Guille Steel Products Co.

National Labor Relations Board - Board Decisions

Jun 26, 1991

303 N.L.R.B. 537 (N.L.R.B. 1991)

537
303 NLRB No. 87
GUILLE STEEL PRODUCTS CO.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
We adopt the judge’s finding that the Respondent violated Sec. 8(a)(3) and
(1) by discharging 29 employees in January 1989 because of their union sym-
pathies or to dissuade others from joining the Union. In so doing, we note
the Respondent’s contention that its January 1989 ‘‘housecleaning’’ to rid
itself of employees with unacceptable attendance records was no different from
prior housecleanings in August 1988, July 1987, and August 1986 which all
coincided with the replacement of a receptionist whose duty it was to admin-
ister the Respondent’s attendance policy. We find, however, consistent with
the judge’s analysis, that the Respondent commenced its January 1989 house-
cleaning in order to use the employees’ attendance records as a pretext to
cover its discriminatory motive for the discharges.
Additionally, we note that under the theory advanced by the General Coun-
sel with respect to the Respondent’s mass discharge, it was not necessary to
demonstrate that the Respondent knew of the individual union sympathies of
each of the employees who were discharged. Rather, the General Counsel pre-
vailed by showing that the Respondent had general knowledge of its employ-
ees’ union activities, and effectuated the discharges in order to discourage
union activity or retaliate against the union activities of some. As the court
noted in Birch Run Welding & Fabricating v. NLRB, 761 F.2d 1175, 1180
(6th Cir. 1985), enfg. 269 NLRB 756 (1984), cited by the judge, the focus
of this alternative Sec. 8(a)(3) theory is upon an employer’s motive in dis-
charging its employees rather than upon the antiunion or prounion status of
particular employees. See also Ballou Brick Co., 277 NLRB 41, 62 (1985);
Collectramatic, Inc., 267 NLRB 866, 872 (1983).
1 By letter of October 13, 1989, the Respondent filed a motion to supple-
ment the record of the hearing with a copy of a decision of the Virginia Em-
ployment Commission. The General Counsel filed an opposition to the motion.
The Respondent’s motion is granted.
Guille Steel Products Co., Inc. and Mark Hunter
and Wallace Fleming, Jr. and Jerome Holloway
and James C. Pebworth, Jr. and Wardell Cole-
man and Craig Thomas and Milis Delia and
International Association of Bridge, Structural
and Ornamental Iron Workers, Local 781,
AFL–CIO. Cases 5–CA–20217–1, 5–CA–20217–
2, 5–CA–20217–3, 5–CA–20217–4, 5–CA–
20234–1, 5–CA–20234–2, 5–CA–20234–3, and 5–
CA–20234–4
June 26, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On November 21, 1990, Administrative Law Judge
Karl H. Buschmann issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Guille Steel Products Co.,
Inc., Virginia Beach, Virginia, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
James P. Lewis and Eileen Conway, Esqs., for the General
Counsel.
A. W. VanderMeer Jr., Esq. (Hunter & Williams), of Nor-
folk, Virginia, for the Respondent.
Gregory A. Burrier, Representative Business Agent, of Vir-
ginia Beach, Virginia, for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. These
cases were tried at Norfolk, Virginia, on July 10, 11, and 14,
1989, based on a consolidated complaint, dated March 31,
1989. The complaints are based on the charges filed by sev-
eral individuals (Mark Hunter, Wallace Fleming Jr., Jerome
Holloway, James C. Pebworth Jr., Wardell Coleman, Craig
Thomas, and Milis Delia) and the Union, International Asso-
ciation of Bridge, Structural and Ornamental Iron Workers,
Local 781, AFL–CIO, on various dates between January 26
and March 20, 1989. The complaints charge the Respondent,
Guille Steel Products Co., Inc., with violations of Section
8(a)(1) and (3) of the National Labor Relations Act (the Act)
by coercively interrogating its employees, by creating the im-
pression of surveillance of the employees’ union activities,
by a more stringent review of employees’ work records and
the issuance of discriminatory warnings, and by the dis-
charges of its employees in order to discourage them from
any concerted protected activities.
The Respondent filed an answer on April 17, 1989, in
which it admitted the jurisdictional allegations of the com-
plaint and the supervisory status of its employee Raymond
Ellis and in which the Company denied that it committed any
unfair labor practices violative of the Act.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Company, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Guille Steel Products Co., Inc., is a Vir-
ginia corporation located in Virginia Beach, Virginia, where
it is engaged in the manufacture and nonretail sale and dis-
tribution of steel bar joists and related products. With sales
and shipments of its products in excess of $50,000 directly
to points outside the State of Virginia, the Respondent is ad-
mittedly an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union, International Association of Bridge, Structural
and Ornamental Iron Workers, Local 781, AFL–CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
II. FACTS
In March 1988, Gregory Burrier, the Union’s business
agent, approached three employees of Guille Steel and pro-
vided them with union material in an effort to organize the
employees. On July 1, 1988, at about 3:15 p.m. Burrier and
Anthony Walencik, district representative of the International
union, distributed union literature to the Respondent’s em-
ployees as they left the plant at the end of their shift. Within
minutes Plant Manager Raymond Ellis appeared with several
other men. Because they wore white hardhats and carried
walkie-talkies, they appeared to be supervisors. They in-
quired what the union representatives were doing. They
spoke into their walkie-talkies, appeared to write names on
their clipboards, and told the employees not to accept the
union material (Tr. 74–75, 394). Burrier and Walencik re-
turned 2 weeks later and again they were met by Ellis and
his men equipped with walkie-talkies and clipboards. They
admonished the employees not to accept the union material
and also appeared to write down the names of employees
who took the union literature.
