Pascoe Steel Corp.Download PDFNational Labor Relations Board - Board DecisionsMar 23, 1967163 N.L.R.B. 572 (N.L.R.B. 1967) Copy Citation 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, we hereby notify you that: WE WILL NOT picket, or cause to be picketed, Terry Elkhorn Mining Company, Inc., or Marshall Mahan doing business as Mahan Coal Company, where an object thereof is forcing or requiring employees of said employers to accept or select us or any other labor organization as their collective-bargaining representative , in circumstances violative of Section 8(b)(7)(C) of the Act. UNITED MINE WORKERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) DISTRICT 30, UNITED MINE WORKERS OF AMERICA (Labor Organization) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting , and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, Room 2407 Federal Office Building , 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3663. Pascoe Steel Corporation and United Steelworkers of America , AFL-CIO. Case 1O-CA-6519. March 23,1967 DECISION AND ORDER BY MEMBERS FANNING , BROWN , AND ZAGORIA On September 28,1966, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision 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 powers in connection with this case to a three- member panel. ' Azalea Meats, Inc., 159 NLRB 585, next to last paragraph of part 111. D , of the Trial Examiner 's Decision. 163 NLRB No. 70 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent with our decision herein. The complaint herein alleged, and the General Counsel argued before the Trial Examiner, that Respondent's discharge of employees Dowdney and Earnest for allegedly threatening a fellow employee was a pretext to cloak a discharge for union activity. The Trial Examiner stated that, although the facts created a suspicion , he was of the view that the General Counsel had not established that Dowdney and Earnest were discharged because of their union sympathies or activities in violation of Section 8(a)(3). The Respondent's knowledge of the enthusiastic support which these employees gave to the Union is clear. Lee's questioning of, and threats to, them was persistent and constituted continued violations of the Act which are without dispute attributable to the Respondent. And, Lee was deeply involved in the reports of the alleged employee misconduct and the subsequent discharge of the two. Lee was, in fact, present when they were told they were terminated, instructed them to punch out, and refused to permit Earnest to discuss the situation with Murner. Under all the circumstances, it is apparent that Lee's antiunion bias carried over and played a part.in his .activities in the discharges of Dowdney and Earnest, and such bias was also attributable to the Respondent. In this situation, it is immaterial that Lee may have threatened and interrogated the employees in direct disregard of Respondent's prior instructions.' Rather, in view of Lee's unlawful conduct, the timing of the discharges shortly after the unlawful interrogation and threats, Respondent's failure to secure their version of the alleged incident from Dowdney and Earnest, and the precipitate discharge of two competent and efficient welders, although this was a category in which satisfactory employees were in short supply, without even granting Earnest's request to discuss the matter with higher management, we are persuaded that the General Counsel has established that the Respondent discharged Dowdney and Earnest because they were ardent union supporters rather than because of their alleged threats to employee Murner concerning the effects of a picket line if the Union were selected and a strike ever occurred.2 Accordingly, we find that the record establishes that e See Azalea Meats, supra, TXD re Edward Chandler. PASCOE STEEL CORP. 573 Dowdney and Earnest were discharged in violation of Section 8(a)(3) and (1) of the Act.3 observation of the demeanor of each of the witnesses testifying before me, I make the following: 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 Trial Examiner and hereby orders that the Respondent, Pascoe Steel Corporation, Columbus, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order with the following modification: 1. Add the following as paragraph 2(b), those subsequent thereto being consecutively relettered: "(b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." I The Trial Examiner found that Dowdney and Earnest had not threatened Murner and that as they had not engaged in misconduct in the course of concerted activities, their discharge violated Section 8(a)(1) Since we have found that the alleged misconduct of Dowdney and Earnest was a mere pretext which the Respondent used, it is immaterial whether they in fact engaged in, or the Respondent believed that they had engaged in, such misconduct In view of this, we find it unnecessary to consider whether the discharge of Dowdney and Earnest was violative of Section 8(a)(1) of the Act under the theory of N L R B v Burnup & Simms, Inc , 379 U S 21, as found by the Trial Examiner TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN , Trial Examiner : Upon a charge filed on April 11 , 1966 , and an amended charge filed April 27, 1966 , by United Steelworkers of America, AFL-CIO, herein called the Union , the Regional Director for Region 10 of the National Labor Relations Board, herein called the Board , issued a complaint on June 3, 1966 , on behalf of the General Counsel of the Board against Pascoe Steel Corporation , herein called the Respondent or the Company, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed answer to the aforesaid