Schill Steel Products, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 350 (N.L.R.B. 1967)

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schill Steel Products , Inc. and United Steelworkers
of America , AFL-CIO . Case 23-CA-2404
June 30,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On February 2, 1967, Trial Examiner John M.
Dyer issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended, the National Labor
Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
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, the
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent,
Schill Steel Products, Inc., Houston, Texas, its of-
ficers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
1. Delete paragraph 1(e) of the Recommended
Order and substitute therefor the following:
"(e) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization, to form, join,
or assist United Steelworkers of America,
AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their
own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain from
any or all of such activities."
2. Add the following as the last indented para-
graph to the notice attached to the Trial Examiner's
Decision:
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of their right to self-organization, to
form , join , or assist United Steelworkers of
America, AFL-CIO, or any other labor or-
ganization , to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the pur-
pose of collective bargaining or other mutual
aid or protection , and to refrain from any or all
such activities.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN M. DYER , Trial Examiner : This case was heard
in Houston , Texas, October 10 and 11, 1966 ,' on an Au-
gust 19 complaint issued by the General Counsel , which,
based on charges by United Steelworkers of America,
AFL-CIO (herein the Union), alleged in substance that
Schill Steel Products , Inc. (herein variously termed
Respondent , Schill , or the Company), had discharged two
employees and interrogated and coerced employees in
violation of the Act . In its answer Respondent admitted
the requisite commerce allegations and that its warehouse
superintendent and night foreman were supervisors
within the meaning of the Act,2 but denied violating the
Act.
All parties were represented by counsel and given full
opportunity to examine and cross -examine witnesses and
briefs received from the General Counsel and Respond-
ent have been considered.
In reaching a decision I have considered the entire
record in this case and the prior labor relations ' history to
which my attention was directed by the parties. My
evaluation of the reliability of the witnesses is based on
the testimony considered individually and collectively,
my observation of witness demeanor and that a portion of
General Counsel's evidence is unexplainedly undenied
and stands uncontradicted . On all these factors, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Schill Steel Products, Inc., is a Texas corporation en-
gaged in the distribution of steel and metal products with
an office and warehouse in Houston with which this case
is concerned. Annually Respondent sells and ships
products valued in excess of $50,000 from its Texas
facilities directly to points outside the State of Texas, and
annually receives at its Texas facilities goods and materi-
als which originated from points outside the State of
Texas and are valued in excess of $50,000. Respondent
admits and I find that Respondent is engaged in com-
All dates herein occurred in 1966 unless otherwise stated
z During the hearing Respondent amended its answer to withdraw its
denial of Joe Brooks' status as a supervisor and agent for Respondent stat-
ing that he exercised substantially the same authority and duties as that of
"bay leaderman," which position the Board previously held to be super-
visory, and agreed that Brooks could be called a night-shift leaderman.
166 NLRB No. 68
SCHILL STEEL PRODUCTS, INC. 351
merce within the meaning of Section 2(6) and (7) of the
Act.
Respondent admits and I find that United Steelworkers
of America , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
In its November 14, 1966, Decision and Order in
Schill Steel Products, Inc., 161 NLRB 939, the Board
referred to Respondent's labor relations history noting
that the Union began organizing Schill's employees in
May 1962, and in August 1962 was certified as the col-
lective-bargaining agent. The Board, in two separate
cases issued on February 8 and August 20, 1963, found
Respondent had committed violations of Section 8(a)(1)
and (3) and in the latter case, that it had refused to bargain
with the Union. These Decisions were enforced by the
Fifth Circuit Court of Appeals on February 2, 1965. In
its latest Decision, the Board found Respondent had
again violated Section 8(a)(5) and (1) of the Act. Part of
both the affirmative and defense evidence in the instant
or fourth case, stems from actions which occurred during
the trial of the third case.
The present case concerns the discharge of employees
Robert Jones and Lionel Jackson on May 3, 1965, and al-
legations that employees were told they would receive no
further pay raises and would be harassed by their super-
visors because of their union membership, and were
questioned about their union membership or proclivities
and told it would be better for them not to join the Union.
The basic questions in this case are whether Respond-
ent's reason for the discharge of Jones and Jackson is a
pretext to mask discharges illegal under the Act and
whether Respondent committed the 8(a)(1) violations al-
leged.
B. The 8(a)(1) Violations
1. Alleged 8(a)(3) Robert Jones, and his brother, Paul,
started with the Company in March 1963. Robert Jones
testified he first joined the Union sometime between July
and November 1964, and remained active helping to sign
up other employees including alleged 8(a)(3) Lionel
Jackson. In July or August 1965, Jones was transferred
to the night shift and testified that in response to a
question of why he was being transferred, his brother-in-
law, Night-Shift Leaderman Joseph Brooks, said he had
been transferred so they could find some fault and fire
him, because Warehouse Superintendent Griffin knew he
was in the Union. This undenied testimony antedates the
Section 10(b) period and was offered and received as
background evidence.
