Georgetown Steel Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1971

189 N.L.R.B. 473 (N.L.R.B. 1971)

GEORGETOWN STEEL CORP. 473
Georgetown Steel Corporation and United Steelwork-
ers of America, AFL-CIO . Cases I1-CA-4178,
I I-CA-4201, l 1-CA-4214, and 11-CA-4240
March 31, 1971
DECISION AND ORDER
that Abbott was motivated by antiunion considerations in filing the report
in question Indeed that Abbott's report was legitimately based is
evidenced by Bruorton 's prior unsatisfactory work record , compiled at a
time when the Respondent lacked knowledge of his union activities, and
the fact that , while the final report filed by Abbott referred to specific
instances of job misfeasance , Bruorton's testimony is not responsive to the
alleged derelictions, thereby leaving the impression that the alleged
mistakes did occur
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On November 20, 1970, Trial Examiner Frederick
U. Reel issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trail Examiner's Decision. He also found
that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, the General Counsel and the Respondent
filed exceptions to the Trial Examiner's Decision and
briefs in support thereof.
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 this case to a three-member
panel
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
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Georgetown Steel Corporation,
Georgetown, South Carolina, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order.
IT IS FURTHER ORDERED that the complaints herein
be, and they hereby are, dismissed insofar as they
allege violations of the Act not specifically found.
i We agree with the Trial Examiner that Respondent did not violate
8(a)(3) through the discharge of Bruorton However, we do not agree with
his Decision to the extent it implies that Chief Metallurgist Besselh's
assumption of full responsibility for the discharge of Bruorton would
exonerate Respondent even were it shown that Abbott, his immediate
supervisor, had filed the adverse work report leading to the discharge for
pretextual reasons and to rid Respondent of an active union adherent
Instead, we affirm the dismissal solely because the record does not show
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This proceeding
heard at Georgetown, South Carolina, on September 15
through 17,'1970,1 pursuant to charges filed the preceding
March 11, April 6 and 11, and May 19, and a consolidated
complaint issued July 28, presents questions whether
Respondent, herein called the Company, discharged four
employees because of their membership in, or activities on
behalf of, the Charging Party, herein called the Union, and
committed other acts of interference, restraint, or coercion
violative of employee rights under the Act.
Upon the entire record,2 including my observation of the
witnesses, and after due consideration of the brief filed by
the Company, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, a Delaware corporation engaged at
Georgetown, South Carolina, in the manufacture of steel
products, annually ships products valued in excess of
$50,000 to points outside the State, and is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The Union is a labor organization
withinthe meaning of Section 2(5) of the Act.
Ii. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
The Union commenced an organizing campaign early in
1970, which culminated in the Union's winning an election
in the spring and becoming the certified bargaining
representative. The Company was admittedly opposed to
the advent of the Union; the issue here is whether the
Company in its opposition overstepped lawful bounds.
Insofar as the alleged violations of Section 8(a)(1) are
concerned, it may be observed that if any "interference,
restraint or coercion" existed, it was "unsuccessful" in the
sense that the Union ultimately prevailed by what company
counsel described as "an overwhelming majority." This, of
course, would not serve to legalize otherwise illegal
conduct, or to moot the case, but it may suggest that
extended treatment of these issues is not required.
1. Interrogation and surveillance
Employee Walter Cooper testified that on February 3
i All dates herein refer to the year 1970 unless otherwise indicated
2 Upon my own motion I hereby correct the transcript at page 576, line
1, to insert the word "not" before "employed "
189 NLRB No. 64
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Foreman Gerald Smith spoke to him in the rolling
mill. To quote Cooper:
A. Well, when he first called me over to the side, he
said to me, "Walter, I've been informed by Mr.
Maynor, the Personnel Director, that you have taken a
bunch of people to the Carolinian Motel to see the
Union representative."
And I told him I had not taken a bunch of people to
the Carolinian Motel to see the Union representative.
And he told me, "Well, then, that's O.K. Did you sign
a card?"
And I said, "Yes, sir, I did"
And he said, "Well, that's good because people will
trust you, and you can do more for the Company than I
can."
And what was your job at that time, Mr. Cooper, at
the time you were having this conversation with Mr.
Smith?
At that time I was a Trainee Foreman.
Employee Peter Walker testified that on March 9 his
foreman, Charles Bacon, asked him if he had attended a
union meeting the day before. (This episode is more fully
discussed below in connection with Walker's discharge.)
General Counsel alleges that these two episodes support
the allegations of the complaint that the Company
"interrogated employees by asking them ... whether they
had signed a union card and whether they had attended
union meetings" and "gave employees the impression that
[it] was spying upon their union meetings and activities"
The Company relies on the testimony of Smith and Bacon,
both of whom denied the remarks attributed to them, and
also argues that the General Counsel's evidence, even if
credited, fails to establish a violation of the Act.
