Nucor Corp.

National Labor Relations Board - Board Decisions

Jun 20, 1977

230 N.L.R.B. 297 (N.L.R.B. 1977)

NUCOR CORPORATION
Nucor Corporation, Vulcraft Division and United
Steelworkers of America, AFL-CIO-CLC. Cases
I l-CA-6584 and I 1-CA-6655
June 20, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On March 25, 1977, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Nucor Corpora-
tion, Vulcraft Division, Florence, South Carolina, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge: A
hearing in this consolidated proceeding was held on
October 4 and 5, 1976, at Florence, South Carolina, based
upon a charge filed against Nucor Corporation, Vulcraft
Division, by United Steelworkers of America, AFL-CIO-
CLC, herein Union, in Case I l-CA-6584 on May 21, 1976,
as amended on June 15 and 25, 1976, and in Case I -CA-
6655 on July 20, 1976, and a complaint issued by the
Regional Director in Case I 1-CA-6584 on July 22, 1976,
and an order consolidating cases, consolidated complaint
and notice of hearing issued by the Regional Director on
August 31, 1976, as amended at the hearing, which alleges
that Respondent violated Section 8(aXl) of the Act by
telling its employees that they did not receive a scheduled
wage increase because of the pendency of a representation
petition filed by the Union and/or because employees
voted for the Union in a Board-conducted election, or
otherwise engaged in union activity; by, in fact withholding
a scheduled wage increase for the foregoing reasons; by
interrogating an employee as to his and other employees'
230 NLRB No. 17
union sympathies; and that Respondent violated Section
8(aX)(1) and (3) of the Act by discharging employees
Nathaniel Graham and Herbert Bines because of their
union or other concerted activities protected by the Act.
An answer was duly filed which denied the commission of
any unfair labor practices. Respondent also moved to limit
the taking of evidence as to matters other than the
allegations concerning the wage increase which it argued
was rendered moot because of an offer to settle that
portion of the case relating to the wage increase which had
been refused by the Regional Director, but which was
remedied by the retroactive implementation of a wage
increase and the posting of a notice to employees drafted
by the Respondent. The General Counsel opposed the
motion on the grounds that evidence of 8(aX 1) conduct
was necessary and relevant to the issue of Respondent's
motivation with respect to the alleged discriminatory
discharges, and because the posting of Respondent's notice
was itself an act of interference with employees' rights by
virtue of the language utilized therein. The Respondent's
motion was denied.
Posthearing briefs were submitted by the General
Counsel and the Respondent.
On the entire record in this case, including my observa-
tion of the witnesses, their demeanor, and consideration of
briefs submitted by the parties, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Nucor Corporation, Vulcraft Division, herein Respon-
dent, is a Maryland corporation engaged in the fabrication
of open-web steel joists at a plant in Florence, South
Carolina.
During the 12-month period, which is representative of
its operations, Respondent in the course of its operations
shipped materials valued in excess of $50,000, directly to
points outside of the State of South Carolina. During the
same period, Respondent received materials valued in
excess of $50,000, from points directly outside the State of
South Carolina. Respondent is an employer engaged in
commerce within the meaning of the Act, and it will
effectuate the policies of the Act to assert jurisdiction
herein.
The Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
1. THE UNFAIR LABOR PRACTICES
A. Factual Background
On February 24, 1976, the Union filed a petition for
certification of representative with the Regional Director in
Case I l-RC-4149. On April 22, 1976, an election was
conducted by the Regional Director in the production and
maintenance unit at the Florence plant. There were
approximately 250 employees in that unit. A majority of
ballots were cast for the Union. On April 28, 1976,
Respondent filed objections to the election. The Regional
Director issued his report on June 3, 1976, wherein he
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended that the objections be overruled. On August
12, 1976, the Board issued its Decision which adopted the
Regional Director's report and which certified the Union
as exclusive bargaining agent for employees in the unit set
forth therein.
The Respondent has maintained for at least 8 to 10 years
a policy of reviewing and granting annual wage increases
to all employees in May or June. In May or June 1976, all
employees, except those in the production and mainte-
nance unit involved in the representation case, received a
12-percent wage increase. The Respondent's operations
manager, Robert T. Garrison, testified that the raise was
withheld from the unit employees because of the Respon-
dent's understanding that the state law forbade it from
implementing any unilateral wage increases without negoti-
ations with the Union.
The uncontradicted testimony of several leadmen reveals
that at a meeting of leadmen in the office of Vice President
and General Manager R. N. Vanderkief, they were told by
Vanderkief that they could expect receipt of the annual
wage increase in May or June. During that meeting,
Vanderkief also stated that he was aware of the Union
among employees in the plant, but he did not say anything
about the Union beyond that observation. The meeting
occurred on or about March 1, 1976.
At a series of company sponsored suppers for various
production lines held at a local restaurant in Florence, on
March 10, 11, 16 and 17, Vanderkief again made reference
to the scheduled wage increase. Leadman Watkins White,
Jr., testified that, at the supper he attended, Vanderkief
stated that he could do nothing about a raise, "because the
Union was trying to come into the plant." Leadman
Singletary testified that at the supper attended by his line,
Vanderkief said that the raise would be given but he could
not say when because "he could not discuss it due to the
presence of union organizers . . . passing out cards."
Leadman O'Neal Rush testified that, at the supper he
attended, a question was directed to Vanderkief about the
raise and Vanderkief responded "That was one of the
questions that I wanted to hear," and explained that the
employees could not get the raise "because that would be
against the law because they brought the Union in there."
Group leader White testified that Vanderkief stated in
response to a question about the raise: "That he couldn't
get into that right now because of 'this Union mess.' "
However, Leadman Smith testified that when asked,
Vanderkief stated that there would be no changes and that
the employees could get the raise. Graham's testimony was
similar to that of Smith. Vanderkief was not called to rebut
any of this testimony and, although there are discrepancies
among several versions, I credit the testimony that
Vanderkief at some of the meetings told employees that
they would not get a raise as scheduled because of the
attempt by the Union to seek representation of the
employees.
Rod bender Nathaniel Graham testified that about 10
days after the April 22 Board-conducted election, in the
presence of fellow employee John Barnes, his supervisor,
Walter Miles, asked him where his raise was. When
Graham asked what raise, Miles responded: "The 12
percent raise that [you] would have got. . . if [you] hadn't
of worked for the Union." Graham expressed disbelief and
Miles insisted that a raise was granted to others. Former
employee John Barnes was present and corroborated
Graham.
