International Metal Co.

National Labor Relations Board - Board Decisions

Nov 25, 1987

286 N.L.R.B. 1106 (N.L.R.B. 1987)

1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Metal Company and United Steelwork-
ers of America , AFL-CIO-CLC and United
Steelworkers of America, Local Union 9147.
Cases 10-CA-21553, 10-CA-21554, 10-CA-
21555, 10-CA-21749-1, 10-CA-21749-2, and
10-CA-21770
25 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 18 December 1986 Administrative Law
Judge Hutton S. Brandon issued the attached deci-
sion. The General Counsel and the Respondent
filed exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge' s rulings, findings, I and
conclusions, to modify the remedy,2 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, International
Metal Company, Rockwood, Tennessee, its offi-
cers, agents, successors , and assigns, shall take the
action set forth in the Order.
I The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In the first sentence of the third paragraph of sec II, C, 4(b), of his
decision, the judge states, "five days after the incident that Scalf contact-
ed him [Scalfl about the matter ." That appears to be an error and
should read , "Steifel contacted him about the matter . "
a In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S C. § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S C. § 6621) shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
Victor A. McLemore, Esq., for the General Counsel.
Ronald G. Ingham, Esq. (Clements, Ingham & Trumpet-
er), of Chattanooga, Tennessee, for the Respondent.
John Herron, of Alcoa, Tennessee, for the Charging Par-
ties.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
These cases were tried at Kingston, Tennessee, on 23-24
July and 11-12 September 1986.1 The charges in Cases
10-CA-21553, 10-CA-21554, and 10-CA-21555 were
filed on 19 February by United Steelworkers of America,
AFL-CIO-CLC (the Union), and an order consolidating
cases , complaint , and notice of hearing based on the
charges alleging violations of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended (the Act),
by International Metal Company (Respondent or the
Company), issued on 8 April. The charges in Cases 10-
CA-21749-1 and 10-CA-21749-2 were filed by United
Steelworkers of America, Local Union 9147 (the Local),
on 14 May while the charge in Case 10-CA-21770 was
filed by the Local on 22 May. An order consolidating
the last three cases with the initial three, and an amended
complaint and notice of hearing alleging additional viola-
tions of the Act by Respondent issued on 3 July. Re-
spondent filed timely answers denying the violations of
the Act alleged. The issues presented by the pleadings
are whether Respondent violated Section 8(a)(1) of the
Act by engaging in surveillance of employees' union ac-
tivities, threatening employees with discharge if they
joined the Union, threatening employees with plant clo-
sure if they joined the Union, threatening that it would
never recognize the Union, interrogating job applicants
about their membership in, or activities on behalf of, the
Union , and threatening to reduce the wages of its em-
ployees because of their union activities.2 The consoli-
dated complaint, as amended , alleges also that Respond-
ent violated Section 8(a)(3) and (1) of the Act in the dis-
charge of seven employees and the demotion and reduc-
tion in wages of another employee all because of their
membership in, and activities on behalf of, the Union.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
oral argument of the General Counsel at hearing and the
posthearing briefs filed by the General Counsels and Re-
spondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Oklahoma corporation with an office
and place of business located at Rockwood, Tennessee
' All dates herein are from 1 June 1985 to 30 May 1986 unless other-
wise indicated.
2 An allegation in par. 10 of the complaint that Respondent threatened
its employees with layoffs if they joined the Union was stricken at the
hearing on motion of Respondent and in the absence of any supporting
evidence presented by the General Counsel.
a The General Counsel 's posthearing brief was limited solely to an ar-
gument in favor of institution of a visitatonal clause as a part of the
remedy for the violations alleged and argued at the hearing Respondent
filed a reply brief opposing the visitatonal clause and the General Coun-
sel filed a motion to strike Respondent 's reply brief The General Coun-
sel's motion is hereby granted inasmuch as no provision was made at the
hearing for filing of reply briefs and the Board's Rules and Regulations
have not been amended to allow the filing of such briefs.
286 NLRB No. 110
INTERNATIONAL METAL CO. 1107
where it is engaged in the recycling of aluminum.
During the calendar year preceding issuance of the com-
plaint, Respondent sold and shipped from its Rockwood,
Tennessee facility finished products valued in excess of
$50,000 directly to customers located outside the State of
Tennessee. The complaint alleges , Respondent by its
answer admits , and I find that Respondent is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act. The consolidated complaint, as
amended , further alleges, Respondent further admits, and
I also find that the Union and the Local are each labor
organizations within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent began operations of its Rockwood, Ten-
nessee plant in early 1985 following a construction phase
that began about a year earlier. Many of Respondent's
management and supervisory personnel underwent initial
training at Respondent's older plant in Sapulpa, Oklaho-
ma, a somewhat larger facility operating six recovery
furnaces compared to Respondent's four at Rockwood.
The Rockwood plant began to achieve full production in
the summer of 1985, the normal peak season for the col-
lection of primary raw material for its furnaces, used
beverage containers (UBCs).
It was also during the summer of 1985 that the Union
began its organizational campaign among Respondent's
production and maintenance employees. This campaign
culminated in the Union's filing of a representation peti-
tion, Case 10-RC-13183. Pursuant to a decision and di-
rection of election issued in that case, an election was
held on 17 October resulting in a vote of 69 to 3 in favor
of representation. Objections to the election were filed
by Respondent and a stipulation to set aside the election
was subsequently agreed on by Respondent and the
Union. The stipulation was approved on 15 November
and a second election was held on 12 December result-
ing in a vote of 64 to 1 in favor of representation. There-
after, following additional election objections filed by
Respondent, which were dismissed by the Board's Re-
gional Director, the Union on 16 January was certified
as the collective-bargaining representative of Respond-
ent's production and maintenance employees.' Bargain-
ing followed but the parties were not able to reach
agreement . A strike began at the plant in mid-July 1986
and ended shortly prior to the resumption of the hearing
herein when the parties reached agreement on the terms
of a collective-bargaining contract.
The alleged independent violations of Section 8(a)(1)
of the Act as well as the 8(a)(3) violations attributed in
the complaint to Respondent took place between the first
election and 10 January.
B. The Alleged 8(a)(1) Violations
1. The alleged surveillance
a. The testimony
The complaint alleges that Respondent through Super-
visor Tommy Hamlett about 20 December engaged in
surveillance of its employees' activities on behalf of the
Union. The General Counsel relies on the testimony of
Eddie Stevens, an alleged discriminatee in this case, to
establish the violation. Stevens testified that on 20 De-
cember he was called into the office of his supervisor,
Tommy Hamlett, who told him that company officials
were watching him out of the office talking to other em-
ployees and "whether I was talking about work or fish-
ing or cars or whatever, it would be assumed that I was
talking about the Union." Stevens, who had acted as an
observer for the Union in both the October and Decem-
ber elections, also testified on cross-examination, consist-
ent with his prehearing statement given the Board inves-
tigator, that Hamlett added that if Stevens had a slack
period in his work, to come to Hamlett's office. Howev-
er, Stevens added that Hamlett, who he described as a
low-keyed, affable, friendly guy, told all employees in his
department to come to his office during slack work peri-
ods.
Asked on direct examination if he had ever had a con-
versation with Stevens in which he related to Stevens
"something your supervisors were allegedly doing,"
Hamlett testified, "Not that I recall." More specifically,
Hamlett was asked if he had a conversation with Stevens
in which he told Stevens he was being watched by cer-
tain supervisors and stating that they assumed that he
was talking about the Union, Hamlett again testified,
"Not that I recall." He did testify, however, that he had
a talk with Stevens about Stevens' stopping other em-
ployees and talking to them. He added that he told Ste-
vens that if Stevens finished a job assignment, he should
come to Hamlett 's office where, if there was other work
to be assigned, Hamlett could assign it to him. Hamlett
related that he had talked to Stevens because he was
talking to other employees excessively, but conceded
that there was no rule against talking in the plant gener-
ally. He denied that he talked to Stevens at the direction
of any superior. This denial is in direct contradiction of
the testimony of John Steifel, plant manager since mid-
October, who testified that he asked Hamlett to talk to
Stevens about "stopping and talking to anybody that
would come by him . . . in the yard while he was work-
ing." It appears that Hamlett filled out a written warning
to Stevens on the matter. Since the warning is dated 16
December, and no second "talk" was alluded to by
either Hamlett or Stevens, I conclude the date shown on
the warning was the actual date of Hamlett's remarks to
Stevens. From Stevens' testimony, however, it does not
appear that Stevens was specifically told he was being
given a written warning about his talking.
* Administrative notice has been taken of the Regional Director's
second supplemental decision and certification of representative and the
formal documents in Case 10-RC-13183
b. Conclusions
Stevens' testimony impressed me as credible and sin-
cere. Hamlett's less than positive denials were not as per-
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
suasive and his contradiction of Steifel's testimony about
an order to talk to Stevens demonstrates a readiness to
withhold detail that lends substantial credence to Ste-
vens' testimony, i.e., the close observation of Stevens by
Hamlett's superiors. Accordingly, I credit Stevens over
Hamlett. Hamlett's remark that Stevens was being
watched in any conversation with other employees and
that it would be assumed that he was "talking union" in
such conversations clearly revealed to Stevens that his
activities were being closely watched. This was more
than a simple attempt to preclude union activities on
worktime because Respondent was willing to presume
that Stevens was talking union, a presumption apparently
not applicable to other employees in the facility. Thus,
Stevens could reasonably conclude he would have to
forego all talking with other employees. In this context,
and also considering the other evidence of union animus
on Respondent's part as revealed in other violations of
Section 8(a)(1) of the Act herein, I find Hamlett's state-
ment to Stevens established unlawful surveillance. I find
it was coercive regardless of the friendly relationship ex-
isting between Hamlett and Stevens urged as a defense in
Respondent's brief. Rossmore House, 269 NLRB 1176
(1984), cited by Respondent is inapposite to the instant
case on this point, for the Rossmore decision involved an
incident of alleged interrogation of a known union adher-
ent. This situation involves surveillance rather than inter-
rogation. And while Stevens may have been an open and
well-known union supporter enjoying a good relationship
with Hamlett, the thrust of Hamlett's remarks were that
Hamlett's superiors were watching Stevens, not Hamlett,
so that the Hamlett-Stevens relationship is irrelevant.
