Simcala, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1998

325 N.L.R.B. 1026 (N.L.R.B. 1998)

1026
325 NLRB No. 191
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
3 In adopting the judge’s conclusion that employee Hatfield was
unlawfully discharged, we do not find that the Respondent failed to
follow the contractual procedure for hearings on suspensions prior
to discharge. We do, however, rely on the judge’s unexcepted-to
finding that the Union was not required to obtain prior permission
before posting items involving union business on the break room
bulletin board. In these circumstances, we find the Respondent’s as-
serted reason for discharging Hatfield, i.e., because of his insubordi-
nate refusal to remove the unauthorized postings, to be clearly
pretextual.
1 All dates are in 1996 unless otherwise stated.
Simcala, Inc. and United Steelworkers of America
District No. 9, AFL–CIO–CLC. Case 15–CA–
14060–1
June 30, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
On March 13 and 26, 1998, Administrative Law
Judge Howard I. Grossman issued the attached deci-
sion and an erratum, respectively. The Respondent
filed exceptions and a supporting brief, the General
Counsel and the Charging Party have filed answering
briefs, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated
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 briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Simcala, Inc., Mount
Meigs, Alabama, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Patricia Adams, Esq. and Stephen C. Bensinger, Esq., for the
General Counsel.
James Nolan, Esq. and David L. Warren, Jr. Esq. (Ogletree,
Deakins, Nash, Smoak & Steward, P.C.), of Birmingham,
Alabama, for Respondent.
Richard Rouco, Esq. (Cooper, Mitch, Crawford, Kuykendall
& Whatley), of Birmingham, Alabama, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
original charge was filed on September 13, 1996,1 by United
Steelworkers of America District No. 9, AFL–CIO–CLC (the
Union), and amended charges on October 23 and December
17. Complaint issued on December 17, and as amended at
the hearing alleges that Simcala, Inc. (Respondent or the
Company) unlawfully threatened employees with discharge if
they assisted the Union, and told them that it would not have
discharged an employee if the Union had not filed unfair
labor practice charges concerning his being disciplined. The
complaint also alleges that Respondent suspended employee
Thomas Hatfield on September 4, and discharged him on
September 16, because he assisted the Union, and because he
and the Union, on his behalf, filed unfair labor practice
charges.
A hearing on these matters were held before me in Mont-
gomery, Alabama, on September 8 and 9, 1997. Thereafter,
the General Counsel, Respondent, and the Charging Party
filed briefs. On the basis of the entire record including my
observations of the demeanor of the witnesses, I make the
following
FINDINGS OF FACTS
I. JURISDICTION
Respondent is a corporation, with an office and place of
business in Mount Meigs, Alabama, where it is engaged in
the manufacturing of silicon metals. During the 12-month pe-
riod ending November 30, 1996, Respondent sold and
shipped from its Mount Meigs, Alabama facility goods val-
ued in excess of $50,000 directly to points located outside
the State of Alabama, and during the same period purchased
and received at the facility goods valued in excess of the
same amount from points located outside the State of Ala-
bama. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Thomas Hatfield’s Employment History and
Union Activities
The facility at Mount Meigs was owned by a predecessor
until 1995, when it was acquired by Respondent. The Union
had represented employees at the facility for about 20 years,
and was recognized by Respondent at the time of its acquisi-
tion of the business.
Hatfield had been employed for about 20 years, and
worked as a microsilica attendant, maintaining the machines.
He was a long-time union member, and served as chairman
of the grievance committee for about 8 years before his ter-
mination. In this capacity, Hatfield handled over 90 percent
of the Union’s business at the plant, including the filing of
grievances and Board charges, and attendance at grievance
and arbitration hearings. He met weekly with Respondent’s
director of human relations, Donald Williams.
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01026 Fmt 0610 Sfmt 0610 D:\NLRB\325.150 APPS10 PsN: APPS10
1027SIMCALA, INC.
2 The pleadings establish that Glenn was a supervisor within the
meaning of the Act.
3 The pleadings establish that Boardwine was a supervisor within
the meaning of the Act.
4 R. Exh. 1, p. 21.
5 R. Exh. 9; grievances 4–96; 5–96; 7–96; 9–96; 10–96; and 11–
96.