In November 1988, Burrier responding to a telephone call
from one of the employees with an interest in the Union,
contacted the employees at the nearby bus stop, the gas sta-
tions, and the 7-Eleven across from the plant entrance. As a
result, a few of the employees began to sign union cards.
After November 1988 until early January 1989, Burrier solic-
ited the employees of Guille Steel at the nearby 7-Eleven
stores three times a week at noon, passing out union lit-
erature and talking to them (Tr. 40). One of the stores is lo-
cated approximately half a mile from the plant, and the other
only about 200 yards away from the plant entrance. Although
Burrier attempted to contact the employees away from the
plant, Jackson Timms, the son of one of the owners and a
foreman, made it a practice of being at the 7-Eleven store
at noon. Burrier ‘‘would see Mr. Timms get out of his car
and stand directly in front of the plate glass window of the
7-11, and appear to be watching the employees’’ (Tr. 36).
Burrier also noticed that during Timm’s presence at the 7-
Eleven the employees avoided him (Burrier) and left. Burrier
estimated that Timms must have visited the store at least 9
or 10 times in early January.
On January 20, 1989, Burrier and three additional union
officials returned to the front and rear entrance of the plant
to pass out union material. At the end of the shift several
empoyees came directly to the union representatives and re-
ported that they had been fired. Also present at the scene
were three company men who communicated with walkie-
talkies and who appeared to write on their clipboards. One
of the three was Timms. Ellis could be seen standing in the
front entrance of the plant. Once Ellis shouted to Robert
White, an employee, and said, ‘‘Don’t talk to him,’’ while
White was engaged in a conversation with one of the union
representatives (Tr. 25–26). As one of the employees handed
Burrier a company pamphlet entitled ‘‘Ask the Union,’’
Timms tried to take it away from Burrier. Burrier observed
a dramatic decrease in the number of employees who were
willing to accept the union handbills in January compared to
the first and second solicitation efforts in July.
On January 19, 1989, the Company discharged four em-
ployees ostensibly for their poor attendance records. Among
them was Jerome Holloway, the Charging Party, who told
Burrier that he had been fired because ‘‘he must have talked
to the wrong person’’ (Tr. 66). On the following day, nine
more employees were discharged. Among them were Milis
Delia, Wallace Flemming Jr., Mark Hunter, and James
Pebworth, all Charging Parties. As they left the plant at
about 3:30 p.m. they immediately approached Burrier to in-
form him that they had been fired because of their poor at-
tendance. Between January 19 and 31, 1989, the Company
discharged 30 employees as a part of what it termed a
‘‘house cleaning’’ to weed out employees who had an attend-
ance problem.
The Union made another attempt at handbilling in April
but its organizational efforts finally failed. Only about 17
employees signed union cards and the employees were in-
creasingly reluctant to accept the Union’s handbills. After an
attempt to handbill the plant in April 1989, Burrier discon-
tinued any subsequent efforts because in his words ‘‘the ma-
jority of the employees in the plant were frightened’’ (Tr.
34).
The Respondent’s conduct during the union campaign ex-
ceeded a legitimate antiunion campaign in several respects.
A. Interrogations
The complaint alleges numerous incidents of unlawful in-
terrogations between December 19, 1988, and January 20,
1989, by Raymond Ellis, the Respondent’s plant manager
and admitted supervisor. The record shows that Ellis ques-
tioned employees Craig Thomas, Milis Delia, Robert White,
Anthony Cofield, and Gabriel Slade. Ellis, although called as
a witness, did not testify about the incidents of interroga-
tions. Accordingly, the testimony of the employee witnesses
is unrefuted. Thomas testified that he was in Ellis’ office on
January 4, 1989, to request the assistance of another worker
on his line, because the steel was too heavy for one man.
Thomas was about to leave, when Ellis asked him, ‘‘Has that
union guy been over to your house?’’ Thomas replied that
he had been there three or four times but had been unable
to reach him (Tr. 97). Ellis also spoke about some missing
photographs showing the house of the owner of the plant.
Ellis wanted to know whether Thomas had seen the photo-
graphs in the possession of the union representative. Thomas
replied that he had not seen any photographs (Tr. 98). Ap-
proximately 1 week later, at about 1 or 2 p.m. Ellis ap-
proached Thomas at his work station and said, ‘‘I know
about the union guy coming to your house.’’ Thomas ac-
knowledged that the union representative had come and
talked to him. Ellis said, ‘‘I want to tell you don’t let him
steer you in the wrong direction. You know, you’ve got your
own mind, you make up your own decision’’ (Tr. 99–100).
Thomas was subsequently warned about certain safety vio-
lations and ultimately discharged.
Ellis had a conversation with Milis Delia, a welder at the
Respondent’s plant on January 20, 1989, in reference to an
incident on the prior day, January 19, 1989. On that day,
Burrier in his blue Thunderbird automobile, had followed
Delia and a coworker. Shortly before Delia had reached his
house, Burrier was able to signal to him to stop. Burrier per-
539GUILLE STEEL PRODUCTS CO.
2 Raymond Ellis testified that walkie-talkies are used by ‘‘nonproduction
foremen’’ and maintenance employees (Tr. 733).
3 Ellis admitted to actually going ‘‘out to where that leafletting has taken
place’’ in July, but he denied having ‘‘gone out to that location’’ on subse-
quent times (Tr. 724). His testimony, however, is silent as to whether he was
present at the plant’s doorway observing his men with walkie-talkies.
4 NLRB v. Mars Sales & Equipment, 626 F.2d 567, 572 (7th Cir. 1980). I
find that Timms was an agent of the Respondent.
suaded them to sign union cards. On the following day, Ellis
approached Delia at his working bay 3 and asked: ‘‘Did a
guy go to [your] house.’’ Delia asked ‘‘what guy’’ and Ellis
replied: ‘‘The guy that owns the Thunderbird.’’ Delia feigned
ignorance and Ellis said: ‘‘All right. You don’t know the guy
I’m talking about. Okay’’ (Tr. 130).