Moreover, Hamlett's statement had a clear tendency to
restrain or coerce Stevens whether Stevens subjectively
felt coerced. See Trover Clinic, 280 NLRB 6 (1986). See
also Jax Mold & Machine, 255 NLRB 942 (1981); Hanes
Hosiery,, 219 NLRB 338 (1975). It is the tendency to
coerce that determines the violation. See American
Thread Co., 270 NLRB 526, 529 (1984). Accordingly, I
conclude that Respondent violated the Act as alleged
through Hamlett's remarks to Stevens.
2. The alleged threats of discharge and plant closure
a. The testimony
The General Counsel relies on the testimony of Ste-
vens and Dwayne Cooper, another alleged discriminatee
in this case, to establish the complaint allegations that
Steifel and John Pugh, Respondent's production superin-
tendent, threatened employees with discharge if they en-
gaged in union activities. Thus, Stevens testified that on
9 December, he brought some union handbills into the
plant's lunchroom and left them on the tables. Steifel
came over, picked up a handbill, read it, and then turned
to Stevens and told him that "bringing something like
this" into the plant could put Stevens' job in jeopardy.
Stevens responded that he was not taking the handbills
into the plant and inquired if Steifel's remark was a
threat. Steifel replied, according to Stevens, "No, that's
just the facts." Steifel then proceeded to take two stacks
of the handbills off two tables and put them in a trash
can, apparently leaving stacks of the leaflets remaining
on approximately six other tables.
Stevens claimed that there were no rules in the plant
restricting handbill distribution other than a notice Re-
spondent had posted prohibiting the posting of material
on its bulletin boards. However, on cross-examination,
Stevens conceded there was a rule about keeping the
work area clean and free of litter. In any event, while
Stevens testified that he viewed Steifel's remarks to him
as a threat, he conceded that he understood from Stei-
fel's remarks and action that he could leave the handbills
in the lunchroom.
According to Cooper's testimony, on the morning of 7
December, he was in the plant parking lot putting a
union bumper sticker on his brother's car when Steifel
drove by, stopped, and asked him whose car he was put-
ting the sticker on. Cooper told him, and apparently
nothing else was said. However, that evening as he was
walking to his car, Steifel met Cooper and asked him if
he had his car, a sports car, paid for. Cooper replied that
he did not, and Steifel remarked, "Well, you won't pay
for it working here doing that."
Cooper also related a conversation he had with Pugh
in which the General Counsel contends Pugh made
threats about discharges and plant closure for union ac-
tivities. Cooper testified that on 6 December, following a
meeting of union personnel the day before at a local Hol-
iday Inn, 5 Pugh came to Cooper in the work area and
asked if Cooper had attended the meeting. Cooper re-
plied that he had and Pugh responded, "You know, the
Union ain't going [to] come in here," and "they [sic] fire
everybody and shut the plant down."
In response to the testimony of Stevens, Steifel testi-
fied that he had on one occasion been in the lunchroom
where he had picked up a couple of union handbills and
had taken them back to his office. He left all the remain-
ing handbills undisturbed in the lunchroom. He specifi-
cally denied speaking to Stevens on the subject of the
handbills and also the specific remarks attributed to him
by Stevens. Moreover, Steifel denied the remarks attrib-
uted to him by Cooper on 7 December. In support of his
denials, Steifel identified airline tickets that he had used
showing that he was out of town for the period from 4
through 9 December.
Pugh likewise denied Cooper's testimony and related
that he had had no conversations independently with
Cooper concerning the Union. Further, he testified that
he had been fully advised by Respondent concerning
"do's and don'ts" in the face of the Union' s campaign to
organize the employees and accordingly knew not to
threaten employees.
S While Cooper described this meeting as a "hearing" on "charges"
brought against the Union by the Company in connection with the elec-
tion , his affidavit given the Board investigator that Respondent submitted
in evidence indicates the meeting involved the Board's investigation of
Respondent's objections to the election Because the Union had already
stipulated to set the first election aside more than 2 weeks prior to 5 De-
cember, I conclude Cooper is in clear error on the date of the meeting at
the Holiday Inn and therefore also in error on the date of the remarks
attributed to Pugh I conclude the remark must have taken place prior to
15 November
INTERNATIONAL METAL CO.
b. Conclusion
The testimony of Stevens and Cooper cannot be rec-
onciled with the denials of Steifel and Pugh and a credi-
bility resolution is required. Neither Stevens nor Cooper
can be regarded as disinterested witnesses, but both in
demeanor appeared to be making an honest effort to ac-
curately reflect what transpired. Their obvious inaccura-
cy regarding the exact dates of the remarks of Steifel and
Pugh about which they were testifying does not, in my
view, render their testimony untruthful. In the written
statements Stevens and Cooper submitted to the Board
investigator, which were received in evidence, both indi-
cated the dates they related were approximate. More-
over, because their written statements were dated 4
March, approximately 3 months after the remarks were
made to them, any inaccuracy in dates is understandable.
Because of the apparent earnestness in Stevens' demean-
or, which I found more persuasive than that of Steifel, I
conclude that Steifel did make the remark attributed to
him by Stevens. Further, in the absence of a showing
that Respondent had a legitimate rule against distribution
in the plant, I find Steifel's remark to Stevens constituted
a threat of discharge if he took union handbills into the
work area. In the absence of a valid no-distribution rule,
this threat must be considered coercive and unlawful as
alleged.6
I likewise find Cooper's demeanor more convincing
than that of Steifel. Cooper's testimony was both plausi-
ble and reasonable and I am persuaded it was not con-
trived. Accordingly, I credit Cooper and find that Steifel
made the remarks attributed to him. In the context of
Cooper's union advocacy and Steifel's earlier question
the same day about whose vehicle Cooper was putting
the union sticker on, it is reasonable to conclude, and I
so conclude, that Steifel's remark about Cooper not
paying for his car while working for Respondent alluded
to Cooper's involvement in union activity and constitut-
ed a threat of discharge in violation of Section 8(a)(1) of
the Act as alleged.
On balance, I also credit Cooper's testimony where it
contradicts Pugh taking into full account Respondent's
argument that Cooper had failed to relate the Pugh
remark at a state unemployment compensation hearing in
February involving Cooper's discharge even though he
was questioned generally about conversations with su-
pervisors about the Union. Cooper's omission in this
regard is noteworthy, but in my opinion does not out-
weigh what I perceived to be his obvious sincerity in his
testimony herein. Moreover, I found Pugh's asserted reli-
ance on Respondent's "do's and don'ts" in union cam-
paigns unconvincing in light of uncontradicted testimony
discussed infra, concerning remarks to, and questioning
of, employee applicant Charles Walker concerning Walk-
er's union inclinations. Accordingly, crediting Cooper I
find Pugh made the remarks attributed to him, and I
conclude Respondent through such remarks unlawfully
threatened discharge and plant closure for union activi-
ties of employees as alleged in the complaint.
The reference in the record to Respondent's rule against littering the
work area is insufficient to establish the existence of a valid no-distnbu-
tion rule.
1109
3. The alleged threat not to recognize the Union
a. The testimony
The complaint alleges that Respondent through Pugh
on 1 November threatened employees that Respondent
would never recognize the Union as the employees' col-
lective-bargaining representative. On this allegation, Ste-
vens testified that on 1 November he had a conversation
with Pugh in which Pugh said there would never be a
union at Respondent's plant and Respondent would
never recognize a union. In the same conversation, Pugh
asked Stevens if the men would actually go out on strike
"if it came to it," and if there would be trouble if the
plant was "scabbed."
Pugh denied the remarks attributed to him by Stevens.
He explained that in a group meeting with employees, in
response to a question whether Respondent would recog-
nize the Union, he had stated that Respondent would not
recognize the Union until the "appeal" on the first elec-
tion was heard. Regarding a strike, Pugh testified he told
employees in group meetings that Respondent had the
right to hire replacements if employees did go on strike.
b. Conclusion
Crediting Stevens again, I conclude that Pugh made
the remarks attributed to him. That Pugh had a clear in-
terest in the possibility of a strike and willingness of em-
ployees to cross the picket line is demonstrated by the
uncontradicted testimony of Charles Walker below. In
light of this, it is more likely that Stevens' testimony is
accurate. Pugh's remarks to Stevens, whether couched in
terms of a threat, clearly indicated to employees the fu-
tility of their organizing efforts and union support in vio-
lation of Section 8(a)(1) of the Act. See St. Luke's Hospi-
tal, 258 NLRB 321, 322 (1981).
