Nelson Metal Fabricating

National Labor Relations Board - Board Decisions

Feb 1, 1980

247 N.L.R.B. 730 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert E. Cashdollar, Sr., d/b/a Nelson Metal
Fabricating and United Steelworkers of America,
AFL-CIO-CLC. Case 6-CA-I 1736
February 1, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 27, 1979, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Robert
E. Cashdollar, Sr., d/b/a Nelson Metal Fabricating,
Butler, Pennsylvania, his agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph (e):
"(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
I In par. I(e) of his recommended Order, the Administrative Law Judge
uses the broad cease-and-desist language. "in any other manner." However,
we have considered this case in light of the standards set forth in Hickmort
Food Inc.. 242 NLRB 1357 (1979), and have concluded that a broad
remedial order is inappropriate inasmuch as it has not been shown that
Respondent has a proclivity to violate the Act or has engaged in such
egregious or widespread misconduct as to demonstrate a general disregard for
the employees' fundamental statutory rights. Accordingly, we shall modify
the recommended Order and notice so as to use the narrow injunctive
language, "in any like or related manner."
247 NLRB No. 99
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States of America
I WILL NOT question any of my employees
with regard to their union or protected concerted
activities or the protected concerted activities of
other employees.
I WILL NOT in any manner threaten my
employees with plant closure for supporting the
Union or for engaging in any other protected
concerted activities.
I WILL NOT grant any wage increases to
employees in order to dissuade them from join-
ing, assisting, or supporting United Steelworkers
of America, AFL-CIO-CLC, except that I shall
not rescind any raises given to any of the
employees heretofore.
I WILL NOT discharge or otherwise discrimi-
nate against any of my employees in regard to
their tenure or condition of employment or other
terms and conditions of employment for engaging
in union activities or other protected concerted
activities.
I WILL NOT in any like or related manner
interfere with, restrain, or coerce my employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
I WILL offer to Eugene Zdral, Larry R.
Jurysta, Robert J. Black, and Dennis William
Grame immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, with-
out loss of seniority or other rights and privileges
previously enjoyed, and I WILL make them whole
for any loss of earnings they may have suffered by
reason of my discrimination against them, togeth-
er with interest.
All my employees are free to become or remain, or
to refrain from becoming or remaining, members of
United Steelworkers of America, AFL-CIO-CLC, or
any other labor organization of their choosing.
ROBERT E. CASHDOLLAR, SR., D/B/A
NELSON METAL FABRICATING
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: This
case was heard in Pittsburgh, Pennsylvania, on April 4 and
25, 1979, upon the complaint of the General Counsel issued
December 22, 1978, which complaint is based upon a charge
730
NELSON METAL FABRICATING
filed by United Steelworkers of America, AFL-CIO-CLC,
herein called the Union, filed on October 20, 1978. The
complaint alleges, in substance, that Respondent, Robert E.
Cashdollar, Sr., d/b/a Nelson Metal Fabricating, herein
called Respondent or the Company, interfered with its
employees' Section 7 rights during the union organizational
campaign conducted by the Union by interrogating employ-
ees regarding their union activities, sympathies, and desires
and the union activities, sympathies, and desires of fellow
employees; granting wage increases to employees in order to
dissuade them from joining, assisting, or supporting the
Union; and by coercively threatening employees with plant
closure if the employees selected the Union as their bargain-
ing representative. The complaint further alleges that Re-
spondent terminated four employees and has failed and
refused to reinstate them because the employees engaged in
concerted activities on behalf of the Union and in order to
discourage union membership. All of the foregoing, the
complaint alleges, are in violation of Section 8(a)(3) and (1)
of the National Labor Relations Act, as amended, herein
called the Act.
In its duly filed answer Respondent denies the commission
of any unfair labor practices, denies that it engaged in any
violations of the employees' Section 7 rights, although
admitting that Respondent discharged the four employees,
affirmatively alleging that they were discharged nondiscrimi-
natorily and for cause.