6 Ibid.
7 G.C. Exh. 5(a).
8 R. Exh. 10.
9 R. Exh. 11.
10 United Steelworkers of America v. Simcala, Inc., United States
District for the Middle District of Alabama, Northern Division, Civil
Action No. 97–T–151–N.
11 G.C. Exh. 5(b).
12 G.C. Exhs. 5(c), 5(d).
13 R. Exh. 2, par. 10.
14 Ibid., par. 13.
Hatfield testified that his supervisor, Environmental Super-
intendent Roy Glenn2 repeatedly told him, beginning in Feb-
ruary that the Company was going to fire him if he did not
stop filing grievances and handling Union business. Glenn
corroborated this. He affirmed that he told Hatfield ‘‘a hun-
dred times, ‘Hey, man, just cool [it]. Lay back. If you don’t,
they going to run your ass off.’’’ Employee Richard King
testified that Glenn said that if Hatfield did not ‘‘slack up,’’
the Company was going to run him off. It was Glenn’s
‘‘basic comment’’ which he made more than once. Employee
Timothy Tuell testified that Glenn told Hatfield on several
occasion that he was going to be fired if he did not stop
doing what he was doing.
Hatfield testified that Company President Ed Boardwine3
told him that he was costing the Company money by filing
frivolous charges and grievances, that Hatfield was a ‘‘trou-
ble maker,’’ and that Boardwine was going to retain Human
Relations Manager Donald Williams in his job ‘‘to keep the
Union straight and to keep Hatfield straight.’’ Boardwine de-
nied saying anything about the Union to Hatfield. Hatfield
was the more credible of these two witnesses, and his testi-
mony concerning the Company’s attitude toward his Union
activity is corroborated by the evidence cited above. I credit
Hatfield.
B. The Grievances
The collective-bargaining agreement provided for a four-
step grievance procedure, with designated times for appeal
from one step to the next. An appeal from the third step to
arbitration (the fourth step) had to be filed within 10 days.4
A third-step meeting was held on July 25 with respect to
six grievances.5 On July 30, Respondent denied five of these
grievances and held the sixth in abeyance.6 Union Staff Rep-
resentative Raymond League testified that on August 5, he
mailed a letter to Company Director of Human Resources
Donald Williams requesting arbitration of these cases. Fed-
eral Mediation & Conciliation Service (FMCS) forms re-
questing arbitration were enclosed. A copy was sent to
Grievance Chairman Hatfield.7 League testified that Williams
called him on August 12, and said that he did not accept
only ‘‘one’’ FMCS form. Williams did not say that he had
not received the August 5 letter, according to League. The
latter apologized to Williams, and said that it was an error
of a temporary secretary. On the next day, August 13,
League wrote a letter to Williams, referred to his August 5
letter, and enclosed FMCS forms.8 On August 16, Williams
sent League a letter asserting that the secretary had not only
failed to send the FMCS forms, but had also failed to send
the August 5 letter requesting arbitration. Accordingly, Wil-
liams rejected the appeal as ‘‘untimely,’’ and refused to sign
the FMCS forms.9
The Union thereafter filed an action in a Federal district
court to compel Respondent to arbitrate the timeliness of the
appeal for arbitration of the grievances. On July 15, 1997,
the court granted the Union’s Motion for Summary Judg-
ment.10
The Union arbitrated other disputes with Respondent. On
July 31, League wrote Williams requesting that the Company
honor an arbitrator’s award requiring the Company to pay
overtime meal allowances to employees working overtime.11
On August 5, League wrote to an arbitrator who had denied
a grievance, and made various comments.12
C. The Posting on the Bulletin Board
1. Summary of the evidence
The Union and the Company negotiated for a contract
after the Company’s acquisition of the plant. After the nego-
tiations were completed, the Union asked for a bulletin
board. Company President Boardwine responded that they
could have one, and to ‘‘work it out’’ with Director of
Human Resources Williams. Thereafter, the Union was al-
lowed to use half a bulletin board in the breakroom.