I credit the testimony of Cooper and Walker over that of
Smith and Bacon. These findings rest in part upon the
demeanor of the witnesses, in part on the credible
corroborative detail with which Cooper and Walker
testified, and in part (in Walker's case) on the unreliability
of Bacon for reasons discussed below .3 I therefore find that
Bacon asked Walker whether he had attended a union
meeting, that Smith asked Cooper whether he had signed a
union card, and that Smith further inquired whether
Cooper had taken employees to visit a union representative.
Such interrogation under the circumstances violated
Section 8(a)(1) of the Act.4 I do not find, however, that
either conversation created the impression of surveillance,
for there is no suggestion that knowledge of Cooper's or
Walker's activities was acquired by anything other than
casual and normal observation.
2. Threats of discrimination
The complaint alleges that Foreman James Abbott
threatened an employee with replacement if the employee
became a union steward. The proof falls short of sustaining
the allegation, for according to the testimony of General
Counsel's witness, all Abbott said was: " ... when the
As to credibility findings in general , see N L R B v. Dimon Coil Co,
201 F 2d 484, 487-490 (C A 2, 1952), but compare the dissenting opinions
in Mark Twain Marine Industries, Inc, 185 NLRB No 101, and Peoples
Outfitting Company, 184 NLRB No. 47.
4 The complaint also alleges interrogation with respect to distribution of
Union is out on strike, the non-union members are going to
be working, and you can be replaced."
Employee Walter Roberts testified to a conversation with
General Foreman Clinton Cribb on or about March 10 in
which Cribb stated that if Roberts wanted to hold hisjob he
should remove the union button and stickers he was
wearing. Cribb denied the conversation. I credit his denial,
noting that Roberts seemed hopelessly confused as to the
date of this alleged occurrence, and that the wearing of
union buttons was common at the plant.
Conversely, however, I credit the mutually corroborative
testimony of employees Gilbert Allen Turner and Waldon
Roberts that in late January or early February, in the
course of a conversation about the Union with Superin-
tendent Charles Hendrix, the latter stated that the
Company would close the plant if the Union "came in."
Hendrix remembered discussing the Union with Roberts
early in February but denied making the threat. As stated, I
credit Roberts and Turner and I find that the threat
violated Section 8(a)(1) of the Act.
Another unlawful "threat" alleged in the complaint rests
on the testimony of employee James Bruorton that shortly
after his discharge (discussed in more detail below) he saw
Personnel Director Don Maynor in the latter's office, and
in the course of a discussion of the discharge stated that he
(Bruorton) was going "to find out the truth if I had to file
charges and see my union lawyer," to which Maynor
allegedly replied: "Well, if you are going to file charges
against the Company, you cannot do it and work for
Georgetown Steel. You'll have to do that outside the gate.
But if you will consider taking anotherjob, I can offer you
one." Maynor denied making the statementjust quoted. He
testified that he learned in a telephone conversation with
Bruorton on May 14 that the latter had filed a charge, and
he told Bruorton to come to the office as Maynor "would
still like for them to talk to you in the supply room"
concerning anotherjob. Maynor also recalled the conversa-
tion in his office, but, at least by inference, denied that the
matter of a charge was mentioned at that time.
I credit Bruorton's testimony. I was favorably impressed
with his demeanor on the witness stand; I note that in point
of fact the charge in his behalf was not filed until several
days after his conversations with Maynor, which tends to
support Bruorton's rather than Maynor's recollection of the
tense in which Bruorton referred to the charge; 5 and the
detailed language which Bruorton attributes to Maynor (i.e.
such expressions as "do that outside the gate") enhances the
credibility of Bruorton's version. The statement that the
filing of a charge would impede employment opportunities
violates Section 8(a)(1) of the Act, as the implementation of
such a threat would violate Section 8(a)(4).
3. Undenied allegations
The Company admitted the allegations of the complaint
that on January 26 General Foreman Gerald Smith told an
employee that the Company did not approve of the
union literature , but the proof shows only interrogation as to whether the
employee violated a plant rule by distributing such literature "on the job"
5 This is a relatively minor factor in my determination, for Bruorton
could have filed a "charge" with his union which some days later filed the
formal charge with the Board
GEORGETOWN STEEL CORP.
employees' outside activities, and that on March 9 Smith
asked an employee to remove his union button. In my view
the I irst of those admissions does not establish a violation.
Even in terms of the complaint which alleged that the
employee involved was "a leading union adherent," a mere
statement of company disapproval does not exceed the area
of free speech permitted under Section 8(c). Moreover, the
disapproval of "outside activities" could well apply to
matters unrelated to those protected by the Act. I reach a
contrary conclusion with respect to the "union button"
matter. In the absence of unusual circumstances the right to
wear a union button is protected by the Act from employer
interference. There is some suggestion in the record that the
employee involved here was being trained for posssibfc
promotion to suppervisor (although he thereafter declined
supervisory status), but even assuming this to be the case,6
the statement at the time of its utterance was an
infringement of an employee right.