4. The alleged interrogation
a. The testimony
Former employee Charles Walker testified in support
of the complaint allegation that Respondent unlawfully
interrogated job applicants concerning their union incli-
nations . Walker related that he was employed by Re-
spondent as a furnace loader from 6 January until the
first part of April when he quit on his own accord. He
further testified that he was interviewed for the position
about 3 January by Pugh. During that interview Pugh
asked Walker what he thought about unions, and wheth-
er he would cross a picket line if the employees went on
strike. Pugh further asked whether Walker would join
the Union, and whether he had any relatives working for
Respondent who were active in the union. Walker testi-
fied that he was noncommittal in responding to Pugh's
questions stating he had never had any dealings with
unions . Walker inquired of Pugh what was wrong with
the Union, and Pugh replied that it cost money to build
the plant and, yet, employees had organized a year later
wanting more wages. Pugh said that he wanted men that
would be "willing to work" when "the other men go out
on strike." Walker responded that he did not know much
about strikes and he would cross that bridge when he
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
came to it. On cross-examination, Walker conceded that
Pugh did in fact hire him, that Pugh did not threaten
him, and that Pugh did not put any pressure on him or
coerce him in any way. Further, Walker related that he
answered Pugh 's questions openly and honestly.
Pugh did not contradict Walker's testimony in any re-
spect. Walker was clearly an unbiased and disinterested
witness whose testimony was credibly delivered. Ac-
cordingly, Walker's testimony is credited in full.
b. Conclusions
Respondent in its brief citing Rossmore House, supra,
asserts that inquiries such as the ones testified to by
Walker in which the questioned employee "feels no fear
or coercion or intimidation" cannot be violative of Sec-
tion 8(a)(1) of the Act.
In Rossmore House the Board found interrogation of a
known union advocate unaccompanied by any threats of
reprisal was not coercive and therefore not unlawful. In
the instant case , Walker was not a known union advo-
cate at the time of Pugh 's questioning . Moreover, while
Rossmore House teaches that all circumstances surround-
ing the interrogation must be considered in determining
its legality under the Act, there are no circumstances in
the instant case that make Pugh's interrogation anything
but coercive. While Walker admitted that he was not ac-
tually coerced by Pugh, his subjective reaction is not
controlling. As previously stated, it is the tendency of
Respondent 's conduct to be coercive , which determines
the violation and not its actual effect. See NLRB v.
Huntsville Mfg. Co., 514 F.2d 723, 724 (5th Cir. 1975);
NLRB v. Cameo, Inc., 340 F.2d 803, 804 fn. 6 (5th Cir.
1965). Further, the "Board has long recognized that
questions involving union membership and union sympa-
thies in the context of a job interview are inherently co-
ercive and thus interfere with Section 7 rights." Service
Master, 267 NLRB 875 (1983). See also Gourmet Foods,
Inc., 270 NLRB 578, 611 (1984). In the instant case,
Walker admitted that he was nervous during the inter-
view with Pugh. A degree of nervousness is normal in
employment interviews and questions about union incli-
nations can only exacerbate any uneasiness . I find the
questioning of Walker by Pugh had a clear tendency to
coerce regardless of its actual effect on Walker, and I
conclude Respondent violated Section 8(axl) by such
questioning as alleged in the complaint.
C. The Alleged 8(a)(3) Violations
ent's probationary employees, i.e., employees who had
not completed a 90-calendar-day period of employment
with Respondent. Although Steifel testified herein that
Respondent's policy was to select employees for layoff
on the basis of overall work performance with secondary
consideration given to seniority , he conceded that in ac-
tuality the November layoff resulted in the most junior
employees being laid off, with the exception of Arm-
strong.
On 18 December, Respondent laid off five additional
employees, Frank Coley, Greg Hayes, Carl Monroe,
Bobby Suttles, and Reese Colburn,' all of whom had
worn union buttons in the plant. Suttles8 was recalled to
work on 9 January, and Colburn on 6 March, but Coley,
Hayes, and Monroe were never recalled and were not
offered "reinstatement" until 14 August 1986 after the
hearing in this matter began, and during the course of
the Union's strike. However, by 16 February, Respond-
ent had begun recalling employees laid off on 8 Novem-
ber and by 6 March had recalled all but two of the em-
ployees involved in that layoff. Moreover, Respondent
during the period from 28 February through 15 July
1986 hired 42 new production employees.
The complaint alleges that Coley, Hayes, and Monroe
were "discharged" in December because of their union
activities . In regard to such activities , Hayes, a shredder
operator, testified that he wore a union button to work
everyday, went to union meetings, and put a bumper
sticker on his car. Hayes credibly testified that his super-
visor, George Osborne, saw him wearing his union
button and passing out union buttons in the plant lunch-
room. Coley, also a shredder operator, credibly testified
that he wore a union button in the plant, maintained a
union bumper sticker on his car , and signed a union au-
thorization card . Monroe likewise testified that he had
signed a union card and wore a union button in the
plant. According to Monroe, Pugh had seen him wearing
the button.
Hayes related that he was advised of the layoff by
Pugh in the presence of Coley. Pugh attributed the
layoff to a lack of raw material inventory and on Hayes'
question whether the layoff would be permanent, Pugh
responded negatively . However , according to Hayes' tes-
timony, when Hayes telephoned Pugh on 27 May and in-
quired whether he would be called back to work, Pugh
replied that he would not be recalled because his work
was "not fit." Hayes further testified that he asked Pugh
on that occasion if it was because he had been hurt or
1. The December and January layoffs
a. The evidence
It is undisputed that on 8 November Respondent, out
of a total complement of approximately 70 employees,
laid off 16 employees , all of whom were production em-
ployees except for a maintenance leadman, Carlie Arm-
strong, who volunteered for the layoff . The General
Counsel does not contend , and the complaint does not
allege, either that the layoff itself was based on discrimi-
natory reasons or that any of the employees selected for
the layoff were selected for discriminatory reasons in
violation of the Act. This layoff included all of Respond-
7 A document submitted in evidence by the General Counsel lists
Reese Colburn as having also been laid off on 8 November although Col.
bum had substantially more seniority that other employees retained. I
conclude that Colburn 's layoff date was in error, and that he must have
been laid off later , on 18 December. This is because Gregory Hayes in
his testimony for the General Counsel related that Colburn was present
when Hayes was told he was laid off in December, thus not only estab-
lishing that Colburn was employed in December, but also suggesting Col-
burn was laid off at the same time . Further, Respondent posted a notice
in the plant naming the employees laid off on 8 November. Colburn's
name was not on the hat . Finally, production records received in evi-
dence reflect work by Colburn until at least 18 December
a The list reflecting dates of hire of Respondent 's employees received
into the record does not list Suttles' date of hire and his relative seniority
cannot be determined.
INTERNATIONAL METAL CO. 1111
because of his union activities and Pugh gave him no re-
sponse. With reference to his having been hurt, Hayes
explained in his testimony that he had suffered an on-the-
job injury in October and had thereafter been put on
light duty . While Hayes maintained in his testimony that
he was never warned regarding low production, he con-
ceded that his probationary period had been extended by
Osborne. He further conceded that because of his injury,
his productivity was not up to where it ought to have
been before he was fully recovered.
Monroe likewise testified that he had a telephone con-
versation with Pugh on 1 March about being recalled.
According to Monroe, he asked Pugh if he was going to
be rehired and Pugh said that he had about six "guys"
that were still laid off that were not going to be called
back because their job performance was not up to par.
Monroe testified that he had not received any prior
warnings for low productivity or any other reason. Simi-
larly, Coley testified that he was never warned or coun-
seled regarding low productivity on his part.
On 3 January Respondent laid off Stevens, a shipping
department employee , and production employee Donald
Pugh, a nephew of the production superintendent.
Donald Pugh was recalled on 26 January. On 5 January,
Kenny Smith , a shredder, was laid off as was Jeff
Adams, a production employee. Smith and Adams were
never recalled." Donald Pugh and Smith had relatively
little seniority and it appears that they were next in se-
niority to those employees laid off in November. While
not entirely clear because a seniority list of those em-
ployees employed by Respondent on 3 January was not
received into evidence, i ° it appears that Adams was
only separated from Smith in seniority by one individual,
Charles Goss. However, the record does not reflect that
Goss was actually employed by Respondent at the time
of the layoff. On the other hand, Stevens was approxi-
mately the 24th employee hired by Respondent and had
substantial seniority over a large number of employees
retained by Respondent including at lease 3 other em-
ployees retained in the shipping department where Ste-
vens worked.
The complaint alleges that Stevens and Adams were
also "discharged" for their union activities in violation of
Section 8(a)(3) and (1) of the Act. Stevens had not only
worn a union button in the plant, but had acted as an ob-
server for the Union in both the October and December
Board-conducted elections. Further, about mid-Decem-
ber he had been elected to the position of recording sec-
retary for the Local. Adams, however, did not testify at
the hearing. As a result, the extent of his union activity
and Respondent's knowledge of that activity is shown
only by Coley's testimony that "I think" Adams wore a
union button.
With respect to the December and January layoffs,
Steifel testified that employees were selected for layoff
9 Steifel's testimony suggests Smith 's layoff and failure to be recalled
was probably based on his inability to work. He was on partial perma-
nent disability and was receiving workmen's compensation
10 What was received in evidence and on which relative seniority
herein is based was a list of employees hired by Respondent from 20 Oc-
tober 1984 until the time the hearing began. Some of these listed employ-
ees may not have been employed during the layoffs involved in this case
on the basis of keeping "the best employees in the Com-
pany as long as possible." This is the same policy utilized
at Respondent's Sapulpa, Oklahoma plant, which was not
organized and the same policy used in the November
layoffs. Recalls from layoff, according to Steifel, were
dependent on whether the qualifications of the individ-
uals laid off were greater than the qualifications of new
applicants. Under this system, laid-off employees had an
edge over new hires in returning to employment only if
their prior work had not been marginal.
In determining job performance of employees, Steifel
testified that the employees' supervisors were consulted
and an informal evaluation of employees was made.