2. In February 1966, Night Foreman Wade Crouch
talked to Robert Jones about the rates on union jobs say-
ing he did not believe a man should get double time for
work on Sunday and asked how Jones felt. Jones told
Crouch he thought they should get double time and
should not have to work on Sunday. Crouch said Jones
was worth more than he was paid and was going to see if
he could get him a raise. A day or so later, Jones asked
Crouch about the raise and Crouch responded that Grif-
fin said he could not give Jones a raise because the Union
would not pull for a man that would not give him what he
deserved. He said that the Union was not any good and
as soon as he got things straightened out, he was going to
get Jones a white shirt and make him a leaderman.3
This undenied testimony establishes that Jones was
told by his supervisor that he could not get a raise
because the employees' elected bargaining agent would
not allow it. Part of Respondent's defense, treated below,
would establish that Respondent and the Union had
agreed in the fall of 1965 that unit employees could
receive up to six merit raises a year. Since Jones had not
received anywhere near this amount, it follows that the
reason given Jones is a deliberate untruth and is calcu-
lated to undermine the Union's status as bargaining agent
and foster in employees' minds that they are being penal-
ized for electing the Union as their bargaining agent. I
conclude and find that this statement constitutes a threat
by Respondent that employees will not receive raises
because of their bargaining agent and is a violation of Sec-
tion 8(a)(1).
3. Robert Jones testified that in April he and employee
Middlebrooks asked Griffin about a raise and Griffin said
he could not give the boys a raise because the Union
would not consent to it, but he would see what he could
do for them.
After hearing nothing Jones again approached Griffin
and asked about it. Griffin replied that Jones knew better
than to ask for a raise, that he could not give him a raise,
that giving raises was out of his hands, and Jones had to
see somebody who had more authority than Griffin. He
then said, referring to the Union, "you boys all wanted it
and now you got it."
Earl Griffin testified that he told employees he un-
derstood that three to five raises a year were all that was
allowed and he could only recommend raises for them to
Personnel Manager John Miller. Griffin did not specifi-
cally deny Robert Jones' testimony and, as shown further
below, Griffin's testimony is not credible since it was
often self-contradictory and contradictory of other wit-
nesses, including Respondent's witnesses, apparently
because he was either careless in testifying or testified as
he thought best suited the question at the time. I credit
Robert Jones' testimony of this incident. I conclude and
find that Respondent by Griffin's statements violated
Section 8(a)(1) by falsely blaming the Union as the reason
why Respondent would not give raises and thereby at-
tempted to undermine the Union's bargaining agent status
by fostering the belief that the employees were being
penalized for having a bargaining agent.
There is no specific complaint allegation covering this
violation but it was litigated. Even if Griffin had specifi-
cally denied this event I would believe Robert Jones'
testimony, finding him the more credible of the two wit-
nesses.
4. Sometime in March or April, Night Leaderman Joe
Brooks took an employee from bay 2 where Robert Jones
worked. When Jones complained to Brooks that the em-
ployee was needed in bay 2 to work the orders, they got
into an argument as to what was needed, and Brooks
I From other testimony it appears that rank-and-file employees' work
clothes include a gray shirt or jacket, and a leaderman is distinguished by
a white shirt, which denotes his capacity and authority.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brought the matter to a head stating that he had the power
to fire Jones and needed only to pull his card and he
would be gone. Jones asked why Griffin was riding him
all the time. Brooks said that Griffin knew Jones belonged
to the Union and was going to make it hard on him; that
when a man signed a card Griffin found out about it and
began riding him; that he tried to make a man quit or find
something to fire him about; and that was a reason why he
was put on the night shift. He then asked why Jones
didn't stand alone. When Jones asked what he meant,
Brooks said he should leave the union alone, that it was
because of his union membership that he hadn't received
any more raises.
I credit Jones' undenied testimony as to this conversa-
tion with Brooks. Respondent did not produce or in any
way attempt to explain the nonproduction of Joe Brooks
as a witness and I conclude that Brooks' testimony would
not have been adverse to that of General Counsel's wit-
nesses. On the basis that Brooks has the authority and du-
ties of a bay leaderman, which position the Board has
found to be supervisory, I conclude and find that Brooks
is a supervisor within the meaning of the Act and an agent
of Respondent.
I cannot accept Respondent's argument that because
Jones and Brooks are brothers-in-law and the remarks oc-
curred in a more or less friendly conversation, they
should not be held violative. On the contrary, I feel that
this relationship would probably induce confidence in the
truth of the remarks. It seems to me an employee would
place more reliance on what a brother-in-law said, know-
ing him to be a supervisor who was or should be in a posi-
tion to know the facts. Therefore, I conclude and find that
Respondent by its supervisor and agent, Joe Brooks, vio-
lated Section 8(a)(1) by - ( 1) warning Jones that he had been
and would be harrassed by supervisors, and in particular
by Warehouse Superintendent Earl Griffin, because he
was a union member ; (2) warning Jones that he had not
received and would not get further raises because of his
union membership ; and (3) questioning Jones as to why
he was and remained a union member.