Employee Charles L. Newnham, Jr., confronted Miles,
who was not his supervisor, with rumors that Miles had
told employees that they would have received a 12-percent
raise had it not been for the Union. Miles confirmed the
rumor and cited a "letter" in the plant office as his source
of information. Later, Miles told Newnham that he had not
read the letter and knew nothing of a letter. William
Cannon, Jr., a cutout trainee under the supervision of
Miles, heard the same rumor about 2 weeks after the
election and, when he also confronted Miles, he was told:
"Right; that's right, you all would have gotten a 12 percent
raise like the rest of the plant but, since you all petitioned
for a Union, I don't think you will get it now. 'In fact you
won't get it.' "
Employee Watkins White, Jr., and George Granger
testified that on or about May 1, their supervisor, David
Tyler, told them that those who had been eligible to vote in
the election would not get the 12-percent raise which other
employees were to receive. Granger testified further that
Tyler also stated that if the Union had not been voted in
the employees would have received the 12-percent raise
and that together they figured out the dollar amount that
he lost.
Neither Miles nor Tyler, admitted supervisors, was called
to contradict the above testimony, which I credit.
Efforts were made, subsequent to the filing of charges
herein, to settle that portion of the case relating to the wage
increase issue. Respondent offered to settle that portion
only. That offer was found unacceptable to the Regional
Director. Respondent implemented a wage increase for all
production and maintenance employees on August 20,
1976, and made it retroactive to May 2, 1976. At no time
did Respondent communicate with or negotiate with the
Union concerning the wage increase. On that date,
Respondent posted the following notice in the plant
addressed to employees:
During May and June almost all Nucor employees,
except you, received pay increases. Because of the
Union activities in this plant, you have been deprived
of a benefit already given to other employees.
A hearing date of October 4th, has been scheduled
on this matter by the NLRB and it appears that it may
not be resolved until late this year or even in 1977 - this
is not fair to you.
The Company is against discrimination of any
employee whether he belongs to a union or not. Also,
the Company does not believe in providing special
privileges or special treatment to any employee whether
he belongs to a union or not.
EFFECTIVE AUGUST 15th, YOUR WAGE RATES WILL BE
INCREASED BY APPROXIMATELY 12% - the same
increase provided at other Vulcraft plants earlier. In
addition, YOU WILL RECEIVE BACK PAY ON THE
DIFFERENCE BETWEEN THE NEW AND OLD WAGE RATES
SINCE MAY 2ND, the date this increase would otherwise
have been effective.
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NUCOR CORPORATION
Herbert Bines, a lead rigger, was approached by
Supervisor W. E. Jackson, at Jackson's blueprint desk next
to the line, about I month before the election and asked if
he "wouldn't mind having a man to man talk with me."
Bines agreed. Jackson asked Bines what he thought of the
Union. Bines, who testified that he daily displayed union
stickers on his work helmet and other union insignia in the
form of buttons and pencils, on his person, responded
"well from the way the things looked now, the Union
couldn't hurt nothing; it seemed to me that if it could do
anything, it could help; that it definitely couldn't hurt
nothing because I don't think we are getting the benefits or
anything right now that we should have, that we should be
getting. That is what I think about it." Jackson then stated:
"Well, who else on the line thinks so?" Bines answered, "I
think that just about all of them think the same thing."
Jackson who was discharged on March 24, 1976, for
alleged misconduct was not called to testify. Garrison
testified that Jackson had reported to him that he
interrogated Bines. Furthermore, Garrison admitted that
he tried to find out who was "working for the thing
[Union]," but that effort consisted of the supervisors'
approaching employees and explaining the benefits pres-
ently offered by the Respondent and that hopefully the
employee would express their own ideas and thus "this
would give us an idea of what was taking place." Clearly,
Jackson, an admitted supervisor, acting within the scope of
his authority, engaged in the conduct testified to by Bines.
Garrison did not testify as to whether or not he admon-
ished Jackson that he exceeded his authority, nor did
Garrison explain why Respondent found it necessary to
obtain the identity of "who was working for the thing [i.e.,
Union ]."
B. The Discharge of Graham
Nathaniel Graham was employed by Respondent for 12-
1/2 years prior to his discharge on May 17, 1976. He held
the job of rod bender. His union activity which com-
menced on or about March 1, 1976, consisted of attending
union meetings and distributing union authorization cards
and campaign materials, i.e., stickers, buttons, and pencils,
to employees in the cafeteria and in the plant parking lot.
Garrison admitted that he frequently toured the plant and
was aware that Graham displayed union insignia on his
helmet and person throughout the campaign but denied
knowledge that Graham engaged in other activities. There
is no direct evidence that any supervisor witnessed
Graham's activities other than the display of union insignia
on his person.
Graham testified that, about I month before the April 22
election, Shift Supervisor Cleo Lee engaged him in a
conversation in Lee's office concerning the nonpromotion
of employee O'Neal Rush to a foreman's position. During
the conversation, Lee told Graham that "some fellows told
him thy was going to get the Union to straighten out this
mess." According to Graham, Lee asked Graham why he
did not work to "move up the line." Graham had on
several occasions declined Garrison's offer to promote him
because he, Graham, did not wish to assume the responsi-
bilities of a supervisor which would be the ultimate goal of
such promotion. Lee reminded Graham that had he
accepted the position of lead rigger 3 years earlier, he
would now be a line foreman. Then Lee stated without
explanation that Garrison "wasn't after" Graham. Cleo
Lee, who testified as to other matters, did not contradict
Graham's credible testimony.
Garrison testified that Graham was an "excellent"
employee who possessed leadership ability, who had
influence among his fellow employees, and who "had as
great of a potential as any man that works at Vulcraft, in
my judgment." Thus, Garrison, on at least three occasions
in the past years, offered to promote Graham to lead
rigger.
Graham's testimony that his supervisor, Miles, had
characterized Graham as the "best rodman out there" was
uncontradicted.
Garrison's only reservation with respect to Graham's
performance was that on occasions Graham attempted to
change the work rules, i.e., he explained, at times Graham
sought the assistance of an extra man on his job. Also
Graham did not merely seek an extra man for himself but
Graham, accompanied by other rod benders, had con-
fronted Garrison in his office with a request for additional
assistance on the rod bender machine. According to
Garrison: "They wanted an extra man on the rod bender,
[they explained] that we were going too fast; they wanted a
man when they wanted him, and they thought that they
ought to have more money, several things were said . I
told them that our plant was being run like the other plants,
the sister plants; and that we would have to continue that
until such time as we could make changes in all plants." In
this regard Garrison conceded that he accused Graham of
influencing employees to "disregard" the rules.
Employee William Cannon, Jr., a/k/a Speedy Cannon,
was outspoken in his criticism of Respondent's rules.