However, Respondent utilized no standard written eval-
uation system and no specific evaluation criteria was
ever adopted by Respondent. With respect to the par-
ticular layoff selections in December and also the subse-
quent refusals to recall those laid off prior to hiring new
employees, Steifel testified that Coley and Monroe were
consistently low producers on their jobs as shredder op-
erators. Steifel described Hayes as a marginal employee
from the beginning of his employment necessitating an
extension of his probationary period. Stevens' perform-
ance record when reviewed with Production Supervisor
George Osborne revealed that he had been caught asleep
on the job several times, that Stevens had once resisted
an assignment to do some sweeping and then performed
it in a marginal way, that Stevens had once caught a tow
motor on fire while refueling it, and, finally, that Stevens
spent excessive time talking to other employees disrupt-
ing his work and theirs.
Steifel's testimony with respect to Respondent's policy
regarding layoff selections and recalls was generally sup-
ported by Respondent's eastern regional manager, Rich-
ard Kerr, while his testimony regarding the work defi-
ciencies of Stevens and the others was supported by Os-
borne. However, Osborne, while admitting that Stevens
did not work directly for him, claimed that he had
caught Stevens twice sleeping on the job, once outside in
a pickup truck. Stevens' direct supervisor, Hamlett, testi-
fied the only work deficiency he noted regarding Ste-
vens was his talking excessively to other employees. Al-
though Hamlett said he observed Stevens talking exces-
sively on about 12 different occasions, it appears he only
warned Stevens once about that in December as already
noted.
b. Arguments and conclusions
As noted, the complaint alleges that Coley, Hayes,
Monroe, Stevens, and Adams were discharged because
of their union activities. However, the evidence shows
that these five were in fact laid off. Indeed, Steifel testi-
fied they were eligible for recall and in fact had been of-
fered recall in August during the course of the Union's
strike. Moreover, the case was tried and argued by the
General Counsel on the premise that the alleged discri-
minatees were laid off rather than discharged. In any
event, all the circumstances of their separation from Re-
spondent has been litigated and the legality under the
Act of that separation is therefore ripe for decision. See,
e.g., Timken Co., 236 NLRB 757 (1978).
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It was the General Counsel 's position as stated in his
closing argument that the "layoff was designed for the
purpose of spearheading or targeting union supporters"
and "there was no economic justification for the layoff."
Although not clearly stated, the General Counsel' s posi-
tion suggests alternative bases for violation of the Act by
Respondent, the first being that the layoff was not based
on economics, but was decided on by Respondent simply
as a device to rid itself of union adherents, and the
second being that the layoff selections were based on
union considerations. The existence of a violation with
respect to the second basis is completely independent of
any finding of a violation on the first. Since the General
Counsel has clearly argued that Respondent's decision to
implement the December and January layoffs was not
economically justified, that issue must be addressed first.
The General Counsel's argument on this issue is under-
mined by the concession that the November layoff was
economically motivated. Moreover, if the December and
January layoffs were not based on economic consider-
ations and a layoff was decided on in order to eliminate
union adherents, all of those laid off would theoretically
be discriminatees. Yet, obviously, not all affected were
alleged as discriminatees , and this too tends to undermine
the General Counsel's argument.
There was evidence presented by the General Counsel
tending to show that Respondent 's concern in the layoffs
was not pure economics. Thus, Thomas Hodge, former
acting plant manager and also maintenance superintend-
ent, testified that, in late October or early November at a
supervisory meeting conducted by Regional Manager
Kerr, there was a discussion about a layoff to eliminate
the union organizers. On that occasion, Kerr had said
that the inventory would not justify a layoff, but that
within 2 months the inventory would be gone and a
layoff would take place. Later, still according to Hodge,
after the first election when Respondent was anticipating
a second election , Steifel held a meeting of supervisors,
announced a layoff, and asked for a "show of hands
whether to go by seniority or whether to go randomly
through the seniority list and pick out the people we
want to lay off in order to sway the people to vote for
the Company instead of the Union." The November
layoff followed, and as already noted in Steifel's testimo-
ny above, the most junior employees were laid off al-
though he claimed it was not by specific design.
Hodge further testified that Kerr once told him in No-
vember relative to reducing Respondent's inventory that
to fight the Union he could send the Rockwood invento-
ry to Oklahoma (the Sapulpa plant) if he had to at a cost
of a penny a pound. However, Hodge conceded that he
was not aware that any inventory had in fact been
shipped to the Sapulpa plant.
The testimony of James Niles, former shift supervisor
in the melting department, tended to corroborate that of
Hodge. Thus, Niles related that prior to the November
layoff he attended a supervisory meeting where it was
decided that the layoff would be by seniority to win em-
ployees back over to Respondent's side on the union
issue. At another supervisory meeting, Steifel gestured
toward the inventory of UBCs and remarked that in 2
months' time all that inventory would be gone. The con-
text of the latter remark by Steifel , however, was not set
forth in the record and it is not clear from Niles' testimo-
ny that Steifel 's remarks related to either union activity
or a layoff.
Additional evidence of the absence of economic neces-
sity in the December and January layoffs is found in fur-
ther testimony of Niles that during October and Novem-
ber, Respondent shipped a substantial amount of "dross,"
aluminum skim resulting from aluminum production and
purchased by Respondent from aluminum manufacturers,
to its Sapulpa plant. However , Niles conceded that he
did not know whether the dross shipped to Sapulpa had
been purchased for processing specifically by Sapulpa to
allow Respondent to avoid further layoffs there. Niles
knew of no UBC inventory being shipped to the Sapulpa
plant . Further , Niles admitted that the aluminum recy-
cling industry was cyclical, that peak inventory of UBCs
is reached in late summer and is reduced in early winter,
and that to his knowledge the Sapulpa plant had experi-
enced a layoff in November 1984 as a result of the busi-
ness cycle.
Kerr testified for Respondent that in September a bid
for dross at Alcoa Aluminum Company for the Sapulpa
plant had been submitted . The dross was purchased and
trucked from Alcoa to Respondent's Rockwood facility
and shipped by rail from there to Sapulpa only because
Alcoa would not load the dross on rail cars to be
shipped directly to Sapulpa. He further testified that the
Sapulpa plant was experiencing layoffs also during the
fourth quarter of 1985 and had gone from 140 employees
to 90. Production figures for Sapulpa showed that it
dropped from 11 million pounds of product in August to
7 million in October, rose slightly to 8 million in Novem-
ber and dropped again to 7 million in December even
after receiving the dross shipped through the Rockwood
facility. t t Kerr claimed Respondent made an effort to
balance production between the two plants because of its
considerable capital investment in the two facilities and
in order to maintain an employee base at both plants.
With respect to the comment attributed to him about
shipping materials to Sapulpa for a penny a pound, Kerr
concedes he may have made such a remark , not specifi-
cally to Hodge, but in a meeting with supervisors, since
actual cost of such shipment would have approximated a
penny a pound.
Weighing the testimony of Respondent 's witnesses
against that of Hodge and Niles and considering the
record as a whole, Hodge and Niles are credited where
they contradict Respondent's witnesses . Hodge was de-
moted from acting plant manager about October and was
discharged in February. He was accordingly subject to
considerable bias against Respondent . However, his testi-
mony was direct and candid, and he made critical com-
11 Evidence offered by Respondent regarding specific production at its
Rockwood plant was rejected on objection by the General Counsel and
based on Respondent's failure to supply the General Counsel with certain
subpoenaed material relative to Respondent's production at Rockwood.
See American Art Industries, 166 NLRB 943, 951-953 (1967), affd. in per-
tinent part 415 F 2d 1223 (5th Cu 1969), cert denied 397 U S. 990
(1970); and Bannon Mills, 146 NLRB 611, 633-634 (1964). Evidence re-
garding production at the Sapulpa plant was not sought by the General
Counsel's subpoena , and was therefore ruled admissible
INTERNATIONAL METAL CO. 1113
ments about the work ability of at least two of the al-
leged discriminatees in this case thus reflecting impartial-
ity. I found his testimony positive and convincing. Niles
at times appeared confused in his testimony, but he im-
pressed me as being fundamentally honest. Unlike
Hodge, Niles had not been fired by Respondent. Al-
though Niles admitted that he had fallen in disfavor with
Steifel and Pugh during the course of the union cam-
paign because he was not seen as being tough enough on
people under his supervision, he was prompted to quit
because of his perception that Steifel was expecting him
to dishonestly substantiate Respondent's position at an
unemployment compensation hearing involving the work
record of Dwayne Cooper discussed below. His willing-
ness to quit under such circumstances strongly supports
his credibility. Moreover, the mutually corroborative tes-
timony of Hodge and Niles regarding the specific intent
of Respondent to conduct the 8 November layoff by se-
niority in order to curry employee favor is supported by
the uncontradicted fact that only the most junior em-
ployees were included in that layoff. The testimony of
Steifel to the effect the November layoff just happened
to reach the seniority result is patently incredible and in-
fects with disbelief his testimony as a whole.
Crediting Hodge and Niles, however, does not clearly
establish that Respondent consciously depleted its inven-
tory specifically in order to have a December and Janu-
ary layoff. Close examination of their testimony only es-
tablishes that Respondent anticipated that the inventory
would naturally diminish to a point where layoffs would
become necessary, not that there was a decided effort to
eliminate the inventory. Indeed, each conceded as much
during cross-examination. Moreover, aside from the
dross that was purchased for Respondent's Sapulpa plant
and notwithstanding the remarks attributed to Steifel or
Kerr, there was no evidence that Respondent actually
shipped any of the Rockwood inventory to Sapulpa.
Considering this, Niles' admission that the business was
cyclical, the undisputed fact that Sapulpa had experi-
enced layoffs in the fall of 1984 and again in 1985, the
concession of the General Counsel that the November
layoff at Rockwood was economically motivated, and
the General Counsel's inexplicable failure to argue that
all persons affected in the December-January layoffs
were the objects of discrimination,thus indirectly conced-
ing that there was an economic basis for at least some
employees being laid off, I conclude the evidence is in-
sufficient to establish that the December and January
layoffs were motivated by anything other than economic
concerns.