5. Lionel Jackson testified that when he was hired in
September 1965, Griffin asked if he had previously
worked on a union job. He said he hadn't. Griffin said
that some of the fellows in the plant were trying to or-
ganize a union and he would be better off if he did not fool
around with them. This testimony antedates the 10(b)
period. After his 60-day probationary period he signed a
union card for Robert Jones. Around the last of March,
Supervisors Brooks and Crouch told him that they had re-
ports he was not doing his work, and that employees
Bonner and Robert Jones were complaining about him.
After talking to Bonner and Jones about the matter, he
asked Jones and Bonner about the report in front of
Brooks and Crouch and they denied saying he was not
doing his work. Brooks and Crouch made no comment
and walked away.
6. Around April 1, while helping Supervisor Joe
Brooks, Jackson asked why Warehouse Superintendent
Griffin was apparently riding him. Brooks said Griffin
knew Jackson had signed a union card and while he was
working there, they would be doing something to make
him quit or find something for which to fire him.
I credit the undenied testimony of Lionel Jackson, not-
ing again the unexplained nonproduction of Joe Brooks as
a witness. I conclude and find that Respondent by Super-
visor Joe Brooks violated Section 8(a)(1) by warning em-
ployee Jackson that because of Jackson' s union member-
ship he had been and would continue to be harrassed to
the point of losing his job by his supervisors and in par-
ticular by Warehouse Superintendent Griffin.
7. Jackson testified that in April, he asked Griffin
about a raise, and Griffin replied it was out of his hands,
that Jackson would have to see the union man about giv-
ing him a raise , that he could not do anything. On the fol-
lowing day Jackson talked to Personnel Manager Miller,
who said that if Crouch or Griffin approved a raise, he
would see Jackson got it. Jackson testified that after
receiving this explanation he thought it was useless to
again ask Griffin for a raise.
I credit Jackson, noting that his relating of John Wil-
son's contradiction of Griffin adds credence to his
testimony and concluding that Griffin's statements were
an attempt to undermine the Union's status as bargaining
agent by fostering the idea that the Union prevented em-
ployees from receiving a raise. Such action by Respond-
ent's warehouse superintendent is violative of Section
8(a)(1) of the Act. This occurrence was not alleged in the
complaint and according to General Counsel was offered
to show Respondent' s union antipathy and knowledge of
union activity. Counsel for the Union maintained the
statement was 8(a)(1). General Counsel declined to
amend the complaint. Since similar violations are found
herein , the Recommended Order and notice would not be
altered, and nothing is lost by the absence of a finding of
violation as to this act.
8. Paul Jones, Robert's brother, testified that on the
Saturday after Robert was discharged, while he and Su-
pervisor Joe Brooks, his brother-in-law, were together on
personal business, he asked if Brooks thought that Robert
Jones and Jackson were fired for cutting the beam wrong.
Brooks answered that they were fired because they had
signed union cards and were participating in union ac-
tivites.
I credit this undenied testimony and find that this state-
ment by the immediate supervisor of the alleged 8(a)(3)'s
clearly indicated to employee Paul Jones that the reason
for the discharges was discriminatory and violative of the
Act and as such violated Paul Jones' rights as an em-
ployee and was violative of Section 8(a)(1). Although
there was no allegation in the complaint concerning this
invasion of Section 8(a)(1), it was litigated by direct ex-
amination and cross-examination and Respondent did not
seek to contest it further since Joe Brooks was not
produced. I therefore conclude and find that by this state-
ment Respondent violated Section 8(a)(1) in that Respond-
ent threatened its employees that their jobs were in
jeopardy if they joined and supported the Union. I would
treat any defense that it was a friendly conversation
between brothers-in-law in the same manner as 5 above.
9. In December 1965, Wade Crouch told employee
Bonner that Robert Jones was a hothead and his union
proclivities had a lot to do with the way he acted. He told
Bonner that the Union was no good and it would be best
for him not to mess with it.
I credit Bonner's undenied testimony and find and con-
clude that Respondent by Crouch violated Section 8(a)(1)
by warning Bonner that the Union was no good and it
would be better for him not to join it.
10. Paul Jones testified that in June, following the
discharge of his brother, he asked Warehouse Superinten-
dent Griffin for a raise and Griffin said he would check
into it and see if he could get one for him. Not hearing
SCHILL STEEL PRODUCTS, INC. 353
from Griffin, Jones asked him about the raise and Griffin,
after denying knowledge of the request, said he could not
give him a raise, that the Union would not allow it, that
the Union did not give but two to three raises a year.
Jones asked what that had to do with him. Griffin said,
"You know what I am talking about." When Jones said
no, Griffin said, "You signed one of those cards." When
Jones said he did not know what cards, Griffin said, "One
of the union cards," that he knew Jones and Wilson had
signed them, that "they asked for it so let the Union
give them a raise," that he had seen their names
on a card. Jones testified he did not argue with Griffin
since he had signed a union card.
Griffin admitted the first conversation and at first de-
nied the second, saying Jones received a raise 2 to 3
weeks later. Later in his testimony Griffin, in essence, ad-
mitted a second conversation recalling he had told Jones
that he knew two people who had signed union cards.
