2d 146, 154 (C.A. 5). As for Cooper's alleged
incompetence, his job prospects were stated to be "good" in July before he had
engaged in any union activity. Then on August 24, after he and other employees
had attended a union meeting and signed cards, Respondent discharged him al-
legedly because his work had always been unsatisfactory.
In addition , when Kaylor told Sears he knew that he and the others were being
discharged "on account of the Union," Sears did not deny it. And finally, when
President Byer told East, shortly before the hearing, to "get [his] off the
premises ," Byer disclosed his hostility not only toward East but to the employees'
efforts to obtain union representation of which the Board-conducted election was
an integral part.
The timing of the discharges (Angwell Curtain Company, Inc., v. N.L R.B , 192
F. 2d 899, 903 (C.A. 7) ), Respondent's hostility toward the Union (Hendrix Manu-
facturing Company, Inc. v. N.L.R.B., 321 F. 2d 100, 103-104 (C.A. 5)), the de-
meanor of its witnesses while testifying (N.L.R.B. v. Walton Manufacturing Company
& Loganville Pants Co., 369 U.S. 404, 408) and the failure of Respondent's explana-
tions to stand up under scrutiny (N.L.R.B. v Griggs Equipment, Inc., 307 F. 2d
275, 278 (C.A. 5)), convince me and I find that whatever the shortcomings of the
employees may have been,' none of them would have been discharged but for his
part in the effort to obtain union representation . Needless to say, the fact that
Respondent may have had grounds for discharging the three men does not 'mean
that the trier of fact must conclude that they were or would have been discharged
for those reasons . It is well settled, of course, that "If employees are discharged
partly because of their participation in a campaign to establish a union and partly
because of some neglect or delinquency, there is nonetheless a violation of the Na-
tional Labor Relations Act." N.L.R.B. v. Jamestown Sterling Corp., 211 T. 2d
725, 726 (C.A. 2). See also N.L.R.B. v. Hudson Pulp & Paper Corporation, et al.,
273 F. 2d 660, 666 (C.A. 5): >`i.L.R R. v. C & J Camp, Inc., et al. d/b/a Kibler-
Camp Phosphate Enterprise, 216 F. 2d 113, 115 (C.A. 5).
For the foregoing reasons, I conclude that a preponderance of the evidence
establishes that the motivating cause for the discharge of Kaylor, East, and Cooper
was their participation in the employees' efforts to obtain union representation and
their discharge violated Section 8(a) (3) and (1) of the Act.
27 As the court said in Angwell Curtain Company, Inc v. N L R.B., 192 F - 2d 899, 903
(C.A. 7), "It stretches credulity too far to believe that there was only a coincidental con-
nection between [ the employees ] enthusiastic solicitation on behalf of the Union on Mon-
day, Tuesday , and Wednesday and the abrupt termination of [their ] employment on
Thursday when there was plenty of work . . . .
FREDERICK STEEL COMPANY 13
Sears' comment to Kaylor on the morning of August 24 that he knew that the
employees were trying to obtain union representation was designed to and did
cause Kaylor to disclose his attitude toward the Union just as did Sears ' direct
question of Hardwick that afternoon . Furthermore, Sears' statement that President
Byer was going to give a wage increase but it "looks like he 's waited too late" could
reasonably be interpreted by the employees as meaning that there would be no
wage increase because they had started a union campaign , there being no evidence
of any other event which could have caused Sears to conclude that it was now
"too late ." Cf. Hendrix Manufacturing Company, Inc. v. N.L.R.B., 321 F. 2d
100, 103-104 (C.A. 5). Having interrogated its employees concerning their union
sympathies, both immediately before and after the discharge of three union mem-
bers, and having during the same period told the employees that a proposed wage
increase would not now be forthcoming, I find that Respondent interfered with,
restrained , and coerced its employees within the meaning of Section 8 (a)(1) of
the Act
III. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I shall recom-
mend the customary cease -and-desist order and the affirmative relief which is con-
ventionally ordered in cases of this nature. Any backpay found to be due Kaylor,
East, and Cooper shall be computed in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716 . Since discrimination against employees because of union activity goes
to the very heart of the Act (N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536
(C.A. 4) ), and demonstrates such opposition to the policies of the Act that it is
reasonable to assume that the Employer will, under similar circumstances in the
future, interfere with its employees ' rights under the Act, I shall include in my
Recommended Order a provision directing Respondent not to interfere with,
restrain , or coerce its employees in any manner in the exercise of their statutory
rights. Since it is clear that Respondent's conduct was not based on the identity
of the Union involved but resulted from its opposition to all union activity among
its employees , my Recommended Order will prohibit interference with the em-
ployees' right to engage in activity on behalf of the Union or any other labor
organization.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By interrogating its employees concerning their union sympathies and by
telling them that a proposed wage increase would not be forthcoming, Respondent
has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of
the Act.