Turning to Respondent's selections for layoff, it is true
that in view of the 64 to 1 vote in favor of the Union
only a few days before the December layoff, almost any
individual selected for the subsequent layoff would have
been a union supporter. It is likewise true that with the
exception of Stevens , the remaining alleged discrimina-
tees caught in the layoffs were not particularly notewor-
thy in their union activities. Only three of the four wore
a union button in the plant. That is not significant even
in light of Hodge's testimony, uncontradicted in this
regard, that Respondent made an effort during the union
campaign to ascertain the union inclinations of individual
employees. In addition, at least two other employees in-
cluded in the December layoff not alleged as discrimina-
tees in the complaint, Suttles and Colburn, had worn
union buttons and the record is clear that many other
employees also wore union buttons. Accordingly, there
is no evidence that would suggest that Coley, Hayes,
Monroe, or Adams were sufficiently conspicuous in their
union activities as to make them likely targets for dis-
crimination.
The General Counsel would draw a distinction be-
tween the layoffs of Coley, Hayes, Monroe, and Adams
and that of the other employees caught in the layoffs on
the absence of justification based on their work records.
Yet the work record of Hayes was unenviable. His pro-
bationary period had once been extended for 60 days be-
cause of his work performance, and General Counsel
witness Hodge testified that Hayes' work performance
was not good. The work performances of Coley and
Monroe are less clear. While production records on these
two were received in evidence, the records are unex-
plained, unclear, and inconclusive. They lead to no clear-
cut determination that the production of Coley and
Monroe was significantly above any employees retained
following the layoff. Moreover, even Monroe conceded
that his production was no better than, and about equal
with, the other shredder operators. Adams' work record
was not even disputed, and his prior attendance record
and job warnings tended to support Respondent's con-
tention that the basis of his selection was general per-
formance.
While the General Counsel argues that Respondent
changed the basis of its layoff selection from one based
on seniority to one based on job performance in order to
enable it to select union advocates, it must again be
noted that all of those selected for layoff in December
and January were not claimed to be the victims of dis-
crimination. I am mindful of Hodge's testimony, which I
credit, that Kerr once told him the layoffs were to get
the union leaders. This, coupled with Respondent's ap-
parent departure from seniority as a basis for selection in
the November layoffs to a more subjective basis in De-
cember and January, makes the latter layoff selections
highly suspicuous. However, with the exception of Ste-
vens, none of those selected for layoff and named in the
complaint were established "union leaders" known to
Respondent. Accordingly, and because not all those in-
volved in the layoffs were alleged as discriminatees,
there is no rational basis stated by the General Counsel
for the conclusion that Coley, Hayes, Monroe, and
Adams were the specific objects of discrimination while
Suttles, Colbum, Pugh, and Smith were not. See New
York Delicatessen, 275 NLRB 959 (1985); Pullman, Inc.,
221 NLRB 1088 (1975). It must also be pointed out that
Adams was a low-seniority employee who reasonably
could have been laid off in December rather than Janu-
ary had Respondent chosen to rely solely on seniority as
a basis for a layoff selection. I conclude the selection of
Coley, Hayes, Monroe, and Adams for layoff was not
shown by a preponderance of evidence to constitute a
violation of Section 8(a)(3) of the Act. The fact that they
were not recalled prior to the recall of other laid-off em-
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees and even the hiring of new employees does noth-
ing to demonstrate that their layoff selections were dis-
criminatory, particularly since two of the employees laid
off in November, Fritts and Trew, also have never been
recalled, and two other employees laid off in December
and January, Suttles and Colburn, who had been shown
to have engaged in union activity to the same extent as
Coley, Hayes, Monroe, and Adams were recalled.
I reach a different result with respect to Stevens. Ste-
vens was a prominent union supporter having served as a
union observer at both elections. He had been the object
of threats by Respondent related to his union activity as
already set forth above. He had substantially more se-
niority than most of the employees retained. In view of
these factors coupled with Stevens' denial of the work
deficiencies attributed to him, it is clear, and I conclude,
that the General Counsel has established a prima facie
case that Stevens' selection for layoff was retaliatory and
based on union considerations in violation of Section
8(a)(1) and (3) of the Act. Under the teachings of Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), once the General
Counsel has established a prima facie showing sufficient
to support the inference that protected conduct was a
"motivating factor" in the employer's decision adverse to
the employee, the burden shifts to the employer to dem-
onstrate that the same action would have taken place
even in the absence of the employee's involvement in
protected conduct. The burden thus shifts to Respondent
here.
I find the testimony of Steifel, Osborne, and Hamlett
regarding the basis for selecting Stevens for layoff in-
credible. It is difficult to perceive how the faults attrib-
uted to Stevens could be accurate in the absence of any
warning, verbal or otherwise, or discipline issued to Ste-
vens based on such faults. Only one warning was docu-
mented and that was just prior to Stevens' layoff. The
record does not establish when Stevens allegedly com-
mitted the other offenses of which he was accused. In
the absence of evidence of that timing, it is impossible to
determine whether the offenses, even if committed by
Stevens, impacted on his job performance at the time of
the layoff. It is interesting to note that Hamlett did not
testify to any knowledge of Stevens' sleeping on the job.
Had it in fact occurred, he would at least have been ad-
vised of it. Likewise, Hodge testified he had never been
advised of it. Under these circumstances and because Os-
borne's testimony on Stevens' sleeping on the job was
generalized and vague as to time and because Stevens'
denials of sleeping on the job were emphatic and persua-
sive, I credit Stevens.
Respondent's attempt also to attribute fault to Stevens
on the burning of the tow motor is likewise unconvinc-
ing. While Stevens did not contest the fact that he had
experienced a fire while refueling a tow motor, he
denied any fault in the incident attributing the fire to a
leaky cutoff nozzle on the fuel hose causing an overflow
that somehow ignited. As already noted, Stevens was not
warned or reprimanded regarding the incident.
It is true Stevens was verbally warned about excessive
talking by Hamlett as earlier noted. However, Stevens
was not aware he was receiving a written warning at the
time and the warning was not signed by him. That warn-
ing was clearly related to his union activities and was
based on Respondent 's belief that he was talking to em-
ployees about union matters. It is significant that none of
Respondent's witnesses ever identified the employees to
whom Stevens had allegedly been talking excessively.
Considering the foregoing, particularly in light of
Hodge's further testimony, which I credit, that Steifel
told him he wanted to lay Stevens off for the simple
reason he was going around on company time trying to
drum up support for the Union, it is reasonable to con-
clude, particularly in the absence of a valid no- talking,
no-solicitation rule in the plant or evidence that Stevens
actually interfered with his own or the work of other
employees in talking to them, that Stevens would not
have been laid off had Respondent perceived that his dis-
cussions with other employees related to matters other
than the Union. This conclusion is buttressed by the ar-
gument that had Stevens' work deficiencies been so bad,
Steifel would not have been persuaded by Hodge and
Hamlett to retain Stevens during the December layoff as
claimed in Hodge's credible testimony, which was un-
contradicted in this regard. Accordingly, I conclude that
Respondent has not demonstrated that Stevens would
have been laid off in the absence of his union activities.
Rather, I conclude based on the considerations discussed
above and the record as a whole that Respondent select-
ed Stevens for his prominent union support and in order
to retaliate against that support to cool the ardor of em-
ployee union support generally, all in violation of Sec-
tion 8(a)(3) and (1) of the Act.
2. The alleged threat to, and demotion of, Hensley
a. The evidence
Larry Hensley was employed by Respondent in No-
vember 1984 during Respondent's construction phase.
Subsequently, he was promoted to one of two leadmen
positions in the maintenance department and given a 30-
cent-an-hour raise . When Carlie Armstrong, the other
maintenance leadman, took a voluntary layoff in Novem-
ber, Hensley was left as the only maintenance depart-
ment leadman.
Hensley was active in the union campaign giving out
authorization cards. Around 15 December he was elect-
ed president of the Local. While his election was not im-
mediately publicly announced, Hensley testified that he
told Maintenance Superintendent Hodge that he had
been elected. Respondent concedes its awareness of
Hensley's election to office.
About 31 December, Hensley was called to Hodge's
office where Plant Manager Steifel, in the presence of
Hodge, told Hensley that he was no longer needed as a
leadman in maintenance and that the only job available
for Hensley was one paying him 75 cents per hour less.
Hensley testified that he responded that he had been
hired as a maintenance welder at only 30 cents per hour
less than the leadman rate and he felt the cut was too
"drastic." Steifel replied that that was all he had avail-
able. Hensley testified that Steifel then "started telling
me it didn't have anything to do with the Union," but as
INTERNATIONAL METAL CO. 1115
Steifel left the room he remarked "that if it wasn't for all
this turmoil right now that [Hensley's] raise would go
the other way."
The complaint alleges that Hensley's demotion was
discriminatory in that it was based on union consider-
ations . The complaint also alleges that Respondent
through Steifel 's remark to Hensley alluding to the "tur-
moil," "threatened to reduce the wages of its employ-
ees," and independently violated Section 8 (a)(1) of the
Act.
Hodge testified that he and Steifel had concluded that
it was a conflict of interest for Hensley to be union presi-
dent and leadman at the same tinne . t 2 Hodge testified,
however, that from his point of view, while Respondent
did not need two leadmen it did need one when Hensley
was demoted even though there were only about six or
seven maintenance employees in the department. Fur-
ther , according to Hodge, even after his demotion Hens-
ley continued to perform leadman duties.