Garrison conducted meetings on the line to explain, as he
had to Graham and other rod benders who accompanied
Graham to his office, that the Company rules would not
change. According to Garrison, "Speedy Cannon chal-
lenged me to quite a debate," and accused the Company of
mistreating employees, of not granting certain benefits, and
of withholding bonuses.
Cannon testified that in early March Garrison sum-
moned him to his office and stated, without explanation,
that he had heard reports of Cannon causing trouble on the
line and that it came from Cannon's "listening to Graham
and that Graham has been causing trouble out there for
quite sometime and sooner or later, Graham is going to slip
. . .to make a mistake, and when he [does], out the door
he is going, and you are goin, too." According to Cannon,
Garrison told him that it is "best to stop listening to
Graham because Graham 'don't run the line.' " On direct
examination, Garrison denied that he ever talked to
Cannon about "Graham's standing with the Company,"
and denied that he ever told Cannon that he was "out to
get Graham." However, on cross-examination, he testified
as follows:
Q. (By Mr. Favors) Was this the meeting at which
you told him [Cannon] that he had been listening to
Nathaniel Graham too much?
A. I don't think, sir, that that meeting took place. I
don't recall that particular statement being made.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. What do you recall you saying to him about
Nathaniel Graham?
A. In open meetings, we had talked about it. Now,
I may have talked to him out in the plant somewhere
and brought up something like this, or he brought up
something like this; or do that, or do the other.
Q. Uh-huh.
A. And that he wasn't paying attention to those
guys.
Q. Do you recall at any of those meetings that you
told him that he had better stop listening to Nathaniel
Graham?
A. I don't recall, recall.
Q. Or did you ever tell him that the source of his
problems was listening to Nathaniel Graham?
A. It may have come up, but I don't really recall
making that statement.
Although Garrison's denials were coupled with an
explanation that he considered Graham as a good
employee with "great potential," thus implying he had no
reason to make such statement to Cannon, it is quite clear
that the one thing about Graham that Garrison disliked
was Graham's desire to change the work rules and his
efforts to influence other employees to effect a change in
work rules. The confrontation in Garrison's office with
Graham's other rod benders necessitated the line meetings
where Cannon embroiled Garrison in a heated debate.
Garrison therefore did have a motivation to discuss
Graham with Cannon. His very uncertain testimony on
cross-examination concedes that "it may have come up,"
and he was unable to deny that he told Cannon that the
source of his troubles was Graham's influence. Additional-
ly, Cannon impressed me as being the more sincere,
assured, and certain in demeanor. I therefore credit
Cannon.
The event which precipitated Graham's discharge oc-
curred on Friday morning, May 14, 1976, at breaktime, in
the cafeteria, and involved Gene Caston, a vending
machine attendant, employed by the Servomation Compa-
ny which owns the vending machines in the Respondent's
cafeteria. When Graham was in the cafeteria, James Staley,
a rod bender helper, handed Caston's adjustable wrench to
Graham, who put it up his sleeve and carried it back to his
work area, where he concealed it on a shelf in a cabinet.
Caston had used the wrench to adjust some carbon dioxide
cylinders. Graham assumed that it belonged to Caston and
testified that he took the wrench to tease Caston. It was a
common practice for employees to engage in horseplay
with Caston, at times hiding products and supplies from
him while he serviced the machines. Graham and Caston
had frequently teased and kidded each other in the past.
Graham testified that he did not leave the wrench exposed
out in the plant for fear someone might steal it and we
would therefore have to purchase another wrench.
Caston testified that he was finished with the wrench and
would not have had use for it for about 1-1/2 weeks when
the cylinders again needed service. Employee Munn told
Caston that Graham had walked out with the wrench.
Munn did not see Staley hand the wrench to Graham.
Caston saw Garrison at coffee in the cafeteria and asked
him if he could get the wrench back from Graham.
Garrison called over Cleo Lee and asked him to investi-
gate. As Garrison was leaving, Caston testified that he told
Garrison that "maybe Graham will return the wrench."
Garrison testified that he did not hear Caston make that
statement.
Foreman Miles, pursuant to Lee's instructions, ap-
proached Graham on the line at 11:10 a.m. and asked him
if he had Caston's wrench and, upon an affirmative
response, told him that "they are looking for it in the
cafeteria." Graham, who was occupied with a work task,
waited until the next break, and then approached Caston
and asked him if he were looking for his wrench. Caston
replied, "you little rascal" and requested the wrench.
Graham playfully snatched a dollar bill out of Caston's
hand as the price for its return and, after he returned the
wrench, ate lunch. After eating lunch, he returned the
dollar to Caston.
After lunch, Garrison, who had interviewed Munn,
summoned Graham to his office. Graham explained to
Garrison that he had returned the wrench but Garrison
stated: "I know ... that wasn't the problem now."
Graham explained that he was only playing with Caston
and that he played with Caston all the time. Garrison
responded with a query as to how he could consider
retention of a wrench for 3 hours as "playing." According
to Garrison's uncontroverted testimony, Graham there-
upon stated that Staley handed him the wrench and told
him to hide it, whereupon Garrison promised to "check
into it." Garrison interviewed Staley who, he testified,
admitted handing the wrench to Graham but denied telling
him to hide it. Staley was requested to sign a statement
which was to be prepared by Garrison. Garrison thereafter
reinterviewed Munn and Caston. Munn did not observe
how Graham got the wrench. Caston testified, without
contradiction, that Graham had claimed that he and
Caston "kidded around a lot," whereupon Caston told
Garrison that this was true.
Staley testified that he was first interviewed by Garrison
about 1:30 p.m. on Friday, the 14th, and asked if he picked
up a wrench and handed it to Graham, which he admitted,
and whether he knew that Graham had hidden it on the
line, to which he denied knowledge. Staley testified that
that was the extent of the conversation. However, on
Monday, May 17, about 5:30 - 6 p.m., he was called to
Garrison's office and interviewed by Garrison in the
presence of Shift Supervisor Cleo Lee and Personnel
Manager Bert Brown. Staley testified that Garrison advised
him that Graham claimed that Staley told Graham to hide
the wrench and Staley denied that he knew Graham hid the
wrench on the line. According to Staley, at that point,
Garrison stated "he had to let [Graham] go because
'Nathaniel had been trying to tear this company down for
the last 3 years.'" Thereafter, according to Staley,
Garrison recited his futile efforts to try and convince
Graham to accept a leadman's job and that Graham had
the qualification to be a foreman; further Garrison asked
Staley to sign a notarized statement which had been
prepared concerning the event because it was "something
he had to keep in his file to make this thing about
Nathaniel stand up, and he knew that he'd be charged with
an unfair labor practice." Staley conceded that Garrison
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NUCOR CORPORATION
also stated that if Graham got away with such conduct any
employee could do the same and claim that they were
merely playing.