At the hearing the parties were given full opportunity to
be heard, to present evidence, and to make oral argument.
Oral argument was waived. Thereafter, the counsel for the
General Counsel and for Respondent filed timely briefs.'
Upon the entire record, after giving due consideration to
the briefs of the parties and upon my observation of each of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a sole proprietorship, is engaged in the
manufacture and nonretail sale of metal products at its sole
facility located in Butler, Pennsylvania. During the 12-
month period immediately preceding the issuance of the
complaint herein, a representative period, Respondent re-
ceived goods and materials of a value in excess of $50,000
directly from points located outside the Commonwealth of
Pennsylvania for use at its Butler, Pennsylvania, facility.
It is admitted, and I find, that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is concluded, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Issues
Respondent, as noted, is in the business of fabricating
metal products in which various machines are used and in
which welding is an important process utilized in the
completion of the products. Until early fall 1978 Respon-
dent's employees had never been represented by any union.
In the latter part of September or the early part of October
1978 four of its employees engaged in an attempt to bring
the Union into the shop. Their activities on behalf of the
Union are hereinafter described. Within days after the
employees made contact with the Union and the Union filed
a representation petition with the Board, the four employees
were discharged. As noted, the complaint alleges that they
were discharged because of these union activities.
Respondent, on the other hand, defends the discharges on
the basis that as to three of the four employees there was a
concerted and somewhat conspiratorial effort to slow down
production which was not discovered or was not discerned
by Respondent until approximately the time that the union
organizational efforts began. Thereafter, after due delibera-
tion, Respondent, claiming no knowledge of union activities
on the part of any of its employees, discharged three
employees for that reason. The fourth employee, who was
not engaged in the alleged slowdown, was discharged for
repeated absenteeism, according to Respondent.
Additionally, the complaint alleges that during the union
organizational efforts and even for a short period thereafter
Respondent interrogated employees, granted pay increases
in order to dissuade employees from supporting the Union,
and threatened to close its facility if the employees selected
the Union as their bargaining representative. As to these
allegations, in addition, Respondent denies that the individu-
al whom General Counsel claims was in charge of Respon-
dent's plant is an employee of the Respondent but, rather, is
an independent contractor brought in as a consultant in
order to improve production in the plant and to instruct
employees in learning their various trades, including weld-
ing.
Thus, the complaint allegation, the denials thereof, and
the contentions of the parties frame the issues.
B. The Facts
When the employees involved in this proceeding were
hired Respondent's employees were not represented by any
labor organization although admittedly there had been, from
time to time, some talk about possible unionization. Larry R.
Jurysta was hired on May 16, 1977, as a machine operator.
In June 1978: Jurysta was moved into the more difficult, and
possibly higher paying, welding department. Eugene Zdral
was hired as a welder trainee on June 16, and began in the
welding department in early August of that year. The same
was true of Robert J. Black, who was hired on June 25, as a
machine operator and was transferred to the welding
department in late September. Jurysta was instructed when
he first was transferred to the welding department by two
All dates herein are in 1978 unless otherwise specified.
731
IError% in the transcript are hereby noted and corrected.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different individuals. The first was Robert Hartzell, whom
the General Counsel classifies as an independent contractor
and by Allen Abrino, who evidently worked part time at
Respondent's plant but also was employed as a full-time
employee at the nearby Pullman Standard plant. Abrino is
also a neighbor and enjoys a somewhat friendly relationship
outside the business with Robert E. Cashdollar, Sr., herein
referred to as Cashdollar, the owner of the facility and
Respondent herein.
Jurysta, one of the four employees allegedly discriminato-
rily discharged as hereinafter set forth, having spent some
time in the welding department and having gained some
experience, also spent a good part of his time after Zdral was
transferred to that department in teaching Zdral the welding
work. The same was evidently true in the introduction of
Robert Black to the welding process. In fact, by the time
Black started to work at welding both Jurysta and Zdral had
gained sufficient knowledge and experience to assist him in
learning the process.