Later during cross-examination, Griffin said he had no
knowledge of mentioning the Union to Jones, and
although he might have had a second conversation with
Jones, he did not recall mentioning the Union. Still later
Griffin said he did have a second conversation with Jones
in which Jones asked what he had done about the raise
and he replied that he had not been able to do anything
yet but would do something as soon as he could.
Elsewhere in this Decision, I have noted Griffin's
many contradictions and I place little credence in his
testimony. Griffin seemed to follow a pattern of im-
mediately denying on direct examination that he had done
the thing in question and then admitting part of it on cross-
examination but trying to cut a line between free speech
and 8(a)(1). I do not believe his denial of this testimony
and find and conclude that Respondent by Griffin
violated Section 8(a)(1) by trying to undermine the
Union's position as bargaining agent by threatening em-
ployees that they would get no raises because of their
union membership.
C. Respondent's Additional Defenses to the 8(a)(1)
Violations
Respondent, in regard to the 8(a)(1) violations by
Crouch and Brooks, urges that no such findings be made
because they are minor supervisors who have been in-
structed not to have anything to do with the Union, "to
neither promote it or demote it." Griffin testified
generally that leadermen and foremen have been in-
structed not to say a word for or against the Union, that
the Union was none of their business.
Whether such instructions were given and the sincerity
of them can be judged by what the instructions are, when
and how given, whether employees know of the instruc-
tions, and whether they are policed.
Here we are given no details whatever about such in-
structions and, in addition, Respondent witness,
Leaderman Johnson, testified that he had never received
such instructions. Further, neither Crouch nor Brooks
was called to testify about such instructions or to explain
their statement to employees. I must conclude that
Crouch and Brooks would not have supported Respond-
ent but rather would corroborate General Counsel's wit-
ness and, in this instance, would have corroborated John-
son's testimony concerning the absence of instructions.
Further, the law is clear that coercive acts of a supervisor
are attributable to the employer.
To the 8(a) (1) violations concerning raises (2, 3, 4, and
10, above)-Respondent offered an ingenious defense. Part
of the affirmative order in the first and second cases, en-
forced by the Fifth Circuit, required Respondent to con-
sult with the Union before granting its employees raises.
During contract negotiations, which is part of the third
case, Respondent and the Union reached agreement on
a wage clause providing for one general 5-cent wage in-
crease and up to six wage increments of 5 cents each to be
granted within a year at Respondent's discretion based on
seniority and ability. The wage clause also provided for
notification to the Union of the amount, date, and name
of employees granted raises.
On September 7, 1965, Respondent by letter offered to
make the contract provisions regarding wages effective
with a 1-month retroactive wage increase, The Union,
by letter on September 10, 1965, confirmed a prior
telephone conversation and agreed to Respondent putting
the wages tentatively agreed upon in effect and asked the
Company to iron out inequities in the wage structure and
notify the Union of the new individual rates. Respondent
claims that the agreement and effectuation of this clause
constitutes compliance with the affirmative provisions of
the first and second cases regarding consultation on wage
increases referred to above, and that it was bound by this
clause in giving raises. Respondent admits it has not ef-
fectuated the entire wage-contract clause since it has
never given the Union any information on the amount,
date, or names of employees granted increases since Sep-
tember 7,1965.
I am not called upon to decide whether Respondent's
actions constitute compliance with the affirmative or
negative provisions of the first and second cases and will
not do so. This defense of considering itself bound by this
wage provision has nothing to do with the violations
found in 2, 3, 4, and 10, above. The deliberate untruths
told employees in Griffin, Crouch, and Brooks' state-
ments clearly were calculated to create ill will and bring
discredit on the Union. Here Respondent sought to
deceive the employees as to what the contract terms pro-
vided and in order to conceal Griffin's refusal to grant
raises, attempted to blame the Union for prohibiting the
raises the Union had agreed employees were entitled to
receive. The contract provision was misused by Respond-
ent and its terms grossly distorted and it may not serve
as a shield to the violations found.
D. The 8(a)(3) Violations
Respondent maintains an inventory of various types of
steel for construction and other purposes which it cuts
and ships on instructions from its customers. Some types
of steel are not kept in stock but are "bought out"; i.e.,
bought from other suppliers.