Staley further testified that on June 14, 1976, Garrison
called him to the office where he told Staley that he was to
receive a reprimand for "horseplay" because his lawyer
had advised that it was necessary "to make this thing stand
up about Nathaniel." Staley testified that Garrison assured
him that it would not jeopardize him. Staley was insistent
that he was not told on May 17 of any such warning or
reprimand. He also testified that Garrison claimed that he
was not called in earlier because it "slipped his mind."
Garrison, Brown, and Lee all testified that Staley was
advised by Garrison on May 17 that he was to receive a
reprimand. They were silent as to the balance of the
conversation. Garrison denied that he told Staley that he
was to receive a reprimand just to make the termination
stand up. However, he testified as follows:
Q: (By Mr. Harding) ... did you ever tell employee
James Staley that Mr. Graham had been attempting "to
tear down the company for the last three years"?
A: I may have mentioned this after I had terminated
Mr. Graham, yes. I may have mentioned it in view of
the fact that he had been trying to change the rules of
the company, but as far as trying to tear down the
company, no.
Garrison explained that the reference to changing the
rules related to his earlier testimony concerning Graham's
concerted effort to obtain an extra employee. Garrison
explained that the reason for a month's delay in issuing a
written reprimand to Staley was because of a "goof up,"
illness of one of the clericals, and "well, we had,
unfortunately, when you are having to fight union
organizing cases, and you are not quite prepared for this, it
takes a good bit more time to do these things." However,
Garrison conceded that he had success in getting Staley's
statement typed up on May 17, as well as other statements.
Brown testified that reprimands such as Staley's normally
cross his deck, and although it is his responsibility to see
that the records are timely maintained, he did not remind
Garrison of the necessity to write up a reprimand although
he reminds Garrison "10,000 times a day" as to similar
matters.
From the testimony as a whole, even from Garrison's
testimony, it is clear that Garrison did talk to Staley about
Graham's efforts to change the rules and that such conduct
rankled him. I find Garrison's testimony as to the delay in
the reprimand issuance totally unconvincing. Even he
could not pinpoint a precise reason in his uncertain
testimony. No attempt was made to explain why adequate
means were found to type up statements of witnesses but
none available for a concise, one paragraph, typed
statement of about 150 words. Brown's testimony high-
lights the absurdity of the explanation. Given the fact of
the delay and the fact that Garrison resented Graham's
concerted efforts to change the work rules and did discuss
it with Staley, though it was not related to the wrench
incident, I find Staley's testimony to be more inherently
probable than that of Garrison, Brown, and Lee. More-
over, I found Staley to have been more impressive in
demeanor with respect to responsiveness and certitude.
Therefore, I credit his version of the interviews with
Garrison on May 17 and June 14, 1976.
On Monday, May 17, Graham approached Caston in the
cafeteria and inquired whether Caston was angry with him
because of the wrench incident. Caston replied that he was
not. Caston, who wore a "go Vulcraft" insignia throughout
the campaign, testified that he kidded and joked with
Graham throughout the union organizing campaign, and
that he told Graham at that point: "Maybe after the Union
problem blows over, all of this mess will be ironed out." He
testified that he made this statement to Graham because he
felt "bad" about "having turned the boy in and possibly
causing him his job .... " He explained in his testimony
on cross-examination that: "Well, my concern right then
was my conscience .... " and further, when pressed to
explain why his conscience dictated such a statement, he
testified in a visibly shaken manner that he made the
foregoing statement to Graham merely to make him feel
better.
On Monday, May 17, Graham was discharged after
having first refused an offer to resign voluntarily. Garrison
testified that he discharged Graham because he could not
tolerate the taking of property under a pretense of a joke,
and that such conduct would set a bad precedent if not
punished with a discharge. Garrison testified that he had
been aware of a history of horseplay by Graham and others
with Caston in the past, but that he was unaware of any
incident where property was hidden in the cafeteria as part
of a joke. He admitted, however, that "we encourage
people kidding" in the plant as a morale booster. In the
final analysis, therefore, Garrison took the position that
Graham had intended to permanently deprive Caston of an
adjustable wrench. Respondent's plant rule regarding
"honesty" and its past implementation will be discussed
below.
C. The Discharge of Bines
Herbert Bines was employed by Respondent since June
1957, until he was discharged on June 28, 1976. He last
worked as a lead rigger, i.e., leadman under the supervision
of Fred Brockington, who replaced Supervisor W. E.
Jackson.
Commencing on or about March 1, 1976, Bines engaged
in union activity which consisted of distributing union
authorization cards in the plant, in the plant cafeteria, and
outside the plant on the street. Like Graham, he displayed
union insignia on his helmet and on his person. There is no
direct evidence that his distribution of union authorization
cards, (15 - 20 cards) was witnessed by any supervisor.
More than half of the 250 employees in the unit also
displayed similar insignia on their person. However, as
noted above, Bines was interrogated by Supervisor Jack-
son, who reported his interrogation back to Garrison.
Garrison, though he acknowledged observing union insig-
nia on both Graham and Bines, testified that he assumed
that both Graham and Bines were not supporting the
Union. In explanation, he testified that Jackson reported
that Bines "told it like it was," and that he was against the
Union. Garrison gave no explanation as to why he thought
Graham was against the Union, despite the wearing of
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union insignia by Graham. His testimony with respect to
Graham seems all the more incredible in view of Graham's
most recent concerted activities directed toward improve-
ment in the working conditions of the rod benders. As to
Bines, as noted above, Jackson was not called to rebut his
testimony, which I credit. At the time of the interrogation,
Jackson was admittedly a supervisor, and Garrison
conceded that Respondent made an effort to identify those
working for the Union, through the efforts of its supervi-
sors, and it is unlikely that Jackson would not have
reported accurately the results of his interrogation of Bines.
Even in the absence of Jackson's interrogation, given the
fact that Garrison testified that Respondent engaged in an
effort to discover the identity of prounion employees by
means of conversations between supervisors and employ-
ees, and his testimony that that effort was successful with
respect to "several of the inplant organizers," and given the
open activity of Bines and Graham, the evidence supports
an inference that Garrison had became aware of their
union activity.
Bines, like Graham, was considered by Garrison to be a
valuable employee. Garrison testified that when Fred
Brockington succeeded to Jackson's position, he (Garrison)
told Brockington of Bines' value to the company and,
furthermore, that Bines had the potential for promotion to
supervisor. Thus, although Bines had been reprimanded
twice in the past for leaving an assignment prematurely, he
was clearly held in high regard by Garrison.