Dennis William Grame, the fourth alleged discriminatee,
was hired by Respondent on May 9, as a machine operator.
His duties also included driving the company truck. Evi-
dently, Grame was never made a welder or a welder trainee.
It should be noted that after being hired by Respondent
Grame shared a carpool arrangement with Jurysta, as they
both lived in the same area.
In late August or early September, Zdral engaged Jurysta
in a conversation in the shop in which Zdral introduced the
subject of the possibility of unionization. Both employees felt
that, although they enjoyed working for Respondent, they
were underpaid. They thereafter discussed the matter with
Black also. Black agreed with the other two that something
along those lines should be accomplished. Thereafter,
Jurysta discussed the matter and enlisted the support of
Grame, his carpool companion. Within a day or so thereaf-
ter the four held a discussion between themselves during a
workbreak and decided that they would attempt to have a
union represent them and the other employees in the shop.
They decided, finally, that they would call upon the Union
herein to assist them in organizing and to represent them.
They authorized Zdral to make contact with the Union.
That same evening or shortly thereafter a call was placed
from Zdral's house, in the presence of Black, to the Union's
nearby office.'
Upon Zdral's telephone call to the Union, the Union
assigned Frank Pecman, a staff representative, to assist in
organizing the employees. He met Zdral and gave the latter
union authorization cards to be signed by the employees in
Respondent's facility. As a result, a meeting was held in
Zdral's home, which was near the plant, and all employees
(approximately 12) who attended the meeting signed autho-
rization cards. It should be noted that at this time Respon-
dent had approximately 20 rank-and-file employees. It
should be noted also that the meeting at Zdral's house was
held on September 15.
Thereafter, at various breaks and other convenient times,
all four employees, Jurysta, Zdral, Black, and Grame,
distributed union authorization cards and discussed the
' All of the foregoing from credited uncontroverted testimony of the four
individuals named above.
' Although the testimony shows that there was a third conversation between
same with fellow employees during the next several weeks.
Among the employees whom Zdral spoke to about joining
the Union was Randy Double.
However, before the meeting on September 15 at Zdral's
house, there having been some discussion in the shop
regarding a union, Robert Hartzell, who, as noted above,
General Counsel claims is "plant manager" but who
Respondent claims is an independent contractor without
authority, asked employee Double whether the latter knew
anything about the formation of a union. Double answered
in the negative. Upon a second occasion after the meeting at
Zdral's house Hartzell again engaged Double in a conversa-
tion in which Hartzell told Double that Respondent's facility
was too small a place in which to have a union.'
As the union organizing progressed Zdral, who acted as
thl contact individual with Union Representative Pecman,
arranged for a union meeting at a nearby motel for the
purpose of discussing plans to file a petition for representa-
tion with the Board. As a result of this meeting Pecman filed
a petition for representation with the Regional Director on
October 18.
When Zdral, Jurysta, Black, and Grame reported for
work on October 24 Hartzell informed them that their
employment had been terminated. Hartzell told Zdral,
Jurysta, and Black that they were being terminated because
their production was too low. He informed Grame that the
latter was being terminated because of chronic absenteeism.
In connection with the filing of the petition and the
discharge of the four individuals, as related above, an agent
of the Regional Director called owner Cashdollar on the
telephone sometime between the date of the filing of the
petition on October 18 and 23, the last day on which the four
individuals worked.
Hereinafter set forth are details of the production records
of the three discharged welders, according to Respondent's
president Cashdollar. Cashdollar testified that he did not
discriminatorily discharge the three welders, claiming they
were discharged because they did not produce sufficient
quantity. Cashdollar further claims that he could not
discharge them immediately upon learning of their poor
production because he required a certain amount of produc-
tion until he could ensure sufficient production by the hiring
and training of new people. However, on the day that the
three welders were discharged only one welder was left in
the shop to perform the work until new welders were hired
or transferred into the welding department.