complaint, the Respondent , while admitting certain allegations thereof, denied the commission of any unfair labor practices. Pursuant to notice , a hearing was held before me in Columbus, Georgia . All parties were present and afforded full opportunity to be heard , to produce relevant evidence, to present oral argument , and to file briefs . Oral argument was waived . Briefs were filed by the General Counsel and the Respondent. Upon consideration of the entire record in this case, including the briefs of the parties, and upon my FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Georgia corporation, with its offices and place of business at Columbus, Georgia, is engaged in the fabrication and sale of steel and steel products. During the calendar year immediately preceding the issuance of the complaint herein, a representative period, the Respondent, in the course and conduct of its business, sold and shipped products of a value in excess of $50,000 directly to customers located outside the State of Georgia. It is admitted, and I find, that the 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 admitted, and I find, that the United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues 1. Did the Respondent's supervisor, George Lee, unlawfully interrogate employees regarding their union activities and sympathies and threaten employees with reclassification if the Union were successful? 2. Did employees Dowdney and Earnest threaten employee Murner with physical violence and property damage to induce the latter to loin the Union? 3. Did Respondent discharge Dowdney and Earnest because of the alleged threats or because of their union activity? 4. If the threats were not made, but Respondent believed they were and discharged Dowdney and Earnest for that reason, were the discharges nevertheless unlawful? B. Interference, Coercion, and Restraint The Union began an organizing drive of the Respondent's employees about the beginning of February 1966. It filed a petition for an election with the Board on March 14, 1966,' and a representation case hearing was held on April 1, 1966. Thereafter, by order of the Regional Director, an election was held on May 6, 1966. The Union won the election and objections were thereafter filed by Respondent to conduct allegedly affecting the results of the election. The Regional Director found no merit to the Respondent's objections and the Respondent thereafter filed a request for review with the Board. Employee William Horace Dowdney signed a union authorization card on February 21,1966. Employee Orwen Glyn Earnest signed an authorization card sometime in February 1966, which card was misplaced or lost, and on March 9, 1966, Earnest signed another union authorization card. George Lee was Dowdney's departmental supervisor in the pontoon department from the time that Dowdney was ' Case 10-RC-6630 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employed by the Respondent around February 1, 1966, until Dowdney's discharge on April4, 1966. About March 11, 1966, Lee came to Dowdney's work station and engaged him in a conversation. Lee then asked Dowdney whether the latter had been approached about the Union. When Dowdney answered in the affirmative, Lee asked him if he had signed a union card and again Dowdney answered in the affirmative. Then Dowdney told Lee not to ask him about anybody else. Lee then said it was everybody's privilege to join or not join a union but that he believed that the union activity in the shop was the cause of bad work being turned out. Lee ended the conversation by telling Dowdney that the conversation was confidential. Thereafter, around March 21, Lee engaged Dowdney in a second conversation and again told him that the union activity around the shop was the reason for production falling off. Dowdney then answered Lee to the effect that if the Union came in it would be better all around because the employees would then have to keep up production. Lee then added, "Yes, if the union comes in, they'll send men around with stopwatches and reclassify all the jobs and set up new production quotas."2 Like Dowdney, Earnest was also employed in the pontoon department under the overall supervision of George Lee, Earnest having been employed about July or August 1965. Around March 1, 1966, Greer, an inspector (not a supervisor), Lee, and Earnest engaged in a conversation. Greer asked Earnest some questions about the Union. Then Lee asked Earnest how the latter felt about the Union. Earnest told Lee that he had once belonged to another union in another plant and that some aspects of the union were good and some were not. Lee said that he had also belonged to a union but he did not think a union would help the men at Pascoe Steel and that he wasn't for anything that he did not think would help the men. Then Lee asked Earnest if the latter had been to the union meeting the night before. Earnest answered that he had been and that he was for the Union 100 percent. Lee came to Earnest's work station 2 or 3 weeks later and said that the Respondent had just lost a contract for 2,000 pontoons, a year's work, because of poor workmanship. He again asked Earnest whether the latter had gone to the union meeting the night before. Earnest answered that he had gone to all the union meetings. The conversation then returned to the bad work in the department. Lee said that Earnest's work was up to standard even since Earnest had joined the Union and that Lee was happy to have Earnest on his crew. On approximately March 31, while Earnest was helping Lee perform some work, Lee asked Earnest again if the latter had gone to the union