Riley-Beaird, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1984

271 N.L.R.B. 155 (N.L.R.B. 1984)

RILEY-BEAIPRD, INC.
Riley-Beaird, Inc. and International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers & Helpers, AFL-CIO, CLC, and Earl
Dixon. Cases 15-CA-8068 and 15-CA-8453
11 July 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 26 November 1982 Administrative Law
Judge Richard H. Beddow Jr. issued the attached
decision. The Respondent filed exceptions and a
supporting brief, and the Charging Party filed a
brief in response to the Respondent's exceptions
and in support of the decision of the judge.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.
As set forth at length in his decision, the judge
concluded that the Respondent violated Section
8(a)(1), (3), and (4) of the Act in several respects.
In affirming his decision on the merits, we disagree
only with the judge's finding that the Respondent
violated Section 8(a)(l) by giving a campaign
speech that impliedly threatened "loss of benefits
and other problems" if the Union won the election.
On 21 January 1981 the Respondent's president
gave a speech to all employees during which he re-
ferred to a "blank piece of paper" and said: "We
have shown you that paper as an example of how
you could lose with the Union, as there are 'no
guarantees that you would keep all your present
pay and benefits." He then requested employees'
help in "smashing" the Union. The Respondent's
president gave another speech 3 February 1981, 2
days before the election, in which he thanked em-
In its exceptions, the Respondent argues that the judge improperly
found that the Respondent violated Sec. 8(aKl) of the Act by issuing a
warning slip to employee Charles Meshell on 4 September 1980. Without
reaching the merits of this allegation, we hereby reverse this holding of
the judge in view of the fact that the Respondent's action occurred more
than 6 months prior to the filing of the Union's charge in this case and is
therefore barred by Sec. 10(b) of the Act. In so doing, however, we rec-
ognize that evidence of this conduct can be relied on as background evi-
dence to shed light on allegedly unlawful conduct occurring during the
10(b) period. Machinists Local 1424 (Byran Mfg. Co.) v. NLRB, 362 U.S.
411 (1960).
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F. 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
271 NLRB No. 28
ployees for supporting the Respondent and stated:
"We will never forget it."
Contrary to the judge, we do not believe that
the comments made by the Respondent, as set forth
above, implied a threat that employees would
suffer loss of benefits and other problems if they
voted for the Union or conveyed the message that
those who support the Union will not be forgotten.
The Respondent's remarks referring to a blank
piece of paper, in context, were merely a reflection
of the bargaining process: negotiating carries with
it no guarantee that the status quo will be pre-
served. Further, thanking employees for their sup-
port with the reminder that such support will not
be forgotten is just that: a thank you. Such a state-
ment cannot reasonably be said to imply that some
type of retribution awaited those who supported
the Union.
Comments of this nature do not interfere with,
restrain, or coerce employees in the exercise of
their Section 7 rights. Rather, such comments con-
stitute permissible partisan propaganda protected
by Section 8(c). Accordingly, we find that the Re-
spondent's conduct set forth above did not consti-
tute a threat of "loss of benefits and other prob-
lems" in violation of Section 8(a)(1) and shall
therefore dismiss that portion of the complaint. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Riley-Beaird, Inc., Shreveport, Louisi-
ana, its officers, agents, successors, and assigns,
shall take the action set forth in the Order below.
1. Cease and desist from
(a) Unlawfully discharging any employees or
otherwise discriminating against them because of
their activities in pursuit of union affiliation for
purposes of collective-bargaining representation or
in retaliation for their giving testimony under the
Act or otherwise engaging in protected concerted
activities.
(b) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act,
2 In sec IV,C of his decision, the judge concluded that five blade ring
welders were discharged in violation of Sec. 8(a)(i) and (3) of the Act. In
evaluating the circumstances surrounding these discharges, the judge
found that the Respondent had shown animus toward the Union by, inter
alia, the unlawful campaign speeches given by the Respondent's president
just prior to the election. As set forth above, however, we find that these
campaign speeches did not constitute unlawful threats. Therefore, as we
agree with the remainder of the judge's analysis concerning these dis-
charges, in finding that the five blade ring welders were unlawfully ter-
minated, we do not rely on his discussion of the Respondent's campaign
speeches. Similarly, we do not rely on the judge's references to the cam-
paign speeches in sec. IV(D) of his decision.
155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Charles Meshell, Jimmy R. Grant,
Willie Loud Jr., Thomas B. Stamper, Lynn A.
Arnold, Alvin Peters, and Billy Gene Fergeson im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in section V of the administrative law judge's
decision entitled "The Remedy."
(b) Remove from its files any reference to the
unlawful discharges and related warnings given to
Charles Meshell on 13 February 1981; Jimmy R.
Grant, Willie Loud Jr., Thomas B. Stamper on 20
February 1981; Lynn A. Arnold and Alvin Peters
on 23 February 1981; and Billy Gene Fergeson on
27 February 1981; and notify them in writing that
this has been done and that the discharges will not
be used against them in any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Shreveport, Louisiana plant copies
of the attached notice marked "Appendix." 3
Copies of the notice, on forms provided by the Re-
gional Director for Region 15, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaints be
dismissed insofar as they allege unfair labor prac-
tices not specifically found herein.
s If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Poated Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting International
Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers & Helpers, AFL-CIO, CLC,
or any other union or in retaliation for giving testi-
mony under the Act or otherwise engaging in pro-
tected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer immediate and full reinstatement
to Charles Meshell, Jimmy R. Grant, Willie Loud
Jr., Thomas B. Stamper, Lynn A. Arnold, Alvin
Peters, and Billy Gene Fergeson to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus
interest.
WE WILL remove from our files any reference to
the discharges and related warnings given to
Charles Meshell on 13 February 1981; Jimmy R.
Grant, Willie Loud Jr., and Thomas B. Stamper on
20 February 1981; Lynn A. Arnold and Alvin
Peters on 23 February 1981; and Billy Gene Ferge-
son on 27 February 1981, and WE WILL notify each
of them that this has been done and that the dis-
charges will not be used against them in any way.
RILEY-BEAIRD, INC.
156
RILEY-BEAIRD, INC.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Shreveport, Louisiana, on
April 12-16 and 26 and 27, 1982. The proceeding is
based on charges filed March 5, 1981, as amended April
13, 1981, by the International Brotherhood of Boilermak-
ers, Iron Ship Builders, Blacksmiths, Forgers & Helpers,
AFL-CIO, CLC and February 3, 1982, by Earl Dixon,
an individual. The General Counsel's complaint alleges
that Respondent Riley Beaird, Inc. of Shreveport, Lou-
isiana, violated Section 8(a)(1), (3), and (4) of the Nation-
al Labor Relations Act by discharging certain employees
and suspending Charging Party Earl Dixon because of,
and/or to discourage, their union and protected concert-
ed activities; by engaging in surveillance of employee ac-
tivity, by the issuance of a warning to an employee; and
by threatening employees with loss of benefits in a
speech by Respondent's president. At the close of the
hearing oral argument was presented by the General
Counsel.
After a requested extension of the normal filing date,
briefs were filed by the Charging Party and Respond-
ent.' On a review of the entire record in this case and
from my observation of the witnesses and their demean-
or, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent engages in the fabrication of various steel
products. During the representative year it received
goods and materials valued in excess of $50,000 and had
direct outflow of manufactured products valued in excess
of $150,000. It admits that at all times material herein it
is and has been an employer engaged in operations af-
fecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION
The International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers & Helpers, AFL-
CIO, CLC (the Union), is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent's Shreveport facility is engaged in fabri-
cating various heavy steel products including turbine
blade rings, compression combustors, pressure tanks, and
cement mills. It employs as many as 900 employees in
the designated voting unit; however, the employees are
not represented by any labor organization. The Union
did have an organization campaign in 1977, with an elec-
tion in October 1979, which resulted in a vote of 438 to
I Respondent also filed a motion to correct numerous errors in the
transcript, especially substituting the name Clarance Poland for Clarance
Ponder. The sought corrections are appropriate and the motion is grant-
ed.