On April 29, order 55966 was taken for one 96-inch
piece of 12 by 12,72-pound, wide flange steel beam, to be
shipped to the R. N. Adams Construction Company at
Kauffman, Texas. A second order 55967 was placed for
four 96-inch pieces of the same type steel beam to be
shipped to the same company at Junction, Texas,
After the orders are typed, they are sent to the
warehouse office where they are broken down according
to the bay that handles the type of steel ordered. In this
case bay 2 handles construction steel. When the type of
steel needed is not in stock, the order is placed on a "hold
board" while the steel is "bought out." According to the
testimony, "hold" orders are usually placed on top of the
other orders on the "hold board" for the bay and
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gradually move down on the "board" as new orders are
placed on top. One bay leaderman testified that he checks
with the warehouse foreman if the ordered material is not
received within a week of its placement on the "hold
board." The bay 2 day-shift leaderman was certain that
these two orders were together on the "hold board." A
40-foot steel beam "bought out," was delivered to the
plant and placed in the driveway on May 2. Jones
testified that he checked it in and got order 55967 for the
four 8-feet pieces. Jones testified that Jackson, who was
regularly assigned to help him in bay 2, had been called to
the front to assist unloading a truck and that while he was
working on this beam, Jackson came back. By that time
Jones had measured and cut one 96-inch portion using an
acetylene torch. He states, and Jackson corroborates,
that Jackson asked if he wanted him to mark it off. Jones
told him to mark off another 96-inch portion. Jackson
testified that he misunderstood Jones and thought he said
9-feet 6 inches and consequently marked off a 144-inch
portion, which Jones, attired in goggles, cut. Jackson
proceeded to mark off two more 114-inch portions which
Jones cut. After finishing the cuts, Jones took off his gog-
gles, looked at what he had cut, and remeasured it finding
three pieces were each 18 inches too long. The three
pieces were remeasured and Jones cut 18-inch sections
off each, leaving four 96-inch beams, three pieces 18
inches long, and one piece 42 inches long. They got the
four 96-inch pieces together, marked and put shipping
tags on the bundle, and got crane operator Gannon to
hoist them to the spot where they would be loaded on a
truck. Jones testified they then moved the four remaining
small pieces to the "scrap barrel. `4
Jackson gave more details saying that they used chains
from the hoist which he had to undo when the scrap was
placed in the scrap barrel. Crane operator Gannon
testified that he used a self-locking clamp to pick up the
scrap pieces separately and placed the three 18-inch
pieces in the "scrap barrel" and for the 42-inch piece,
took a hand signal which he interpreted to mean that it
should be placed on the "random pile" at the rear of the
plant. Gannon could not state whether Jones or Jackson
gave him the signal. He placed the 42-inch piece on top of
the random pile and no one directed him where to put it.
I think Jackson testified as to what is generally done in
picking up pieces of steel and believe that Gannon's
testimony is more nearly accurate as to what was done
with the scrap, and his use of a pressure clamp to move
the scrap. I conclude and find that Gannon at Jones' and
Jackson's instructions moved the three 18-inch pieces
separately to the "scrap barrel" and when Gannon picked
up the 42-inch piece and was given the signal to take it
away, misinterpreted the signal to mean he should place
the piece on the "random pile," and as he started his
crane, Jones and Jackson went toward the office to check
the "hold board," and did not see Gannon place the 42-
inch piece on the "random pile."
Jones testified that he did not see order 55966 for the
one 96-inch beam, and when Jackson asked what they
should do with the "drop" (remainder of the cut) Jones
said that there were no orders for it, but to double check,
they both went by the office and found no order for the
,'drop.,,
Bay Leaderman Johnson testified that about 7 a.m.- on
the following day, after checking his order, he saw that
the four 96-inch beams had been cut and figured that
there was one 96-inch piece left. He gave his men order
55966 for the one 96-inch piece, and told them to find the
"drop" from the 40-foot beam and fill the order. He
testified he found this order on the top of the "hold
board" orders, which means it was not in a normal posi-
tion, since with additional orders it would have sifted
toward the bottom of the "hold" pile in 4 days. It seems
apparent that this order was removed from the "hold
board" by someone and later placed back on top of the
pile. Bay leaderman Johnson stated that his men did not
find the 8-foot piece, and after a quick look, he asked
Warehouse Superintendent Griffin about the possibility
that the beam was short and an 8-foot section might not
be left. After Griffin said it was a 40-foot beam, and that
possibly the cuts were made wrong, he checked the four
pieces in the driveway and found they were the right
length and after looking further found three 18-inch
pieces in the scrap barrel. Realizing they would not ac-
count for all the beam, he 'reported his findings to Griffin
who told him that the balance of the beam had to be
somewhere. Johnson got Alex Ross to help him look and
finally found a 42-inch piece on top of the random pile
near the rear of the plant. About that time Griffin came by
and he gave Griffin the order for the one 8-foot piece.
Griffin said he would get another beam because the order
was supposed to go out that night. Johnson took the 42-
inch piece from the "random pile" with a crane and put
it in the "scrap barrel."
Griffin testified somewhat differently from Johnson,
and in places contradicted himself. At one point he
testified he personally saw the orders together on the clip-
board every day from April 29 through May 2. Later he
testified that he could not swear that he saw the orders on
the "board" each and every day. Still later in his
testimony, Griffin said he did see them on the "hold
board" every day. Griffin said Johnson came to him and
asked where the rest of the order was, that they had found
the four beams but couldn't find the one 8-foot piece.