The employee code of conduct stated that no employee
could ‘‘post or distribute any literature’’ without the prior
written permission of the human resources director.13 It also
provided that no employee could ‘‘post . . . any notice from
[sic] the bulletin boards or in the plant without the permis-
sion of the plant superintendent.’’14
Williams was asked whether he told employees that they
had to get permission before posting. He answered: ‘‘No, I
didn’t have to They came and got permission . . . they al-
ready knew.’’ He contended that Hatfield asked him for per-
mission to post a notice of a union meeting, which Williams
granted. Hatfield also requested permission to post a notice
regarding back moneys due union members for meals, but
Williams could not recall the contract. Williams also con-
tended that either Union President Johnny Ross or Union
Committeeman Richard King asked permission to post a no-
tice about an election. Williams granted this request. Also
according to Williams, an employee posted a menu from a
‘‘local eatery,’’ and Williams required him to remove it.
‘‘The first time I asked Union materials to be taken down
was the 28th [August, 1996],’’ Williams asserted, ‘‘and that
was because my permission had not been gotten.’’
Hatfield testified that he made a request for Union use of
a bulletin board during the last phase of the contract negotia-
tions. He affirmed that he initiated the issue of whether
Company permission to make a posting was required. The
Company simply replied that the Union could have a bulletin
board to conduct union activities. Hatfield agreed that, prior
to the execution of the contract, the Union had to ask for
permission from the former owner to make a posting. How-
ever, after the contract with Respondent was signed, Hatfield
‘‘used the bulletin board by free will to post documents.’’
Thus, he posted a notice of the bankruptcy of the Company’s
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01027 Fmt 0610 Sfmt 0610 D:\NLRB\325.150 APPS10 PsN: APPS10
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 G.C. Exh. 7.
16 G.C. Exhs. 5(a)–5(d).
17 Ibid.
predecessor, and notices about vacation pay and arbitration
awards.
Union President Ross testified that, at Hatfield’s request,
he posted a lawyer’s letter regarding vacation pay due to the
employees of the Company’s predecessor15 without getting
the Company’s permission. Ross was present during the con-
tract negotiations, and did not hear any requirement that per-
mission to post was required.
Union Committeeman Richard King corroborated Hatfield.
Prior to the contract signing, the Union needed the prior
owner’s permission to post materials. However, after the
signing of the contract with Respondent, this requirement
was discontinued, and the Union had ‘‘half the bulletin board
to use for business.’’
Later in August, Hatfield posted Raymond League’s letter
to Williams on August 5 requesting arbitration, a letter from
League to Williams protesting the Company’s alleged failure
to administer an arbitral award on overtime meal money due
employees, a letter to the arbitrator commenting on a prior
denial of a grievance, and a copy of the denial.16
2. Factual conclusions
Hatfield, Ross, and King impressed me as more reliable
witnesses than Williams on this issue. Williams did not deny
Hatfield’s testimony, corroborated by the other union wit-
nesses, that no limitations were placed on use of the bulletin
board during the negotiations. Williams’ assertion that Hat-
field asked for permission to post an innocuous notice of a
Union meeting is scarcely credible in light of the Company’s
agreement to permit use of the bulletin board for union busi-
ness. I conclude that prior permission for posting was not re-
quired, and that Hatfield posted the items listed above with-
out asking for permission.
D. The Events of August 28, 1996
1. Williams’ discovery of the posted materials
Director of Human Resources Williams became aware on
August 27 of the items which Hatfield had posted on the bul-
letin board.17 Union witness Brady Baker testified that he
and other employees were sitting in the breakroom, where
the bulletin board was located, when Williams entered and
began reading the items on the board. He said, ‘‘Hatfield
went too far this time. I’m going to have to step on his toes
a little bit.’’ Williams confirmed that he said this. He testi-
fied that he considered the postings ‘‘inappropriate’’ because
Hatfield had not asked for permission to post them.
2. Hatfield’s conversation with Williams
Williams called Hatfield to his office that morning. Ac-
cording to Hatfield, Williams told him that Hatfield had
placed items on the bulletin board without permission. Hat-
field responded that he did not need permission, and the two
argued about the matter. Hatfield asserted that Williams or-
dered him to remove the items sometime during the day.