meeting the night before. Lee also asked if there had been a good crowd there. He then asked who had attended. Earnest answered that he had been there but that if Lee wanted to know about any others, Lee would have to ask them. Lee then went away but returned later and brought up the Union again , repeating that he did not think that the Union would help Respondent's employees, but if the Union did come into the Respondent's plant the employees would all have to be able to read blueprints and take tests on all types of welding-vertical, overhead, and horizontal. Then Lee added "which you know you can't do." Earnest admitted that he could not do all of the various types of work.3 In connection with the foregoing, Respondent's operation manager, Richard Mullin, testified credibly that when he received the Union's letter of demand for recognition he immediately informed Respondent's counsel who, on February 23, held a meeting at which all of the Respondent's supervisors were present. Counsel went into great detail as to what the supervisors could or could not do under the Act during the campaign and preelection period. Supervisor Lee was present at this meeting. Later that week, Mullin distributed to each of the supervisors a list of written instructions covering this matter. Lee received a copy. C. The Discharges As set forth above, Dowdney and Earnest participated in the Union's campaign to the extent of talking about the Union to, and obtaining several union authorization cards from, their fellow employees. The record contains no direct evidence that the Respondent knew of these activities. However, as heretofore set forth and as virtually admitted by Lee, who was at that time departmental head of the pontoon department, he knew through interrogating Dowdney and Earnest that the two were union adherents at least insofar as they attended meetings and favored the Union. While this limited knowledge was the only knowledge Respondent possessed of the activity of Dowdney and Earnest, the Respondent did know who the most active union adherents were inasmuch as these more active individuals testified at the representation hearing held only 4 days before the discharge of Dowdney and Earnest on April 4. Neither Dowdney nor Earnest testified, nor were they asked to appear, at the representation hearing. On April 1, 1966, during the working day, Dowdney and Earnest agreed with two other employees, William Ray Murner and Joe Frank Haney, to go together to a night club and dance hall called "Charlie's" located a few miles outside of Columbus. That evening Murner drove his car, picked up the other three men, and then they all proceeded first to a bar across from "Charlie's." There, after having several beers apiece, the four crossed the street and entered "Charlie's." They sat around a table inasmuch as the music had not started and conversed about a number of things. Sometime during that conversation, the discussion turned to the matter of the Union. The testimony as to what was actually said at that conversation with regard to the Union presents a credibility conflict, the resolution of which goes to the heart of this proceeding. According to both Dowdney and Earnest, it was Murner who brought up the subject of the Union. He explained that he would like to have gone to the union meetings and to have joined the Union but was afraid that the Union 2 From the credited testimony of William Horace Dowdney I do not credit the denials by Lee of his part in these conversations ' From the credited testimony of Earnest Lee admitted that he had engaged in conversations concerning the Union with Dowdney, Earnest, and Cotton, another employee However, Lee stated that in each case it was the employee and not Lee who brought up the subject of the Union In view of Lee's admissions that he had had conversations concerning the Union with the employees, and in view of the fact that he did not specifically deny the exact conversations which both Dowdney and Earnest related, and that the questions and statements made by Lee to both employees were very similar, and from my overall observation of these witnesses as they testified on the witness stand, I conclude that the incidents occurred in the manner described by Dowdney and Earnest, and I credit their versions PASCOE STEEL CORP. 575 would cause a strike; that he could not afford to be out on strike with a family to support and his wife pregnant. According to Dowdney, he assured Murner that there would not be any strike, that the men at Pascoe would do the negotiating. At that point, according to Dowdney, the band commenced playing and he left the party at the table in order to dance. Earnest testified that Murner wanted to know how the Union worked and Earnest and Dowdney told Murner, the best thing that the latter could do was to go to a union meeting and let the union representative explain to him how the Union worked. Earnest also further testified that he and Dowdney explained to Murner that the Union at the Respondent's plant would be made up of Respondent's employees and in this respect Earnest's testimony is confirmed by Dowdney's testimony. Earnest then testified that at that point he thought that Dowdney left the table but he was not sure. After this, according to Earnest, Murner wanted to know if he could cross a picket line and go to work. He said that his wife was pregnant and he couldn't afford to be out of work. According to Earnest, he told Murner that he did not think they would be out of work because he did not think that there would be a strike; that a contract would be signed without striking. Then, after Dowdney left the