424 against the Union. A related unfair labor practice
charge was filed and a hearing was held in February
1980, which culminated in the December 10, 1980, deci-
sion of the Board in Riley-Beaird, Inc., 253 NLRB 660
(Riley-Beaird 1980). In that Decision, Respondent is
found to have violated Section 8 (aX)(1) of the Act by im-
pliedly threatening plant closure and reduction of bene-
fits if employees selected the union as their representa-
tive. Additionally, a supervisor was found to have un-
lawfully solicited and remedied grievances. The Board
also granted the union's request to withdraw its election
objections.
After the hearing in February 1980, additional charges
regarding alleged unfair labor practices by the Respond-
ent were filed. These charges resulted in a hearing in
August 1980. The Board, on February 3, 1982, in Riley-
Beaird, Inc., 259 NLRB 1339 (Riley-Beaird 1982),2 found
that Respondent violated Section 8(a)(1) of the Act by
unlawfully interrogating employees about their protected
activities, by giving them the impression of unlawful sur-
veillance, and by illegally threatening them because of
their protected activities; and that Respondent further
violated Section 8(a)(3), (4), and (1) of the Act by assign-
ing employees to more onerous and less desirable work,
subjecting them to stricter supervision, requiring them to
adhere more closely to plant rules, restricting their com-
munications with their fellow employees, citing them
with unexcused absences, and by warning, transferring,
and discharging employees. 3
Respondent's employees Lynn Arnold and Thomas
Stamper gave testimony on behalf of the General Coun-
sel at the hearing in Riley-Beaird 1980. These two em-
ployees as well as employees Charles Meshell and Jimmy
R. Grant also were present and gave testimony on behalf
of the General Counsel at the hearing in Riley-Beaird
1982. Arnold, Stamper, and Grant were found to have
been illegally discriminated against in Riley-Beaird 1982.
These four employees are alleged discriminatees in this
proceeding and Arnold, Stamper, Grant, and Meshell
also were members of the union organizing committee as
was B. G. Fergeson. This information was conveyed to
Respondent in letters dated in March and May 1980 by
the Union's International representative. These employ-
ees as well as Willie Loud, Peters, and Earl Dixon were
active union supporters and wore union paraphernalia
and participated in handbilling in the presence of super-
visors prior to the representation election in February
1981.
Between September 1980 and February 5, 1981, the
Union engaged in various activities in order to gain sup-
port in the forthcoming election. On at least one occa-
sion while Dixon was handbilling by the employee's en-
trance to the parking lot he observed Manager of Em-
ployee Relations Hillman Deaton standing about 70 or 80
yards away and apparently writing on a tablet (the dis-
tance was determined to be approximately 106 yards).
Although the distance does not allow for easy identifica-
' Enforcement of this matter is pending before the United States Cir-
cuit Court for the Fifth Circuit.
s As requested by the General Counsel and the Union, I take adminis-
trative notice of the Board's decision in these two past cases.
157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of similarly dressed or sized persons, it is not im-
plausible that a known, distinctively dressed (i.e., coat or
shirt and tie as compared with blue collar dress) manage-
ment official could be recognized, and I credit Dixon's
testimony.
Prior to the February election the Company held sev-
eral meetings. At one meeting employee Willie Loud Jr.
spoke out and a supervisor asked "Willie Loud, that
you?" At a meeting on January 12, 1981, Respondent's
president William E. Adams gave a speech to all the em-
ployees in which the following comments were made:
Some of you may have misunderstood what we
have tried to tell you in the past. For instance, you
have all heard about the blank piece of paper. We
have shown you that paper as an example of how
you could lose with the union, as there are no guar-
antees that you would keep all your present pay
and benefits. I want to make something clear right
now. The last thing on earth I want is for you to
have less pay or less benefits. Our record proves
this is true. I would just as soon never talk about
this blank piece of paper again and I want all of us
to continue to move forward without thinking
about any blank piece of paper, but I also want you
to understand the facts of life. The facts of life are
that those union promises are worthless and you
can lose as well as gain with a union. I don't want
to see any of you risk being hurt by this union.
I'd just like to say one more thing. We've made tre-
mendous progress despite having to stop and fight
this union every year or so. I'd like to see the kind
of progress we could make if we had several years,
without having to pause and do battle with the
union. I don't want you just beat the union this
time. I am asking for your help in smashing it so
that we can get on with the business of making this
company an even better place to work for every-
one.
Thank You.
Adams gave another speech on February 3, 1981, 2
days before the election. Pertinent statements made in-
clude the following:
Look what happened to the Hendrix employees in
Mansfield when they gave the union a chance. It
was a disaster for every Hendrix employee. Look at
other companies with Boilermakers contracts in our
area-Fabsteel, Dollinger, Lufkin Industries, Ameri-
can Bridge. Employees of these companies gave the
Boilermakers a chance and what have they got?
They have a long history of strikes and other trou-
bles and their wages are less than yours.
The facts haven't changed a lot in the last 15 years.
They were bad in 1966 and they are still bad in
1981. It's a long record of strikes, lost pay and lost
opportunities for many employees.
I don't believe this union with its record deserves to
represent good people like you. You don't need to
risk strikes-you don't need to pay a dime to this
union-and you don't need to have happen to you
what has happened to so many Boilermakers mem-
bers.
Many of you have openly supported us and let it be
known that you don't want any part of this union
or its trouble. I thank you for your support. WE
WILL NEVER FORGET IT. Your decision to
defeat the union is a decision you and your family
will never regret. Once again, thank you for your
support.
The representation election was held on February 5,
1981, and the result favored Respondent by a vote of 453
to 356. No objection was filed by the Union and the re-
sults were certified.
Shortly after the election, employees Meshell, Ferge-
son, Arnold, Grant, Loud, Peters, and Stamper were ter-
minated or otherwise disciplined. Several months later
employee Dixon was given a warning and a I-week sus-
pension.
B. Preliminary Conclusions
The General Counsel has shown that Respondent has
had a recent history of demonstrated union animus and
that the discharged employees were known by Respond-
ent to be active union supporters. Under these circum-
stances and in view of the background noted above and
in the factual discussion to follow, I conclude that the
General Counsel has met his initial burden of presenting
a prima facie showing sufficient to support an inference
that the employees' union activities were the motivating
factor in Respondent's decision to discharge or discipline
the involved employees. Accordingly, the testimony will
be discussed and the record evaluated in keeping with
the criteria set forth in Wright Line, 251 NLRB 1083
(1980), and Castle Instant Maintenance, 256 NLRB 130
(1981), to consider Respondent's defense, and in the fight
thereof, whether the General Counsel has carried his
overall burden.
C. The Discharge of Blade Ring Welders Arnold,
Grant, Loud, Peters, and Stamper
Respondent contends that these five named employees
were discharged because of their bad welding on the
vertical flanges of blade rings fabricated as components
of turbines for Westinghouse Electric Corporation.
Westinghouse is an important Riley-Beaird customer
whose business has at times comprised as much as one-
seventh of Respondent's total yearly sales. An order for
four sets of blade rings (12 to the set) valued at $10 mil-
lion was placed in April 1979. Respondent is experienced
in fabricating blade rings, and production began in the
summer of 1979. The blade rings were assembled princi-
pally in bay 8 of Respondent's facility because of the
high quality welding that is required. Respondent asser-
tedly assigned only experienced, first-class welders to the
work. The work is difficult, and in the Board's decision
in Riley-Beaird 1982, it was found that Respondent's
transfer of Arnold and Stamper to work on blade rings
in bay 8 was a discriminatory assignment to a more oner-
ous and less desirable position and was done to punish
158
RILEY-BEAIRD, INC.
them in retaliation for their testimony and other protect-
ed activities and violated Section 8(a)(1), (3), and (4) of
the Act. It also was found that welding on the blade
rings, which are preheated to between 400 and 450 de-
grees Fahrenheit, is considered the hottest and worst job
in the plant. That decision also found that Grant, al-
though a first-class welder, was not experienced in this
type of work at the time he was assigned to blade ring
work.
The work on the blade rings proceeded according to a
set schedule and was not a rush job. In the ordinary
course of business, the fabricated blade rings were
shipped by truck to Westinghouse's Lester Pennsylvania
facility. All work on the blade rings was completed by
the summer of 1980, with the last blade ring being
shipped in July 1980.