The event which precipitated Bines' discharge occurred
on Saturday, June 26, 1976. It is unclear how many
employees worked on that day, although at least 20 were
working that day. Bines entered the cafeteria during his
morning break and, in an attempt to obtain change from a
malfunctioning milk vending machine either slapped,
banged, and/or kicked the machine and obtained some
change that varied from 75 cents to two hands full,
according to the testimony of various witnesses. He was
subsequently discharged for abusing the machine and
retaining money he obtained from it.
The machine had been malfunctioning. Caston testified
that on Monday he made an inordinate number of refunds
to employees who claimed that the machine had neither
dispensed a product, nor the money. When Bines ap-
proached the machine, a napkin was stuffed in its slot, as a
warning. Bines disregarded it. He testified that he inserted
a quarter, received no milk, futilely pushed the coin return
button, and then slapped the machine vigorously with the
palm of his hand, and received three quarters. He
reinserted two quarters again futilely, and again hit the
machine in the same manner. Receiving no further change,
he testified that he kept his original quarter and proceeded
to another machine.
Several employees sat in the vicinity of the machine, one
of whom was Robert Flynn, an employee of only several
weeks' tenure, who also happened to be a friend and
neighbor of machine attendant Gene Caston. Thus, fate
appears to have destined Mr. Caston to play another role
in events which led to the discharge of an employee. Flynn
testified that he observed Bines bang the machine with his
fist and kick it with his heavy steel reinforced work boot
until after sometime coins fell out which Graham held with
the cupped palms of his hands. Flynn testified that Bines
put the money in his pocket and reinserted another quarter
and recommenced banging until he gave up and left
laughing. Flynn told Caston later at his home what he
allegedly had seen, because Caston had told him to keep an
eye out because "so much" had been missing from the
machines. Caston did not mention any such instruction in
his testimony, but in any event decided to report the
incident to Respondent. On Monday, he reported it to
Garrison. When asked what he told Garrison, Caston
replied: "The same thing, I guess, that Bobby [Flynn] had
said to me, that the boy had pulled the plug, or had kicked
the machine, and then pulled the plug, and put a quarter in
it, and then lost the quarter too." Caston found no money
hung up in the machine's coin rejector on Monday, but was
at a complete loss to estimate how much money was
missing because of a mixup in his inventory system. He did
notice a bow or buckle on the front door of the machine,
but was unsure as to who or what caused it. He so informed
Garrison. However, Garrison promised Caston that he
would investigate and try to get Caston's money back.
Garrison talked to Flynn. During Flynn's interview with
Garrison, Flynn insisted that Bines obtained two handsful
of money from the machine. Flynn told him that employee
Wallace McCall was present. Garrison testified that he
interviewed McCall who told him that he saw a man with a
"handful" of money but he testified that he did not recall if
McCall had said that Bines kicked the machine. Garrison
interviewed employees Clark, Eaddy, and Newnham on
Monday and took several statements. Essentially, Garrison
testified that these employees stated that they were not in a
position to directly observe Bines but that they either heard
the banging or coins fall in a slot. Clark testified that he did
see Bines engage in various gyrations which gave the
appearance that he was "tearing up" the machine, but in
reality consisted of dancing and stomping his feet while
slapping the machine. He did see Bines reach in the slot
with two fingers and pull out something. Clark, whose
employment was since voluntarily terminated, testified that
he told Garrison that he did not see Bines kick the machine
because he was not sure whether he did or did not, but that
he told Garrison that Bines did not get any money out of it
except what he had put in. He was not asked by Garrison
to sign a statement. Newnham, who was also employed
elsewhere at the time of hearing, testified that he saw Bines
use his hands and bump the machine but saw no kicking.
He heard a few coins drop in the slot. When interviewed by
Garrison, he testified that he told Garrison that his
estimate was that Bines only obtained about 75 cents. He
signed a statement for Garrison. Richard Eaddy, who is
still employed by Respondent, testified to about the same
account of events as Newnham. He also testified that in the
interview with Garrison, at which Lee was also present, he
was asked if he saw a double handful of money but he told
Garrison that he only saw something like three to four
quarters which Bines retrieved with two fingers. He also
signed a statement for Garrison. Wallace McCall, a witness
called by Respondent, testified that he was present but did
not observe the beating. He did see Bines standing by the
machine with change in one hand while inserting coins
with another, and specifically that Bines had one hand
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NUCOR CORPORATION
cupped upward. In his statement to Garrison, McCall
stated that Bines had a "handful" of money. McCall
conceded that he did not see Bines pocket any money, that
the machine had exhibited problems for 1-1/2 years, and
that it was not unusual for employees to beat on the
machine. Roosevelt Harkless, an employee of 8 years'
tenure, also testified that it is a common practice for
employees to slap the machine to get their money returned.
Indeed, Caston also testified that he advised employees to
thump a recalcitrant machine.
Garrison testified that he accepted Flynn's version of the
incident because it was likely that the other employees
would be reluctant to report on a friend. There is no
evidence in the record, however, of any personal bias
toward Bines by those employees. Indeed Clark and Eaddy
were not employed by Respondent at the time of the
hearing and appeared to have no personal interest in the
matter. Flynn, on the other hand, conceded that he
suggested payment of $100 to Garrison during the Board
investigation of this case, in exchange for a copy of his
statement. He insisted that he was merely joking and
denied that he was promised any reward other than witness
fees for testifying. Flynn's account of the event given to
Garrison would suggest that it was physically impossible
for a person to obtain two handsful of coins. Clearly, the
slot was too small to contain such an amount, i.e., a
capacity of six coins at most. A flap over the slot keeps
coins from falling out. It is therefore obvious that one hand
is needed to hold open the slot. Moreover, in his testimony
Flynn did not assert that Bines had two handsful of coins.
However, Garrison accepted Flynn's account. Garrison
testified that after he interviewed Eaddy, Clark, Newnham,
and McCall he talked to Bines "to see if he would return
the money - because he was a valuable employee." Bines
told Garrison that he only retrieved 75 cents and that is
what he told Eaddy. It is Garrison's unrebutted testimony
that at that point Eaddy was called in and, in the presence
of Bines, stated that Bines refused to tell him how much
money he retrieved. Bines then insisted that he only hit the
machine like everyone else does. Garrison reinterviewed
Caston and was advised that there was no way to
determine what amount of money was lost, but he did say
that he noticed a new bow or buckle on the machine door.