table, Murner asked how he could be stopped from crossing a picket line. According to Earnest, he didn't say a picket line at Pascoe Steel or any specific place, but asked the question generally. He merely said, "How can I be stopped from crossing a picket line?" Earnest answered, "If there were 150 men outside on the road picketing, and if there was a tree trunk or telephone pole happened to fall across his car, who knew why it was there, or how it came to fall, and who was going to tell?" Then, according to Earnest, Murner asked him if Murner walked across a picket line how could he be stopped from walking across the picket line. Again Murner did not mention at Pascoe Steel or any other specific place. Then, Earnest replied "If there were 150 men out there picketing at the side of the road somewhere, and he walked across it and they beat him up, then who was to tell, out of the 150 men?" Then Earnest said to Murner, "That's how you can be stopped from crossing the picket line." Then, according to Earnest, he explained to Murner that these things did happen and he related to him about an incident up in New Jersey or New York that he saw on television where a strike was taking place and men with clubs were beating up people crossing the picket lines. Joe Haney, according to Earnest, then said "That's right. That does happen." According to Earnest, no one was talking about a picket line at Pascoe Steel or directing this specifically at Murner. Earnest further testified that immediately thereafter he explained to Murner that in 1960 Earnest had belonged to a union, that there was a 3-day strike, and then the men went back to work. He told Murner that there was no violence or any unusual occurrences during that particular strike. Thereafter the music started to play and Earnest left the table to dance. Murner testified that at "Charlie's" place Dowdney brought up the subject of the Union. Dowdney asked why Murner had not attended the meetings and joined the Union. Murner answered that he had other things to do. Murner then asked Dowdney how it would benefit him and what would happen if a strike occurred. He explained to Dowdney that he could not afford to strike inasmuch as he had a family to look out for. Earnest answered that in case of a strike Murner would have nothing to worry about because the Union would take care of him. Then, according to Murner, Earnest said, "If you did cross that picket line, I'd hate to have to mess your head up." At this point in his testimony Murner added "or something like that." According to Murner, Dowdney was still at the table at that time. Murner also testified that during the discussion he asked about telephone calls. He explained to the others that he had heard when he was home that employees had received threatening telephone calls. Then, according to Murner, either Dowdney or Earnest said, "Well, that goes along in the Union." Then Murner added "or something." According to Murner, also in that conversation, he told Dowdney and Earnest that he did not want to have his car damaged because he had a lot of money tied up in it. Then, Earnest said, "Well, that can happen with putting sugar in my tank or something." Murner further testified, as confirmed by the testimony of Haney, that when these statements were made by Earnest, Dowdney was sitting there looking at Earnest and Murner and shaking his head in agreement. Haney was far more vague in his testimony than were the other three. He testified that Murner asked Earnest "something" about the Union and Earnest said "It can't harm you." Then, according to Haney, Earnest filled Murner in about the Union and Murner said he was not interested then, but would make up his mind later. Then, Earnest further testified, after further discussion they talked about picket lines and how they operated and functioned. Earnest said something about having 150 men on the line. According to Haney, Murner asked if the plant went union would he be able to come into work because 150 men were not going to allow him to come in to work. Murner asked how they would stop him and Earnest answered "Well, there's accidents could come to your car. Haney further testified that Murner wanted to know what would happen if he walked in rather than rode in and Earnest answered "Well, they're liable to beat up on that head a little bit you know. I think that would persuade you not to want to work." Then, according to Haney, he went to the restroom and when he came back he heard Earnest say something about "If a fellow did cross the picket line 2 pounds of sugar in the gas tank would make him lose a lot more than he could make if he did work." According to Haney ever so often Earnest would look at Dowdney who would shake his head in agreement with what Earnest was saying. It was agreed by all the witnesses that thereafter the conversation concerning the Union was discontinued. All four stayed at "Charlie's" until about 11 p.m. They all finally left "Charlie's" in Murner's car and went to the apartment of another employee, Joe Cotten. Sometime thereafter, Murner, Earnest, and Dowdney left Cotten's apartment and went to Dowdney's home. Thereafter, Dowdney, Earnest, and Murner left Dowdney's home, took Murner to his apartment at which time Murner loaned Dowdney and Earnest his automobile. Then the two left and went back to "Charlie's" place. Finally the party broke up about 2 or 3 a.m. Thereafter, Dowdney's wife, whom they picked up at Dowdney's home on a later visit to Dowdney's home, drove Dowdney's car to Murner's apartment and Dowdney or Earnest drove Murner's car to Murner's home and left it there. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Monday, April 4, about 7:30 a.m., Murner called Lee to his work station. Lee went over and, according to Lee, Murner's voice was quavering. Murner told Lee about going to a cafe in town with three other fellow employees, Dowdney, Earnest, and Haney According to Lee, whom I credit in this respect, Murner told him that he was threatened that "they were going to work on his head and mess his automobile up." Lee reported his conversation with Murner to Mullin, Respondent 's operations manager. Lee also reported to Mullin an incident that occurred on Saturday, April 2, the morning after the party at "Charlie's" place. On Saturday morning Lee called for some employees in his car to go to work. He called for Joe and Lawrence Haney and Joe Cotten Lawrence did not go along, Joe Haney reporting that Lawrence was not feeling well. However, later, Lee found he was short of welders so he returned to the apartment which the Haney brothers occupied to see if he could induce Lawrence to go to work Lee entered the apartment, shook Lawrence awake, and asked him to report to work. However, Lawrence told Lee he was going back to Talladega, Alabama, his home town, for good, because he had had a fight with Dowdney the night before. As noted above , this was reported to Mullin together with Murner's report of the previous Friday evening. Later on Monday morning, April 4, Lee was called to Mullin's office where Respondent 's counsel and also its executive vice president were present. Lee again reported all of these incidents to this group . Later that day, after lunch, a meeting with Murner and the others was held again in a plant office. Murner related again what had happened on the previous Friday night. He said he would swear to it and, when asked, stated he would like police protection. He stated that he was still frightened. He expressed fear for his family. At approximately 2 or 2:15 p.m. of that day, Mullin told Lee that as a result of the meetings and of the investigation made following the meetings, Respondent had decided to discharge Dowdney and Earnest. Mullin accompanied Lee down to the plant where Mullin told Dowdney and then Earnest that each was discharged for threatening an employee. They were told to get their equipment and leave the plant. After the two had gotten their equipment together, Lee told them to punch out on the timeclock. This they each refused to do and Lee punched out for them. At that point, Earnest told Lee that he would like to talk to Mullin about the situation Lee refused but said he could do so later. No meeting ever took place at a later date. During that conversation also, Earnest expressed his opinion that Murner must have told Lee that he and Dowdney had threatened Murner.4 Both Mullin and Lee testified that the only reason that Dowdney and Earnest were discharged was because of the report of Murner that Dowdney and Earnest had threatened Murner . In connection with this, however, it should be noted that Mullin admitted that neither Dowdney nor Earnest were given an opportunity to present their side of the Friday night events to the Respondent before Mullin and the other Respondent officials and advisers concluded that Dowdney and Earnest should be discharged. Additionally, Lee testified that both Dowdney and Earnest were very satisfactory employees in all other respects. D. Concluding Findings It is clear that Lee's questioning of Dowdney on March 11 as to whether Dowdney had signed a union card and Lee's questioning of Earnest about March 1, 1966, as to how Earnest felt about the Union and whether Earnest had attended the union meeting the night before, which latter question was again repeated on two separate occasions , all constituted unlawful interrogation within the meaning of Section 8(a)(1) of the Act and I so find. I also find that Lee's statement to Dowdney on March 21 that if the Union came in the employees would be reclassified constitutes a threat within the meaning of Section 8(a)(1) and is therefore violative of the Act. I find also that Lee 's statement to Earnest about the latter being unable to read blueprints and pass tests if the Union came in to be a threat of reprisal and therefore violative of Section 8(a)(1) of the Act. As heretofore stated, the versions of Dowdney and Earnest regarding the conversation of the night of April 1 at "Charlie's" is in direct conflict with the version of Murner and Haney. Thus, the resolution of the issue of whether Dowdney and Earnest threatened Murner depends upon a disposition of the credibility issue With regard thereto, the General Counsel points to inconsistencies between the pretrial affidavits of Murner and Haney and their testimony at the hearing. He bases his argument on the fact that both Murner and Haney, in their affidavits given to the General Counsel, and Murner in a statement given to his employer, the Respondent, stated that the meeting had occurred in a cafe in downtown Columbus and not at "Charlie's" place outside of Columbus. Moreover, Murner stated in his pretrial affidavit that the conversation broke up about 9 or 9:30 p.m and that he went on home alone . He did not mention that he loaned his car to Dowdney and Earnest. In testifying, both Murner and Haney stated that the reasons they made these misrepresentations as to the time and place and manner in which the incidents constituting the alleged threats occurred, were that neither wanted his respective wife or the other's wife to find out where they were that evening. Evidently this grew out of the fact that the men met to go dancing and have an evening out with women other than their