The rings and the accompanying compression combus-
tor, another component necessary for use in the turbine
engine, remained at the buyer's plant for 6 months,
awaiting the arrival of additional parts manufactured by
other subcontractors. Apparently in early January 1981
Westinghouse employees machined off between three-
eighths and one-half of an inch of the surface welding on
each blade ring and discovered flaws including serious
slag inclusions, porosity, and other major welding dis-
continuities, especially on the vertical flanges. Major
welding defects such as those found on the vertical
flanges of the blade rings also were discovered when a
compression combustor fabricated by Respondent was
machined. In mid-January a Westinghouse representative
gave Respondent "Error Appraisal Notices" for the
work and Respondent began a routine check of the prob-
lem. During the last week of January 1981, Chester J.
Leonowich, purchasing manager of Westinghouse, called
Charles Moore, vice president of Respondent, to inform
him directly of the serious nature of the welding defects
found in the vertical flanges of the blade rings. (The
similar defects in the compression combustor were said
to be of a secondary concern as they could be repaired
by Westinghouse at its Lester facility.) Leonowich de-
manded that Riley-Beaird representatives fly to Lester as
soon as possible to view the defective workmanship and
to take whatever action necessary to repair the blade
rings and to ensure that quality deficiencies would not be
a problem in the future. On January 28-29, 1981, E. B.
Reeves, chief welding engineer; Billy Thomas Ponder,
product manager; Frank Booker, general foreman of bay
8, and Moore visited the Lester facility.
Moore concurred in Leonowich's opinion that the
poor welding was mainly slag inclusions and was the
fault of Riley-Beaird employees. Moore assured
Leonowich that everything possible would be done to
prevent the reoccurrence of such quality deficiencies. He
drafted a procedure which was considered by Westing-
house quality control employees but ultimately rejected
several weeks later as it did not include x-ray testing.
Moore reported back directly to Adams (Respondent's
president), and 10 of the 12 rings in the set were re-
turned to Riley-Beaird for re-fabrication. While at Wes-
tinghouse, Reeves attempted to identify the weld sym-
bols made by welders on their work but he testified that
the symbols had been machined off the 12 rings in the
order. Reeves found that the compression welding had
the same type of defect but not as bad as on the rings.
Adams then ordered an immediate investigation, to be
headed by Manager of Employee Relations Deaton.
Deaton convened Respondent's disciplinary control
board composed of himself, General Foreman Booker, of
bay 8, Shop Superintendent E. C. Greene, and Vice
President of Manufacturing William Bradshaw. Acting
on the knowledge that the welding symbols had been
machined off at Westinghouse, Deaton ordered computer
tab runs reflecting every employee performing semiauto-
matic (code 540) welding on blade ring job number
159122 and compression combustor number 159123.
These computer reports indicated that 20 bay 8 employ-
ees had worked on various sections of the blade rings for
a total of 956 hours. Arnold (247.3 hours), Peters (120.9
hours), and Stamper (105.6 hours) worked the most
hours. Four others worked 52-69 hours and Loud was
next with 47.8 hours. Grant was listed for 29.8 hours.
Booker, who makes assignments of employees to particu-
lar jobs, was asked if he knew who worked on the verti-
cal flanges. Although he did not at that time have the
computer list, he determined that these five had been the
main welders on the vertical flanges. He sought the con-
currence of Shift Supervisor O. C. Wise, who agreed
with Booker. Booker did not check with Second-Shift
Supervisor Manuel Law. Three codes applied to blade
ring welding. The code 540 for semiautomatic welding
would apply to the horizontal flanges and areas other
than the vertical flanges. The latter area comprised the
predominant portion of welding, between 75 and 90 per-
cent; however, the time spent could be less because the
semiautomatic welding process can handle more quickly
a larger area. Other employees on the list generally were
identified by Respondent at the hearing as having
worked on other portions of the blade rings, the horizon-
tal flanges, and the lug joints, or as pickup men perform-
ing cleanup task. Welder R. L. Southern was identified
as having performed fitup and initial stringer passes4 and
he also testified in the prior hearing that he had welded
on the blade rings.
Booker reported the five names to Deaton and, pursu-
ant to earlier instructions by Adams, the disciplinary
control board about February 20, 1981, decided to termi-
nate every employee who worked on the vertical flanges
of the blade rings. Respondent asserts that the identities
of the employees had absolutely no bearing on the deci-
sion to terminate as Adams had previously indicated that
the quality of the welding on the vertical flanges was so
poor that no employee involved in the matter should be
retained. For identical reasons, the past performance and
work records of the five employees were not considered.
Superintendent Greene was assigned to inform each of
the five employees of their immediate separation from
the Company and he called the five involved welders to
his office one at a time, each welder was accompanied
by his immediate supervisor.
4 Accordingly, it would be possible, as Stamper testified, that he could
have followed Southern when he first started on the rings even though
there is some conflict over when this welding occurred.
159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stamper was called on Friday afternoon, February 20,
1981, by Foreman Stepulvedo, who accompanied him to
Greene's office. Stamper was told to sit down and
Greene "sort of whipped out" a copy of the Westing-
house letter of February 17 and gave it to Stamper.
Stamper testified that Greene then said "you know back
a few months ago some of y'all took us to court on
unfair labor practice. I want you to read this." Stamper
started to read it but had difficulty in doing so. Greene
then read it to him and indicated that it related to bad
welding in bay 8 about a year or a year and a half ago.
Greene finished and said, "As of now you are terminat-
ed." Stamper started to ask about his stencil but Green
cut him off and told him not to say anything but to just
get his stuff, check out at the credit union, and leave. On
leaving Greene's office, Stamper saw Respondent's vice
president Bill Bradshaw and went over to him and said
that it did not make sense, being fired after 13 years.
Bradshaw shook Stamper's hand and told him, "Well,
we're going to get some more of y'all." On his was to
check out, Stamper asked Sepulvedo if he was unsatis-
fied with Stamper's work and Sepulvedo answered "no,"
that Stamper had always done good work. Stamper
asked to use him as a reference and Sepulvedo agreed.
Grant and Loud reported to work on the night shift at
3:30 p.m. on February 20, 1982. They were given no as-
signments but were told where to go to the bay office
and then to Greene's office. Foreman Wise accompanied
Loud and they met with Greene while Grant and Fore-
man Law waited. Greene gave Loud the Westinghouse
letter to read. Loud testified that Greene then made a
comment about "the hearing that the Union had and that
even though Loud wasn't involved with it, did he know
about it." Loud nodded affirmatively and Greene said,
"As of now you're terminated." Loud became emotion-
al and started to argue that he did not weld on the rings
except for pickup. He was told by Greene that they had
him down for welding on them and there was no need to
argue. Loud said he wanted to see Deaton and left, ac-
companied by Wise. Loud further testified that on the
way to Deaton's office he asked Wise why they were
doing this to him and that Wise replied, "You know
why, and I know it, too." Loud, who then was in a
highly excited state, asked why Wise had not defended
him and Wise replied, "Well, you know how it is, be-
cause of your union activities, that's why you're getting
fired." Loud renewed his argument with Deaton, trying
to explain that he had not welded on the rings. Deaton
told him there was nothing he could do. Loud unsuc-
cessfully attempted to see Bradshaw but on seeing an-
other supervisor he explained the events and then left.
Grant testified that when he entered Greene's office he
was told to sit down and was handed the Westinghouse
letter and told to read it. Greene asked, "Do you under-
stand what you're reading?" Grant replied, "Yes."
Greene then said, "Grant, you know we spent an exces-
sive amount of time in court back in August. As of now,
you're terminated." Grant asked, "Why did you say I
Loud testified that he specifically remembered the statement about
the hearing because he could not understand what it had to do with the
letter.
was terminated?" and Greene replied, "For poor work-
manship, bad welding." Grant said nothing and Greene
told him that Foreman Law would see him out, and
Grant left.