B. Discriminatory Discharges
1. Phillip Pope, the leading protagonist of the Union at
the plant, was discharged on March 9. The record
establishes that the Company was opposed to the Union
and was well aware of Pope's role in the union campaign.
The issue as to Pope is whether the Company was
motivated by his union activity when it decided to
discharge him.
The episode which led to Pope's discharge occurred
toward the end of his shift on Saturday night, March 7. On
this occasion Pope was wearing his union button. Two
residents of Germany, who were in the plant on business,
apparently to instruct some of the employees in certain
operations, engaged Pope in conversation, expressing
skepticism over the value of the Union and its chances for
success in the plant. Pope, who was well aware that neither
of the men was a company employee, replied to their
comments, expressing the view that the Union would
prevail, and mentioning the benefits he thought it would
bring, to the employees. During the conversation another
employee, Lavon Cooper, came by and joined in it,
espousing antiunion views. Employee Jimmy Floyd also
overheard a brief part of Pope's conversation.
The next day, March 8, Foreman Malcolm Fore told
Pope that the latter had punched out at 10.98 the night
before. Pope, incredulous at the criticism as early punching
out was common practice, said "Malcolm, what is this, less
than a minute?" to which Fore replied: ". . . it might be
one minute too much." When Pope observed that this was
not unusual, Fore repeated: "Regardless, Pope, it could
have been one minute too early." That same day, Sunday,
March 8, Fore approached employee Floyd and asked if
Floyd had heard Pope talking to the Germans about the
Union. Both Floyd and employee Lavon Cooper, who
overheard Fore's question, told Fore they had heard Pope's
conversation, to which Fore rephed- "That's all I need is
two witnesses." On Monday, March 9, Fore asked Floyd to
sign a statement that "Pope was talking Union to the
Germans," and when Floyd declined, Fore said: "Well, I
6 Company counsel, pointing out that he had admitted the allegation,
successfully objected to General Counsel's attempt to adduce supporting
475
don't need you anyway. I've got four other witnesses that
signed." Fore added, "I thought that you would do that
much to help me out."
Monday evening, March 9, about 9:40 or 9:45 p.m., Fore
sent for Pope and advised him that he was being discharged
as of 10 p.m. (1 hour before the end of the shift) for violation
of the Company 's no-solicitation rule. At the hearing it
developed that the "violation" consisted of Pope's conver-
sation with the two Germans the night of March 7.
The Company introduced some evidence that Pope was
not a satisfactory worker and spent too much time away
from his place of duty. General Counsel presented evidence
attesting to Pope's competence, and also made out a strong
case that the "no solicitation" rule was not strictly enforced.
I find it unnecessary to go into these matters at length or to
make findings thereon. I find on the evidence summarized
above that Pope was not violating the "no solicitation" rule
when he responded to the inquiries of nonemployees about
the Union, that the Company knew he had not violated it,
that pope's prounion remarks on that occasion were not
outside the protection of the Act, that the disparate
treatment of Pope and Lavon Cooper, both of whom
discussed the Union with the visiting Germans, shows
discrimination against Pope because of his prounion
position, that the Company was searching for a pretext on
which to discharge Pope, and that the real reason for the
discharge was Pope's union activity. The discharge
therefore violated Section 8(a)(3) and (1) of the Act.
2. Peter Walker was also discharged on March 9.
Walker, who had been employed only since January 2, was
absent on Saturday and Sunday, March 7 and 8, because of
illness. He was suffering from some impairment of blood
circulation which occasionally made him "light-headed" or
dizzy, and which cause one of his arms or legs to "go to
sleep." In absenting himself on those dates Walker was
heeding advice given him when he was hired by a company
supervisor, who warned him that the job he was on was very
dangerous and he was not to come to work if he had any
problems or worries or "didn't feel like coming in." Walker
did, however, attend a union meeting on Sunday, March 8.
When Walker returned to work on Monday night, March
9, he had, according to his testimony, the following
conversation with his foreman, Charles Bacon:
A. Well, I went in the mill to report back to work---
I went to the time clock to get my card and it was gone.
So I went up to Mr . Bacon's office , he was in there, and
asked him where was my time card, and he said, "Jerry
told me to pull it."
And I asked him why, and he said he didn't know, he
said he didn't care. He said that he pulled it.
Q. What else do you recall about the conversation?
A. Well, at that time he started to ask me did I go to
a Union meeting on this particular Sunday, and I told
him yes, I had, and he said , "Well, if you were too sick
to come to work, you ought have been too sick to go to a
Union meeting."
Q. Were you supposed to have worked on Sunday
night?
A. Yes.
evidence
476
Q.
A.
Q.
tion?
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And why didn't you work on Sunday night?
I was sick in bed.
What else, if anything, was said in the conversa-
them or I will see you in court, or something. He said
something to refer to these gentlemen that he would
probably be in touch with them.
Thereafter, according to both Maynor and Bacon, Maynor
summoned Bacon and General Foreman Jerry Meijennk to
Maynor's office, where the three discussed Walker's
discharge, and Meijerink and Bacon assured Maynor that
Walker had in fact quit.