On or about January 10, 1989, Ellis questioned Robert
White, a welder working in bay 4 with Wardell Coleman, a
coworker. Ellis asked them whether they had signed union
cards. Both denied signing any cards. Ellis then asked:
‘‘Have you been talking to the Union? Have they came to
your house?’’ Both employees said ‘‘no.’’ (Tr. 264.) Three
or four days later, Ellis asked the same employees the same
questions and both answered ‘‘no.’’ Subsequently, White and
Coleman were on a break and walked past Ellis on their way
to the snack room. Ellis repeated his questions and both em-
ployees again denied any union involvement (Tr. 266). White
testified that he had not signed a union card at the time Ellis
questioned him about it, but that he signed a card after his
discharge.
Another incident of interrogation occurred on January 5,
1989, as witnessed by employees Anthony Cofield and Ga-
briel Slade. On the prior day, January 4, they had signed
union cards. On the following day at about 8 a.m., Ellis
called both employees into his office. Ellis asked whether
they had been talking to the Union and whether they knew
anybody else who had done so. Cofield denied that he had
talked to any union representative (Tr. 378). Slade admitted
talking to the Union when the representative visited his
home. According to Slade, Ellis told them that the Union
could cause them to lose their jobs (Tr. 389). Cofield re-
called that Ellis questioned him again about the Union on the
following day as he went to the water fountain. Cofield again
denied talking to anyone from the Union.
Contrary to the argument of the Respondent, the record
shows that the interrogations were conducted in an atmos-
phere of coercion. The questioning was initiated by the plant
manager, usually in his office or at the employees’ work sta-
tion. The questions were direct and elicited whether the em-
ployees had talked to the union representative, whether he
had visited their homes, whether they had signed cards, and
whether they were for the Union. Indeed, Ellis made a threat
to employee Slade that any union activity could result in a
loss of jobs. Under such circumstances, the Respondent
plainly interfered with the employees’ Section 7 rights in
violation of Section 8(a)(1) of the Act.
B. Surveillance
The complaint alleges that the Respondent created the im-
pression among the employees that their union activities
were under surveillance on January 19 and 20, 1989. The
complaint alleges that the Respondent acted through Ray-
mond Ellis on January 19 and through Bunice (Bird) Lynch
on January 20. The background information in the record
shows that on 2 days in July 1988, when the Union was so-
liciting the employees near the entrance of the plant, Ellis,
accompanied by three or four nonproduction supervisors car-
rying walkie-talkies and clipboards, observed the Union’s
handbilling activity. The men spoke into the walkie-talkies,
appeared to write down the names of employees, and told
them not to accept the literature. The Union engaged in
handbilling and solicitations of the employees in November
1988 and in early January 1989 at the nearby 7-Eleven food
stores. There, Jackson Timms, a foreman and the owner’s
son, observed the union activity on numerous occasions.
With regard to the specific allegations in the complaint,
the record shows that the Union resumed its handbilling in
front of the plant on January 20, 1989, that Ellis remained
in the doorway of the plant, and that three individuals with
walkie-talkies were present at the entrance and engaged in
the following conduct (Tr. 26):
They were communicating through the walkie talkies. It
also appeared they were writing something on a clip
board once again, and they were telling the employees
not to take the literature, that that stuff would get them
in trouble.
Burrier identified one of the three men with walkie-talkies
as young Jackson Timms, but he mistakenly described the
other as Bird Lynch.2 Burrier testified that he ‘‘assumed’’
that the three men were supervisors. In short, while the
Union engaged in handbilling in front of the plant Ellis ap-
peared in the plant’s doorway observing the union activity.3
While Robert White, an employee, was talking to one of the
union representatives near the front of the plant, Ellis shout-
ed at White saying: ‘‘Don’t talk to him’’ (Tr. 27). Among
the three men with walkie-talkies, positively identified, was
Jackson Timms. Although the Respondent denied the super-
visory status of Timms, uncontradicted record evidence
shows that Timms was the son of one of the owners of the
plant, that he was perceived and functioned as a foreman,
and that he informed James Pebworth Jr. of his discharge
(Tr. 26, 72, 329–330). He regularly observed the Union’s so-
licitation of the employees and ‘‘tried to grab [a company
pamphlet] out of’’ Burrier’s hand (Tr. 26, 35).
The Respondent’s conduct on that day, consisting of Ellis’
observation of the union activity from the front entrance, his
shouting at an employee, the presence of perceived super-
visors including Timms,4 and his using walkie-talkies and
clipboards, was perceived by the employees as conduct sanc-
tioned and supported by management. Moreover, the Re-
spondent’s conduct went beyond the mere observation of
union organizers publicly handbilling in front of the plant.
Here, management appeared to use the walkie-talkies and the
clipboards and yelling at employees which inhibited the em-
ployees and interfered with their Section 7 rights. Crown
Cork & Seal Co., 254 NLRB 1340 (1981). I therefore find
that the Respondent created the impression of surveillance in
violation of Section 8(a)(1) of the Act.
C. Disciplinary Warnings and Discharges
According to the complaint, three employees received
warnings, and numerous employees were discharged, includ-
ing Wardell Coleman, Milis Delia, Wallace Fleming Jr., Je-
rome Holloway, Mark Hunter, James C. Pebworth Jr., Craig
Thomas, and Robert White, because of their union support
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and in order to discourage others from engaging in such ac-
tivities.