Peters was working the 11 p.m. to 7 a.m. shift in bay
8. On Sunday night February 22, 1981, when he arrived
for work, Peters' supervisor, M. O. Green told him he
was going to have to be sent home. Peters asked,
"Why?" and was told to come back the next day to see
E. C. Greene. Peters did so and was accompanied to
Greene's office by Day Foreman Wise. Greene gave him
the Westinghouse letter to read. Peters testified that
when he handed the letter back: "Greene told me they
were giving pink slips to some people and some people
he was going to let go and that Peters was one of them
to let go." Greene mentioned a lot of bad welding but
also said that if Peters needed a reference Greene would
be glad to give it to him. As Wise was accompanying
him out Peters, who felt in a state of shock, asked what
was going on. Wise replied that he knew on Friday
Peters would be fired and that it was not right because
he knew Peters could be counted on to do a good job
and never got into any trouble. Peters also testified that
Wise offered to give him a reference if he ever needed
one.
Arnold was not called to testify regarding the details
of his termination on February 23, 1981; however, it is
noted that the subsequent report of the disciplinary
board, discussed below, otherwise indicates that he was
argumentative and had asserted he was a good welder.
Greene and each of the foremen denied that the Union
or the 1980 NLRB hearing were mentioned during any
of the termination sessions. Greene also denied that
anyone but Loud denied responsibility for working on
the blade rings. He also denied that he offered to give
Peters any references. Sepulvedo testified that he had no
further conversation with Stamper other than to tell him
that he could not give references, that it was up to per-
sonnel.
Wise did not remember if the subject of references
came up when he escorted Peters out; however, he was
aware of a company policy that requires that all refer-
ences be handled through personnel and he denied any
conversation with Loud on the way to Deaton's office.
Stamper also testified that in February 1980 he had
been transferred to bay 8 and immediately began welding
on the vertical flanges that welder R. L. Southern had
been working on. He noted that Arnold normally fol-
lowed him on the next shift and that numerous welding
passes would be made on each weld with work being
performed on different shifts by different welders. He
noted that supervisors and weld technicians watched
their welding a good bit of time. In fact, Stamper (and
Arnold) had been subjected to strict supervision by the
bay 8 supervisors and it was found in the "1981" pro-
ceeding that supervision was such that it constituted a
violation of the Act. Weld technicians would check an
area to be welded and tell a welder to proceed or to
gouge it out (to remove slag) or to recap it. Stamper also
testified that in his experience welders job reported for
160
RILEY-BEAIRD, INC.
all jobs started, even if they were less than 15 minutes
and he was never told of any rule to the contrary.
Loud further testified that he had never done any
semiautomatic welding on the blade rings, that he had
only done pickup (hand welding after an inspector has
looked over the unit that has been removed from the
semiautomatic welding station), and that he had not done
semiautomatic welding on blade ring vertical flanges for
5 or 6 years. He testified that under the instruction of his
supervisor pickup welders would job report code 540
semiautomatic welding when using a "hand roller" in
order to retain their qualification on semiautomatic.
Loud also testified that welders were graded periodically
and it was common knowledge that three warning slips
in a year would result in termination.
Grant further testified that he remembered working on
the vertical flange on some pickup work as well as semi-
automatic for 3 days when another worker was absent.
He received a warning slip regarding his welding at that
time and that warning was one of the subjects of the
1980 hearing. He also testified that he remembered
seeing other welders including Elree Johnson, J. E.
Johnson, N. Parker, H. W. Ramsey, and R. L. Southern
(as well as Stamper and Arnold) working on the vertical
flanges during 1980 but not Loud. He also noted that
two or three welders per shift worked on the vertical
flanges and that weld technicians worked in bay 8 to
check the welding and to offer advice or help with prob-
lems.
Peters also testified that a week before being fired
Foreman Law told him he would be put back on the
blade rings because they were having trouble and they
could count on Peters to do a good job for them.
Subsequent to the actual discharges, the disciplinary
board over Deaton's signature, put out a report6 dated
March 12, 1981, which concluded:
The situation is one of intolerable consequences
with the Westinghouse Company, composing one-
seventh of the Company's sales annually[.] [I]t was
deemed imperative that the issue be resolved imme-
diately to the customer's satisfaction.
All men working on Job 159122 were first class
welders averaging 11.7 years of experience per
welder at Riley-Beaird working on a similar prod-
uct mix.
The Board could not account for the reason that
while these men's past performance had met accept-
able quality standards, suddenly the workmanship
digressed to the point that a major customer rela-
tionship was jeopardized.
With no assurance that a similar reoccurrence could
not and would not develop, the Board was of the
opinion that the employees for some unknown
reason, did not function up to their normal work ca-
pability which resulted in a substantial economic
loss to the company in rework notwithstanding the
possible loss of future business.
' The report also contained a notation that an unfair labor charge had
been filed with the NLRB under date of March 19, 1981.
On this premise, separation was recommended for
all employees involved effective immediately.
The disciplinary board's report also concluded that the
situation of employees working on the compression com-
bustor was materially different in that although the weld-
ing defects apparent in the compression combustor were
similar to the problems found on the vertical flanges of
the blade rings, they were not confined to isolated areas
of the combustor. It also asserted that there was good
and bad welding throughout, making it impossible to de-
termine who had performed the faulty welding.
D. The Warning and Discharge of Tank Car Welder
Meshell
Meshell was a first-class welder who began working
for Respondent in 1972. During August and September
1980, he was assigned to day shift in bay II11 under the
supervision of Delmo Cason and Claude Veatch. Meshell
was a known union adherent who testified at the NLRB
hearing in August 1980 about events pertaining to a
loose ground's warning and suspension given to another
welder. Specifically, he testified that Cason had not
checked his grounding on a particular occasion. Subse-
quently, in Riley-Beaird 1982, it was found that the warn-
ing had been discriminatorily issued.
During the first week of September 1980, bay employ-
ees attended a safety meeting where Cason discussed the
Company's new program for grounding. Meshell remem-
bered being told about using grounding nuts but denied
that it occurred in a safety meeting.
On September 4, 1980, shortly after implementation of
the program and after the hearing at which Meshell testi-
fied, Cason checked the groundings of employees, pulled
on Meshell's grounding, and concluded that it was loose.
Veatch and Cason then met with Meshell to give him a
warning slip. Specifically, Veatch told Meshell that the
Company had taken great pains to implement an exten-
sive program to improve grounding. Meshell testified
that he told Veatch that he felt they were picking on
him because of his union activities and Veatch said that
"just between me and you, it does chap my ass that
you're wearing your [Union] badge." 7 Veatch then
added that he had seen Veatch, Greene, and leadman
Woodford watching him after his August testimony. Me-
shell specifically made a notation in a notebook that
Greene had stood watching him for approximately 30
minutes on August 13 at 9:15. Meshell also observed that
after his testimony Cason kept telling him to hurry up
and asking what was holding him up and during Septem-
ber Woodford watched him for a week. Meshell's notes,
which he began keeping on the advice of the union rep-
resentative, also indicated that Cason had come around
and pulled on Meshell's grounds on the September 2 and
3 and again on September 4 when he got his "pink"
warning slip.
Meshell then complained to Manager of Employee Re-
lations Deaton who said he would check into it. Deaton
X Cason and Veatch denied that the latter remark was made; however,
the rest of the conversation was essentially corroborated.
161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reported back that Veatch thought highly of Meshell,
that he was not picking on Meshell because of union ac-
tivities, and that the "pink" slip would not be dropped.
Meshell explained that he wanted the warning dropped
because of his understanding that it was three pink slips
and you were gone. Deaton replied "it's not like that.
Three pink slips on the same offense is when you are ter-
minated." Deaton did not deny the latter statement
during his testimony. Meshell went to second shift in Oc-
tober 1980, and at the end of the month when he re-
turned to the day shift, he testified that he stopped wear-
ing his union badge in order to avoid having Cason
"bird-dogging" him.
Sometime in January, Cason and Veatch called Me-
shell over to a tank he had welded on. Meshell testified
they "told him he had a tank that leaked at the weep
hole and said he filed charges on them last time because
"they didn't show me the tank" and this time they were
going to show him the work he had done." He then was
shown a manway where 15 of 24 inches of weld had
been gouged out.
On February 13, 1981, Meshell was called to Greene's
office and in the presence of Supervisors Cason and
McCullough was told by Greene that "we took every-
thing under consideration and decided to terminate you.
You don't owe nothing to the Credit Union. Don't come
back." Greene told him McCullough was there to help
him check out. Meshell said, "I knew you were going to
do it" and left with McCullough. No specific reason for
the firing was given to Meshell.