Contrary to Johnson, Griffin states he helped Johnson
look for the missing pieces and that they measured the
four 96-inch pieces which were stacked and ready to ship,
and looked further and found the 18-inch pieces of beam
in the "scrap barrel" and kept looking because it did not
check out. He testified that after measuring the three 18-
inch pieces (after originally testifying there were four 18-
inch and one 34-inch pieces) he told Johnson that "the
balance of this beam has to be here, some place. Go look
in the random pile; evidently- I hate to say this- but
evidently they have hid the other piece. Since they made
this mistake and we found this one it just leads to nothing
else but they hid it." Griffin said Johnson and Alex Ross
went to the back and found the 42-inch piece which
should have been put in the "scrap barrel." After giving
the above testimony, Griffin testified that he did not im-
mediately conclude that Jones and Jackson had attempted
to conceal their mistake, but that he had all day to think
it over and finally concluded that an attempt to conceal
the mistake had been made by hiding the 42-inch piece
and- this justified discharge for both men. He stated that
' The "barrel" is actually a blocked off area surrounded by a steel wall
several feet tall, wherein pieces under 4 feet are placed The "random
pile" for pieces over 4 feet is located near the back of the plant
SCHILL STEEL PRODUCTS, INC.
he did not decide to fire them until he talked to the two
and "if they had reported it that night, they would be
working there today." Griffin, at another point in the
hearing, testified that Jones and Jackson continually
blamed each other for the mistake and he had no way of
knowing who was telling the truth. "Well, I had no alter-
native, I had to dismiss them both to get the right one that
was at fault." Queried that it was because they made the
mistake that he dismissed them, Griffin said, "Well, it
was because they made the mistake and then hid the
piece, trying to conceal the mistake. If they had told me
`We are just sorry, we cut the beam up wrong,' I would
have not even considered firing them. But they kept blam-
ing it on the other one and there was no other alterna-
tive." Griffin also stated that during the discharge conver-
sation he got no answer to his question as to why they did
not put all the pieces in the scrap barrel.
Jones testified that when he came to work on the after-
noon of May 3, his timecard was not in the rack and Joe
Brooks told him Griffin wanted to see him in the office. In
response to Griffin's question of what happened to the
beam, he told Griffin he had properly measured and cut
the first piece and when Jackson came back to help him,
Jackson misunderstood his instruction and instead of
marking a 96-inch cut, marked the beam at 9 feet 6 inches
and he cut the mismarked sections. Griffin said he would
get Jackson in and did so. With Jones sitting there, Griffin
asked Jackson what happened and Jackson verified
Jones' statement saying he had understood Jones to say
9 feet 6.5 Griffin told Jones and Jackson they had cost the
Company two or three hundred dollars and to bring in
their uniforms and get their checks the next day.
Jackson corroborated Jones stating that on May 3 he
had worked a few minutes when Griffin called him into
the office. With Jones present, Griffin asked if he knew
anything about the beam cut. He told Griffin he had un-
derstood Jones to say 9 feet 6 inches and after the cut
found it was supposed to be 96 inches. Jackson testified
Griffin said they had cost the Company $300 and got him
chewed out and he had no alternative but to discharge
them, that they were to come back the next day and bring
their uniforms and get their checks.
Both Jones and Jackson testified that nothing was said
about hiding a piece of the beam and denied that they
were accused of trying to hide a mistake.
Respondent placed much stress on the two orders
being together when they came from the office and being
together on the "hold board," intimating that Jones
and/or Jackson should have seen both. But as noted
above Jones and Jackson did not find the order for the
one piece and that order was found on top of the "board"
on the following day indicating it had been removed and
later replaced by someone. I am not willing to assume
that Jones and Jackson saw this order. Their actions in
putting the scrap in the "scrap barrel" is consistent with
their testimony that they did not see or know of the order
for the one piece. In essence, not knowing of the order,
their mistake consisted of miscutting the beam and wind-
ing up with four pieces in the "scrap barrel" instead of
one 8-foot piece on the "random pile." But Warehouse
Superintendent Griffin said he did not discharge them for
a mistake in cutting the beam, so that this admitted
355
mistake was not Respondent's reason for discharging
them.
We come then to whether the reason for discharge was
because Jackson and Jones blamed each other, didn't
confess their mistake and say they were sorry, or because
they tried to hide their mistake, all of which Griffin stated
at various times.
I have credited Jones and Jackson in that they agreed
and told Griffin that Jackson had misunderstood Jones'
directions for marking the beam. Griffin's testimony
doesn't really dispute this point because Griffin testified
to his conclusions that they blamed each other and not as
to what was said. As seen above Jones and Jackson didn't
have any reason to seek out a supervisor and confess a
mistake, but did admit it when asked about it. Respondent
intimates they should have sought out Night Leaderman
Joe Brooks and brought it to Brooks' attention. But when
Griffin discharged them, Griffin did not know whether
they had told Brooks about the error or not, since Griffin
stated he had not talked to Brooks about it.
The fact that three 18-inch pieces were in plain view in
the "scrap barrel" proves there was no attempt to hide a
mistake. With four 8-foot sections cut from a 40-foot
beam, there could only be 8 feet left. If only one 18-inch
section of beam were in the "barrel" it would be obvious
to anyone seeing it that a mistake in cutting the beam had
been made. When Leadermen Johnson and Alex Ross
found the three 18-inch sections, they knew not only that
a mistake had been made but also that 42 inches of the
beam was missing, but no matter where it was, the
mistake in cutting the beam was self-evident and could
not be hidden.