The Company introduced in evidence its official
"termination information" slip on Walker which bore a
date of March 9 and recited that he had "walked off the
job." The slip, which was prepared by Meijerink, who did
not testify, bore Bacon's signature as "overseer." Bacon
testified that the slip was not prepared until about a week
after the date it bore because Bacon had thought that
Walker was going to see Meijerink on March 10.
Bacon's testimony is internally inconsistent as to whether
the termination notice was made out before or after the con-
ference in Maynor's office. During cross-examination, after
describing the discharge interview, he testified as follows:
Q. When did you next have a conversation with
anyone in the company about Mr. Walker?
A. He said he had heard I had been to the Union
meeting . And I said, "Yes, sir, I have been to a Union
meeting."
Q. Do you recall that anything was said about a lay
off?
A. He told me after that, after this he told me, he
said "Jerry said to pull your time card and give you
from three to five days off."
I asked him why did Jerry tell him this, and he said,
"I don't know." He said, "I just pulled it, and I don't
give a damn."
Q. What did you do then or say?
A. I didn't say nothing else for the time being.
Q. Do you recall if anything was said about your
pass?
A. Yes, sir.
Q. What was said about that?
A. Well, I stood there approximately, I would say,
two minutes , and he said , "I want your hat , pass and A. Somewhere close to a week after when they
safety glasses" and I gave them to him. called Jerry and I up to the Personnel Office.
Q. What did you next do? Q. Who called you up to the Personnel Office?
A. And I asked him how am I going to get back in A. Mr. Maynor.
the mill, etc. without my pass, hat and glasses, and he
said he didn't know nothing about that. He said he
didn't care, and he said he had to go to work, he didn't
have no further time to discuss it.
Walker further testified that 3 days later he called
Personnel Director Maynor to inquire about returning to
work, and Maynor told him that, according to Bacon,
Walker had surrendered his hat, pass, and glasses, and had
"Walked out of the mill." Walker denied having done so,
and the conversation ended with Walker's telling Maynor
that Bacon would "have a chance to prove this sooner or
later." Walker heard nothing further from the Company.
Bacon's testimony is substantially contrary to that of
Walker. According to Bacon, when Walker returned on
March 9 after a 2-day absence, Bacon, who had "pulled"
Walker's timecard, never mentioned anything about a
union meeting but he did ask Walkerfor a doctor's excuse, to
which Walker replied that he would not furnish an excuse,
that he was quitting, and that he would see General
Foreman Meijerink the next morning.
With respect to Walker's telephone call, Personnel
Director Don Maynor testified that Walker called "some
time after his termination." To quote Maynor's testimony:
I got the phone call from Peter Walker saying, Mr.
Maynor, when can I return to work; I have been out
sick. I had the girl in the office to pull his personnel file
while he was on the phone and saw a termination slip in
his personnel file. It said he voluntarily quit and walked
off the job I read this to Walker on the phone and said
that according to his record, he had voluntarily quit and
walked off the job.
He then said, well, I would like to come back to work.
I said if you want to come back to work you will have to
talk either with Jerry Meijennk or Mr. Bacon. At this
point, he said something to the effect that he would call
TRIAL EXAMINER: At the time Maynor called you up
there, had that separation slip been made out?
THE WITNESS: Yes, Sir.
Q. (By Mr. Butler) When was it made out, Mr.
Bacon?
A. Somewhere about the 16th; somewhere around
there.
A few minutes later, however, he testified as follows:
TRIAL EXAMINER: I'm not quite clear about this
meeting in Mr. Maynor's office about this Walker
matter. Can you tell us when that was and how it came
about and what was said?
THE WITNESS: I can't give you the exact date.
TRIAL EXAMINER: In relation to the discharge.
THE WITNESS: Jerry called me one morning and told
me to come in a little early. We were on second shift. He
told me to come in a little early because he wanted to go
up to Mr. Maynor's office and discuss this.
I came in and we went up to his office and he asked
me what had happened.
TRIAL EXAMINER: Who asked you?
THE WITNESS: Mr. Maynor.
TRIAL EXAMINER: I am a little lost. First of all, Walker
had last showed up for work on Monday night, March
9th, at 11:00. Sometime, a few days later, he made, rather
you and Mr. Meijerink made out this termination slip.
Had you already done this when you had this meeting
in Mr. Maynor's office?
THE WITNESS: I would say it was within a day or so of
that.
TRIAL EXAMINER: Which came first: the slip or the
meeting?
THE WITNESS: The meeting came first.
TRIAL EXAMINER: The meeting came first. You hadn't
made out the slip at that time?