In addition to the foregoing, the one welder who was left
in the shop, John Zanicky, was notified that he was to
receive a pay increase, such notification being given to him
on the day after Zdral, Jurysta, and Black, the three other
welders, were discharged. In connection therewith it should
be noted that four other employees, also within the same
period of time, were given raises.
Established by credited testimony of Jurysta and Zdral,
and admissions of Respondent's witnesses, Respondent
maintained a policy of giving a 30-cent-per-hour raise to
individuals after they had worked for 6 months. However,
Jurysta admitted in testifying that he received a small raise
Hartzell and Double, it occurred some months after the events herein at
approximately Christmastime 1978.
732
NELSON METAL FABRICATING
of a lesser amount within a very short period after being
hired by Respondent, and certainly a period of less than 6
months. Nevertheless, the amounts of the raises given
individuals almost immediately after the above-recited dis-
charges were in the full amounts with only one exception,
and were given to individuals who had less than 6 months'
employment with Respondent.
In addition to all the foregoing, in early November shortly
after the discharges, Zanicky visited Cashdollar's office,
which was some distance from the plant, to ask Cashdollar
for permission to work part time for Respondent, inasmuch
as Zanicky was offered a full-time job, presumably at a better
hourly rate than at Respondent's plant. Cashdollar granted
the request. However, during the conversation Cashdollar
asked Zanicky whether the latter had signed a union card.
He further informed Zanicky that if the Union were
successful in organizing Respondent's plant and became the
representative of Respondent's employees Cashdollar would
close down the business.'
The name of Allen Abrino has heretofore been mentioned;
he is a friend of Cashdollar's and basically a full-time
employee at another facility who is also a part-time expert
welder at Respondent's facility. However, despite his close
friendship with Cashdollar, Abrino admitted in testifying
that sometime between the early part of November and mid-
November, at Cashdollar's office during a discussion not
originally related to the work at the facility here involved,
Cashdollar raised the issue of the Union's organizational
campaign. Cashdollar told Abrino, "If I have to pay high
union wages, it is going to force me out of business." In
connection therewith, Respondent produced no evidence to
the effect that the Union had made any wage demands at
that point, nor did Cashdollar outline in any respect what he
might have expected by way of demands from the Union.
During this same conversation, according to credited testi-
mony of Abrino, before he spoke of closing down the plant
Cashdollar asked Abrino, "What's this about a union?"
C. The Status of Randy Double, Allen Abrino, and
Robert Hartzell
Respondent contends and claims that Abrino, like Hart-
zell, is an independent contractor who works part time for
Respondent as such for the purpose of assisting with welding
and instructing individuals in Respondent's facility to learn
the trade of welding. However, the record shows that
Abrino, although having no authority whatsoever except for
the purposes of instruction of individuals with regard to
welding and the welding process, is paid an hourly wage
when he works for Respondent. The record being barren of
any other evidence to establish Abrino as a independent
contractor, I find and conclude that Abrino is a regular part-
time employee of Respondent.
With regard to Double, when he works on the day shift he
is an hourly paid rank-and-file employee. Furthermore,
when any of the other supervisors such as Hartzell are away
for any lengthy period of time, someone other than Double
supervises the day shift. Nevertheless, despite this situation,
' From credited testimony of Zanicky, who was still employed, at least part
time, by Respondent at the time of the hearing herein. Thus, he was subject to
whatever disciplinary action Respondent could take against him. I therefore
when Double is on the night shift he is in complete charge of
such shift in every respect. At such times Hartzell, before
leaving for the day, gives to Double the instructions for the
work to be performed during the night shift. Accordingly, I
find and conclude that Double is at least a part-time
supervisor within the meaning of the Act.