Cason testified that Meshell was fired for depositing
bad weld metal in a manway in a tank car which was
discovered during Respondent's internal inspection after
the car was moved from bay 11.
Two of Respondent's internal form 206s were made
out with respect to the tank car which Meshell had
welded on (the only example demonstrated of a situation
in which two such forms were made out). The first Me-
shell form 206, dated January 27, 1982, is the same as all
the other form.206s in Respondent's files that deal with
this specific type of problem. The second form 206,
dated January 28, 1982, is by a second inspector with re-
spect to the same Meshell incident and is the only form
in all of the 206s introduced into evidence that specifical-
ly identifies the welder and goes into detail of how bad
the work was. Respondent explained that one test was
made on January 27 and at that time bay 14 employees
thought they could repair the tank in the bay.
The following day, January 28, 1981, the tank was
again preheated and hydrotested a second time to deter-
mine the extent of and source of the leak. After the weld
was gouged out and the extent of the defect was discov-
ered, a second form was filled out. It is noted that al-
though the first inspector made out a job report, the
second inspector did not, even though it would appear
that more time would be involved in the second, more
extensive inspection.
Greene testified that it was reported to him that a tank
car was brought back to bay 11 after a hydrotest had dis-
covered a leak from the manway, that the weld had been
gouged out and it was discovered that it was not previ-
ously gouged down to solid metal as required for a
proper weld; and that Meshell's weld symbol was at the
weld.
A few days before February 13, 1981, Greene contact-
ed Deaton and turned the matter over to him in his role
as chairman of the disciplinary board. The board's inves-
tigation did not include any interview with Meshell.
Greene and Deaton testified that Meshell had received
three warnings in the prior year and the board was con-
cerned that a pattern of negligence and poor workman-
ship had developed that could not be tolerated and de-
cided he should be terminated. Meshell had received a
warning slip dated December 3, 1980, for unacceptable
welding on the neck of a tank car (this warning was the
subject of an alleged unfair labor practice complaint that
was subsequently dismissed). The other warnings were
the loose ground warning of September 4, 1980, and the
weep hole problem of January 1981.
Greene further testified that on February 13, 1981,
when Meshell was called to his office he told Meshell
that they had a tank car with a leak in the manway, had
gouged it out and what was found, and that due to that
and his past record they had no choice but to terminate
him. Greene also testified that although he has walked
past Meshell's work station on occasion, he did not stand
there staring at him for 30 minutes at 9:15 a.m. on
August 13, 1980. He admitted that he has checked
grounds on his tours through the plant and that it was
possible that he checked Meshell's ground without
knowing it was his.
Meshell also testified that he was aware of four or five
leaks in some 50 or so hydrotest of tank cars but had
never heard any shop talk of anyone being disciplined as
a result of poor welding on them. He also testified that
on the day of the union election he stood by at the ballot
count wearing a union hat in front of several supervisors
including Adams, Greene, and Cason and that each time
there was a "no" vote Cason would turn and smile at
him.
E. The Discharge of Cement Mill Welder Fergeson
Fergeson was a first-class welder who also began
working for Respondent in 1972. He was a known union
supporter. On Tuesday, February 24, 1981, he was asked
to help out in bay 7 on the welding of a cement mill or-
dered by F. L. Smidth Company. Fergeson worked the
day shift and was followed on the evening shift by
welder B. J. Douglas who worked on the same project.
Fergeson's job entailed the welding together of two cir-
cular metal rings about 6 to 10 feet in diameter. Initially,
the rings had been aligned and braced by a fitter and
tacked together with a series of small, temporary welds
spaced about a foot apart. Fergeson testified that when
he first saw the rings there was a strain on the tacks and
that the gap between the rings was too wide in places.
The pieces were jacked together under the direction of
Supervisor Poland and retacked. Poland also instructed
Fergeson first to hand weld a stringer using a one-
eighth-inch rod for welding the stringer and then a five-
thirty-second-inch rod for the next pass. Fergeson said
he did not think an one-eighth inch rod would hold but
that Poland was the boss. On Thursday, February 26,
162
RILEY-BEAIRD, INC.
near the end of Fergeson's shift Poland instructed him to
cut the jacks loose so they could put the automatic
welder on it. Fergeson had made one pass with an one-
eighth-inch stringer when his shift ended and Fergeson
told Douglas, who followed him on the next shift, that
he had not had time for another stringer and that five-
thirty-second-inch rod should be used for the next pass
according to Poland's instructions.
On Friday when he came to work, Poland met him as
he came down the aisle and told Fergeson that he did
not need Fergeson, that the inspector would not work
him, his welding was sorry and it broke, and Poland had
come back on the next shift and worked until 12 mid-
night to have it redone. Poland told him to go over to
see if Booker needed him in bay 8. Fergeson could not
find Booker, however, Foreman Wise gave him an as-
signment. Just before quitting time, he was called to go
with Booker to Greene's office. Fergeson testified that
Greene said, "Well, I guess you know we don't need you
anymore. Bad welding. And the number of years you
been out here and had a pink slip or two." Greene told
Booker to take Fergeson to the credit union and when
Fergeson started to say something Greene said, "No, I
know what I want to know." Robert Jones, quality con-
trol inspector for F. L. Smidth, was in bay 7 observing
the progress of the work throughout the entire week of
February 23, 1981. Jones assertedly was working some
12 hours a day and scheduled his inspections so he could
observe work on both shifts and be present at all critical
phases of the operation. Fergeson remembered seeing
Jones on Tuesday and Wednesday but not Thursday.
Jones testified that on a Friday, February 27, between 7
and 8 a.m., he discovered some poor welding on the
joined rings of a cement mill. He told Poland about it,
and said that he did not want the welder on his job in
the future. Subsequently, when asked to by Poland, he
put the request in a written memo dated February 27.
Jones testified that there was no "unusual" strain on the
rings but that initial restraints were used as a safety pre-
caution. On cross-examination he admitted that earlier in
the week there had been some initial problems with
alignment and with some tacks breaking. He also admit-
ted that if the fixturing and bracing done by the fitter
were improper, stress could be put on the following
weld. He also said that to remove the braces too early
would have run the risk of lost alignment and cracking.
He further testified while the cement mill was not a rush
job, it had a deadline and was behind schedule, and that
he did not authorize removal of the braces until after
February 27.
Billy Joe Douglas was a first-class welder who fol-
lowed Fergeson on the second shift during the last week
of February 1981, on the welding of the cement mill
rings. He had started the job before Fergeson came on
and on Wednesday or Thursday night he observed that
the stringer weld that had been put in since he last
worked on it, had just cracked. Douglas testified he
worked under the direction of inspector Jones. Jones
held his light on the seam and asked who welded it and
Douglas told him Fergeson.
Douglas arced out the cracked weld and he and an-
other welder redid the inside seam and eventually did
the outside. He further testified that it was a tedious,
slow job and that it took about 3 days to finish the inside
seam.Poland testified that on Friday, February 27, Jones
called his attention to a crack in the weld between the
rings crack and told him that he did not want the welder
who had put that weld in to be on that job or any other
for his company. Poland agreed with a statement in Fer-
geson's affidavit that 50 or so feet of the inside circum-
ference had been welded when Fergeson got to the job
and that Fergeson did the final inside 9 or 10 feet.
Poland did not refute Fergeson's testimony regarding
Poland's supervision of his work on the day when the
cracked weld was discovered. Poland told Greene of
Jones' comments and Greene told Poland to tell Deaton.
Deaton then told Poland to get a letter from Jones.
Greene testified that when Poland told him about Fer-
geson's welding problem he sent Poland to see Deaton.
Greene then participated in a phone meeting of the disci-
plinary control board (himself, Deaton, Poland, and
Bradshaw) and it was decided to terminate Fergeson.
Deaton testified that in addition to cement mill welding
the board also considered the fact that Fergeson had re-
ceived warnings on both March 7, and May 29, 1980, for
unacceptable appearing welding and unsatisfactory weld-
ing, respectively, as well as a warning for gross mishan-
dling of company property (using his CO 2 gun as a
chipping hammer). The board saw no reason to consult
with Booker, Fergeson's regular general foreman and did
not ask any employees about the incident. On cross-ex-
amination Greene testified that Respondent's records
show that Fergeson's job reports show that he job re-
ported on the cement mill for 8 hours each on the day
shift for Tuesday through Thursday, February 24, 25,
and 26; that Douglas did the same for the second shift;
and that no other welders worked on the job on these
dates.