GEORGETOWN STEEL CORP 477
THE WITNESS: That's right
Not only was Bacon confused as to who had summoned
whom to the meeting, and (perhaps more important)
whether the termination slip was made out before or after
the meeting, but he was also mistaken in his testimony
concerning Walker's absenteeism. Walker had testified that
he had missed only 2 other days of work when he injured
his foot. Bacon testified that Walker had missed 2 weekends
in addition to the one preceding the discharge, and that
Bacon had warned Walker about this. Walker's attendance
record, introduced into evidence by General Counsel,
shows that Walker's only prior absence occurred on
Monday and Tuesday, February 9 and 10.
There are certain unsatisfactory features of Walker's case
as presented by the General Counsel. It is far from clear
why Walker did not pursue the matter after Maynor told
him that the Company believed he had quit; Walker made
no effort to see Megerink or to establish in any way that he
had been given only a short layoff. Also, it is unlikely that
Bacon was in Maynor's office when Walker called, and
more likely that Maynor found some personnel record
establishing Walker's termination. On the other hand
Bacon, although no longer employed by the Company and
hence presumably disinterested, displayed considerable
confusion, to say the least, as to whether the termination
slip was prepared before or after the meeting in Maynor's
office. If the slip was prepared after, possibly in response to
Walker's statement to Maynor that Walker "would see
them in court," it scarcely buttresses the Company's
defense. Moreover, Bacon's memory played him false
insofar as he attributed chronic weekend absenteeism to
Wall er-so false, indeed, that he "remembered" warning
Walker about the matter, whereas the records show that
Walker had never before committed the offense and hence,
presumably, was never warned.
Another problem in the Walker case is the failure of
Meijerink to testify. He might have cleared up the
confusion to the date on which the termination slip was
prepared; after all, he drafted it. Also, he could have
testified as to whether he told Bacon to pull Walker's card,
for Walker testified that Bacon so stated, and Bacon,
although not confirming this version, testified that Walker
expressed an intention to "see Jerry that next morning,"
thus suggesting, at least, that Meijerink's name had figured
in the conversation. In any event the Company s failure to
call Meijerink warrants the inference that his testimony
would not have supported the Company's version of these
events. See Interstate Circuit, Inc v. United States, 306 U.S.
208, 226; see also note, 5 A.L.R. 2d 893, 896, 907--908, 909--
911
I am also somewhat concerned over the Company's
original action in "pulling" Walker's card. To be sure he
had missed work for three nights, but on the first of those
his wife had telephoned to report his illness. According to
Bacon, he had twice before warned Walker about not
reporting on weekends The absentee record proves that
Walker had not been absent, and hence presumably had
not been warned, but Bacon's testimony suggests that only
casual "warnings" were common for the first two such
offenses.
Considering all these factors---notably, but not exclusive-
ly, the unreliability of Bacon, the Company's failure to call
Megerink, and the fact that Walker by his demeanor and
by the details accompanying his testimony impressed me
favorably as a credible witness---I credit Walker that Bacon
visited discipline upon him because he attended the union
meeting. The subsequent "quit" (as the Company views it)
or "discharge" (as Walker construed it) may have arisen out
of a misunderstanding over what Walker did or said when
notified of his layoff. I can see no reason for the Company
to have converted the suspension into a discharge 7 unless it
did so misunderstand. The entire episode, however, had its
genesis in the illegal layoff, and the Company must
therefore be held responsible for the ensuing events.
Accordingly, I find that the discharge of Walker violated
Section 8(a)(3) and (1) of the Act.
3. James Bruorton, hired February 2, was discharged
May 1, the day after he had told his supervisor, James
Abbott, that he (Bruorton) was strongly in favor of the
Union and might become the union steward in the
department. This circumstance, of course, furnishes some
support for General Counsel's case, as does Bruorton's
testimony that the particular problem he had on thejob the
night of April 30 was properly handled, and in any event
the trouble on thejob was no more attributable to him than
to another employee, Cannon, who is still in the Company's
employ. However, I was impressed by, and credit, the
testimony of Gino Besselli , the chief metallurgist, and
Abbott's superior, who was responsible for Bruorton's
dismissal, and who testified as follows:
Bruorton was hired on February 9 and his 60-day
probation expired April 10. Although normally a satisfacto-
ry employee is given a raise and made permanent at the end
of the probationary period, Besselli was not satisfied with
Bruorton 's work, particularly as Bruorton had been the
subject of two written criticisms in March. Accordingly on
April 9 Besselli recommended that Bruorton's probation be
extended for 30 days and that he not receive a pay increase.
On April 30 Besselli received from Foreman Abbott
another written criticism of Bruorton. At this point Besselli
decided that Bruorton was not suited for "quality control"
work, and dictated a "termination information" sheet
which recited that Bruorton was "not suitable as an
inspector, but could possibly be used in some other area of
the organization"
Following his termination Bruorton saw Personnel
Director Maynor, who offered Bruorton a production job
in the rolling mill, which Bruorton declined. On May 14
Bruorton was called to the plant where Foreman Ken
Brown interviewed him about a job in supply. According to
Brown, Bruorton insisted on day work, and hence could not
be hired for the job which called for rotating shift work.