In the case of Hartzell once again both Respondent and
Hartzell claim that Hartzell is an independent contractor
who is called into the plant for the purpose of instruction
and other nonsupervisory matters. However, upon the
testimony of both Hartzell and Cashdollar it is evident that
Hartzell is in complete charge of the plant during the entire
day shift. Regardless of whether Hartzell is paid a straight
salary, or is hourly paid, or is in fact paid on a contractual
basis, he is nevertheless the supervisor of the plant and the
20 or so employees therein during the day-shift period,
inasmuch as he puts in a full-time day and a full-time week
at the plant directing its day-to-day operations. Further-
more, it is quite evident that Hartzell's recommendations
have been followed by Cashdollar for actions taken with
regard to employees. Finally, it was Hartzell who discharged
the three welders and machine operator and chauffeur
Grame. Accordingly, I find and conclude that Hartzell is a
supervisor of Respondent within the meaning of the Act.
D. The Defense
Aside from the denials by Cashdollar to the effect that
there was no antiunion motivation in the raises given to the
employees and his denials of any interrogation of either
Abrino or Zanicky, the main thrust of Respondent's defense
is that the three welders were discharged for deliberately
conspiring to slow down production. However, there is
nothing in the record either in Hartzell's testimony or in the
testimony of Cashdollar to indicate the reasons for the
alleged purposeful slowdown. It is true that the record
submitted by Respondent does show that for a short period
of time Jurysta's production of items such as the so-called
cones, a metal instrument used evidently in the mining
industry, Jurysta's production did fall off considerably. It
should also be noted, however, that during the same period
Jurysta was assisting in teaching both Zdral and Black the
rudiments, and perhaps the finer points, of welding, even
though Jurysta himself was rather new at that trade.
However that might be, Respondent maintains that some-
where along the line, through what Cashdollar describes as
the "grapevine," these individuals learned of the fact that
they might be discharged for their slowing down of produc-
tion. As a result, for the last 10 days before they were
discharged their production increased to the point where
they could have been considered satisfactory performers in
their assigned work. However, as noted, Cashdollar testified
that the reason they were not discharged before that time
was that Respondent needed production and could not
manage without any production at all. Cashdollar therefore
did not discharge these individuals until other individuals
could be hired and trained for those positions.
credit his testimony over the denials of Cashdollar that any such interrogation
or remarks were made with regard to closing down.
733
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The second part of the principal argument of Respondent
is that, when Cashdollar decided to have Grame and the
three welders discharged, he had no knowledge of who the
individuals were who began the union movement in the
shop, and in fact Cashdollar, in testifying, stated that when a
Board employee called him sometime between the date of
the filing of the petition for representation and the date of
the discharges he knew nothing about the Board and did not
understand what the call was about. Respondent further
argues that the representative of the Board's Regional Office
could have been produced by the General Counsel to at least
explain what Respondent seems to imply was a mysterious
telephone call. Respondent claims since the employee was
not called to testify by the General Counsel an inference
must be made that his testimony would have been favorable
to Respondent and against the General Counsel's position in
this case.
With regard to the raises, Respondent claims that there is
no actual raise period insofar as small raises given between
the policy raises have always been given to deserving
individuals.
E. Discussion and Conclusions
Set forth above is the defense of Respondent in which
Respondent contends that, in any event, regardless of any
other apparent fact or what may be inferred from the
evidence, Respondent had no knowledge of union activity. I
conclude that this defense is without merit. Although
Respondent contends otherwise, the plant involved herein is
a small plant of only approximately 20 employees to which
the Board's principle of knowledge of union activity inferra-
ble in a small plant can readily be applied.6 To support the
application of this principle there is the interrogation of
Double by Hartzell who, regardless of the manner in which
he was paid or his services are secured by Respondent, I
have heretofore found to be a supervisor within the meaning
of the Act. Hartzell's interrogation of Double, although not
a violation of the Act because I have heretofore found
Double to be a supervisor, nevertheless indicates that a chief
official of Respondent had knowledge of some union activity
at the time he conducted the interrogation. Also, Hartzell's
statement to Double that Respondent's shop was too small
to have a union indicates that Hartzell had some knowledge
of union activities. Accordingly, it is not credible that
Hartzell did not mention his suspicion, at the very least, that
unionization was taking place within Respondent's plant.