Hatfield asked whether that was a direct order, and Williams
replied that it was. Hatfield responded that he had left his
job to talk to Williams, and would remove the items before
he left for the day. Williams acknowledged that Hatfield said
this.
As indicated, Williams testified that the postings were ‘‘in-
appropriate’’ because they were done without Williams’ per-
mission. His version of the conversation is that he called
Hatfield to his office and told him this. Hatfield said that the
Union had the right to use the bulletin board. Williams told
him to take the material down, and file a grievance. Hatfield
asked whether Williams was issuing a direct order, and Wil-
liams said that he was and that Hatfield should remove the
material ‘‘now.’’ However, Williams acknowledged that Hat-
field may not have heard the word ‘‘now,’’ because ‘‘he was
peeved that I told him at all.’’
Executive Assistant Rusty McBee testified that she was
standing outside Williams’ office during this conversation,
and overheard Williams giving Hatfield a direct order to re-
move the materials ‘‘now.’’ However, McBee added, Wil-
liams and Hatfield started talking again, and she left.
3. The removal of the material
Hatfield returned to his work area. On the way, he encoun-
tered Union Committeeman Richard King, informed him of
Williams’ order, and asked King to remind him before Hat-
field left for the day. King corroborated this testimony.
During his lunchbreak, Hatfield called his wife and asked
her to get some of the union officials to either remove the
materials or settle the matter with Williams.
Williams went to the breakroom during his lunch period
and noticed that the postings were still on the bulletin board.
He returned at 2 p.m., saw that the materials were still there,
and directed Union President Johnny Ross to take them
down. Ross did so.
Hatfield’s shift normally ended at 2 p.m., but he was occu-
pied with a problem, and worked until 2:20 p.m. He then
went to the bulletin board, where Ross informed him that
Williams had directed Ross to remove the materials Hatfield
then went to see Williams, and demanded the documents.
Williams informed him that he would return them to the
‘‘rightful owner.’’ Hatfield proceeded to Company President
Boardwine, who referred him back to Williams. Hatfield
came back to Williams’ office with Ross, and Williams gave
the materials to the union president, who gave them to Hat-
field. Williams and Hatfield then talked about scheduling.
Williams agreed that he said to the union representatives that
the bulletin board issue was a ‘‘done deal.’’ Williams also
agreed that he did not tell Hatfield that he had been insubor-
dinate, or deserved discipline.
4. The decision to terminate Hatfield
Company President Boardwine called Williams to
Boardwine’s office and Williams described the events of the
day. Boardwine said that the Company’s treatment of the
matter had to be consistent with its treatment of similar con-
duct by other employees. The Company executives deter-
mined that similar incidents had occurred with respect to em-
ployees Vernon Hall and Kenneth Braswell. Hall was sus-
pended in August 1995 for refusing to obey an order to get
off a forklift. The matter was resolved and Hall was rein-
stated upon his signing a letter saying that insubordination
was a dischargeable offense, and that he would abide by the
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01028 Fmt 0610 Sfmt 0610 D:\NLRB\325.150 APPS10 PsN: APPS10
1029SIMCALA, INC.
18 R. Exh. 5.
19 R. Exh. 4.
20 Art. 12 of the contract provides that if the Company determines
that an employee has engaged in conduct warranting discharge, he
must first be suspended for not more than 5 days. During the period
of his suspension, he will be advised of his rights to a hearing within
another 5 days. The contract provides:
At any such hearing all of the known facts concerning the
case shall be made available to both parties. After such hearing,
the Company shall conclude within five (5) calendar days
1/4whether the discharge shall become final or dependent upon
the facts of the case, that such discharge shall be revoked. . . .
[R. Exh. 1.]
21 G.C. Exh. 6.
22 R. Exh. 7.
23 G.C. Exhs 1(a), 1(j), 1(l).
24 R. Exh. 6.
25 The General Counsel argues that this admission by Williams
constitutes evidence that the decision to terminate Hatfiled was not
made on August 28, but rather, after the filing of the unfair labor
practice charge. G.C. Br. 12.