wives. Additionally, both Murner and Haney, in their affidavits , gave the definite impression that the meeting between themselves and Dowdney and Earnest were completely coincidental and unplanned. Of course this is not so as demonstrated by the admissions of both Murner and Haney on the witness stand. Were these conflicts between the oral testimony of Murner and Haney and their pretrial affidavits the only basis in the record for discrediting Murner and Haney's testimony as to what occurred during the conversation between the four men I would not necessarily discredit such testimony. This is so because, as argued by the Respondent , the conflicts and the prior inconsistent statements did not concern the material matters of their testimony , namely, that Dowdney and Earnest had threatened Murner. Also I do not consider unreasonable the reasons advanced by Murner and Haney for concealing the whereabouts of the place in which the conversation occurred. However, having had the advantage of observing on the From the credited testimony of Lee Although I have not threats of reprisals by Lee, the testimony of Earnest and Dowdney credited Lee where his testimony controverted testimony of confirmed rather than controverted the portion of Lee 's testimony Dowdney and Earnest with regard to the interrogations and which I have credited PASCOE STEEL CORP. 577 witness stand the demeanor of all four of the individuals involved, I conclude that the forthright manner in which Earnest, especially, testified, and his general demeanor were convincing and I therefore find that his version of what occurred that evening is the most accurate. I would not credit Dowdney were he the only witness. However, Earnest, as a reading of his testimony shows, freely admitted that the conversation covered generally the items to which both Murner and Haney testified. As noted above, Earnest stated that there was a general conversation about the Union and Murner mentioned that he desired to join the Union but was reluctant to do so for a number of reasons. Among these reasons was the fact that he could not afford to lose earnings should the Union come into the plant and should a strike ensue during negotiations for a contract. In addition to demeanor, I find other reasons to credit the testimony of Earnest. I note that Murner admitted that after the alleged threats were made, the parties remained together'until long after midnight whereas the alleged threats occurred between 8:30 and 9 p.m. I also note that Murner, despite the fact that he alleged he was threatened, agreeably loaned his car later that night to Dowdney and Earnest. None of this conduct on the part of Murner mould seem rational if, indeed, he had considered himself threatened at that time. It is highly unlikely that had the threats actually occurred he would have remained in the company of the others and would have willingly loaned his automobile. This is especially true in view of the fact that Murner repeatedly told the others that he could not afford to have anything happen to his automobile in view of the fact he had tied up so much money in it. I therefore conclude, and find, that what Earnest principally explained to Murner and the others was how the Union would be made up of employees at the Respondent's plant. I further find that Murner did ask how he could be stopped from crossing a picket line, not necessarily a picket line which might be set up at the Respondent's plant. I find that Earnest told Murner that if there were 150 men outside on the road picketing, and if a tree trunk or telephone pole happened to fall across a car, who was there to tell how it came to fall. Then, upon Murner's questioning him, Earnest said that if there were 150 men picketing and he, Murner, walked across it and they beat him up, who was to tell who did it and how it came about. I conclude that Earnest was telling generally about what could happen and had happened on picket lines. Moreover, I note that not even in Murner's testimony was there any mention that these things would happen to Murner if he did not join or support the Union. I conclude that there was no effort to coerce Murner into joining the Union. I further conclude that the entire incident arose during the good natured conversation between four friends who had imbibed a quantity of alcholic beverages. Having found that Dowdney and Earnest did not threaten Murner, I come now to the question of what prompted the Respondent to discharge Dowdney and Earnest. The General Counsel contends that the Respondent seized upon the incident of April1 as a pretext to discharge Dowdney and Earnest for their union activity. In support of his contention, General Counsel cites the knowledge of the Respondent of the union activity of Dowdney and Earnest which was established by the interrogations and the other conversations had between Dowdney and Lee and Earnest and Lee. He further points to the timing which came at the height of the Union's organizational drive among the Respondent's employees. General Counsel further notes that the Respondent did not give Dowdney or Earnest a chance to answer the charge that they had threatened Murner, nor were Dowdney or Earnest even questioned on the matter of the alleged threats prior to their discharges. In sum, the General Counsel contends that such a behavior pattern on the part of the Respondent does not reveal an intent to obtain the correct version of the story but rather an intent to seize upon the reported instance of a threat as the pretext for the discharges. However, as pointed out by the Respondent, it had gone to great lengths to instruct its