The Respondent submits that between January 19 and 31,
1989, 30 employees were discharged—all but one for poor
attendance. The one employee, Craig Thomas, was termi-
nated by Plant Manager Ellis because of safety violations.
The General Counsel argues that where the ‘‘motive and tim-
ing are present, along with undeniable knowledge of the
Union’s campaign among the employees’’ victims of a mass
termination will be protected.
Craig Thomas. Employed since November 1986 as a la-
borer, Thomas worked under the supervision of Bunice
Lynch, a foreman in bay 3. Thomas was interested in the
Union’s effort to organize the employees. On January 4,
1989, Thomas signed a union card, and after that time Thom-
as happened to be in Ellis’ office, when he asked Thomas
whether a union guy had been at his house. Thomas con-
firmed that the Union had been at his house several times
but said that he had missed the representative each time.
Ellis also talked about some missing photographs of a house
belonging to the owner of the Company. During a subse-
quent conversation approximately a week later, Ellis told
Thomas that he (Ellis) knew about the Union’s visit at
Thomas’ house and warned him not to let the Union steer
him in the wrong direction. Thomas acknowledged speaking
to the Union at that time.
On January 20, 1989, Ellis gave Thomas a disciplinary
warning for his tardiness on January 17 (G.C. Exh. 27). On
January 23, 1989, Ellis called Thomas into his office and
gave him a written warning for a safety violation, citing
‘‘wearing sneakers in the plant. No hard hat’’ (G.C. Exh.
28). Thomas protested, saying, ‘‘Well, if I don’t have my
hard hat on, then everyone else should, you know. If I ain’t
got mine on, then everybody else you know, why do they
got theirs off?’’ (Tr. 103–104.) Three days later, on January
26, 1989, Ellis told Thomas, ‘‘Thomas, I saw you over there
without your hard hat’’ (Tr. 109). Thomas replied that he
must have seen him early in the morning or during the break,
but that other people also failed to wear their hardhats. Ellis
said, ‘‘I saw what I saw and that was final’’ (Tr. 110). He
gave Thomas his discharge notice which cited his safety vio-
lation and leaving his work area (G.C. Exh. 29).
Ellis testified that he was the safety man in the plant and
had instructed all employees to wear safety equipment. He
explained that Thomas had been warned, and that he was the
only one who failed to wear his safety equipment. Ellis’ tes-
timony did not contradict his interrogations of Thomas about
the Union. But his testimony was inconsistent with that of
Thomas with respect to Thomas’ being the only one who
failed to wear his safety equipment. In that regard, I find
Thomas’ testimony more credible. He impressed me as a rel-
atively unsophisticated witness, unlikely to invent the con-
versations with Ellis or the observations that other employees
failed to wear their safety equipment or that the Company
enforced the rules only on rare occasions when visitors were
present. Considering the timing of the discharge, Ellis’ inter-
rogation of Thomas’ union involvement, as well as the pat-
tern of the discharges as described below, I find that Thomas
was discharged because of his union contacts. The warning
he received for admittedly being tardy appear to have been
incurred in the regular course of business. However, warning
and discharging this employee who committed no more safe-
ty violations than other employees was discriminatory and
designed to get rid of an employee who was interested in the
Union.
Milis Delia. This employee has been a welder since Octo-
ber 1987. He had a brief encounter with the Union on Janu-
ary 19, 1989. On that day Burrier in his blue Thunderbird
followed Delia home. When Delia stopped to drop off an-
other employee, Burrier got his attention, he spoke with both
employees and persuaded them to sign union cards (G.C.
Exh. 30). On the following day, January 20, 1989, Delia
worked in bay 1, where Ellis approached him and asked
whether a guy in a blue Thunderbird came to his house.
Delia pretended ignorance, saying ‘‘What guy? I don’t know.
I don’t know the guy you’re talking about.’’ (Tr. 130.) Ap-
proximately 5 minutes later, Delia was called into Ellis’ of-
fice and handed a discharge notice for absenteeism and tardi-
ness (G.C. Exh. 31). He was discharged without a prior writ-
ten warning. Delia’s testimony which was not contradicted
established that he had obtained permission for leaving early
1 day, that he reported his absence on 2 days when his car
was broken down, and that he could not have left work early
on November 24 because it was the Thanksgiving holiday.
Delia justified at least 2 of the 5 delinquent days and at-
tempted to explain this to Ellis on the day of his discharge
and again a week later when he received his final paycheck,
but Ellis refused to listen (Tr. 132–133). Considering the
timing of his discharge, 5 minutes following an interrogation
about his union involvement, as well as Ellis’ refusal to lis-
ten to Delia’s justification, clearly shows that the Respondent
discharged this employee for pretextual reasons, in violation
of Section 8(a)(3) and (1) of the Act.
Jerome Holloway. Holloway became employed as a la-
borer on August 2, 1988, and worked under the supervision
of Bunice Lynch. He received a pay increase on November
1, 1988, and was told by Ellis that he was a good worker.
On January 10, 1989, Holloway signed a union card given
to him by Burrier at his home (G.C. Exh. 32, Tr. 151). On
January 19, 1989, Holloway was called into the office by
Ellis. Holloway saw papers and a check in Ellis’ hand and
thought that it was an evaluation for some special work he
had performed for his foreman, Lynch, and a bonus check.
Instead, it was his termination notice with a check attached
to it. The termination notice showed that he was charged
with tardiness on certain days for leaving early and reporting
late for work.
The record contains a warning notice dated December 19,
1988, showing that Holloway left early and returned late
from lunch on certain dates (Tr. 151, G.C. Exh. 33). Hollo-
way denied ever seeing this notice or receiving a warning
during his employment. Holloway also testified that the rea-
sons for leaving early on two of the dates shown on the no-
tice were due to a breakdown of a waterline in the plant re-
quiring the employees to leave early. With respect to another
date showing that he returned late for lunch, Holloway re-
called obtaining permission to take his child to a physician
(Tr. 153). The notice included a day when he supposedly left
early on November 27, yet that day was a Sunday and not
a workday (Tr. 155).