According to Bruorton, he expressed a preference for day
work but did not flatly reject the possibility of accepting the
job if it required shift work, and expected to hear further
from Brown.
I find no antiunion discrimination in the treatment of
r I note that the termination slip was marked "no" in the space
provided after "rehire?"
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bruorton . As noted above Personnel Director Maynor
overstepped legal bounds in telling Bruorton that he could
not press unfair labor practice charges if he was employed
by the Company, but there is no showing, and indeed no
allegation in the complaint, that this was a factor in the
Company's failure to put him to work in anotherjob. As to
his separation from his job in quality control, it is, of
course, possible that Abbott, motivated by antiunion
considerations, misled Besselli into blaming Bruorton for
matters which were not the latter's fault and hence caused
Besselli to dismiss Bruorton from thatjob, although Besselli
in effect recommended him for hire elsewhere in the
Company. Besselli himself, however, assumed full responsi-
bility and testified that Abbott did not even make a
recommendation. I credit Besselli completely, and hence
recommend dismissal of the case as to Bruorton.
4. Jerry Tindall, hired November 5, 1969, and dis-
charged April 10, was employed as an electrician. He was
the only active union supporter among the electricians,
openly wore union insignia, and actively engaged in
distributing union leaflets. I credit Tindall's testimony that
his supervisor, Foreman Tom Boyd, saw him handing out
leaflets; in general I was impressed with Tindall's demeanor
as a witness, and I have grave reservations as to the
complete veracity of Boyd, who testified that he had not
seen Tindall doing so. In any event, Boyd admitted having
twice seen Tindall in the company of a union representa-
tive, and also admitted that Tindall was the only electrician
under Boyd who wore a union button and union stickers.
Tindall suffers from acrophobia, and this limited his
usefulness on the job which required some climbing. The
Company, however, was aware of this problem from the
earliest days of his employment, Tindall's usefulness was
also impaired to some extent by his inability to read the
German blueprints used at the plant, and by some general
deficiencies in his basic education. In these latter respects,
however, Tindall's faults were shared with other electricians
in the Company's employ. Both sides presented evidence as
to Tindall's general ability or lack thereof, that adduced by
General Counsel suggesting that his work was highly
regarded by other departments when they needed electrical
assistance, and that adduced by the Company indicating
that his superiors in the department were not impressed
with his capabilities I fully credit the testimony of
employee Leroy Barnes, a witness called by the Company,
that Tindall's work was good, that he lacked self-confi-
dence, and that he was not "any worse than anybody else
[Barnes] ever worked with." Tindall, hired at a rate of $2.25
per hour, received the plantwide 7-percent raise in January,
and then in the "latter part of February" (the date comes
from the testimony of Boyd) Tindall received an additional
raise of 31 cents per hour (about a 13-percent raise), making
his hourly pay $2.72 I do not credit Boyd's testimony that
this substantial raise was given Tindall as "an incentive"
because "he was not progressing as fast as he should." I
credit the testimony of Company Vice President Lawrence
that merit increases were given for merit I further credit
Tindall's testimony that at the time he received the raise,
8 1 was favorably impressed with Barnes ' demeanor on the witness
stand He was probably in error in stating that Tindall's remarks were
made on a "Monday or Tuesday," as Tindall was only on the construction
Boyd's superior, General Foreman Young, expressed high
praise for Tindall's work.
As noted above, Tindall became an open and active
union supporter . Sometime after this occurred, about
March 8 (less than I month after the merit wage increase),
Boyd told Tindall that his work was unsatisfactory and he
was being put on 30 days' probation. At the end of the 30
days, Boyd transferred Tindall from the maintenance crew
to the construction crew, effective the morning of
Thursday, April 9. Tindall testified that he worked on the
construction crew on April 9, that the following morning
Boyd told him he was being discharged at the end of the
day, and that General Foreman Young told him he was
being "laid off," because Boyd "didn't feel like your work
was right."
Some weeks later, according to Tindall, he spoke to
Company President Jansen, seeking reemployment, and
Jansen agreed to check with Young and Boyd. Tindall
further testified that Jansen later telephoned, "and he told
me he had found something on my record-he would not
say what-but he could not call me back." Jansen did not
testify.
The Company called several witnesses to describe the
events leading to the end of Tindall's employment. The first
of these, Leroy Barnes, testified that Boyd told him several
days before the last day Tindall worked that Boyd "was
going to let him go." Thereafter Tindall was transferred to
the construction crew, and (according to Barnes), on a
Monday or Tuesday, Tindall told Barnes "he wasn't going
to do any climbing."8 Barnes was followed on the witness
stand by Earl Winchell, leadman on the construction crew,
who testified that Tindall refused to do any climbing on his
day on the crew, and that Winchell told Boyd that Tindall
could not be of use on the crew because of his fear of
heights. (Tindall denied that any question of climbing even
arose on his one day on the construction crew.)