supervisory staff in the proper conduct to follow with regard to the treatment of employees during the union organizational drive. This certainly was not the typical action of an employee seeking to use unlawful means to thwart the Union's organizational activities. Moreover, as Respondent contends, neither Dowdney nor Earnest were among the most active of the union supporters. Respondent points out that it had knowledge that the most active union supporters were those who attended the representation hearing and testified therein. Additionally, both Dowdney and Earnest were admittedly very efficient and capable employees whose welding work was praised by their supervisor, Lee. At a time when good welders were at a shortage, it would not seem likely that the Respondent would rid itself of two minor union adherents when other, more active, union adherents, known to the Respondent as such, were not harassed in any manner. Thus I conclude that Respondent's knowledge of the union activity of Dowdney and Earnest and the timing of their discharges, together with the fact that they were not given an opportunity to explain the alleged threats, give rise to a suspicion that Dowdney and Earnest might have been singled out for discharge because of their union sympathies. However, suspicion alone will not support a finding of pretext upon which to base a conclusion that Respondent, committed an unfair labor practice. Moreover, the record shows that the Respondent carefully examined Murner upon two different occasions on the date of the discharge and did not act to discharge Earnest and Dowdney until consultation between the Respondent's highest officials and company counsel. Therefore, upon consideration of the testimony as a whole, I find that the General Counsel has not proved by a preponderance of the evidence that Dowdney and Earnest were discharged on April 4 because of their union sympathies or activities. In coming to this conclusion, I have also considered the interrogation and threats by Lee as hereinabove found. However, in view of the instructions by Respondent to its supervisors, I cannot view these unfair labor practices as having a bearing upon the discharges. I find it more likely that Lee engaged in this unlawful activity in direct disregard of his employer's specific instructions. The General Counsel further contends, however, that even if the Respondent did not discharge Dowdney and Earnest for their union activity and did not seize upon the alleged threats as a pretext for the discharges, nevertheless, the discharges were unlawful. As detailed above, on the morning of April 4, Murner told Lee, according to Lee's credited testimony, that Dowdney and Earnest had threatened Murner and told him that "they were going to work on his head and mess his automobile up." Lee reported this to Mullin, who in turn reported it to company counsel and to the Respondent's executive vice 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD president . Later in the day, Murner was carefully questioned in the presence of all these individuals and substantially repeated his version of the alleged threats of the preceding Friday night . He even went so far that, when asked , he stated he would like police protection . Mullin, therefore , acting on what appeared to be a reliable source and after considerable deliberation and consultation with the others concluded that the threats had been made by Dowdney and Earnest and decided to discharge them forthwith. I conclude , therefore , that the Respondent acted in good faith . However , it is a violation of the Act ". . . if an employee is discharged for misconduct arising out of a protected activity despite the employer 's good faith, when it is shown that the misconduct never occurred . See, e.g., Mid-Continent Petroleum Corp., 54 NLRB 912, 932-934; Standard Oil Company of California, 91 NLRB 783, 790-791; Rubin Bros . Footwear , Inc., 99 NLRB 610, 611. In sum , Section 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity ; the employer knew it was such; the basis of the discharge was an alleged act of misconduct in the course of that activity , and the employee was not, in fact , guilty of that misconduct."5 The facts of the instant case present just such a situation . Dowdney and Earnest were engaged in explaining to Murner the manner in which the union operated and persuading Murner to attend union meetings . This was a protected activity . The Respondent's officials , upon investigation , knew that Dowdney and Earnest were engaged in this activity but also , in good faith , believed that the two employees had engaged in misconduct at the same time. Because of the belief that Dowdney and Earnest were engaged in such misconduct, the Respondent discharged them . But, as the findings herein show , Dowdney and Earnest had not engaged in the alleged misconduct . Therefore, the discharges tended to and could have a deterrent effect on other employees engaged in organizational activity . Accordingly, the discharges necessarily violated Section 8(a)(1) of the Act, and I so find. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations 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 committed certain unfair labor practices , I shall recommend that it be ordered to cease and desist from such conduct and to take certain affirmative action designed to dissipate its effect. Having found that the Respondent discharged Orwen Glyn Earnest and William Horace Dowdney in violation of Section 8(a)(1), it is recommended that the Respondent be ordered to reinstate them to their former or substantially equivalent positions of employment , without prejudice to their seniority or other rights and privileges , and make them whole for any loss of earnings they may have suffered as a result of Respondent 's unlawful action. Backpay shall be computed in the manner set forth in F.W. Woolworth Company, 90 NLRB 289 , with interest added thereto in the manner set forth in Isis Plumbing & Heating Co ., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of the Act. 3. By discharging Orwen Glyn Earnest and William Horace Dowdney for having engaged in concerted protected activity , the Respondent violated Section 8(a)(1) of the Act. 4. By interrogating its employees as to their union activities and sympathies and by threatening them with reprisals if the Union should be successful, the Re- spondent has interfered with, coerced, and restrained its employees in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of foregoing findings of fact and conclusions of law and upon the entire record in the case, it is recommended that Pascoe Steel Corporation, its officers , agents, successors , and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees with regard to their union activities and sympathies and threatening their employees with reprisals for engaging in union activities in a manner constituting interference , coercion, and restraint in violation of Section 8(a)(1) of the Act. (b) Discouraging membership in or activities on behalf of United Steelworkers of America , AFL-CIO, or any other labor organization, by discharging its employees or in any other manner discriminating against its employees in regard to their hire or tenure of employment or any term or condition of employment. (c) In any like or similar manner interfering with, restraining , or coercing its employees in the exercise of the right to self-organization , to bargain collectively through representatives of their choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action which, it is found , will effectuate the policies of the Act: (a) Offer to Orwen Glyn Earnest and William Horace Dowdney immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges, and make them whole for any loss or earnings they may have suffered by reason of Respondent's discrimination against them as set forth in that section of this Trial Examiner's Decision entitled "The Remedy." 'N L R B v Burnup & Sims, Inc, 379 U S. 21, reversing 322 F2d57 METROPOLITAN LIFE INS. CO. 579 (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and all other rights under the terms of this Order. (c) Post at its plant in Columbus, Georgia, copies of the attached notice marked "Appendix." Copies of said notice, to be furnished by the Regional Director for Region 10, after being duly signed by the Respondent's authorized representative, 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. Reasonable 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 10, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.' 6 In the event that this Recommended Order is adopted by the Board , the words " a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words " a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of United Steelworkers of America , AFL-CIO, or any labor organization by discharging our employees or in any other manner discriminating against them or any of them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees with regard to their union sympathies or activities or threaten them with reprisals in a manner constituting interference , coercion, and restraint in violation of Section 8(a)(1) of the Act. WE WILL NOT in any like or similar manner interfere with , restrain, or coerce our employees in the exercise of their right to self -organization, to bargain collectively through representatives of their choosing , and to engage in concerted activities for the purpose of collective bargaining or mutual aid or protection as guaranteed in Section 7 of the Act or to refrain from any or all such activities. WE WILL offer to Orwen Glyn Earnest and William Horace Dowdney immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay which they may have suffered by reason of our discrimination against them. PASCOE STEEL CORPORATION (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employees, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 528 Peachtree- Seventh Building, 50 Seventh Street N.E., Atlanta, Georgia 30323, Telephone 526-5760. Metropolitan Life Insurance Company and International Union of Operating Engineers , Locals 30-A, 30-B, and 30-C, AFL-CIO. Case 2-CA-11112. March 23,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN Upon a charge filed by International Union of Operating Engineers , Locals 30-A, 30-B, and 30-C, AFL-CIO, - herein called the Union , the General Counsel for the National Labor Relations Board, by the Regional Director for Region 2, issued a complaint and notice of hearing dated October 25, 1966 , amended November 9, 1966 , against Metropolitan Life Insurance Company, herein called the Respondent , alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2 (6) and (7) of the National Labor Relations Act, as amended . Copies of the charge, complaint , amendment to the complaint, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges, in substance , that on or about July 28 , 1966 , the Union was duly certified by the Board ' as the exclusive collective -bargaining representative of Respondent ' s employees in the unit found appropriate by the Board , and that, since ' Certification of representative issued July 28, 1966, in Case 2-RC-14011 (not published in NLRB volumes). 295-269 0-69-38 163 NLRB No. 71 Copy with citationCopy as parenthetical citation