Moreover, much of the union proselyting performed by
the four above-mentioned dischargees was conducted on the
premises during break periods within the possible and
probable sight of Hartzell and other respondent supervisors,
including Double. Furthermore, Cashdollar's claim in testi-
fying that he was without knowledge, or at least did not
understand, whatever call was made to him by the Board's
Regional Director's representative after the filing of the
petition on October 18, and before the day the four
employees last worked, is simply not credible. Cashdollar
appeared on the witness stand as a most intelligent individu-
al who would readily recognize what a petition for represen-
tation would mean. I cannot accept any contention, under
such circumstances, that Hartzell was not informed by the
Board representative of the filing of the petition. In the first
place, at that time there were no other matters pending
before the Board relative to any of Cashdollar's enterprises
including the facility involved herein. While the petition was
not filed by any of the dischargees, but rather by the Union,
at this point Cashdollar could certainly have added what
had undoubtedly been told him by Hartzell, and others by
reason of the small size of the shop, together with the
petition, and come to the conclusion that it was necessary in
order to preserve his business to discharge those whom he
might consider to be the ringleaders of the union drive
among his employees.
We come now to the further defense that the discharges
had been for cause. Accepting at face value Respondent's
chart, taken from its records, showing the production of
various employees including the three welders, it is apparent
that about 10 days before their discharge the three welders
suddenly began to produce far more prodigiously than they
had for some period of time before that. However, at least in
the case of Black, he had started to learn the process of
welding only approximately a week or two more than a
month before the date of his discharge. The chart readily
shows that thereafter his welding work almost steadily
improved with some few exceptions so that, by the last day
of his work, he was producing at an hourly rate almost
completely satisfying that which Respondent terms a satis-
factory quota. Although from the chart reflecting Respon-
dent's productions records both Jurysta and Zdral had
possibly been dragging their feet with regard to production
for a period of time before the sudden increase in produc-
tion, there was a period of time just prior to the 10-day
period when these employees were assigned to other jobs.
Thus, from August 30 until October 12 Zdral and Jurysta
performed almost no work as welders but, rather, were
working on shears, which was not a welding process.
Doubtless, during that period of time it is also true that
Jurysta and Zdral were not producing up to the amount
performed by two other employees, Walter Best and James
Barger. However, the records show no comparison between
Barger and Best for the periods during which Jurysta, Zdral,
and Black were assigned to shears. This is because evidently
neither of these other two employees was assigned to that
work during much of the period that Black, Jurysta, and
Zdral were so assigned. While it may well be true that
Jurysta, Zdral, and Black's explanation with regard to the
welding that the material they had to work with during the
period of their low production was bad, it can be concluded
that they actually were not producing for reasons not fully
explained otherwise in the record.
In any event, it was not until the knowledge gained by
Respondent, as heretofore set forth, that suddenly Respon-
dent decided to discharge Zdral, Jurysta, and Black even
though for the approximately 10-day period before the
discharge their production virtually equaled that normally
expected by Respondent.
While it is true, as set forth clearly in the record, that up
to that point Cashdollar had made no threats or committed
' Wiese Plow Welding Co.. Inc.. 123 NLRB 616. 618 (1959).
734
NELSON METAL FABRICATING
any violations of the Act in person, I nevertheless find that
events following the discharges of Grame, Black, Jurysta,
and Zdral indicate that Cashdollar was, in fact, very much
opposed to the organization of his employees by the Union,
and that he bore animus toward unionization to the extent
that he was willing to discharge the employees. Certainly,
the timing here cannot be disregarded. I infer knowledge of
the union activities of the four discharges from the events
which preceded the discharges, including the filing of the
petition.'