Steifel denied that Hensley's demotion was related to
his union activity or his election to union office. Howev-
er, Steifel conceded that he had told Hodge , in connec-
tion with the discussion of demoting Hensley, that Steifel
had never been in a situation "where I had a leadman
acting in a semi -supervisory role that was also the union
president," and that he did not know how it would work
out. According to Steifel, Hensley was demoted because
Hodge, who was replaced as plant manager by Steifel in
October, was demoted to the point where he only had
supervision over the six or seven employees in the main-
tenance section . Thus, Hodge could do all the direct su-
pervision without the necessity for a leadman. Steifel ad-
mitted that after Hensley's demotion Hodge still let
Hensley lead the maintenance group. To confirm the ab-
sence of any discrimination against Hensley, Steifel
pointed out that a leadman position in the shipping de-
partment had been eliminated at the same time.
b. Conclusions
Crediting Hodge again over Steifel, I fmd that Hen-
ley's election as president of the Local was the motivat-
ing factor in his demotion . In reaching this conclusion, I
note that while Hodge had been demoted to the point
where he only had responsibility for the maintenance de-
partment and laboratory, such demotion took place more
than 6 weeks before Hensley was demoted . And al-
though Hodge was relieved of laboratory responsibility
at the time of Hensley's demotion, such responsibility ex-
tended to only one employee . It is doubtful that Hodge's
relief from supervision of one employee could obviate
the need for a maintenance leadm an. Accordingly, and
considering the timing of Hensley's demotion shortly
18 Respondent 's position in the representation case had been that lead-
men were supervisors within the meaning of the Act. The Regional Di-
rector in his decision and direction of elect ion had found the leadmen
were not supervisors. Respondent sought review of the decision in this
regard , and the Board on 17 October concluded that while the request
for review raised substantial issues with respect to the status of the ship-
ping and maintenance leadmen , the matter could best be resolved
through the challenge procedure In the stipulation of the parties to set
aside the first election , the parties stipulated that the shipping leadmen
and maintenance leadmen were not eligible to vote
after his election as president , it becomes quite clear that
the demotion was produced by his election . Moreover,
Respondent not only demoted Hensley from the leadman
position , it also cut his pay 45 cents per hour below that
of which he was originally employed. While he had been
employed as a maintenance welder , he was cut to the
pay of a maintenance mechanic . Respondent had no ex-
planation at the hearing for that further reduction, and in
light of Respondent 's union animus found herein, I con-
clude this reduction was more than the simple demotion
of a leadman . I find it was retaliatory and responsive to
Hensley's election to union office.
Respondent implied that Hensley as a leadman was a
supervisor within the meaning of the Act and that his de-
motion, even for union considerations , would not violate
the Act because he was outside the protection of the
Act. However, no independent evidence of Hensley's su-
pervisory status was produced by Respondent at the
hearing. And it is clear that the stipulation between Re-
spondent and the Union as to the voting ineligibility of
Hensley is not binding on the General Counsel who was
not a party to it. See Southern Paint & Waterproofing Co.,
230 NLRB 429 (1977); Shelly & Anderson Furniture Mfg.
Co., 199 NLRB 250 (1972). While the Board in the rep-
resentation case noted the existence of a substantial issue
on the supervisory status of the maintenance leadman po-
sition, the issue was never resolved . The "burden is on
the party alleging supervisory status to prove that it in
fact exists." Commercial Movers, 240 NLRB 288, 290
(1979). It is obvious that circumstances regarding the
leadman position changed following the representation
case hearing by virtue of Hodge 's resumption of more
direct supervision of the maintenance department begin-
ning in November. Under these circumstances and in the
absence of affirmative evidence produced by Respondent
in connection with its burden to establish Hensley's su-
pervisory status, it cannot be concluded that the mainte-
nance leadman position as it existed at the time of Hens-
Iey's demotion was a supervisory one. Accordingly, I
find the evidence insufficient to prove Hensley was de-
moted from a supervisory position . He was therefore en-
titled to protection under the Act at the time of the de-
motion . I, accordingly , fmd that his demotion and ac-
companying wage reduction violated Section 8(a)(3) and
(1) of the Act as alleged.
On the other hand, I find no merit to the complaint
allegation that Steifel threatened to reduce the wages of
employees on 31 December . 13 The remark attributed to
Steifel by Hensley , which provides the factual predicate
for the allegation was vague, and Hensley's testimony on
it impressed me as uncertain and conclusionary. A refer-
ence to Hensley's "raise" going "the other way" in the
absence of "turmoil" is largely meaningless and nonsensi-
cal as an independent threat to either Hensley or to em-
ployees generally in view of Hensley 's acknowledgement
of Steifel 's protestation that Hensley's demotion was un-
is The complaint, par. 13, does not specifically allege that Steifel's
threat was related to employees ' union activities , and to this extent, does
not allege a violation of the Act. However, Respondent did not attack
this insufficiency , and evidence on the allegation was adduced and the
matter litigated
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
related to union matters . Accordingly, I find no inde-
pendent violation of Section 8(a)(1) of the Act based on
Hensley's testimony.
3. The discharge of Patterson
a. The evidence
The complaint alleges Donald L. Patterson was discri-
minatorily discharged on 7 January. That he was dis-
charged about that date is not disputed. Patterson did not
testify in this proceeding and the extent of his union ac-
tivities has to be gleaned from the testimony of another
witness. Thus, Cooper testified that Patterson was a part
of the organizing committee and attended a meeting
called by Cooper to plan the organization of Respond-
ent's employees. The date of this meeting was not estab-
lished on the record however, and there is no other evi-
dence in the record regarding Patterson's union activity.
The evidence surrounding the discharge of Patterson
was supplied primarily by Steifel. Steifel testified that
Patterson was discharged for poor attendance and job
performance. Patterson's attendance record reveals that
while he had an on-the-job injury in August and had ap-
parently missed several days of work because of it, he
nevertheless had 11 other unexcused absences during
1985, and a total of 34 days of absence altogether. He
also missed work on 2 January and left work on 3 Janu-
ary claiming illness . Further, on 19 December he had re-
ceived a warning for receiving too many personal phone
calls at work. Steifel testified that it was he who decided
to discharge Patterson and he denied any knowledge of
Patterson's involvement in union activities. With respect
to Patterson's job performance, Steifel testified that he
was a consistent low producer on the furnace and had a
habit of leaving the furnace in bad shape.
b. Argument and conclusions
The General Counsel argues that the majority of Pat-
terson's absences were due to his on-the-job injury and
should not have been included in any computation to de-
termine excessive absenteeism. Further, the General
Counsel asserts that the failure to warn Patterson about
either his absenteeism or hir job performance warrants a
conclusion that his discharge was discriminatory and in
violation of the Act.
Respondent argues that the extent of Patterson's absen-
teeism was not disputed by the General Counsel, and
that he did not dispute Respondent's evidence regarding
Patterson's work performance. In view of this and the
absence of evidence of extensive union activity by Pat-
terson and Respondent's knowledge of such activity, Re-
spondent claims no violation of the Act was established.
I concur in Respondent's position and conclude that
the General Counsel has failed to establish a prima facie
violation in Patterson's case . Accepting Cooper's testi-
mony as true, Patterson was at one point in time on the
Union's organizing committee. However, it is not clear
that he continued on the committee or was active in
union matters around the time of his discharge. In addi-
tion , there is no evidence that Respondent was aware of
his union activities. Even if I were to conclude from
Hodge's testimony elsewhere related herein that Re-
spondent actively sought to identify union supporters
and thus likely identified Patterson as a supporter, there
is no evidence that Respondent had sufficient knowledge
of the extent of his union activities as to make him a par-
ticularly desirable target for discrimination. In view of
the 64 to 1 election result, Patterson was only one of a
large group of undistinguished union supporters. Finally,
the General Counsel's own witness, Hodge, testified that
Patterson's work performance was sufficient to justify his
discharge. Accordingly, notwithstanding the evidence of
Respondent 's union animus reflected by the violations of
the Act found herein, I conclude no prima facie case on
Patterson has been proven. Moreover, even if I were to
conclude a prima facie case was established, I am satis-
fied that Respondent has met the burden shifted to it
under Wright Line, and successfully demonstrated that
Patterson would have been discharged even in the ab-
sence of his union activity. Respondent's contentions re-
garding Patterson's work habits are simply not rebutted.
I therefore find no violation of the Act in Patterson's dis-
charge.
4. The discharge of Cooper
a. The General Counsel's evidence
The complaint alleges that Dwayne Cooper was dis-
charged by Respondent on 10 January because of his
union activities. Cooper testified that he initiated the
Union's organizing campaign among Respondent's em-
ployees and served on an organizing committee. He ob-
tained employee signatures on a substantial number of
union authorization cards,14 wore union buttons in the
plant and, as already noted, to Steifel's knowledge put
union bumper stickers on cars in Respondent 's parking
lot. Further, former Maintenance Superintendent Hodge
related in testimony for the General Counsel that in re-
sponse to Regional Manager Kerr's request for the names
of employees believed to be union supporters, Hodge
gave Kerr Cooper's name along with several others.
Cooper, a truck driver, was initially employed by Re-
spondent on 12 February 1985. The truck he drove car-
ried a large crucible utilized for transporting molten
metal from Respondent's furnaces to customers in the
area of Respondent's plant. On 10 January after return-
ing from a trip at around 5:30 p.m., he was told by Su-
pervisor James Niles, his shift supervisor in the melting
department, to see Steifel. Cooper testified that when he
entered Steifel's office, Steifel remarked that he had
heard Cooper had been hotrodding. Steifel explained that
he had four men standing in front of the Holiday Inn
when Cooper came by and that when Cooper had turned
14 Respondent made an additional attack on Cooper's credibility based
on a contention in Cooper's testimony before the state unemployment
commission that he had personally gotten some 60 odd authorization
cards signed for the Union Cooper had made no such claim herein. In
substance , he contended in that while he actually secured several employ-
ee signatures on union cards he admittedly did not get in excess of 60
signed . He had , however, collected the cards and had given those cards
to the union representative . While there is an apparent contradiction be-
tween Cooper 's testimony on this point, I find such contradiction the
more likely product of confusion than prevarication and regard it as un-
material.