26 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), Manno Electric, 321 NLRB 278 fn 12 (1996).
code of conduct.18 Braswell was considered insubordinate
because he refused an order to work overtime in November
1995. He was suspended, and the matter was resolved in a
manner similar to Hall’s case by Braswell’s signing a letter
similar to the one signed by Hall.19
Williams and Broadwine testified that they decided Hat-
field should be discharged for insubordination. However, the
contract first required a suspension. According to Williams,
‘‘this is to give opportunity for them to have a hearing or
whatever.20 But the decision to discharge was predicated by
the act itself.’’
5. Hatfield’s suspension
Hatfield did not work on August 29, but did work his reg-
ular shift on Friday, August 30. He returned to work on Sep-
tember 3, and was told to get union representation and see
Williams. Williams told Hatfield that he was charged with
insubordination, and was suspended for 5 days pending dis-
charge.21
A hearing on the suspension was held on September 10.
An accurate record of the hearing is found in the notes of
Rusty McBee.22 Hatfield maintained the same position attrib-
uted to him above, on the events of August 28. Williams
gave him a direct order to take down the documents on the
bulletin board, and he replied that he would take them down
that day. He told Union President Ross at about noon that
he did not want to cause any problems and would take the
items off the board. He denied that he had been insubordi-
nate and stated that there had been a miscommunication.
Company Representative Williams contended that there
had been restrictions on the use of the bulletin board. Four
union representatives at the suspension hearing stated that
they did not recall any restrictions. A union representative
asked Williams what was derogatory toward the Company
about the material Hatfield had posted. Williams replied at
the suspension hearing that he did not know, because he had
not read the material. However, at the unfair labor practice
hearing, Williams agreed that he had read the material on the
bulletin board, considered it ‘‘inappropriate,’’ and discussed
it with Company President Boardwine. Williams acknowl-
edged that Hatfield was a good employee with a good work
ethic.
6. The filing of Board charges and
Hatfield’s termination
The complaint alleges and the answer admits that the
Union filed an unfair labor practice charge on September 13
alleging the unlawful suspension of Thomas Hatfield, and
that this charge was served upon Respondent the same day
by regular mail.23
On September 16, Williams sent Hatfield a signed letter
stating that Respondent had decided to uphold the discharge,
and that Hatfield was terminated.24 On direct examination,
Williams denied that he knew about the filing of the charge
at the time he prepared the letter. On cross-examination, Wil-
liams admitted that in his pretrial affidavit he stated that he
knew at the time of Hatfield’s termination that charges had
been filed by the Union on his behalf.25 Pressed to explain
this discrepancy, Williams asserted that the discharge was
‘‘signed’’ on August 28. However, as indicated, the dis-
charge letter was dated September 16 and bears Williams’
signature.
Grievance Committeeman Richard King testified that he
had a conversation with Williams about Hatfield’s termi-
nation. He was in Williams’ office. Williams opened a desk
drawer and took out an NLRB charge filed by Union Rep-
resentative Raymond League. Williams said that if League
had waited a day or two to file the charge, possibly Hatfield
could have been back to work. Union President Johnny Ross
testified that Williams came out to the dock, said that League
had filed ‘‘charges,’’ and added, ‘‘Maybe if the charges
hadn’t been filed, maybe none of this would have hap-
pened.’’ Williams denied that he used this precise language,
but testified that he did say that, if Hatfiled had not been in-
subordinate, he would still have his job. King and Ross were
more believable, and I credit their testimony.
7. The third-step grievance hearing
A third-step grievance hearing on Hatfield’s discharge was
held on September 26. During a recess, Union President Ross
obtained a copy of the letter Vernon Hall and Kenneth
Braswell had signed as a condition of their return to employ-
ment. Hatfield stated that, unlike these employees, he himself
had not been insubordinate. The Company did not offer Hat-
field reinstatement if he would sign such a letter.
8. Factual and legal conclusions
The General Counsel has the burden of establishing a
prima facie case that is sufficient to support an inference that
protected conduct was a motivating factor in an employer’s
decision to discipline an employee. Once this is established,
the burden shifts to the Respondent to demonstrate that the
discipline would have been administered even in the absence
of the protected conduct. The General Counsel must supply
persuasive evidence that the employer acted because of
antiunion animus.26
Hatfield was chairman of the Union’s grievance commit-
tee, and engaged in the filing of grievances and Board
charges, and attended arbitration hearings. His supervisor
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01029 Fmt 0610 Sfmt 0610 D:\NLRB\325.150 APPS10 PsN: APPS10
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 R. brief, 26.