Since no attempt was made to hide a mistake and Jones
and Jackson did admit the mistake when questioned
about it, I can only conclude they were treated differently
than employee Bonner in a nearly identical situation.
Jimmy Lee Bonner testified that on one occasion he
was supposed to cut two 16-foot sections from a 40-foot,
10 by 10, 54-pound, wide flange beam, but made a
mistake and cut one 16-foot and one 12-foot piece. After
discovering his mistake, he cut another piece 4 feet long
to make up the length that was ordered and told
Leaderman Joe Brooks about his mistake. The next day
Griffin talked to him about the mistake and told him to be
more careful. Warehouse Superintendent Griffin testified
that a salesman called and told him of the mistake the fol-
lowing day and he reprimanded Bonner when he came to
work and asked him to be more careful. He stated he did
not talk to Leaderman Brooks before talking to Bonner,
and did not learn of the mistake from Brooks.
The only apparent reason for the different treatment is
that Griffin knew Jones and Jackson were active union
members, who were told that Respondent was looking for
an excuse to rid itself of them. (See 1, 4, 6, 8, and 9,
above.) But Warehouse Superintendent Griffin, despite
the statements made by Brooks and Crouch, testified he
did not know Robert Jones and Lionel Jackson were
union members when he discharged them.
Union Representative C. T. Ray testified that while
present for the third case in this series, he had in his pos-
session signed union authorization cards for Jones and
Jackson and some 27 other employees. These cards were
5 Griffin originally testified that after questioning Jones about the
mistake, he questioned Jackson in private in the office and then brought
the two of them together and they kept blaming one another
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handed to Respondent's counsel, who, with Respondent
Personnel Manager John Miller, perused them to count
and see that they were signed. Ray testified that Griffin
looked at the cards with Miller.
Griffin stated he was not with Miller but was separately
seated during the third hearing. Griffin further testified he
only knew that two employees, Predo Braden and Joe
Davis, were in the Union. Later in his testimony, Griffin
testified that during the third hearing he was shown union
authorization cards for Henry Wilson and Charles
Grayson and authenticated their signatures. He then
testified that as far as knowing who was in the Union,
Wilson and Grayson were the only t,vo he could swear to.
In view of this and his other numerous contradictory
statements and the fact that Griffin testified to his conclu-
sions and did not attempt to recall what occurred but
rather testified either carelessly or as he thought best at
the moment, I do not believe Griffin's statement that he
did not look at the union cards when he had the opportu-
nity. I note further that Griffin later told Paul Jones that
he knew Paul Jones had signed a union card and he had
seen the card. I credit Ray that he saw Griffin looking at
the cards, and conclude and find that Griffin knew Jones
and Jackson were union members when he discharged
them.
I conclude and find that Respondent violated section
8(a)(3) and (1) by the discharges of Robert Jones and
Lionel Jackson.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II,
above, and therein found to constitute unfair labor prac-
tices in violation of Section 8(a)(3) and (1) of the Act, oc-
curring in connection with Respondent's business opera-
tions as set forth in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act as fol-
lows:
Respondent having discharged and thereafter having
refused to reinstate Robert Jones and Lionel Jackson
because of their union activities, it is recommended that
Respondent offer to them immediate and full reinstate-
ment to their former positions, or if those are unavailable
through change in Respondent's operations, to a substan-
tially equivalent position, without prejudice to the senior-
ity or other rights and privileges they may have, and that
Respondent make them whole for any loss of pay they
may have suffered by reason of Respondent's discrimina-
tion against them, by payment to them of a sum equal to
that which they would have normally received as wages
from May 3, 1966, the date of their discriminatory
discharges, until the day Respondent reinstates them, less
any net earnings for the interim. Backpay is to be com-
puted on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289,
with interest at the rate of 6 percent to be computed in the
manner set forth in Isis Plumbing & Heating Co., Inc.,
138 NLRB 716. It is further recommended that Respond-
ent make available to the Board, upon request, payroll
and other records in order to facilitate the checking of the
amount of backpay due and the rights of reinstatement of
Robert Jones and Lionel Jackson.
Respondent as part of its defense has stated it con-
siders itself bound by the wage clause referred to above
(C. Respondent's Additional Defenses to the 8(a)(1)
Violations) but in denying raises to its employees has
untruthfully blamed the Union therefore and distorted the
terms of the clause. It is therefore recommended that
Respondent truthfully inform its employees of the terms
of this clause by distributing a copy of such clause to each
of its employees. If, in the interim, Respondent and the
Union reach a new or different agreement as to wages,
then Respondent shall notify its employees of such agree-
ment and provide copies of such wage provisions for each
of its employees.