Boyd confirmed Winchell's testimony, and added that
upon receiving Winchell's report he relayed it to Tindall
and told Tindall of his discharge. At that time Boyd filled
out a "termination sheet," reciting that Tindall was
"discharged" on April 10, and marking him "D" the lowest
possible grade, for "Ability," "Quality," and "Quantity."
Boyd also filled out a "Change of Status" sheet showing
that Tindall was "temporarily laid off" on April 10 because
he was "unable to perform present job assignment." This
confusion is paralleled by the inconsistency in the
Company's position at the hearing, for at the opening of the
trial and continuing on through Tindall's testimony, the
Company insisted that he voluntarily quit (see transcript,
pages 6, 197, 198), but on the second day of the hearing the
Company changed its position to allege that he was
"discharged or laid off" (see transcript, pages 359-360,
400, 425).
According to the Company's last witness on this matter,
General Foreman Young, he and Boyd jointly decided to
discharge Tindall because of the latter's general lack of
ability. Young's testimony is devoid of any reference to
Tindall's alleged refusal to climb on the day he worked in
crew for I day , starting on a Thursday I credit Barnes' testimony that
Tindall made the comment
GEORGETOWN STEEL CORP.
construction . Young wrote on the termination slip, which
Boyd had filled out, that Tindall was eligible for rehire "if
we can find job suitable ," and testified that this was added
to protect Tindall 's record after the latter came to him,
following the discharge , to inquire "what was going down
on his record."
The question in Tindall 's case is whether he was
discharged for poor work , for refusing to climb, or for
union activity. So far as his work is concerned , the evidence
convinces me that his work was far more satisfactory than
Boyd and Young would admit . Barnes considered him to be
no worse than the others , and many witnesses testified that
he was in demand and was held in high repute because of
his ability . I cannot believe that Boyd would have given him
a 31-cent raise only a few weeks before if his work was as
deficient as Boyd testified As to his unavailibility for
climbing assignments , this would , of course , furnish a
lawful basis for discharging him, but I cannot believe that
the Company acted on this basis, for it had known of this
shortcoming for several months, long antedating the time
he received the wage increase. Also I note that Young, who
testified that he and Boyd together made the decision to
discharge Tindall, never referred to the alleged refusal to
climb.
The record as to Tindall shows an almost meteoric rise
between his date of hire (November 5) and his substantial
wage increase (the following February), followed by an
equally meteoric fall (probation imposed early in March
and discharge I month later). I do not believe the
Company's explanation that his work suddenly deteriorat-
ed or that his long-standing acrophobia suddenly rendered
him unfit for employment . ( I also note that the Company
during the litigation completely abandoned its original
insistence that he quit, and ultimately conceded what it had
first repeatedly denied---that he had been discharged.) The
single circumstance about Tindall which did change before
his downfall commenced was his open advocacy of the
Union , a factor which distinguished him from the other
employees under Boyd 's supervision . Finally, I note that
the Company did not call President Jansen to explain what
was the "something on [Tindall's ] record" which prevented
Tindall's reemployment . Whatever it was, it was not
apparent from the termination slip on which Young had
especially noted a possibility of rehire . Although less clear
here than in Walker's case, the Company's failure to call
one of its officers or supervisors as a witness suggests that
the testimony , if adduced , would not have furthered it case.
A great judge frequently reminded us that "direct
evidence of a purpose to violate the statute is rarely
obtainable" (see Hartsell Mills Co v. N.L R.B., 111 F.2d
291, 293 (C.A. 4, 1940); N.L.R.B. v. Southland Mfgs. Co.,
201 F.2d 244, 245-246 (C.A. 4, 1957), and cases there
cited). The evidence of a purpose to violate the statute in
Tindall's case is less direct than in the cases of Walker and
Pope. Nevertheless , to paraphrase the same authority, the
circumstances as to Tindall are such that the conclusion of
discriminatory discharge should be drawn.
CONCLUSIONS OF LAW
1. The Company, by interrogating employees as to their
union activities , by threatening to close the plant if the
479
Union succeeded in organizing it, by stating that an
employee could not hold ajob with the Company if he filed
unfair labor practice charges against it, and by asking an
employee not to wear a union button , engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By discharging Phillip Pope, Peter Walker, and Jerry
Tindall because of their union activity, the Company
engaged in unfair labor practices affecting commerce
within the meaning of Section 8 (a)(3) and ( 1) and Section
2(6) and (7) of the Act.
THE REMEDY
I shall recommend that the Company be ordered to cease
and desist from its unfair labor practices , and to reinstate
Pope, Walker, and Tindall with backpay, computed in
accordance with the formulas set forth in F. W. Woolworth
Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
The Company urges that the reinstatement remedy be
withheld as to Pope (and that his backpay be terminated as
of June 16) because on that day, which happened to be the
day on which the Company and the Union commenced
bargaining, Pope returned to the plant and endeavored to
persuade the employees to go on strike. He was unsuccess-
ful at the time, although a strike was later called. The
Company contends that Pope's action constituted miscon-
duct, forfeiting his right to reinstatement. Even assuming
that Pope's action, if engaged in by an employee, would
have been unprotected under the "wildcat strike" theory of
the line of cases originating with N.L.R.B v. Draper Corp.,
145 F.2d 199 (C.A. 4, 1944), his conduct was not so
egregious as to warrant withholding the usual remedy for
unlawful discharge. Not every "unprotected" activity
forfeits the right to reinstatement . Cf. N.L.R.B. v. Thayer
Co., 213 F.2d 748, 753 (C.A. 1, 1954), cert. denied 348 U.S.