When Holloway attempted to explain these errors on his
termination notice, Ellis replied that he should have had a
doctor’s excuse. But Holloway protested saying that he had
hardly missed any time and that he was known as a good
541GUILLE STEEL PRODUCTS CO.
5 Holloway’s testimony was not contradicted by Ellis.
6 White’s testimony was inconsistent on this point, and I find that he saw
the document approximately 1 week prior to his termination.
7 Hunter, who impressed me as unsophisticated, was incorrect in recalling
that his union contacts dated back to 1987 (Tr. 298).
worker. Ellis said, ‘‘it was coming from the office . . . be-
cause they’re not putting up with it this year . . . letting ab-
senteeism and tardiness get away this year’’ (Tr. 158).5
Although the record does not show that the Respondent
was aware of Holloway’s union support, the timing of his
discharge and the errors pertaining to some of the alleged ab-
senteeism, as well as the pattern of Respondent’s discharges
discussed below, convince me that this employee was dis-
charged because of the union campaign.
Robert White and Wardell Coleman. A welder in the em-
ploy of Guille Steel since December 12, 1988, Robert White
worked under the supervision of Supervisor Otis Powell until
his discharge on January 25, 1989. On that day, White was
working at his station when he was called on the intercom
system to the office. There Ellis showed him his discharge
notice which showed that he had been warned on January 20,
1989, and that he had incurred two unexcused absences and
lateness on several days (G.C. Exh. 39, Tr. 259). Ellis told
him that he was discharged because of his absenteeism.
White said that he was absent only once and late on another
occasion. Ellis responded: ‘‘This is what we’re going by.’’
‘‘You have to sign this’’ (Tr. 259). White admitted being late
on one occasion but denied his lateness on December 13,
1988, and January 19 and 20, 1989. White signed the notice
and left. The record is not clear whether White saw his
warning notice marked, ‘‘Refused to sign’’ (G.C. Exh. 38).
White’s denial that he received it is contradicted by his affi-
davit (Tr. 257, 274).6
White testified that on Friday, January 20, 1989, he picked
up his paycheck at the end of the day. Attached to the check
was a note stating, ‘‘Ask the union what happened to your
job’’ (Tr. 261). He left the plant and remembered the union
representatives at the end of the driveway, as well as the
company men with walkie-talkies. One of the union rep-
resentatives whom White knew as Dino approached White’s
car and tendered a pamphlet. White told Dino that he
‘‘couldn’t take the pamphlet on the premises because every-
body was watching’’ (Tr. 269). White recalled that one of
the foremen with a walkie-talkie was within 20 yards and
watched every car passing by including his own.
White also testified about several conversations with Ellis.
Around January 10 he was working at bay 4 with Wardell
Coleman, another employee, when Ellis approached them
and asked whether they had signed union cards. Both em-
ployees denied that they had. Ellis then inquired, ‘‘Have you
been talking to the Union? Have they come to your house?’’
They answered, ‘‘No.’’ Three or four days later Ellis came
to their work station and repeated his interrogation of the two
employees. Ellis repeated the same questions a third time as
they walked past the breakroom (Tr. 265–266).
I find that White, whose testimony was not contradicted
by Ellis’, was discharged because of the union campaign.
The timing of his warning and his discharge in close con-
junction with the union campaign, as well as the repeated in-
terrogations by Ellis indicating that management suspected
his union involvement, point to the conclusion that his absen-
teeism was used as a pretext. The note on his paycheck on
January 20 served as a precursor to his discharge and
strengthens the conclusion that the union campaign was the
real reason, not the employee’s attendance.
Fellow employee Wardell Coleman was also discharged on
January 25, 1989. The record contains two warning notices,
one for tardiness and the other for ‘‘loafing on the job’’ and
‘‘not being on the job. Talking to men in Bay 3 instead of
working in Bay 2’’ (G.C. Exhs. 49, 50). His employment
history shows that his violations include tardiness and horse-
play (R. Exhs. 24(a) and (b)). Coleman did not testify. Al-
though the Respondent may have been motivated to dis-
charge Coleman because of the union campaign, I find the
record evidence insufficient to make such a finding in the ab-
sence of Coleman’s explanation about the severity of his al-
leged misconduct which differed from the usual pattern of al-
leged absenteeism.
Mark Hunter. This employee had worked as a welder
since September 1987 under the supervision of Otis Powell.
Hunter was one of the early union supporters who had lunch
with Burrier in March 1988 (Tr. 17, 299).7 He and a friend
met Burrier at a ‘‘sub shop’’ across the street from the plant.
When he returned to the plant in the afternoon on the same
day or the next day, Ellis called Hunter into his office and
asked, ‘‘Did anybody talk to you from the union?’’ Hunter
denied that he had and was sent back to work. On January
18, 1989, Burrier followed Hunter to a junkyard where he
and another employee signed a union card (G.C. Exh. 41, Tr.
305).
On January 20, 1989, Ellis discharged Hunter under the
following circumstances: ‘‘I came in that day and I worked
up until like five minutes before time to quit and Ray Ellis
called me in the office, gave me the slip and he said I was
fired’’ (Tr. 307, G.C. Exh. 43). When Hunter protested, Ellis
told him to see the people in the office. There, one of the
personnel officers told him that they could not help him and
that he should have been fired a long time ago.
Hunter had received a warning notice showing numerous
absences and excessive tardiness (G.C. Exh. 40). The notice
put him on probation from December 19, 1988, to January
18, 1989. According to the discharge notice, Hunter was late
on two occasions during that time.