4. Edward Kaylor was an employee and not a supervisor within the meaning
of Section 2 (11) of the Act.
5. By discharging employees Kaylor, East, and Cooper because of their union
activity, Respondent has engaged in an unfair labor practice within the meaning
of Section 8 (a) (3) and (1) of the Act.
6. The unfair labor practices set forth in paragraphs 3 and 5, above, are unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
7. Respondent did not threaten its employees with discharge because of their
union activity.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law , and the entire record,
and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent,
Frederick Steel Company , its officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union sympathies and telling
them that wage increases or other benefits will not be forthcoming because of em-
ployee efforts to obtain union representation.
(b) Discouraging membership in Truck Drivers, Chauffeurs and Helpers Local
Union No. 100, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, by discharging or otherwise
discriminating against employees because of their union membership or activity.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join, or assist Local Union
No. 100, or any other labor organization, to bargain collectively through representa-
tives 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:
(a) Offer Edward Kaylor, Ralph East, and Donald Cooper immediate and full
reinstatement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make them whole for any losses
they may have suffered by reason of the discrimination against them in the manner
set forth in the section entitled "The Remedy."
(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 to analyze the
amount of backpay due under this Recommended Order.
(c) Post in its plant copies of the attached notice marked "Appendix." 28 Copies
of said notice, to be furnished by the Regional Director for the Region 9, shall,
after being signed by Respondent's representative, be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be 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 9, in writing, within 20 days from the
date of the receipt of this Decision, what steps Respondent has taken to comply
herewith.29
It is further recommended that the complaint be dismissed in all other respects.
28In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
29 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT question employees concerning their union sympathies and will
not tell employees that wage increases or other benefits will be withheld because
of their efforts to obtain union representation.
WE WILL NOT discourage membership in Truck Drivers, Chauffeurs and
Helpers Local Union No. 100, International Brotherhood of Teamsters, Chaf-
feurs, Warehousemen and Helpers of America, or any other labor organization,
by discharging or otherwise discriminating against employees in regard to their
hire or tenure of employment or any term or condition of employment.
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 Truck Drivers, Chauffeurs and Helpers Local Union No. 100, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization, to bargain collectively through representatives of
their own choosing, or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
or all such activities.
WE WILL offer to Edward Kaylor, Ralph East, and Donald Cooper immediate
and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, and make them
whole for any losses they may have suffered as a result of our discrimination
against them.
PARIS MANUFACTURING COMPANY 15
All our employees are free to become , remain , or to refrain from becoming or
remaining members of the above-named or any other labor organization except
to the extent that such a right may be affected by an agreement in conformity with
Section 8(a)(3) of the National Labor Relations Act.
FREDERICK STEEL COMPANY,
Employer.
Dated------------------- BY-------------------
(Representative ) ( Title)------------------------
NoTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge 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.
Employees may communicate directly with the Board's Regional Office, Room 2023,
Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200,
if they have any question concerning this notice or compliance with its provisions.
Paris Manufacturing Company and United Furniture Workers
of America, AFL-CIO. Case No. 1-CA-4342. October 20, 1964
DECISION AND ORDER
On March 25, 1964, Trial Examiner Eugene E. Dixon issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Decision. There-
after, the General Counsel and the Respondent filed exceptions to
the Decision with supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions and briefs, and the entire record in this case, and hereby
adopts the Trial Examiner's findings, conclusions, and recommenda-
tions, with the following modifications.'
' We find it unnecessary to pass upon the Trial Examiner 's .5(a) (1) finding . based on
the notice posted by the Respondent on September 16, 1963, warning its employees against
attending a special union meeting scheduled during working hours off the Employer's
premises.
The Trial Examiner inadvertently omitted the customary paragraph entitled "The
Remedy" from his Decision. Accordingly, we shall incorporate herein the following
remedial language : "Having found that the Company has engaged in and is engaging in
certain unfair labor practices affecting commerce, the Board will order that it cease and
desist therefrom , and take certain affirmative action in order to effectuate the policies of
the Act."
149 NLRB No. 8.