Garrison reinterviewed Bines and told Bines that several
witnesses saw or heard him abuse the machine and heard
or saw him with a handful of money. Bines stated in
response alternately that he was only 25 cents to the good
or "even." Garrison then decided to discharge Bines for
taking money from the machine which did not belong to
him and for not returning it, as well as for abusing the
machine and thus setting a bad example as a leadman
which would "tear down the discipline in the plant."
Garrison cited the employer's handbook, page 21, the
paragraph entitled "Honesty" as the rule which both
Graham and Bines violated. Both employees had previous-
ly received copies of the handbook. The handbook section
entitled "Honesty" provides:
Each person is expected to respect the property of the
Company and of his fellow workers. Taking (stealing)
of even the smallest item from the Company or any
employee is strictly prohibited as well as any other act
of dishonesty.
Although not specifically cited by Respondent, page 21,
paragraph "Personal Conduct," also provides, in part:
Foul language, fighting, horseplay, gambling, and other
objectionable or unfavorable conduct will not be
allowed and is cause for dismissal.
The handbook set forth no scale of discipline, in ratio to
the degree of nor as to the frequency of the misconduct.
Garrison, who has held the position of operations
manager since October 1968 and who is responsible for 400
employees of whom 280 are employed in the manufactur-
ing phase, testified that he has not fired any other "long
term employees like Mr. Graham and Mr. Burns."
However, Garrison on direct examination did cite two
prior terminations for "taking from the company," in
violation of the "honesty" rule.
Foreman W. E. Jackson was requested to resign under
threat of discharge on March 24, 1976, because he had
allegedly understated the number of employees on his
production line in order to inflate his reported productivity
for a 4-month period which, in turn, increased the amount
of bonus awarded under a company incentive plan.
Because of his long tenure, Jackson was permitted to
resign. Joseph Odom, who was hired on February 2, 1974,
was discharged on June 21, 1974. Odom, a machinist,
allegedly was discovered by his foreman to have been
performing personal contract work on company time. He
was warned by his foreman to stop, but became abusive
and refused to stop. Accordingly, he was discharged
ultimately, as Garrison conceded on cross-examination, for
insubordination; i.e., had he complied with the order, he
would have not been discharged. Jackson was rehired by
the Nucor Corporation at its Darlington, South Carolina,
plant, 14 miles away. However, Garrison testified that he
was unaware of the rehiring until sometime after it
occurred. Although Garrison considered the rehiring a
"low blow," he did not testify that he took any steps to
counter that action other than to testify that the Darlington
plant has an autonomous hiring policy.
Garrison testified that, although the plant has experi-
enced past incidents of missing personal property, never
before has any employee been identified other than those
employees cited above. With respect to terminations in
general, Garrison testified that from February 1976 a
dozen employees were terminated, but that was due to a
high voluntary turnover that the plant experiences. Garri-
son testified that, although the handbook contains no
disciplinary reprimand procedure, the general practice calls
for a warning if an employee is "constantly guilty of one
particular thing, and if it is a bad enough situation that it
happened again, he is endangering his job." He went on to
explain:
No there are certain rules, for instance, coming in
drunk, that is a man is definitely terminated. Stealing,
he is definitely terminated. Most of these minor things,
missing time, for instance, would be one; now we try
our best to go as far as we can with employees and get
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them to be good employees because it is expensive to
train these people. We train them from the bottom all
the way to the top. So, we try to save them, and
sometimes we do put up with too much; but in actual
work; if a man within 90 days is not contributing to
production, he is terminated.
Now along the way, some men have a tendency to
slack off. We encourage them to improve themselves,
give them every opportunity to improve themselves. If
finally we come to the conclusion that they have no
intention of improving themselves we have no choice
but to let them go.
Garrison further testified that he has utilized both oral
and written reprimands, as well as suspension which he
considers a poor method for a major offense because "a
man is going to be forever working against you once this
has occurred."
Analysis
The 8(aXl) allegations
Garrison's stated reason for not implementing the wage
increase because of an assumption that such an increase
was subject to bilateral negotiation with a union is
indefensible. It is clear that, if in the normal course of
events employees would have received a wage increase, the
mere pendency of a question concerning representation
would not impede implementation of such a raise. Rather
an employer who withholds such increase and tells
employees that the reason for the withholding is a pending
petition violates the Act. Florida Steel Corporation, 221
NLRB 371 (1975); GAF Corporation, 196 NLRB 538
(1972); Montgomery Ward & Co. Incorporated, 187 NLRB
956 (1971). The fact that a union has been certified does
not justify an employer's withholding of a wage increase
that otherwise would have been implemented in the
absence of such certification. The Board has found that an
employer violated the Act where that employer withheld a
promised wage increase because in the interval between the
promise and the effective date of the wage increase the
employees selected a union to represent them, and the
employer anticipated that wages would be part of any
package it would be asked to agree to in a collective-
bargaining agreement. United Aircraft Corporation, Hamil-
ton Standard Division, (Boron Filament Plant), 199 NLRB
658 (1972). (See also Tube-Lok Products, 209 NLRB 666
(1974).) Similar conduct is found violative even in situa-
tions where there are appeals pending contesting the
certifications. Russell-Newman Manufacturing Company,
Inc., 167 NLRB 1112 (1968), enfd. 406 F.2d 1280 (C.A. 5,
1969); Howard Johnson Company, 172 NLRB 763 (1968).
Accordingly, I find that Respondent violated Section
8(aX1) of the Act by withholding the scheduled 12-percent
wage increase from the production and maintenance
employees on or about May 1, 1976.
Respondent argues further that because it posted the
August 20 notice to employees and because it effectuated
the wage increase as of May 1, 1976, the matter has been
mooted. Further it argued that in any event the Respon-
dent's August 20 conduct dispelled any coercion that might
previously have transpired, citing Whyte Manufacturing
Company, Inc., 109 NLRB 1125 (1954). However, I find the
Whyte case distinguishable from the facts herein. The
Board therein found that the employees' designation of a
new bargaining representative was protected concerted
activity, and that the conduct of employer therein in
requiring them to sign new authorization cards redesignat-
ing the union as their bargaining representative was a
violation of the Act. However, the Board found that, by the
"subsequent return of the authorization cards and state-
ments and distribution of a 'neutrality' notice to the
employees only 4 days later, the Respondent Employer
acted promptly and reasonably to dispel any coercion
suggested by the circumstances surrounding its prior
unlawful conduct and thereby dispelled any such coer-
cion." In the instant case, Respondent by no stretch of the
imagination acted promptly. Moreover, the notice posted
on August 20 clearly states that the employees were
deprived of a benefit given to other employees, "because of
the Union activities in this plant" and then points out that
the issue of its legality will be resolved pending further
litigation. Thus, although the balance of the notice
promises no discrimination by the employer because of
union activities and does effectuate a retroactive raise, it
does, as a whole, suggest that the employer still does not
concede that as a matter of law it cannot withhold benefits
from employees within the context of facts in this case; i.e.,
the pending of a question concerning representation. Such
a notice I find inadequate as a remedy for its conduct
herein which I find did not merely consist of a technical
misjudgment of the law, but which consisted of statements
by supervisors to employees that were calculated to convey
the message that they were being punished because of their
engagement in union activities, and in one case because
they voted for the Union. Accordingly, I do not find that
Respondent's August 20 conduct to have mooted the issue
or to have dispelled the coercion of its employees.