So far as intent or motivation is concerned, the finding of
unlawful motivation is established not only by the events
preceding the discharge but also by the events which
followed the discharge. Thus, the statement of Cashdollar to
his friend and part-time employee, Abrino, concerning the
Union and his intention to close the shop down if the Union
came in and demanded too high a cost structure for
Respondent indicated Cashdollar's opposition to unioniza-
tion. Furthermore, Cashdollar's statement to Zanicky, with-
in a few weeks after the discharges, to the effect that if the
Union came in Cashdollar would close down the shop are
sufficient to establish that Cashdollar was capable of
discharging the union leaders in order to discourage further
union activity by any of the remaining employees. Addition-
ally, both Abrino and Zanicky are still employed by
Respondent, subject to Respondent's possible retaliation,
and therefore must be credited.
We come now to the case of employee Grame. No
production records were introduced concerning Grame.
Furthermore, even crediting the facts that Grame's absentee-
ism was in excess of that of a conscientious employee, some
of the absenteeism may be blamed for the fact that he
suffered injuries, although not necessarily work connected,
which kept him away from his employment. Moreover, at
one point when Grame was absent by reason of an attack of
influenza his wife called Respondent, spoke to Harry Datz
(who actually was Respondent's outside accountant), told
him that Grame was ill, and was told by Datz that that was
all right. Furthermore, although perhaps at this time Grame
lied about the reason for his absence on one occasion when
he was seeking employment elsewhere, on the whole
Grame's absenteeism record extended over a rather long
period of time but did not extend into the period immediate-
ly before his discharge. There seemed to be, as reflected in
the record, no particular event which would have caused
Respondent to suddenly decide to discharge Grame at that
time. On the other hand, even though Grame might not have
been an ideal employee, and even though he might have once
lied about the reason that he was off from work for part of a
day, I find that Respondent used the absenteeism as a
pretext to rid itself of Grame, whom Respondent considered
as one of the leading union adherents among his employees.
' Although Respondent paints to the failure of the counsel for the General
Counsel to call the Board employee who telephoned Cashdollar upon the
filing of the petition for representation with the Board, it is hardly necessary
to state that I cannot infer from this that had that individual been called to
testify he would have testified in a manner which would have shown that the
General Counsel's theory that Respondent had knowledge had no merit.
Indeed, as stated above, there could have been no other reason for the call to
Cashdollar but to inform him of the filing of the petition, and, as I have
already found, Cashdollar appeared to be a sufficiently intelligent individual
Again, the timing and Respondent's apparent animus are the
basis for this conclusion.'
Thus, I find and conclude that all four of the dischargees,
Zdral, Jurysta, Black, and Grame, were discharged discrimi-
natorily because of their support for the Union and for the
purpose of discouraging membership and loyalty and adher-
ence to the said Union, and accordingly I further find and
conclude that the discharges constituted violations of Sec-
tion 8(a)(3) and (1) of the Act.
With regard to the raises given to some of the remaining
employees within 1 day after the discharge of the above four
individuals, I find and conclude that they were also given for
the purpose of discouraging union activity and, accordingly,
constituted interference with Respondent's employees' Sec-
tion 7 rights. I therefore find that the pay increases
constituted violations of Section 8(a) 1) of the Act.
In coming to the foregoing conclusion I have also, as
mentioned above, considered the fact that there have been
small raises given to individuals who deserved some reward
before the normal 30-cent, 6-month raise after hire, estab-
lished as a company policy. However, that does not
completely explain the sudden raises given by Respondent
within the short period after the discharge of the four
individuals. I also conclude that the interrogation of Zanicky
and the threat to close the shop, both by Cashdollar,
although coming several weeks after the discharge of the
four individuals, nevertheless constituted threats and unlaw-
ful interrogation which interfered with employees' Section 7
rights. Accordingly, I find the pay rate raises, the interroga-
tion, and the threat to be violations of Section 8(a)(1) of the
Act.