Fergeson recalled that the warning of March 7 was for
a job that had a good weld that looked high and that it
was shipped out to the customer the way it was. Ferge-
son denied that he ever used his CO 2 gun as a chipping
hammer and that Booker became aware of the problem
when Fergeson told Foreman Hayes it was broken and
that he needed a new one.
F. The Suspension of Crane Operator Dixon
Earl Dixon was employed as a first-class crane opera-
tor in the Riley-Beaird steelyard (bay 1) and in Decem-
ber 1981 he was working on the first shift from 7 a.m. to
3:30 p.m. His name appears on the union organizing
committee list and he was a known union supporter.
On December 22 at approximately 3:10 p.m., a flatbed
truck loaded with steel plates arrived at the steelyard
and Dixon began unloading it. Two or three plates re-
mained to be removed near 3:25 p.m. when Dixon
parked the crane and began preparations to leave when
the 3:25 p.m. whistle sounded. When the 3:25 p.m. whis-
tle sounded, leaderman C. M. Vance noticed that Dixon
was preparing to exit the crane without finishing his job.
Vance yelled at Dixon to finish the job, but Dixon did
not acknowledge. Hardin Wilson, who was standing next
163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Vance, also yelled at Dixon, but no acknowledgement
was given.
Vance attempted to find Dixon immediately after the
incident, but Dixon had taken another route from the
steelyard. Believing that Dixon had heard his call but
had deliberately refused to answer, Vance reported the
incident to Rex Bain, manager of the steelyard, the next
morning. Bain then met with both Dixon and Vance to
discuss the matter and Dixon denied that he had heard
their calls.
Dixon testified that he believed he was entitled to
leave his crane at 3:25 p.m. to prepare for leaving at 3:30
p.m. and that he did not hear the request for him to
finish unloading. Although it appears that the general
practice in bay I was for everyone to prepare to leave at
3:25 p.m. a notice had been posted to the effect that they
were to stay at their work stations until 3:30 p.m. Bain
testified that Dixon's leaving his work station early was
of little significance in the decision to give him a written
warning, inasmuch as this would be acceptable if he was
not doing anything at the time; however, the confirma-
tion by Wilson and Vance that Dixon had heard his su-
pervisor and fellow employee calling to him to complete
the unloading that already was in progress convinced
Bairi that a written warning was in order.
After the conversation with Dixon, Bain wrote out a
warning slip. As this warning contained extraneous infor-
mation which was not necessary for recordation in the
file, Bain later that same day wrote out a shorter version
of the incident which was placed in Dixon's file.
Before Bain gave Dixon the warning, he and C. M.
Vance approached Manager of Employee Relations
Deaton in order to confirm the proper action to be
taken. Deaton began an investigation of the matter on
December 23. He spoke with Wilson, Bain, and Vance
and contacted Dixon by phone. Dixon again responded
that he had not heard anyone calling to him. Subsequent-
ly, Vance reported to Deaton that employee Mile
Reggio had casually mentioned to him on Saturday De-
cember 26 that Dixon had said something about Vance
wanting Dixon to stick around a bit longer the other
day. Reggio confirmed that as he and Dixon were leav-
ing just before Christmas, Dixon has said something
about Vance wanted him to work overtime or stay over
after the first whistle and that he later had mentioned it
to Vance and that Vance had reacted with a wide-eyed
expression. Twenty minutes after Reggio told Vance,
Bain called Reggio to his office and inquired about
Dixon's comment.
Deaton spoke with Reggio to confirm that Dixon had
made a remark about Vance calling to him. Based on this
information Deaton and the disciplinary board decided
that Dixon had been insubordinate and that suspension
for I week was an appropriate disciplinary action be-
cause even though flagrant insubordination was grounds
for termination, Dixon had many years of longevity and
a clean record. Deaton phoned Dixon on December 31
to inform him of his suspension from January 4 to 8,
1982.
IV. DISCUSSION
The charges in this proceeding relate to several differ-
ent matters growing out of the union election campaign
of 1980-1981 at Riley-Beaird. Although a charge of al-
leged unlawful surveillance was asserted by the General
Counsel, the evidence in support thereof essentially was
limited to testimony that Respondent's personnel manag-
er was seen standing in a position to observe employees
handbilling at the entrance to the employee parking lot
and apparently was writing in a notebook. While I
accept this as evidence supplementing the General Coun-
sel's showing that Respondent was aware of the union
activities of the alleged discriminatees, I am not persuad-
ed that it is sufficient to establish a violation of the Act
and accordingly, I will recommend that the allegation of
unlawful conduct in such respect be dismissed.
As indicated in the preliminary conclusions above, I
have concluded that the General Counsel has made a
prima facie showing of unlawful motivation in the disci-
pline of the alleged discriminatees. The several different
situations as well as credibility and the allegation regard-
ing the pre-election speech of Respondent's president
will be discussed below.
A. Credibility
Although the cross-examination by Respondent's coun-
sel, occasionally succeeded in confusing the General
Counsel's witnesses in their recitation of the pertinent
events, or in their use or understanding of vocabulary, I
find their testimony to be credible and, where relevant
conflicts of testimony have occurred, I basically find the
employees' testimony to be the more credible and accu-
rate description of the events. With particular reference
to the termination interviews of the blade ring welders, I
note that Stamper, Loud, and Grant all testified that Su-
perintendent Greene alluded to the prior NLRB hearing
at the time of their discharge. Greene, Foreman Sepul-
vedo, Law, and Wise deny any union or hearing re-
marks. Respondent argues that it would be inconceivable
that Greene would make such a remark. It is shown,
however, that Greene did participate in the unfair labor
practice hearing prior to the election and it also is shown
that Adams had expressed his desire to smash the Union
and that he would never forget the employees that sup-
ported the Company over the Union. I find Greene's al-
leged remark, following 2 weeks after the Union failed in
the representation election, to be the reflection of an im-
plusive desire to gloat over the Union's defeat and is
consistent with Respondent's general attitude of union
animus. It also is noted that some testimony of Respond-
ent's supervisors was discredited in the prior decisions in
Riley-Beaird 1980 and 1982 supra and that judicial notice
of these decisions has been taken herein, compare Plumb-
ers Local 598 (Rust/WS.H), 255 NLRB 450 (1981).
Under these circumstances, I credit the employee's testi-
mony that Greene specifically alluded to the Union and
the prior NLRB hearing during his termination inter-
views.
164
RILEY-BEAIRD, INC.
B. The Speeches by Respondent's President
In his speech of January 12, 1981, President Adams re-
ferred to a "blank piece of paper" and said "we have
shown you that paper as an example of how you could
lose with the Union, as there are no guarantees that you
would keep all your present pay and benefits." As noted
by Respondent a "blank sheet" remark is not a per se
violation of the Act when it is made clear that any re-
ductions in wages or benefits would occur only as the
result of normal give-and-take negotiations Taylor-Dunn
Mfg. Co., 252 NLRB 799 (1980). However, it is equally
clear that Adams' January speech and the one of Febru-
ary 3, 1981, in which Adams referred to an example of
union representation that led to "a long history of strikes,
and other troubles" and "a long record of strikes, lost
pay and lost opportunities for many employees"; were
made under circumstances where union animus is shown
to have existed and where other significant unfair labor
practices had occurred as indicated in the Riley-Beaird
1980 and 1982 decisions. In particular, it is observed that
Respondent's past speeches at the time of the prior elec-
tion in 1979, were found to be threatening and in viola-
tion of the Act in Riley-Beaird 1980.
The Adams' speeches of 1981 also contained refer-
ences to his desire for help in "smashing" the Union and
the remark that Respondent would "never forget" em-
ployees that openly supported the Company. I infer that
the latter remark also conveys the message that the op-
posite is true and that those who openly support the
Union also would not be forgotten. All in all, I conclude
that the speeches had the reasonable tendency to cause
employees to believe that they would suffer loss of bene-
fits and other problems if they voted for the Union and I
find an implied threat in violation of Section 8(a)(1) of
the Act as alleged.