However, I do not view the August 20 conduct as
violative of Section 8(aXl) of the Act in itself. Again the
statement which does recite the past conduct of the
employer, when read as a whole, suggests that the legality
of that conduct will be litigated. I do not read the notice to
constitute a threat of repeated coercive conduct. Accord-
ingly, I do not find it violative of the Act.
With respect to the interrogation of Herbert Bines by
Supervisor Jackson, Respondent argues that the totality of
the circumstances render such interrogation as noncoer-
cive; i.e., an isolated, generalized, inquiry during worktime
near the production line which occurred in an amiable and
relaxed atmosphere, which elicited a truthful response.
The Board has stated in Florida Steel Corporation, 224
NLRB 45 (1976):
It has long been recognized that the test of interference,
restraint, and coercion under Section 8(aX)() of the Act
does not turn on a respondent's motive, courtesy, or
gentleness, or on whether it succeeded or failed. It also
does not turn on whether the supervisor and employee
are on friendly or unfriendly terms. Rather, the test is
whether the supervisor's conduct reasonably tended to
interfere with the free exercise of the employee's rights
under the Act.
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NUCOR CORPORATION
In this instant case, there is no evidence to suggest that
Jackson and Bines were close friends or that it was a casual
conversation other than Jackson's request to have a "man
to man talk." It occurred at the situs of Jackson's
authority; i.e., at his desk. It went beyond a mere inquiry of
Bines' union insignia to an elicitation from Bines as to the
identity of other union supporters. I fail to grasp how
Bines' truthfulness detracts from the coercive nature of the
interrogation. It merely demonstrates the effectiveness of it.
Moreover, as stated above, the test is the tendency of the
conduct to coerce. Furthermore, Respondent admittedly
engaged in a campaign of widespread conversations with
employees calculated to discover the identity of employees
who worked for the Union. Against such a background, I
conclude that the conversation was clearly coercive and
that its impact did not tend to be so isolated as Respondent
suggests. The attempt to ferret out the identity of union
activists by coercively interrogating a union activist is not a
mere isolated occurrence. Accordingly, I find such conduct
violative of the Act and warrants a remedial order.
The 8(a)(3) issues
It is axiomatic that an employee may be discharged for a
good reason, a bad reason, or no reason at all, but not for
any conduct that is protected by the Act. N. LR.B. v.
McGahey, et al. d/b/a Columbus Marble Works, 223 F.2d
406 (C.A. 5, 1956).
It is true, as Respondent argues, that the Board cannot
substitute its judgment for the business judgment of an
employer, and thus the wisdom of a discharge is not
dispositive of the issue. However, as stated in Shattuck
Denn Mining Corporation (Iron King Branch) v. N.LRB.,
362 F.2d 466, 470 (C.A. 9, 1966):
If he [the trier of fact] finds that the stated motive for a
discharge is false, he certainly can infer that there is
another motive. More than that, he can infer that the
motive is one the employer desires to conceal - an
unlawful motive - at least where, as in this case, the
surrounding facts tend to reinforce that inference.
Also it has been found that:
Illegal motive has been held supported by a combina-
tion of factors such as "coincidence in union activity
and discharge" . . . "general bias or hostility toward
the union" . . . variance from the employer's "normal
employment routine" . . and an implausible explana-
tion by the employer for its action .... " McGraw -
Edison Company v. N.LR.B., 419 F.2d 67 (C.A. 8,
1969). See also W. T. Grant Co., 210 NLRB 622 (1974).
Both Graham and Bines were valuable employees who
enjoyed a lengthy tenure covering many years. Graham's
performance, according to Garrison, had one flaw; i.e., he
attempted to change the rules. Specifically, he engaged in a
concerted effort to improve working conditions. Cannon's
testimony reveals the extent of Garrison's resentment to
such activity by Graham. On the heals of Graham's
concerted activities to improve working conditions came
his known activity of displaying prounion insignia. Garri-
son admitted that he sought to identify those employees
who worked for the Union. Thus Bines' prounion sympa-
thies were elicited by Supervisor Jackson. Therefore, if
Garrison had not become aware of Graham's additional
union activities, through plant interviews and his own
observation, it would have been logical for him to assume
that Graham strongly espoused the union cause.
Respondent did exhibit an animosity to the union
activity in the form of the withholding of a wage increase
that was otherwise due to the production and maintenance
employees. This was no mere technical transgression. The
supervisors in various conversations after the election
reinforced the calculated effect of such conduct. Supervisor
Jackson's interrogation of Bines is further evidence of
Respondent animosity.
Thus Respondent was possessed of a union animus at the
time it decided to discharge two known union adherents.
It is therefore necessary to evaluate the proffered reasons
for their discharge. By Garrison's own admission, employ-
ees of lengthy service in whom Respondent has invested
much expense in training are not lightly dismissed.
Graham admittedly took a wrench from nonemployee
Caston. This clearly was an act of common horseplay.
Caston told Garrison that the two frequently kidded each
other. Caston was in no immediate need for this tool.
Given Graham's long tenure as a responsible employee and
his value as a potential foreman, it is most unreasonable for
Garrison to have assumed that Graham's explanation was
not truthful.
With respect to Bines, Garrison relied on the statement
of an employee of several weeks' tenure to discredit a
valuable leadman who had an exemplary work record since
1957. There is no evidence that Bines or Graham had been
untruthful in the past. No one had any idea of how much
money was missing from the machine. Flynn's account is
unbelievable on its face. Caston made no demand for the
return of any specific amount of money. He was not even
sure that Bines was responsible for the slight bow in the
front of the machine. It was common practice to slap the
recalcitrant machine.
The nature of the bases for these discharges is finally
highlighted by resort to an examination of past practices.