Having found that Respondent has discriminated
against Jones and Jackson because they exercised their
rights under the Act, and that Respondent has interfered
with the rights of its other employees by its discrimination
against Jones and Jackson and by having otherwise in-
vaded its employees' rights under the Act, and noting
further Respondent's history of violations by which it has
tampered with its employees' rights, I am convinced that
there is a danger Respondent may commit additional and
other unfair labor practices unless effectively restrained
from so doing. Because a part of the purpose of this Act
is to prevent the commission of further unfair labor prac-
tices, I hereby recommend that Respondent be placed
under a broad order to cease and desist from in any
manner infringing upon the rights guaranteed its em-
ployees by the Act. On the basis of the foregoing findings
and the entire record, I make the following:
CONCLUSIONS OF LAW
1. Schill Steel Products, Inc., 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 discriminatorily discharging Robert Jones and
Lionel Jackson on May 3, 1966, and thereafter refusing
to reinstate them because of their union membership, ac-
tivities, and desires, Respondent engaged in and is engag-
ing in unfair labor practices affecting commerce within
the meaning of Sections 8(a)(3) and (1) and 2(6) and (7)
of the Act.
4. By interrogating employees concerning their union
desires and membership and informing employees it
would be best for them not to join the Union and that they
would be harrassed by their supervisors because they had
signed union cards and that because of union membership
they would not receive wage increases, and that the
Union would not allow them further wage increases,
Respondent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Sec-
tions 8(a)(1) and 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case
SCHILL STEEL PRODUCTS, INC. 357
considered as a whole, I hereby recommend that Schill
Steel Products, Inc., Houston, Texas, it officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on be-
half of United Steelworkers of America, AFL-CIO, or
any other labor organization, by discriminatorily
discouraging and not reemploying its employees or by
discriminating against them in any other manner.
(b) Threatening its employees that they would not
receive wage raises because they belonged to the Union,
or untruthfully informing employees that the Union
would not allow further increases.
(c) Threatening its employees that they would con-
tinually be harassed by Respondent's supervisors
because they were union members.
(d) Interrogating employees concerning their union
membership or desires and informing them that it would
be best for them not to join the Union.
(e) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist the United Steelworkers of America, AFL-CIO,
to bargain collectively through representatives of their
own choosing and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or
protection.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Robert Jones and Lionel Jackson im-
mediate reinstatement in accordance with the recommen-
dations set forth in the section of this Decision entitled
"The Remedy."
(b) Make Robert Jones and Lionel Jackson whole for
any loss of pay they may have suffered by reason of
Respondent's discrimination against them in accordance
with the recommendations set forth in the section of this
Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records or reports, and all records
necessary to analyze the amount of backpay due and the
rights of Robert Jones and Lionel Jackson under the
terms of this Recommended Order.
(d) Provide each of its employees with information on
the provisions for wage raises in accordance with the
recommendations set forth in the section of this Decision
entitled "The Remedy."
(e) Post at its Houston, Texas, plant, copies of the at-
tached notice marked "Appendix. "6 Copies of such
notice, to be furnished by the Regional Director for Re-
gion 23, after being signed by Warehouse Superintendent
Earl A. Griffin7 and any other responsible Respondent
agent, shall be posted by Respondent immediately upon
receipt thereof, and be maintained 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.
(f) Notify the Regional Director for Region 23,
in writing, within 20 days from the receipt of this Deci-
sion, what steps 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
Y It is recommended that Warehouse Superintendent Earl Griffin sign
this notice , since , according to the testimony above and the resolutions I
have made, he was the main respondent agent who violated the Act in this
matter and it appears necessary to -me that he should inform the em-
ployees that as Respondent 's representative , he will not engage in further
violations Another responsible respondent agent should also sign the
notice to attest to Respondent's affirmation that it will not permit any
further violations . See General Truckdrivers , Warehousemen and
Helpers ofAmerica Local #5, et al., 161 NLRB 493
8 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 Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
Following a trial in which the Company, the Union,
and the General Counsel of the NLRB participated
and offered their evidence, a Trial Examiner of the
NLRB has found that we violated the law and has or-
dered us to post this notice and to abide by what we
say in this notice.
WE WILL NOT try to discourage you from becom-
ing or being a member of United Steelworkers of
America, AFL-CIO, by firing our employees.
WE WILL NOT threaten that you will not receive
raises or that we will ride or harass you or any of our
employees because of union membership.
WE WILL NOT discourage you from union activities
or membership by questioning you about whether
you are or would like to be a union member,
WE WILL NOT untruthfully tell you that the Union
will not permit you to have a raise.
WE WILL give you a copy of the wage raise clause
presently in effect.
WE WILL NOT in any other way try to discourage
you from becoming or being members of United
Steelworkers of America , AFL-CIO.
WE WILL offer Robert Jones and Lionel Jackson
their former jobs with all of their rights and any
backpay due.
All our employees are free to become or remain union
members.
SCHILL STEEL PRODUCTS,
INC.
(Employer)
Dated By
Earl A. Griffin
Warehouse Superintendent
308-926 0-70-24
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive or compliance with its provisions, they may communicate
days from the date of posting and must not be altered , directly with the Board's Regional Office, 6617 Federal
defaced, or covered by any other material. Office Building, 515 Rusk Avenue, Houston, Texas
If employees have any question concerning this notice 77002, Telephone 228-0611.