C. Discharge of the Blade Ring Welders
Respondent has shown that welding of unacceptable
quality occurred on the vertical flanges of an order of
blade rings delivered to Westinghouse during 1980, and
it contends that it has the right to terminate any and all
of the welders for grossly negligent or intentionally poor
work.
The above-discussed testimony and Respondent's rea-
sons for its termination of welders Arnold, Grant, Loud,
Peters, and Stamper must be balanced against the Gener-
al Counsel's showing that Stamper, Grant, and Arnold
testified in one or the other of the prior cases, were
members of the union organizing committee, and were
found to have been illegally discriminated against in the
decision in Riley-Beaird 1982. Moreover, they were
active union supporters engaged in preelection activities
as were Loud and Peters.
I am persuaded that preponderance of the evidence
supports a finding that the bad welding on the Westing-
house blade rings, standing alone, was not the controlling
reason for the termination of Arnold, Grant, Loud,
Peters, and Stamper. Moreover, I find that all five weld-
ers, four of them with over 12 years of service with the
Company, would not have been collectively terminated
were it not for their protected concerted activity of
active participation in support of the Union in the recent
union campaign and election.
Although Westinghouse had received the blade rings
by mid-1980, it did not begin machining them until Janu-
ary 1981, and then it apparently processed all of them,
removing all welder identification symbols, prior to noti-
fication to Respondent in mid-January. By the last week
of January 1981, the Westinghouse complaint had
become a problem of major proportions. The election,
lost by the Union, was held February 5, 1981. By letter
of February 17, 1981, the Westinghouse problem was
formalized, Respondent's president Adams ordered an
immediate investigation, and on February 20 and 23 the
five welders were called in, handed a copy of the Wes-
tinghouse memo of February 17, and discharged.
Despite Respondent's contentions to the contrary, I
cannot find that it made a valid and fair investigation and
evaluation of the bad welding problem and in particular,
I find Loud's testimony that he never worked on the
semiautomatic welding of the vertical flanges is support-
ed by other testimony and his explanation of how he
would occasionally code 540 welding for pickup work is
found to be credible, as is his overall testimony which
appeared to be emotional, honest, and open. Grant's tes-
timony that he only spent 3 days on semiautomatic weld-
ing of the vertical flanges is supported by Respondent's
own listing of code 540 welding. Moreover, in the Riley-
Beaird 1982 decision it was found that Grant received a
specific warning for bad welding for the 3 days he was
on the job, that Grant was just learning how to do the
verticle flanges, that his problem was with pin holes, and
that he had brought the problem to management's atten-
tion himself. The issuance of a warning for this welding
was found to be an unfair labor practice, the type of bad
welding appears to be different than the slag inclusion
problems found by Westinghouse and yet Grant was ter-
minated for what he was previously (and illegally) disci-
plined for.
Accordingly, I find that welders Loud and Grant were
not responsible for the undisclosed bad welding and that
a full and fair investigation by Respondent would have
shown them to be blameless for the Westinghouse prob-
lem.
In its investigation Respondent made no attempt to re-
ceive any input from any of the welders, weld techni-
cians, or inspectors or even all of the supervisors. At the
most, it merely got the names of five welders from the
memory of General Foreman Booker and matched them
with its records of code 540 semiautomatic welding.
Once some names were identified, no further effect was
made to investigate or access individual responsibility or
to see if any responsibility might rest with other welders
inspectors, weld technicians, supervisors, or plant proce-
dures. Because of the issues raised in the Riley-Beaird
1982 proceeding, three of these names were known to be
those who testified about vertical flanges welding at the
prior hearing. Peters, who displays distinctive individual-
istic traits and who spent the greatest number of hours
on the blade rings, necessarily would be recognized as a
participant. Respondent's asserted investigation and its
decision to terminate was made in an apparent 3-day
165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time span and I find this undue haste as well as the lack
of any meaningful investigation supports the inference
that Respondent had another motive in discharging the
vertical flanges welders.
As noted in the preliminary conclusions, Respondent
had knowledge of the union activities of these employees
and of the fact that three of them had testified against it
in prior proceedings. Moreover, the events reflected in
the Board's prior Riley-Beaird decisions, supra, regarding
Respondent's past practices shows a continuous pattern
of union animus which further supports the General
Counsel's contentions that the principal or other motive
for their termination was a desire to retaliate against
them for their activities in support of the Union.
The finding of animus and other motivations is rein-
forced by the above-found unfair labor practice relative
to the contents of the speech of Respondent's president
just prior to the election. Moreover, in view of the
timing of Respondent's termination action, only 2 weeks
after its success in overcoming the Union's attempt to
obtain bargaining rights, I infer that Respondent, flush
with victory in the representation election, seized on an
opportunity to terminate these five welders and union
supporters in order to reinforce the desire expressed by
President Adams in his speech on January 12, 1981, to
smash the Union and his threat in his speech of February
3, 1981, to let the employees know that management
never intends to forget those who supported and, implicit-
ly, those who opposed it. While it is apparent that seri-
ous bad welding did occur, there is little indication that
the response by management was directed at any mean-
ingful attempt to identify and correct the problem. In-
stead, management took the perceived opportunity to re-
taliate against some of those who had caused it to go
through the prior Labor Board proceeding and the rep-
resentation election and, in the process, it found a scape
goat to excuse its own managerial failures regarding the
fabrication of the Westinghouse blade rings.
In view of the factors discussed above, I conclude that
the General Counsel has met his overall burden of proof
and that he has shown by a preponderance of the evi-
dence that by discharging Lynn Arnold, Willie Loud Jr.,
Jimmy R. Grant, Alvin Peters, and Thomas B. Stamper
on February 20 and 23, 1981, Respondent violated Sec-
tion 8(a)(1) and (3) of the Act as alleged.
Moreover, Arnold, Grant, and Stamper are shown to
have testified on behalf of the General Counsel in the
prior Riley-Beaird proceedings and found to have been il-
legally discriminated against and I find that their dis-
charges under the circumstances shown would tend to
have a coercive effect on others called to testify in
Board proceedings and that Respondent has also violated
Section 8(a)(4) of the Act as alleged.
D. Discharges of the Tank Car and Cement Mill
Welders
Respondent has shown that some bad welding oc-
curred on a tank car manway welded by alleged discri-
minatee Meshell and that he had been given a warning
slip for having loose grounds. With respect to the latter
incident, Respondent contends that the charge should be
dismissed inasmuch as the event occurred more than 6
months prior to the Board's filing of the charge on
March 5, 1981. 1 find, however, that the timely filed
charge relative to Meshell's discharge is broad enough to
support the amended charge pertaining to the warning
which is material and relevant to his subsequent dis-
charge on February 13 and is within the General Coun-
sel's discretionary authority. See R & S Transport, 255
NLRB 346 (1981).
With respect to the September 4, 1980 warning slip I
credit Meshell's testimony that several supervisors had
stood watching him on occasions after his testimony at
the August 1980 hearing and that Supervisor Cason had
pulled on his grounds 3 days in a row before writing him
up. In Riley-Beaird 1982, Cason was found to have delib-
erately loosened the grounding of another employee,
leading to a discriminatory warning and Meshell had tes-
tified on this point. I also credit Meshell's testimony that
Supervisor Veatch did admit that Meshell's wearing of a
union badge "does chap my ass" at the time he was
given the warning. Under these circumstances, I infer
that Respondent had no sound basis for issuance of the
September 4, 1980 warning slip but, at a time shortly
after the hearing closed, manufactured a reason to disci-
pline him in order to let him know of their displeasure
with his testimony. I conclude that the General Counsel
has shown that Meshell in effect, was set up and that the
warning would not have been issued were it not for his
protected activity. Accordingly, I conclude that Re-
spondent's issuance of a disciplinary warning slip on Sep-
tember 4, 1980, violated Section 8(a)(l) of the Act as al-
leged.
Turning to Meshell's discharge for allegedly bad weld-
ing, I am persuaded that the General Counsel has shown
that it would not have occurred except for Meshell's
known union support and his testimony at the prior
Board hearing. It also is noted that another Board charge
relating to a warning to Meshell for bad welding was
filed in December 1980 and dismissed by the Regional
Director on January 20, 1981. Although it is apparent
that a leak was found on inspection of a manway that
Meshell had welded, it appears that Respondent went to
an unordinary and unusual extent to document and em-
phasize the deficiencies in Meshell's welding after it first
was discovered that the leak was near his weld symbol
and I infer that it was done specifically to provide a busi-
ness justification to support the anticipated retaliatory
discipline of Meshell.