INTERNATIONAL METAL CO.
onto the ramp going to Interstate 40 he nearly turned the
truck over with one of the wheels coming off the ground
18 inches. Cooper replied that he would swear on a stack
of Bibles that he did not do it. Steifel then stated that as
far as he was concerned Cooper did not work there any
more. He handed Cooper a separation notice and said,
"You can go draw your unemployment."
Cooper testified that prior to his discharge, around 18
November, Niles had verbally warned him about pulling
away from the capping station (where the crucible is
loaded and capped) too fast. It appears that a fast start
risked splashing molten metal on the crucible's cooler lid
or cap where the metal hardens making the cap difficult
if not impossible to remove. Any rough driving of the
vehicle or possibly even rough roads might have the
same effect. In any event, Cooper was not issued a writ-
ten warning at the time.
In addition to Cooper's testimony that he had not
driven recklessly on 8 January, the day that Steifel
claimed he was seen by witnesses, the General Counsel
relies on the testimony of former Supervisor Niles to es-
tablish that Cooper's discharge was pretextual. Niles re-
ported that in a conversation with Pugh and Steifel
about union activities in the plant about mid-November,
Pugh remarked "We can thank Mr. Cooper for bringing
the cards in the plant." On another occasion around 1
November, Pugh brought Cooper's absentee record to
Niles so Niles could talk to Cooper about the record.
Niles did so and ascertained from Cooper that there
were apparently errors in the record. Niles took the
record back to the front office and had it corrected. Sub-
sequently on 8 January, Pugh told Niles to "go ahead
and write it [a written warning] up" on Cooper's ab-
sences stating also that Steifel wanted to, get everything
he could against Cooper. Niles wrote up the warning,
which was dated 8 January, reflecting that he had talked
to Cooper about "being off six days," i s but testified
herein that he was not aware of any specific absenteeism
policy maintained by Respondent. Even Steifel conceded
herein that Respondent had no defined absenteeism
policy.
Niles acknowledged that he had talked to Cooper
about pulling away from the capping station too fast. He
characterized it as an instruction or direction rather than
a reprimand. However, on the date of Cooper's dis-
charge, Steifel instructed Niles to write up the mid-No-
vember incident involving Cooper as a warning. Niles
did so putting down 12 November as the date he "talked
to Dwayne about moving the truck too fast from the
capping sta[tion]."
Niles testified that in his view Cooper was a good
driver. When Steifel told Niles of the alleged reckless-
ness of Cooper on 10 January, Niles had recommended
that Cooper only be reprimanded, but Steifel replied it
was too serious a matter and was for termination. Hodge,
like Niles, testified that Cooper was a good employee.
is Two separate attendance cards for Cooper were received in evi-
dence. One showed six absences through November but three had been
circled This is the one Niles claimed he had changed The other reflects
no changes A seventh absence occurred in December
1117
Indeed, Hodge said Cooper was an outstanding, consci-
entious employee who took good care of his vehicle.
As evidence of disparate treatment in Cooper's dis-
charge, the General Counsel relies on the testimony of
Ricky Smith, another of Respondent's truck drivers.
Smith received a speeding ticket driving one of Respond-
ent's truck in May 1985. Respondent was advised of it,
but took no action against Smith. On 14 October, Smith
received a second speeding ticket, and again Respondent
was made aware of it but took no action. It was only on
16 January (after Cooper's discharge) that Respondent
through Supervisor Claude Wagner issued a warning to
Smith for "speeding tickets with hot metal truck" for the
prior infraction. Subsequently on 31 January, Smith re-
ceived another ticket, this time for not having certain
safety equipment on his truck. However, Regional Man-
ager Kerr conceded in his testimony that he had talked
to the issuing officer and found Smith had actually been
speeding, but the officer had written the ticket for the
safety violation instead. Smith was not discharged, but
on 4 February Smith was told by Steifel that any "more"
problems regarding his job performance would result in
termination.
b. Respondent's evidence
Steifel testified that Cooper was discharged for reck-
less driving based on a report to Steifel from Matt Cald-
well, an area businessman and social acquaintance of
Steifel, that a truck of Respondent's was seen on High-
way 27 turning onto an entrance ramp to Interstate 40 in
such a manner as to cause the rear wheel of the truck to
come off the ground a foot or more. Caldwell had ex-
plained that he was in a car behind the truck and while
Caldwell had not seen the truck wheels come off the
ground, he identified the other people in the car who
had. These were Neil Scalf, Gary Wolfe, and Tom Bun-
trock, area business people. Wolfe and Scalf were ac-
quaintances of Steifel. Steifel testified he contacted
Wolfe and Scalf the next day and obtained their remarks
about what happened and asked them if they would give
written statements to him. They verbally reported what
they saw and eventually gave Steifel a written statement
several days later.
Scalf testified herein that on the day in question he,
Wolfe, Caldwell, and Buntrock had had lunch at a Holi-
day Inn on Highway 27, which was approximately one-
quarter mile from the entrance ramp to eastbound Inter-
state 40. Leaving the Holiday Inn their vehicle was
passed by one of Respondent's trucks i 6 at an estimated
speed of 55 or 60 miles per hour. After passing them the
truck pulled back into the right lane and turned right
onto the interstate entrance ramp. Scalf observed that the
truck's right rear wheel came off the ground about a foot
or so. He remarked to the other passengers in the car
about what he had seen but none of the others saw the
wheels off the ground. Wolfe, the driver of Scalf's vehi-
cle, also testified herein and generally corroborated
Scalf. Although he had not seen the rear wheel come up,
16 Scalf testified that he had not been aware that the truck was one of
Respondent 's, but that Caldwell had told him it was
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wolfe testified that he observed the crucible on the rear
of the truck shimmying back and forth when it made the
turn.
Contrary to Steifel's testimony, Scalf testified that it
was 4 to 5 days after the incident that Scalf contacted
him about the matter, and then 2 to 3 weeks later that he
gave Steifel a written statement. Wolfe likewise said that
Steifel contacted him maybe 2 to 5 days after the inci-
dent.
Steifel testified that Cooper was discharged because of
the driving incident reported to him by Caldwell, which
Steifel concluded reflected reckless driving by Cooper.
Although Cooper had denied to Steifel as he did at the
hearing herein that he had gotten any wheel off the
ground, he did not deny being in the area where seen by
Caldwell and the others at the approximate time seen by
them. Cooper, according to Steifel, was the only one on
the shift that day who was driving. Steifel denied knowl-
edge that Cooper was a leading union adherent and fur-
ther denied that he was discharged because of his union
activity.
c. Conclusions
In the case of Cooper's discharge, I conclude that the
General Counsel has established a prima facie case. The
elements of this prima facie are Cooper's union advoca-
cy, Respondent's knowledge of that advocacy based not
only on Cooper's credited testimony about Steifel having
seen him put a union bumper sticker on a car, but also
Hodge's uncontradicted testimony that Cooper's name
was among those he reported to Regional Manager Kerr
as being a union supporter as well as Niles' testimony
that Pugh commented that Respondent could thank
Cooper for bringing union cards in the plant, Steifel's
threat to Cooper that he would not pay for his car work-
ing for Respondent, Respondent's union animus as re-
vealed in the other violations of the Act found herein,
Respondent's summary discharge of Cooper without any
prior warning, and the disparate treatment accorded
Cooper compared with Respondent's treatment of Ricky
Smith. The burden therefore shifts to Respondent to
demonstrate that it would have discharged Cooper even
in the absence of his union activities. Respondent seeks
to satisfy this burden in part by establishing the fact of
Cooper's driving misconduct and the seriousness of it. As
a factor bearing on the extent of Cooper's alleged reck-
lessness, considerable testimony was adduced and a siza-
ble debate was engaged in, between Respondent's and
General Counsel's witnesses concerning how high Coo-
per's wheels got off the ground on 8 January and wheth-
er if the wheels had left the ground at all the truck
would have turned over.
I find it unnecessary to resolve this dispute because I
credit the testimony of Scalf about what he saw even
though his estimate of how far the wheel came off the
ground may not be entirely accurate. Scalf impressed me
as truthful. Both he and Wolfe who substantially cor-
roborated him were likely disinterested and impartial
notwithstanding their acquaintance with Steifel and the
fact that each had had prior business dealings with Stei-
fel.17 If they had been part of a conspiracy with Steifel
to fabricate a story as a pretext for Cooper's discharge, it
is likely that Wolfe would have "arranged" to see Coo-
per's wheels come off the ground. Accordingly, based on
Scalf's testimony, and that of Wolfe, as well as Cooper's
failure to deny that he was in the vicinity at the time of
the incident, I conclude that Cooper was driving the
truck at the time related by Scalf and Wolfe, and that he
did get his right rear wheel off the ground as Scalf testi-
fied.
Crediting Scalf regarding what he saw does not
compel the conclusion that Cooper lied when he con-
tended that he did not get his wheels up. Obviously,
Cooper as the driver of the truck was not in a good posi-
tion to see his rear wheel come off the ground. Further,
Respondent's own witness, Ken Griff, called as an expert
on truck handling, indicated in his testimony that a
driver might get a truck wheel off the ground without
knowing it. Only if the wheel was up "high enough"
would the driver know it when the wheel slammed back
on the ground.