28 Ibid.
29 Under New Horizons, interest is computed at the ‘‘short term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 281 NLRB 651 (1977).
(Roy Glenn) told him that the Company was going to fire
him if he did not cease engaging in this activity. This state-
ment constituted a threat violative of Section 8(a)(1). The
Company president (Ed Boardwine) told him that he was a
‘‘trouble maker,’’ that Human Relations Director Williams
would be retained in his job ‘‘to keep the Union straight and
to keep Hatfield straight,’’ and that Hatfield was costing the
Company money by filing frivolous grievances and charges.
The courts of appeal have uniformly agreed with the
Board’s position that employer hostility to grievance filing
and union activity supports a finding that the employee’s dis-
cipline was unlawfully motivated. NLRB v. Ryder/P.I.E. Na-
tionwide, Inc., 124 LRRM 3024 (5th Cir. 1987), enfg. in part
278 NLRB 713 (1986); NLRB v. Delta Gas, Inc., 127 LRRM
3085 (5th Cir. 1988), enfg. 283 NLRB 391 (1987); NLRB v.
Edgar Springs, Inc., 123 LRRM 2472 (6th Cir. 1986), enfg.
274 NLRB 998 (1985); Roadmaster Corp. v. NLRB, 131
LRRM 2483 (7th Cir. 1989), enfg. 288 NLRB 1195 (1988).
An inference of unlawful motivation is further supported
by Respondent’s decision to discharge Hatfield prior to a
hearing, which was provided by the contract and intended to
make all known facts available to the parties. Williams and
Boardwine decided to terminate Hatfield but were first re-
quired by the contract to ‘‘give them an opportunity for a
hearing, or whatever,’’ according to Williams. Despite this
provision, the decision to discharge was made before the
hearing. This decision made a mockery of Hatfield’s rights
under the grievance procedure set out in the contract and is
itself evidence of discriminatory motivation.
Hatfield’s prohibited conduct, according to Respondent,
was the posting without permission of material relating to
disputes which the Union had with the Company. As I have
concluded that there was no restriction on the posting of
Union material, this was permissible activity. Williams, how-
ever, said that Hatfield had gone ‘‘too far,’’ and that Wil-
liams would have to ‘‘step on his toes a little bit.’’
The posting led to Williams’ order to Hatfield to remove
the material, and to the alleged insubordination. The precise
issue is whether Hatfield disobeyed an order to remove the
material immediately. Williams himself admitted that Hat-
field may not have heard the word ‘‘now.’’ Nevertheless, Re-
spondent argues, ‘‘Williams and Boardwine reasonably be-
lieved Hatfield’s failure to remove the materials as instructed
constituted insubordination.’’27 This amounts to the strange
argument that failure to obey an unheard order constitutes in-
subordination. Respondent further argues that it is ‘‘irrelevant
whether (Hatfield) was insubordinate, since Respondent rea-
sonably believed that he was.’’28 It is difficult to perceive
how the Company managers could have ‘‘reasonably’’ ar-
rived at such a conclusion, since they denied Hatfield a hear-
ing before deciding to terminate him. In any event, Respond-
ent is wrong on the law in assuming that their erroneous be-
lief of misconduct by Hatfield justifies his discharge. Regard-
less of the Company’s asserted beliefs, such discipline had
a deterrent effect on other employees. Burnup & Sims, 379
U.S. 21 (1964); Ideal Dyeing & Finishing Co., 300 NLRB
303 (1990).
Under cross-examination, Williams conceded that he knew
that the Union had filed a charge before Hatfield was termi-
nated. The credited evidence shows that Williams told em-
ployees that Hatfield might not have been discharged if the
charge had not been filed. Accordingly, the discharge was in
part motivated by the filing of a Board charge, as well as
by Hatfield’s Union activities, and thus violated Section
8(a)(4). In addition, Williams’ statements to other employees
threatened them with adverse action if they engaged in their
statutory right to file charges, and violated Section 8(a)(1).