I also infer from the timing of Meshell's discharge that
its motivation was related to Meshell's union activities
inasmuch as the inspection forms on the welding were
made out on January 26 and 27 and Meshell was shown
the welding during the latter part of January and yet ac-
cording to Deaton, the matter was not referred to the
disciplinary board until a few days before Meshell's dis-
charge on February 13, 1981. One event of significance
occurred during this intervening period, standing specifi-
cally, on February 4, the election was held, Meshell was,
standing with the principal union supporters and compa-
ny supervisors during the ballot count while wearing a
union hat, and the Union lost the election. As noted in
the discussion of the blade ring welders, Respondent has
166
RILEY-BEAIRD, INC.
shown union animus, and its president had recently made
speeches regarding smashing the Union and not forget-
ting those who supported (or opposed) the Company.
Although the January 27 warning was the third warn-
ing within a 12-month period it was only the second for
bad welding (the third warning was the grounding warn-
ing found above to have been discriminatorily issued),
and a penalty of discharge would appear to be contrary
of Respondent's apparent policy of discharge for three
warnings on the same offense. Furthermore, no meaning-
ful investigation of the bad welding was made and Me-
shell was not given the opportunity to defend himself
and I conclude that Meshell's termination was motivated
by Respondent's desire to seize on an opportunity to re-
taliate against a union supporter who had testified against
it in the August 1980 NLRB hearing.
Under these circumstances, I conclude that the Gener-
al Counsel has shown by a preponderance of the evi-
dence that by discharging Charles Meshell on February
13, 1981, Respondent violated Section 8(a)(l), (3), and
(4) of the Act as alleged.
Respondent has shown that it had a problem with a
cracked weld between two rings of a large cement mill
and that its customer's inspector told Supervisor Poland
that the welder who had worked on it, identified as Fer-
geson, was not wanted on the customer's job in the
future. Fergeson was known as a member of the union
organizing committee and had been seen handbilling by
several supervisors just prior to the election. At the re-
quest of Poland the inspector put the request in writing
on Friday, February 27, 1981, and later that same day
Fergeson was terminated.
Fergeson testified that Poland sent him back to bay 8
when he arrived for the day shift on Friday morning
telling him that his weld had broken and Poland had
worked the next shift (Thursday night) to have it redone.
Second shift welder Douglas remembered the inspector
looking at the weld crack on Wednesday or Thursday
night and asking who welded it. Although the inspector
and Poland assert that the crack was discovered the
morning of February 27, I find their testimony to be in-
herently improbable inasmuch as the likely responsibility
for the crack would then shift to Douglas who is shown
by Respondent's job report record to have, in fact fol-
lowed Fergeson on second shift on February 24, 25, and
26 and Fergeson was sent back to bay 8 on the morning
of February 27. Under these circumstances, and in view
of the absence of other contradictory testimony by
Poland, I credit Fergeson's description of the events
leading up to the discovery of the cracked weld. Specifi-
cally, I find that when Fergeson was transferred that
week to help out with the job there were problems with
poor alignment, strain, and cracked tacks and that on
Thursday, February 26, at the end of Fergeson's shift
after he had put in a thin stringer pass, Poland instructed
him to cut the jacks loose so the automatic welder could
be used for the next pass.
Respondent, however, made no attempt to fairly inves-
tigate the inspector's complaint in order to properly
access responsibility. In fact, in its haste to react, its dis-
ciplinary board met by phone and immediately terminat-
ed Fergeson the same day. Although it asserts that it
considered the complaint to be the third bad work warn-
ing, it is apparent that one of the warnings was merely
for poor appearance and not for any real deficiency in
workmanship and I infer that a long-term welder such as
Fergeson would not have been issued another warning in
such haste or terminated for a minor "third" warning
unless Respondent had some other motivating reason.
The severe nature and timing of the Fergeson discipline
within a week of the discharge of the blade ring welders
indicates that it was a followup of Respondent's retalia-
tory inclinations. It was designed to reinforce the mes-
sage that the Union was smashed and that Respondent
would continue to remember those who had supported
the Union.
I conclude that the General Counsel has shown by a
preponderance of the evidence that Fergeson would not
have been discharged were it not for his union activities
and Respondent's corresponding union animus and I fur-
ther conclude that by discharging Billy Gene Fergeson
February 27, 1981, Respondent violated Section 8(a)(l)
and (3) of the Act as alleged.
E. Discharge of the Crane Operator
Respondent has shown that crane operator Dixon was
given a warning for leaving his work station at a time
when Supervisor Vance was attempting to get him to
finish unloading two or three steel plates that remained
on a truck. Subsequently, Respondent received informa-
tion that Dixon, despite his denial, had heard the supervi-
sor and Respondent then decided to give Dixon a 1-
week suspension for insubordination.
Although Dixon denied that he heard and purposely
ignored his supervisor, I credit the independent testimo-
ny of witness Reggio that Dixon had indicated that he
was aware that Vance had attempted to get him to stay
around after the first whistle and I find no support for
the contention that the imposition of a I-week suspension
is indicative of disparate or retaliatory treatment by Re-
spondent.
Although Dixon had signed the union organizing com-
mittee list, the disciplinary action taken against him oc-
curred some 10 months after the union election and after
the discriminatory discharges of the welders discussed
above. Different supervisors and different areas of Re-
spondent's operations are involved and I can find no
direct tiein between Respondent's antiunion animus
before and shortly after the election with the discipline
imposed on Dixon. Accordingly, I conclude that the
General Counsel has failed to show by a preponderance
of the evidence that the I-week suspension of Earl Dixon
violated the Act and I will recommend that this com-
plaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By making implied threats in speeches of it presi-
dent regarding loss of benefits and jobs in order to dis-
167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
courage membership in the Union, Respondent violated
Section 8(a)(1) of the Act.
4. By issuance of a warning slip to Charles Meshell on
September 4, 1980, and discharging him on February 13,
1981, Respondent violated Section 8(a)(1), (3), and (4) of
the Act.
5. By discharging Willie Loud Jr., on February 20,
1981; Alvin Peters on February 23, 1981, and Billy Gene
Fergeson on February 27, 1981, Respondent violated
Section 8(a)(1) and (3) of the Act.
6. By discharging Jimmy R. Grant and Thomas B.
Stamper on February 20, 1981, and Lynn A. Arnold on
February 23, 1981. Respondent violated Section 8(a)(1),
(3), and (4) of the Act.
7. The evidence is insufficient to support a conclusion
that Respondent engaged in unlawful surveillance or un-
lawfully suspended employee Earl Dixon in violation of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it is recommended that Respond-
ent be ordered to cease and desist therefrom and to take
the affirmative action described below which is designed
to effectuate the policies of the Act.
With respect to the necessary affirmative action, it is
recommended that Respondent be ordered to offer
Charles Meshell, Jimmy R. Grant, Willie Loud jr.,
Thomas B. Stamper, Lynn A. Arnold, Alvin Peters, and
Billy Gene Fergeson immediate and full reinstatement to
their former positions or, if such positions no longer exist
to substantially equivalent positions without prejudice to
their seniority or any other rights or privileges previous-
ly enjoyed. It is also recommended that Respondent be
ordered to expunge from its records the references to
their discharges, the warnings relative thereto, and the
other warnings found to have been discriminatorily
issued, and to make them whole for the losses which
they suffered as a result of their terminations in accord-
ance with the method set forth in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed by the
Board in Florida Steel Corp., 231 NLRB 651 (1977). See
also Isis Plumbing Co., 138 NLRB 716 (1962).
Although Respondent moved to dismiss the proceed-
ing insofar as it relates to welder Lynn Arnold because
he was not called as a witness, I conclude that this does
not affect his entitlement or otherwise affect the record,
see Riley-Stoker Corp., 223 NLRB 1146 (1976), and Hot
Bagels & Donuts, 227 NLRB 1597 (1977), and the motion
is denied.
[Recommended Order omitted from publication.]
168