Although the Respondent is correct that this employee had
a record for excessive absenteeism and was therefore subject
to discharge, the timing of his termination, his union support,
and the entire pattern of the discharges convince me that the
Respondent’s reason for his discharge was pretextual. If, as
the Respondent contends, absenteeism was of such impor-
tance, Hunter should have lost his job prior to the union
campaign. But he, like other employeees, who were interro-
gated about the Union were discharged at the time of the
union campaign. That he would have been discharged in the
absence of the union activity, as suggested by the Respond-
ent, is not supported by the record, since periodic ‘‘house
cleanings’’ usually occurred in the summer. Considering the
timing of his discharge, the Respondent’s interrogation of
this employee, and the Company’s antiunion animus as well
as the pattern of the Respondent’s conduct, I find that the
Respondent violated Section 8(a)(3) and (1) of the Act.
James Pebworth. James Pebworth was hired on November
14, 1988, as a welder. After several months, he worked on
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Pebworth testified that he did not receive the notice from anyone in the
Respondent’s supervisory hierarchy. Timms did not testify.
9 The names and dates of employment of the employees are included in an
appendix attached to the General Counsel’s brief.
the night shift under the supervision of Jackson Timms (Tr.
324–325). Pebworth was terminated on January 20, 1989. On
that day he had gone to the plant at 3:30 in the afternoon
to pick up his paycheck. Outside the plant he got on his
moped and spoke to a friend when he observed several em-
ployees in the parking lot ‘‘yelling and screaming about
being fired and getting all mad’’ (Tr. 328). He ‘‘noticed two
people out in the front of the entrance to Guille Steel were
handing out pamphlets. And there was a man sitting up in
the grass watching them.’’ He also saw police cars in the
parking lot watching. Burrier asked Pebworth whether he
wanted a pamphlet. He said, ‘‘Yes, sir,’’ put the pamphlet
in his back pocket, and left. At 7:50 p.m. Pebworth returned,
ready to begin his 8 o’clock shift. In Pebworth’s words, the
following incident occurred (Tr. 329–330):
I saw Jack Timms coming out from the office as I was
locking up my moped. And he told me that he had
some good news for me and some bad news and which
one I wanted first. And I said, ‘‘I guess I’ll take the
good news.’’
. . . .
He said, the good news is that you’re the only person
on the night shift who got their check today. And the
bad news is—And I stopped him there and said, ‘‘Let
me guess. I’ve been fired, right?’’ And he said, ‘‘You
got it.’’
Pebworth received his termination notice several days after
his discharge from Burrier.8 The notice showed that the rea-
son for the discharge was absenteeism on 2 days and tardi-
ness on three occasions. Pebworth attempted to justify his
absences and his tardiness. In any case, I find that the Com-
pany’s reason for the discharge was pretextual. If his attend-
ance had been the real reason, the Respondent could have
saved Pebworth a trip to the plant to inform him of this dis-
charge on that day. The timing of his discharge only a few
hours after he spoke to the union representative and openly
accepted the union pamphlet, as well as the entire pattern of
the Respondent’s conduct, and its open antiunion animus per-
suade me that the real reason for his discharge was the union
campaign.
Wallace Fleming Jr. A welder in the Respondent’s employ
since September 26, 1988, Fleming was discharged on Janu-
ary 20, 1989. On that day, Fleming was called into the office
and handed his discharge notice (G.C. Exh. 45, Tr. 351).
Ellis told him, ‘‘‘Well, I got it from the higher ups.’ Any-
body that missed any time, he has to automatically dismiss
them.’’ (Tr. 351.) Fleming did not dispute that he had missed
some days but reminded Ellis that he had received permis-
sion for one of the days. Ellis, however, said that he was
sorry, that Fleming had done a good job but that he (Ellis)
had orders from higher ups. Then he ‘‘just shook his head
and walked away.’’ (Tr. 351–353.)
Fleming testified that he signed a union card on December
14 as he got off from work at 3:30 p.m. He had talked about
the Union with Burrier, the union representative, at the bus
stop approximately 3 miles away from the plant and after the
conversation had signed the card.
To be sure, the record does not show, as the Respondent
correctly observes, that the Respondent was aware of this
employee’s union support. Nevertheless, the timing of the
discharge of this individual during the height of the union
campaign, the pattern of the discharges, and the Respond-
ent’s antiunion animus convince me that also this discharge
was motivated by the employee’s union support. Here the
Respondent did not issue a preliminary warning to the em-
ployee for his absenteeism. In that regard the Respondent
acted inconsistently. Consistent with the Respondent’s
antiunion animus were its discharges at the time of the union
campaign of employees who had signed union cards or other-
wise shown their union support. I accordingly find that the
Respondent violated Section 8(a)(3) and (1) of the Act.
D. Additional Discharges
The complaint alleges that the Respondent discharged
other employees as a result of a more stringent review of
employees’ work records and a more strict enforcement of its
work rules because of the union campaign. The record shows
that the employment of a total of 30 employees, including
the Charging Parties, were terminated between January 19
and 31, 1989.9 The Respondent admitted in its brief that
Guille Steel discharged the following employees (R. Br. 2):
On January 19, 1989, Jerome Holloway and three
other employees were discharged by Guille Steel. (G.C.
8, 11, 15, 34; R. 12.) On January 20, 1989, nine em-
ployees, including James Pebworth, Milis Delia, Wal-
lace Fleming, Jr. and Mark Hunter were discharged.