Garrison cited the "honesty" rule, the breach of which he
testified constituted such a major offense as to warrant
discharge on the first infraction. The only other nonsuper-
visory employee who breached this rule, Odom, was not
actually discharged for "taking from the company"; i.e.,
stealing time for personal business. Indeed, he was warned
to cease and desist, and upon an outright refusal to desist
he was fired. Odom was an employee of extremely short
tenure, yet he was given the opportunity to continue his
employ with only a warning until he became insubordinate.
The only other discharge involved a foreman who had
engaged in misconduct for over a 4-month period, i.e., a
conspiracy to defraud Respondent with respect to incentive
bonuses, but who was rehired elsewhere by the Nucor
Corporation. At worst, Bines' and Graham's conduct was
spontaneous and petty and not nearly of the gravity of that
of Odom. Moreover, the property of neither the employer
nor employees was involved. The aggrieved third party,
Caston, had made no request for any discipline. Accord-
ingly, I conclude that the severity of punishment meted out
305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Graham and Bines ran contrary to Respondent's past
policy for minor misconduct as explained by Garrison, and
as effectuated in Odom's case, supposedly involving a
major offense.
Finally, Garrison's conduct with respect to Staley's
reprimand and his conversations with Staley reveal an
effort to contrive a basis upon which to discharge Graham.
I therefore conclude that Respondent's reasons for the
discharge are implausible, unbelievable, and pretextuous in
nature. I find, in light of Respondent's animosity to the
union organizing effort and the coincidence of known
union organizing efforts by Graham and Bines, that the
time motivation for their discharge was their union
organizing activities. Furthermore, I find that, with respect
to Graham, Respondent was also motivated in part by
Graham's concerted activities, engaged in for the mutual
benefit and betterment of working conditions of fellow
employees in the rod bending department. Such concerted
activity has been afforded protection by the Act to the
same extent as institutional union activity. Carbet Corpora-
tion, 191 NLRB 892 (1971).
Accordingly, it is my conclusion that the Respondent
violated Section 8(a)(1) and (3) of the Act by discharging
Nathaniel Graham on May 17, 1976, and by discharging
Herbert Bines on June 28, 1976.
CONCLUSIONS OF LAW
1. Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in
Section 7 of the Act, thus violating Section 8(aX)(1) of the
Act by withholding from its production and maintenance
employees until August 20, 1976, a 12-percent wage
increase they would have received on or about May 2,
1976, because of the pendency of a representation petition,
and by Supervisors Miles and Tyler telling its employees
after a Board-conducted election that they did not receive
the aforesaid raise and would not receive it because they
supported the Union, petitioned for a Board-conducted
election, or voted for the Union; I and by Supervisor W. E.
Jackson's coercive interrogation of an employee as to his
and other employees' union sympathies on or about March
22, 1976.
2. Respondent has violated Section 8(aX)( and (3) of
the Act by discharging Nathaniel Graham on May 17,
1976, because of his union activities and sympathies and
his concerted protected activity, and by discharging
Herbert Bines on June 28, 1976, because of his union
activity and sympathies.
3. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
I Vanderkieft's preelection conduct was not alleged as an independent
violation of the Act and I make no finding thereon.
2 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 the recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Nathaniel Graham and Herbert Bines, Respon-
dent shall offer them immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and shall make them whole for any loss they may have
suffered by reason of the discrimination against them. Any
backpay found to be due shall be computed in accordance
with the formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
"A violation of Section 8(aX3) goes to the very heart of
the Act." It therefore warrants that Respondent be further
required to cease and desist from infringing in any other
manner upon the rights guaranteed employees by Section 7
of the Act. Pan American Exterminating Co., 206 NLRB
298, fn. 1 (1973); Entwistle Manufacturing Company, 23
NLRB 1058, enfd. as modified 120 F.2d 532 (C.A. 4, 1941).
Upon the basis of the entire record, the findings of fact,
and the conclusions of law, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 2
The Respondent, Nucor Corporation, Vulcraft Division,
Florence, South Carolina, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Telling employees that it has withheld a scheduled
wage increase from them because they have petitioned the
National Labor Relations Board for a representation
election, or because they voted for or supported the United
Steelworkers of America, AFL-CIO-CLC, or any other
Union, 3 or in fact withholding such wage increase for these
reasons.
(b) Coercively interrogating employees concerning their
and other employees' union sympathies.
(c) Discouraging membership in or activities on behalf of
United Steelworkers of America, AFL-CIO-CLC, or any
other Union, or discouraging the concerted activities of
employees engaged in for their mutual aid and protection
and betterment of working conditions by discharging or
otherwise discriminating against employees in any manner
with regard to their rates of pay, wages, hours of
employment, hire, tenure of employment, or any term or
condition of their employment.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist the above-named labor
organization, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
3 In view of the fact that Respondent has on August 20, 1976,
implemented the wage increase retroactively to May 2, 1976, the Order will
only be directed prospectively.
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NUCOR CORPORATION
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Nathaniel Graham and Herbert Bines immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings
they may have suffered by reason of the discrimination
against them 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 and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other documents
necessary and relevant to analyze and compute the amount
of backpay due under this Order.
(c) Post at its Florence, South Carolina, facility copies of
the attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director for
Region 11, after being duly signed by the Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Company to ensure
that said notices are not altered, defaced, or covered by
other material.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
4 In the event the Board's Order is enforced by a Judgment of the 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."
APPENDIX
NOTIcE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity to
present evidence and state their positions, the National
Labor Relations Board has found that we have violated the
National Labor Relations Act and has ordered us to post
this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist unions
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for purposes of
collective-bargaining or other mutual aid or
protection
To refrain from any or all such activities,
except to the extent that the employees' bargain-
ing representative and an employer have a
collective-bargaining agreement which imposes a
lawful requirement that employees become union
members.
WE WILL NOT tell our employees that we have
withheld a scheduled wage increase from them because
they have petitioned the National Labor Relations
Board for a representation election, or because they
voted for or supported the United Steelworkers of
America, AFL-CIO-CLC, or any other Union, nor will
we in fact withhold such wage increase for these
reasons.
WE WILL NOT interrogate employees concerning their
own sympathy toward any labor organization or
concerning the union sympathies of other employees.
WE WILL NOT layoff, discharge, or otherwise discrim-
inate against employees for engaging in activities on
behalf of United Steelworkers of America, AFL-CIO-
CLC, or any other labor organization, or other
concerted activities for their mutual aid, protection, or
improvement of working conditions.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed by Section 7 of the National Labor
Relations Act.
WE WILL offer Nathaniel Graham and Herbert Bines
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to
their seniority or other rights and privileges, and we will
make them whole for any loss of pay they may have
suffered as a result of the unlawful discrimination
against them.
NUCOR CORPORATION,
VULCRAFT DIVISION
307