In view of the testimony of Scalf and Wolfe, I am
compelled to conclude that Cooper was driving at an ex-
cessive rate of speed when he made his turn onto the
interstate ramp. Respondent therefore had a basis for
concern about Cooper's driving, and consequently a basis
for disciplining Cooper. However, the establishment of a
cause for discipline or even discharge is not tantamount
to demonstrating that Cooper would have been dis-
charged even in the absence of his union activity. See
Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984). And
I am persuaded on this record that Respondent has not
in fact satisfied the burden shifted to it in this regard
upon the establishment of the General Counsel's prima
facie case on Cooper found above.
Cooper's driving record was unblemished prior to 8
January. While he had been admonished not to pull
away from the capping station too fast, Niles credibly
testified that he did not regard that as a warning. That
Respondent was concerned about substantiating an unsat-
isfactory record on Cooper is revealed by Steifel's re-
quirement that Niles belatedly document his talking to
Cooper about the capping station matter. Further,
Hodge's credited testimony that Steifel told him on the
day of Cooper's discharge that he finally had enough in-
formation on Cooper to fire him supports the conclusion
that Respondent was looking for a way to rid itself of
Cooper.
It is also significant that Steifel was not so disturbed
about Cooper's driving as to prohibit him from driving a
complete shift on 10 January. Yet, inexplicably he was
allowed to do so. Further, it is evident that Steifel had
already made up his mind to discharge Cooper before he
asked Cooper for Cooper's version of the incident. This
was revealed in Niles' testimony concerning Steifel's re-
jection of Niles' recommendation prior to the discharge
that Cooper simply be reprimanded, and also reflected
by the fact that Cooper's termination slip had already
17 Scalf had contracted in October 1985 to build a house for Steifel.
Wolfe had sold Steifel some insurance
INTERNATIONAL METAL CO.
been prepared at the time Cooper was called in for the
discharge. The Board has previously held that the failure
to obtain an employee's side of a matter on which disci-
pline is based before deciding on the discipline evidences
ulterior motivation. See Pittsburgh Press Co., 252 NLRB
500, 505 (1980). Moreover, based on the credible testimo-
ny of Scalf and Wolfe, it is doubtful that Steifel even
verified the alleged reckless driving of Cooper with them
before the discharge was effectuated.
Finally, I reject the distinction claimed by Respondent
in justifying the difference in treatment accorded Cooper
and Ricky Smith, i.e., that speeding is not the equivalent
of reckless driving. I agree that one speeding ticket may
not necessarily indicate reckless driving. However, Smith
had two in a 5-month period to Respondent's knowledge
prior to Cooper's discharge and was not even issued a
written warning. Two such tickets in such a short period
of time indicate a pattern of driving that, if not reckless,
presents arguably as great a danger to Respondent's ve-
hicle and the public generally, as Cooper's one instance
of taking a corner at an excessive speed. When Smith re-
ceived a third ticket, which Kerr knew was brought
about by Smith's speeding even if the ticket issued was
not for speeding, Respondent's failure to discharge Smith
clearly revealed a double standard that can only be ex-
plained by the existence of an ulterior and unlawful moti-
vation on Respondent's part in discharging Cooper.
Considering all of the foregoing, including Respond-
ent's union animus revealed by its other violations of the
Act found herein, Respondent's knowledge of Cooper's
union advocacy, Steifel's threat to Cooper that he would
not pay for his car working for Respondent, Respond-
ent's obvious attempt to find a basis on which to dis-
charge Cooper, the disparity in treatment of Cooper as
compared with Ricky Smith, and the absence of evi-
dence of prior discharges for driving infractions, I con-
clude Respondent has not demonstrated that Cooper
would have been discharged in the absence of his union
activities. I therefore conclude that Respondent violated
Section 8(a)(3) and (1) of the Act as alleged in discharg-
ing Cooper.
CONCLUSIONS OF LAW
1. Respondent , International Metal Company, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, United Steelworkers of America, AFL-
CIO-CLC, and United Steelworkers of America, Local
Union 9147 , are each labor organizations within the
meaning of Section 2(5) of the Act.
3. By telling an employee that his lawful activities on
behalf of the Union were being watched, Respondent un-
lawfully surveilled such activities and thereby did engage
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By threatening to discharge its employees and close
its plant in order to discourage their activities on behalf
of the Union, Respondent engaged in , and is engaging in,
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. By telling its employees that it would never recog-
nize the Union as the employees ' collective-bargaining
1119
representative , Respondent engaged in , and is engaging
in, unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By coercively interrogating employees regarding
their union sympathies and inclinations , Respondent en-
gaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
7. By demoting and reducing the wages of Larry
Hensley, by laying off Eddie E. Stevens on 3 January
1986, and by discharging Dwayne Cooper on 10 January
1986, all because of their activities on behalf of the
Union , Respondent engaged in , and is engaging in, unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
8. The unfair labor practices set forth in paragraphs 3
through 7 above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
9. Respondent did not violate the Act in any other
manner alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary that it be or-
dered to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes of
the Act.
Having found that Respondent unlawfully laid off
Eddie E. Stevens and unlawfully discharged Dwayne
Cooper, it will be recommended that Respondent be or-
dered to reinstate them to their former positions and
make them whole for any loss of earnings and other ben-
efits, computed on a quarterly basis from the date of
their layoff and discharge to the date of a proper offer of
reinstatement , less any net interim earnings as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus inter-
est as computed in Florida Steel Corp., 231 NLRB 651
(1977).18 Having found that Respondent unlawfully de-
moted and reduced the wages of Larry Hensley, it will
be ordered that he be reinstated to the position from
which he was demoted and made whole for any loss of
earnings plus interest as computed in Florida Steel Corp.,
supra . See Walker Electric Co., 219 NLRB 481 (1975);
Tan-Tar -A Resort, 198 NLRB 1104 (1972). Consistent
with the Board's decision in Sterling Sugars, 261 NLRB
472 (1982), it will also be recommended that Respondent
be required to expunge from its files any references to
the layoff of Stevens, the discharge of Cooper, or the de-
motion of Hensley, and notify them in writing that this
has been done and that evidence of these unlawful ac-
tions against them will not be used for future personnel
actions against them.
As already noted, the General Counsel seeks herein
the inclusion of a visitatorial clause in effect allowing the
Board to engage in discovery under the Federal Rules of
Civil Procedure for compliance monitoring purposes. No
special circumstances have been asserted, however, to
warrant the inclusion of such a clause in this case. The
Board has indicated that such clauses will not be granted
in a pro forma manner. See, e.g., O. L. Willis, Inc., 278
18 See generally Isis Plumbing Co., 138 NLRB 716, 716-721 (1962).
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 203 (1986); United Cloth Co., 278 NLRB 583
(1986). Cf. Hilton Inn North, 279 NLRB 45 (1986). Be-
cause there is no showing in the instant case of any spe-
cial circumstances that would warrant the inclusion of a
visitatorial clause , such a clause will not be provided
here.
On the foregoing findings of fact, conclusions of law,
and on the entire record, I issue the following recom-
mended19
ORDER
The Respondent, International Metal Company, Rock-
wood, Tennessee, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Surveilling the lawful activities of its employees on
behalf of United Steelworkers of America, AFL-CIO-
CLC or its Local Union 9147, or any other labor organi-
zation.
(b) Threatening employees with discharge or plant clo-
sure because of their union activities.
(c) Telling employees it would not recognize the
Union duly selected by its employees to be their collec-
tive-bargaining representative.
(d) Coercively interrogating employees concerning
their union activities and inclinations.
(e) Laying off, discharging, demoting, or otherwise
discriminating against any employee because of his/her
support of, or activities on behalf of, United Steelwork-
ers of America, AFL-CIO-CLC and its Local Union
9147 or any other labor organization.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Dwayne Cooper and Eddie E. Stevens imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, and reinstate Larry Hensley to the position of
maintenance leadman from which he was demoted, all
without prejudice to their seniority or other rights or
privileges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of this decision.
(b) Remove from its files any references to the unlaw-
ful actions against the above-named employees and
notify them in writing that this has been done and that
such actions 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 pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amounts of backpay due under the
terms of this Order.
19 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 objections to them shall be deemed waived for all pur-
poses.
(d) Post at its facility at Rockwood, Tennessee, copies
of the attached notice marked "Appendix."20 Copies of
the notice, on forms provided by the Regional Director
for Region 10, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent 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 Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found.
20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
APPENDIX
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT lay off, discharge, demote, or otherwise
discriminate against our employees because of their ac-
tivities on behalf of United Steelworkers of America,
AFL-CIO-CLC and its Local Union 9147 or any other
labor organization.
WE WILL NOT surveil the lawful union activities of our
employees on behalf of the above -named Union or any
labor organization.
WE WILL NOT threaten our employees with discharge
or plant closure because of their activities on behalf of
the above-named Union or any labor organization.
WE WILL NOT tell our employees that we will not rec-
ognize the union selected by them as their collective-bar-
gaining representative.
WE WILL NOT coercively interrogate our employees
regarding their union activities and inclinations.
INTERNATIONAL METAL CO. 1121
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section of the Act.
WE WILL offer Dwayne Cooper and Eddie E. Stevens
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 WE
WILL make them whole for any loss of earnings and
other benefits resulting from our action against them, less
any net interim earnings plus interest.
WE WILL reinstate Larry Hensley to the maintenance
leadman position from which he was demoted and WE
WILL make him whole for any loss of earnings or other
benefits resulting from the demotion, plus interest.
WE WILL notify each of the above-named employees
that we have removed from our files any references to
the actions against him and that such actions will not be
used against him in any way.
INTERNATIONAL METAL COMPANY