(G.C. 10, 20, 21, 24, 51; R. 19, 20, 21, 22.) On January
24, 1989, six employees were discharged. (G.C. 5, 6,
9, 13, 17, 22.) On January 25, 1989, five employees,
including Robert White and Wardell Coleman, Jr. were
discharged. (G.C. 7, 16, 23; R. 23, 24.) On January 26,
1989, two employees, including Craig Thomas were
discharged. (G.C. 25; R. 34.) On January 27, 1989, two
employees were discharged. (G.C. 14, 19.) On January
31, 1989, two employees were discharged. (G.C. 12,
18.)
A fair appraisal of the record shows that these terminations
were motivated by the union campaign, and that some em-
ployees, as already discussed, were discharged because of
their union support and others in order to dissuade them from
supporting the Union.
In its letter of February 6, 1989, the Respondent states as
follows (G.C. Exh. 2):
Former employees Mark Hunter, Wallace Fleming,
Jr., Jerome Holloway and James C. Pebworth, Jr. were
all discharged for violation of Company rules con-
cerning excessive tardiness and/or absenteeism without
valid excuses. They were not discharged for ‘‘off the
job Union activities.’’ They were discharged, along
with 23 other employees, as part of a periodic house-
cleaning of employees with poor attendance records.
To be sure, the Respondent showed that the discharged
employees (except Craig Thomas) had a record of absentee-
543GUILLE STEEL PRODUCTS CO.
10 D. H. Baldwin Co., 207 NLRB 25 (1973), enfd. 505 F.2d 736 (8th Cir.
1974).
11 An employer’s knowledge of union activity may be inferred from all the
circumstances. Marathon LeTourneau Co., 256 NLRB 350 (1981).
ism or tardiness. However, the record shows that other em-
ployees who had a record of absenteeism or tardiness were
still employed (G.C. Exhs. 55, 57, 58, 59, 63, 64). Moreover,
some of the discharged employees received warnings, but
most of them did not and were summarily discharged. In
short, the Respondent’s conduct and its policy were incon-
sistent. Ellis who, as explained above, informed several of
the Charging Parties that they had been fired, denied that he
had any input in the decision. His testimony related mainly
to the discharge of Thomas and his safety record. The Re-
spondent’s principal witness was General Manager Carrie
Winkler who testified that she ‘‘oversee[s] the day to day
functions of the organization, to include production, transpor-
tation, personnel, everything in the office’’ (Tr. 615). She
testified that she had delegated the function to keep the at-
tendance of the 120 to 140 hourly employees to the recep-
tionist. The receptionist also had the responsibility to hire
employees (Tr. 617). Winkler testified about the additional
responsibilities of the receptionist as follows (Tr. 621):
Well, once the information comes off the CRT and she
marks the attendance cards accordingly, she is to use
her discretion and give the individual a warning, proba-
tion, termination, whatever disciplinary action may be
needed. [Emphasis added.]
According to Winkler, in December 1988 she discovered
that Jaqueline Bodisch, the receptionist, had failed to perform
her daily duties of issuing warnings, probations, and termi-
nations. As a result she ‘‘counseled’’ her and put Bodisch on
probation. By January, Bodisch had not improved and
Winkler terminated her employment in February. Winkler
testified that she ‘‘went in and got all the records caught up,
did it [herself], and did a house cleaning; got the warnings,
probations, terminations, everything done’’ (Tr. 628). Similar
house cleanings were undertaken, according to the Respond-
ent, in August and September 1986, in July and August
1987, and in August and September 1988. It is therefore
clear that a ‘‘house cleaning’’ in the winter months was un-
precedented.
Winkler’s testimony was contradicted in some important
aspects by that of Jaqueline Bodisch. She testified that she
as a receptionist from July 1988 to February 6, 1989, would
only hire laborers but not welders. She testified that her re-
sponsibilities with respect to employees’ attendance meant
that she ‘‘would have to mark their attendance cards when
their [sic] on vacation and when they’re absent or tardy; and
[she] served warnings when [she] was informed to’’ (Tr.
739–740). She further testified (Tr. 741): ‘‘I never terminated
anyone, unless I was told to give them a notice saying that
they were terminated. I never made the judgment myself to
terminate anybody.’’ Indeed, she stated she ‘‘was not told
that [she] could just terminate people from the plant, you
know, without an approval from somebody else, without
somebody else deciding.’’ ‘‘Ray Ellis was telling me when
to serve notices and everything’’ (Tr. 751, 753, 754).
Bodisch also testified that, during her tenure, a house clean-
ing was done on a small scale and never involved ‘‘that
many people’’ (Tr. 748). In short, Bodisch firmly denied
ever receiving any instructions that she was to use her discre-
tion to discharge employees for any reason.
I found Winkler’s testimony unconvincing particularly as
to her stated reasons for discharging such a large number of
employees, almost one-fourth of the work force in 1 month.
I also doubt her testimony that she had delegated to the re-
ceptionist, a newly hired individual, the task of hiring and
firing the production employees at the plant. Bodisch’s forth-
right and sincere testimony convinces me that even though
she had to keep current all timecards and record the employ-
ees’ attendance, she was never directed to terminate anyone
without receiving specific instructions from Ellis. The record
shows that discharges on such a massive scale during a 1-
month period or during the winter months were unprece-
dented. The Respondent conceded that house cleanings in the
past 3 years routinely occurred during the summer months.10
The timing of these terminations in January 1989 at the
time of the union campaign suggests that the Company had
an unlawful motive. Birch Run Welding & Fabricating v.