Alaska Pulp Corp., 296 NLRB 1260 (1989).
In accordance with my findings above, I make the follow-
ing
CONCLUSIONS OF LAW
1. Simcala, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Steelworkers of America District No. 9, AFL–
CIO–CLC is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by
telling employees that they will be discharged for engaging
in Union activities, and for filing charges against Respondent
with the Board.
4. Respondent has violated Section 8(a)(1) and (3) of the
Act by suspending Thomas Hatfield on September 3, 1996,
for engaging in union activities, and Section 8(a)(1), (3), and
(4) by discharging him on September 16, 1996, because of
such activities and because the Union filed an unfair labor
practice charge on his behalf.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in cer-
tain unfair labor practices, it is recommended that it be or-
dered to cease and desist therefrom and take certain affirma-
tive action necessary to effectuate the purposes of the Act.
It having been found that Respondent unlawfully sus-
pended Thomas Hatfield on September 3, 1996, and dis-
charged him on September 16, 1996, I shall recommend that
Respondent be required to offer him immediate reinstatement
to his former position, dismissing if necessary any employee
hired to fill his position or, if such position does not exist,
to a substantially equivalent position, and to make him whole
for any loss of earnings he may have suffered by reason of
Respondent’s unlawful conduct, by paying him a sum of
money equal to the amount he would have earned from the
time of the discrimination against him to the date of an offer
of reinstatement, less net earnings during such period, to be
computed in the manner established by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).29
I shall also recommend the posting of appropriate notices.
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01030 Fmt 0610 Sfmt 0610 D:\NLRB\325.150 APPS10 PsN: APPS10
1031SIMCALA, INC.
30 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
31 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended30
ORDER
The Respondent, Simcala, Inc., Mount Meigs, Alabama, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that they will be discharged for en-
gaging in union activities, or because charges against Re-
spondent have been filed on their behalf with the National
Labor Relations Board.
(b) Discouraging membership in United Steelworkers of
America District No. 9, AFL–CIO–CLC, or any other labor
organization, by suspending or discharging employees be-
cause of their Union or other protected activities, or because
charges are filed with the National Labor Relations Board or
by discriminating against them in any other manner with re-
spect to their wages, hours, tenure of employment or any
other terms and conditions of employment.
(c) In any like or similar manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 8(a)(1) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Thomas Hatfield reinstatement to his former position or, if
that position no longer exists, to a substantially equivalent
position, dismissing if necessary any employee hired to fill
said position, and make him whole in the manner set forth
in the remedy section of this decision.
(b) Within 14 days from the date of this Order, expunge
from its records all references to its unlawful suspension and
discharge of Thomas Hatfield, and inform him in writing that
this has been done, and that the aforesaid actions will not be
used as the basis of any future discipline of him.
(c) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at its
Mount Meigs, Alabama facility, copies of the attached notice
marked ‘‘Appendix.’’31 Copies of the notice, on forms pro-
vided by the Regional Director for Region 17, 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 in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during pend-
ency of these proceedings, Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, Re-
spondent shall duplicate and mail at its own expense a copy
of the notice to all current employees employed by Respond-
ent at any time since February 1, 1996.
(e) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
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 vio-
lated 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 representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT tell employees that they will be discharged
for engaging in union activities, or because charges against
us have been filed on their behalf with the National Labor
Relations Board.
WE WILL NOT discourage membership in the United Steel-
workers of America District No. 9, AFL–CIO–CLC, or any
other labor organization by suspending or discharging em-
ployees because of their union activities, or because charges
against us on their behalf have been filed with the National
Labor Relations Board.
WE WILL NOT in any like or similar manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed by Section 7 of the Act.
WE WILL offer Thomas Hatfield reinstatement to his
former job, and make him whole, with interest, for any loss
of earnings he may have suffered because of our unlawful
suspension and discharge of him.
WE WILL expunge from our records any references to our
unlawful suspension and discharge of Thomas Hatfield, and
inform him in writing that this has been done, and that these
actions will not be used as the basis for any future discipline
of him.
SIMCALA, INC.
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01031 Fmt 0610 Sfmt 0610 D:\NLRB\325.150 APPS10 PsN: APPS10