883.
Respondent relied on various Board and court decisions
denying reinstatement to employees "whose activities were
contrary to the Act's purpose and whose reinstatement
would not serve to effectuate the policies of the Act" (brief,
p. 4). Each of the cases relied on is substantially different
from that of Pope. In United Steelworkers of America v.
N.L.R B., 243 F.2d 593 (C.A.D.C., 1956), the employee was
denied reinstatement because the language she directed at
fellow employees was such as to lead to a disruption of
industrial peace if she were reinstated. In N.L.R B. v.
Southern Materials Co., 345 F.2d 240 (C.A. 4, 1965), the
employee in question had made threats of serious personal
violence and had broken into the locked premises of the
company at night. Equally wide of the mark are N.L.R.B. v.
Breitling Bros. Construction Co., 378 F.2d 663 (C.A. 10,
1963), where the employee was guilty of theft; Stein-Way
Clothing Company, 131 NLRB 132, where the employee
physically attacked a fellow employee; and Central
Broadcasting Co., 182 NLRB No. 124, where the employee
threatened physical harm to another employee and to the
latter's family.
Pope 's conduct in this case falls far short of that which
caused denial of reinstatement in the cases cited by the
Company. Indeed it is far from clear that had the
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees heeded his strike call they would have lost
statutory protection under Draper, for that case involved a
minority strike in protest over the progress of bargaining
(145 F.2d at 204-205), whereas so far as here appears,
Pope's "strike" would have been over his discharge or other
unfair labor practices, and not in derogation of the
bargaining which had dust commenced. In any event there
is no showing that Pope's reinstatement, the conventional
remedy for an unlawful discharge, would disrupt industrial
peace, or that his conduct rendered him unfit for further
service in the plant, and hence I find no reason to withhold
the remedy.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Respondent, Georgetown Steel Corporation, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from-
(a) Discouraging membership in United Steelworkers of
America, AFL-CIO, CLC, or any other labor organization,
by discharging or in any other manner discriminating
against employees in regard to their hire or tenure of
employment or any terms or conditions of employment.
(b) Advising employees that they cannot retain their jobs
if they file charges against the Company.
(c) Interrogating employees as to whether they signed
union cards, attended union meetings, or engaged in any
union activities.
(d) Threatening to close the plant if the employees select
a union to represent them.
(e) Telling employees not to display union insignia.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Phillip Pope, Peter Walker, and Jerry Tindall
immediate and full reinstatement to their former jobs, or, if
these jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay
suffered by reason of their discharge or refusal of
reinstatement, all in the manner set forth in the section of
the Trial Examiner's Decision entitled "The Remedy."
(b) Notify the above-named employees if presently
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.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Recommended Order.
(d) Post at its plant at Georgetown, South Carolina,
copies of the attached notice marked "Appendix." 10 Copies
of said notice, on forms provided by the Regional Director
for Region 11, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.' 1
9 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes
is In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
I I In the event that this Recommended Order is adopted by the Board
after exceptions have been filed, notify said Regional Director, in writing,
within 20 days from the date of the Board's order, what steps Respondent
has taken to comply herewith
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL Offer Phillip Pope, Peter Walker, and Jerry
Tindall their former jobs, and WE WILL pay them for
losses they suffered as a result of our having discharged
them in March and April 1970.
WE WILL NOT discharge or otherwise discnminate
against any employee because of his activity on behalf
of United Steelworkers of America, AFL-CIO, CLC.
WE WILL NOT question employees as to whether they
signed union cards, attended union meetings, or
engaged in other union activities.
WE WILL NOT threaten to close the plant because the
employees are represented by a union.
WE WILL NOT advise employees that they cannot
retain their jobs if they file unfair labor practice charges
against the Company.
WE WILL NOT direct employees to remove union
insignia from their clothing.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to join and assist the Steelworkers or any other
union.
WE WILL notify any of the above-named employees if
presently serving in the Armed Forces of the United
States of his 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.
GEORGETOWN STEEL CORP. 481
GEORGETOWN STEEL This notice must remain posted for 60 consectuive days
CORPORATION from the date of posting and must not be altered, defaced,
(Employer) or covered by any other material.
Any questions concerning this notice or compliance with
Dated By its provisions may be directed to the Board's Office, 1624
(Representative) (Title) Wachovia Building, 301 North Main Street , Winston-
Salem , North Carolina 27101, Telephone 919-723-2300.
This is an official notice and must not be defaced by
anyone