NLRB, 761 F.2d 1175 (6th Cir. 1985). The Respondent
through its unlawful interrogations and surveillance dem-
onstrated its antiunion animus. Moreover, Ellis, Timms, and
others made it a practice of observing the employees as they
left the plant or when they bought lunch at the local 7-Elev-
en where the union organizers met with the employees. The
Respondent had the opportunity to determine who among the
employees accepted the union literature or otherwise engaged
in union activities.11 Burrier perceived that the employees
willingly accepted the union pamphlet initially, but increas-
ingly became reluctant to do so. Testimony in the record
supports that perception. And the record shows that the union
drive faltered and finally failed. Consideration of the Re-
spondent’s conduct as a whole shows a pattern of direct in-
terference with the employees’ Section 7 rights. Here, the
Respondent’s asserted reasons for the discharges do not show
a dual motive. The employees’ attendance records were used
as a pretext by the Respondent. Although it is conceivable
that the Respondent’s annual review of the employees’
records during the summer months may have caught several
of the employees, the Respondent’s inconsistent practice in
this regard and the unreliable testimony of Plant Manager
Winkler would render such an analysis speculative and hypo-
thetical.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(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 coercively interrogating its employees concerning
their union sympathies, the Respondent violated Section
8(a)(1) of the Act.
4. By appearing to engage in the surveillance of the em-
ployees’ union activity, the Respondent violated Section
8(a)(1) of the Act.
5. By threatening its employee with discharge, the Re-
spondent violated Section 8(a)(1) of the Act.
6. By issuing warnings to employees Craig Thomas and
Robert White, because of their union activity, the Respond-
ent violated Section 8(a)(1) and (3) of the Act.
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 See App. B.
13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
14 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
7. By discharging Craig Thomas, Robert White, Milis
Delia, Wallace Fleming Jr., Jerome Holloway, Mark Hunter,
James Pebworth Jr., and others12 because of their union sym-
pathy or to dissuade others from joining the Union, the Re-
spondent violated Section 8(a)(3) and (1) of the Act.
8. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
On concluding that the Respondent has engaged in certain
unfair labor practices, I find it necessary to recommend that
it cease and desist therefrom and take certain affirmative ac-
tion necessary to effectuate the policies of the Act. Having
unlawfully issued warnings and discharged Craig Thomas,
Robert White, Milis Delia, Wallace Fleming Jr., Jerome
Holloway, Mark Hunter, James Pebworth Jr., and others
named in Appendix B, the Respondent shall offer them rein-
statement and make them whole for lost earnings and other
benefits computed on a quarterly basis from the date of dis-
charge to the date of a proper offer of reinstatement, less net
interim earnings in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, Guille Steel Products Company, Inc.,
Virginia Beach, Virginia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Engaging in the appearance of surveillance of employ-
ees’ union activity.
(b) Coercively interrogating its employees concerning their
union activities.
(c) Threatening its employees with discharge because of
their union activity.
(d) Discharging or otherwise discriminating against em-
ployees because of their union activities.
(e) Issuing warnings to employees because of their union
activities.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Craig Thomas, Robert White, Milis Delia, Wal-
lace Fleming Jr., Jerome Holloway, Mark Hunter, James
Pebworth Jr., and others named in Appendix B immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions without
prejudice to their seniority or any other rights or privileges
previously enjoyed and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them in the manner set forth in the rem-
edy section of the decision.
(b) Remove from its files any warnings issued to Craig
Thomas and Robert White and any references to the unlawful
discharges of the discharged employees and notify the em-
ployees in writing that this has been done and that the warn-
ings and/or discharges will not be used against them in any
way.
(c) Preserve and, on 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 Order.
(d) Post at its Virginia Beach, Virginia facility copies of
the attached notice marked ‘‘Appendix A.’’14 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 5, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places wehre notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT engage in the appearance of surveillance of
our employees’ union activity.
WE WILL NOT coercively interrogate our employees about
their union activities.
WE WILL NOT threaten our employees with discharge or
other reprisals because of their union activity.
WE WILL NOT discharge or otherwise discriminate against
our employees because of their union activities.
WE WILL NOT issue warnings to our employees because of
their union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Craig Thomas, Robert White, Milis Delia,
Wallace Fleming Jr., Jerome Holloway, Mark Hunter, James
Pebworth Jr., and others named in Appendix B full and im-
mediate reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions without
prejudice to their seniority and other rights and privileges,
and WE WILL make them whole for any loss of earnings they
may have suffered by reason of the discrimination practiced
against them with interest.
545GUILLE STEEL PRODUCTS CO.
WE WILL remove from our files all reference to any warn-
ings issued to Craig Thomas and Robert White and ref-
erences to the discriminatory discharges of the discharged
employees and notify each of them that the warnings and/or
discharges will not be used against them in any way.
GUILLE STEEL PRODUCTS CO., INC.
APPENDIX B
Name Date of Termination
Clark, Steven G. January 19, 1989
*Holloway, Jerome January 19, 1989
Las Duece, Rogelio January 19, 1989
Pabalan, Emiliano January 19, 1989
Carey, Charles E. January 20, 1989
*Delia, Milis January 20, 1989
*Fleming, Wallace Jr. January 20, 1989
Foster, Marcus January 20, 1989
*Hunter, Mark January 20, 1989
*Pebworth, James January 20, 1989
Sanderson, James January 20, 1989
Smith, Larry January 20, 1989
White, Donald January 20, 1989
Allbritton, Michael January 24, 1989
Brooks, Smalley January 24, 1989
Donald, James L. January 24, 1989
Matin, Ahmad January 24, 1989
Revell, Antonio January 24, 1989
Swain, Tommy, Jr. January 24, 1989
White, Robert January 25, 1989
White, Timothy January 25, 1989
Cartledge, Daniel January 26, 1989
Press, Paul A. January 26, 1989
*Thomas, Craig January 26, 1989
Whitehurst, Raymond January 26, 1989
Miles, Calvin January 27, 1989
Russell, Bernard January 27, 1989
Lassiter, Walter January 31, 1989
Rogers, Darrick January 31, 1989
*Charging Party