Pascoe Steel Corp.

National Labor Relations Board - Board Decisions

Mar 23, 1967

163 N.L.R.B. 572 (N.L.R.B. 1967)

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