I further find that the statement to Abrino, although
sometime after the discharges to the effect that Cashdollar
would have to shut down if the Union's economic demands
were heavy, constituted a threat to employees and, accord-
ingly, constitutes a further violation of Section 8(a)(1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
to know what a petition for representation was about, at least to the extent
that he would have learned that the Union was organizing his employees.
' In coming to this conclusion I have considered the Pennsylvania
unemployment compensation decision denying Grame's claim for unemploy-
ment compensation on the basis he had been discharged for cause because of
his absenteeism. I do not find that all the facts before that body were the facts
presented in the present hearing, and I therefore cannot give weight to the
decision by that tribunal.
735
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(l) and (3) of the Act, it will be recommended
that Respondent be ordered to cease and desist therefrom,
and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent has engaged in and is
engaging in interrogation, threats, and unlawful offers of
benefit in order to discourage membership in the Union and
to interfere with its employees' Section 7 rights, it will be
ordered that Respondent cease and desist therefrom.
It having been found that Respondent has discriminatori-
ly discharged employees Eugene Zdral, Larry R. Jurysta,
Robert J. Black, and Dennis William Grame, it will be
ordered that Respondent reinstate them to their former or
equivalent positions, and make each whole by paying to each
a sum of money equal to that which each would have earned
but for the discrimination visited upon him by Respondent.
Backpay shall be computed with interest thereon in the
manner prescribed in F W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 651
(1977).9
Upon the basis of the foregoing findings of fact, and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By coercively interrogating employees, by threatening
them with reprisals including the closing of the plant, and by
interfering with the employees' Section 7 by giving them
raises in order to discourage union activity, Respondent is
engaging in and has engaged in interference with the
employees' Section 7 rights and has therefore engaged in
unfair labor practices prohibited by Section 8(a)(1) of the
Act.
4. By discriminatorily discharging employees Eugene
Zdral, Larry R. Jurysta, Robert J. Black, and Dennis
William Grame for the purpose of discouraging membership
in the aforesaid Union, Respondent has engaged in unfair
labor practices and is engaging in such unfair labor practices
prohibited by Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing facts, and conclusions of
law, and upon the entire record, and pursuant to Section
10(b) of the Act, I hereby issue the following recommended:
ORDER'0
The Respondent, Robert E. Cashdollar, Sr., d/b/a Nelson
Metal Fabricating, Butler Pennsylvania, its agents, succes-
sors, and assigns, shall:
I. Cease and desist from:
'See, generally, Isis Plumbing d Heating Ca, 138 NLRB 716 (1962).
'° In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(a) Coercively interrogating employees concerning their
union membership, activities, and desires, and the union
membership, activities, and desires of other employees.
(b) Threatening employees with closing down Respon-
dent's business for supporting and otherwise engaging in
activities on behalf of the Union.
(c) Granting wage increases to employees in order to
dissuade them from joining, assisting, or supporting the
United Steelworkers of America, AFL-CIO-CLC, or any
other union.
(d) Discharging employees Eugene Zdral, Larry R.
Jurysta, Robert J. Black, and Dennis William Grame, or any
other employees, for engaging in and supporting union
activities, in order to discourage membership in the United
Steelworkers of America, AFL-CIO-CLC.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to form,
join, or assist, or be represented by any labor organization,
to bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activity except
that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized under Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Eugene Zdral, Larry R. Jurysta, Robert J.
Black, and Dennis William Grame immediate and full
reinstatement to their former positions or, if those positions
no longer exist, to substantially equivalent positions without
loss of seniority or other rights and privileges, and make
each of them whole for any loss of earnings each may have
suffered by reason of the discrimination against him in the
manner set forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all payroll
records, social security payment records and reports, and all
other records and reports necessary to analyze the amount of
backpay due employees under this Order.
(c) Post at its facility in Butler, Pennsylvania, at places
where notices to employees are customarily posted, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 6, after being duly signed by Respondent's represen-
tative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
" In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
736