Southeastern Galvanizing Corp.

National Labor Relations Board - Board Decisions

Feb 10, 1961

130 N.L.R.B. 123 (N.L.R.B. 1961)

SOUTHEASTERN GALVANIZING CORPORATION, ETC. 123
It will also be recommended that Respondent make whole Schwartz and Wells for-
any loss of pay they may have suffered by reason of the discrimination against them
by payment to them of a sum of money equal to that which they would normally
have earned as wages from the date of discrimination to the date Respondent dis-
continued its business ( less the time Wells was reemployed) less their net earnings
during such period, in accordance with the Board policy set forth in F. W. Woolworth
Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440.
The right is expressly reserved to modify the backpay and reinstatement provisions
of these recommendations if made necessary by a change of conditions in the future,
and to make such supplements thereto as may hereafter become necessary in order
to define or clarify their application to a specific set of circumstances not now
apparent 21
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By interfering with , restraining, and coercing its employees in the exercise of
rights guaranteed them in Section 7 of the Act, as found above , Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) ofthe Act.
4. By discriminatorily discharging Stanley Schwartz and Arthur Wells because
of their adherence to and support of the Union , Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a)(3) and (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
21 Bermuda Knitwear Corporation , 120 NLRB 332, 333.
Southeastern Galvanizing Corporation and Florida Wholesale
Fence , Incorporated and United Steelworkers of America,
AFL-CIO. Case No. 12-CA-1331. February 10, 1961
DECISION AND ORDER
On July 19,1960, Trial Examiner Arthur E. Reyman issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report, attached hereto. Thereafter the General Counsel and
the Respondent filed exceptions to the Intermediate Report.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with case to a three-member panel
[Members Rodgers, Fanning, and Kimball].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed .2 The Board has considered the Inter-
1 The Respondent filed with the Board a motion to reopen the record. This motion is
denied as the issues raised therein are disposed of by our subsequent findings.
2 We affirm the Trial Examiner's denial of Respondent 's motions to strike and to dismiss
because Reeves Fences, Inc., was not named as a Respondent . Reeves Fences, Inc., Is a
130 NLRB No. 15.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report, the exceptions and motion, and the entire record in the
case, and finds merit in some of the General Counsel's and Respond-
Cent's exceptions. Accordingly, the Board adopts only those findings,
. conclusions, and recommendations of the Trial Examiner which are not
inconsistent with this Decision and Order.'
1. We do not agree with the Trial Examiner that the Respondent
violated Section 8(a) (3) and (4) of the Act in discharging employee
William E. Holton because of his union activities and because he gave
testimony under the Act.
Florida Wholesale Fence, Incorporated, employed Holton for ap-
proximately 31/4 years prior to November 1959. His work during this
period appeared to be satisfactory. In November 1959 Holton and
others of Respondent's employees signed authorization cards for the
Steelworkers. On or about November 11, 1959, after the Steelworkers
had filed a representation petition, Holton was asked by Plant Man-
ager Polite if he had signed a card with the Union, to which Holton
replied that he had. Around this time the Respondent held a meeting
of its employees at which officers of the Respondent discussed the
possible effect on the employees if the Union was accepted by the em-
ployees. (There is no contention that this was in violation of the Act,
and it appears that it was a permissible activity for the Respondent.)
On December 7, 1959, the Board conducted a representation hearing
at which Holton testified on behalf of the Union, with his testimony
mainly going to the question of the Board's jurisdiction over the Re-
spondent, since the Respondent contended that the Board had no juris-
diction over them. After the hearing, Respondent President Mellon
had a discussion with Holton at which he expressed his displeasure at
the way Holton testified. He asked Holton, "Why did [you] do this
to us?"
On December 14, 1959, the Respondent became cognizant of a short-
age in a particular type of wire and immediately took steps to have
production of this type of wire increased. During the following week
Respondent Plant Manager Polite made periodic checks which indi-
cated that the night shift was not producing very much. Holton and
Thomas J. Ferlita were the only employees on the night shift. Com-
mencing December 28, 1959, the Respondent conducted a daily check
separate corporation with a different location than the named Respondents . It is in no
way connected with the instant matter and the Board 's Order in this case does not per-
tain to it.
3 Florida Wholesale Fence, Incorporated , and Southeastern Galvanizing Corporation are
separate corporations engaged in the manufacture of wire fence. They have common
ownership and management , with each company performing a specific function in the
production of wire fence . Florida Wholesale Fence in 1959 purchased from out-of-State
sources approximately 60,000 pounds of zinc per month at an average cost of 13 cents per
pound This amounts to more than $ 50,000 of direct inflow per year As this meets the
Board's jurisdictional standards, we find that it will effectuate the policies of the Act to
assert jurisdiction in this matter . Siemons Mailing Service , 122 NLRB 81
SOUTHEASTERN GALVANIZING CORPORATION, ETC. 125
of production. One of Respondent's foremen made a physical count
of each employee's production and another foreman made a count of
the common production stock. This procedure was followed for 1
week and used as a check against the production report submitted by
each employee for pay purposes. This latter report was prepared once
a week and reflected each employee's claim for work produced during
the week. When Plant Manager Ponte compared these reports with
the record of the physical count he had compiled for the week, only the
reports of Ferlita and Holton varied from Ponte's record. Ferlita's
claim was for only slightly more than Ponte's record and was ex-
plained by Ferlita as possibly the result of his transferring some of his
work into the common stock during the night, which he had done on
certain occasions during a slack period. Holton's claim, however, was
for almost twice as much production as that listed on Ponte's records.
Ponte called in Holton and, when the latter had no explanation for the
discrepancy, accused him of falsifying records and discharged him on
January 5,1960.
The Trial Examiner found that the production check was "ficti-
tious, poorly conceived, and poorly reported," and that Holton was
discharged because of his union activities and because he gave testi-
mony under the Act. We disagree with the Trial Examiner and find
that the uncontradicted witness and exhibits of the Respondent estab-
lish the accuracy and reliability of the production check, and indicate
that Holton submitted excessive production reports in an effort to
obtain payment for work which he did not perform. We are per-
suaded that Holton was discharged for falsifying records. Further-
more, the record does not support the Trial Examiner 's inference that
the production check was used as a pretext to discharge Holton.
Accordingly, we shall dismiss the complaint insofar as it alleges
Respondent violated Section 8(a) (3) and (4) of the Act in discharg-
ing Holton.
2. We agree with the Trial Examiner that, Respondent violated
Section 8(a) (1) of the Act by Foreman Capaz's interrogation of Fer-
lita on January 6, 1960, as to the Union's position after the discharge
of Holton. We also agree with the Trial Examiner that Respondent
violated Section 8 (a) (1) of the Act by Plant Manager Ponte's inter-
rogation of Holton on November 11, 1959, as to his union membership.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Southeastern
Galvanizing Corporation and Florida Wholesale Fence, Incorporated,
Mango, Florida, its officers, agents, successors, and assigns, shall :
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Interrogating its employees concerning their union affiliation
or activities in a manner constituting interference, restraint or coer-
cion in violation of Section 8(a) (1) of the Act.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form, join, or assist United Steelworkers of America, AFL-CIO,
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, to engage in concerted activities
for purposes of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its principal offices and places of business at Falkenburg
Road and Florida State Road Number 574, Mango, county of Hills-
borough, State of Florida, the notice attached hereto marked "Ap-
pendix." 4 Copies of said notice, to be furnished by the Regional
Director for the Twelfth Region, shall, after being duly signed by
the Respondent's representatives, be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT Is YURTIIER ORDERED that the complaint be and it is hereby dis-
missed insofar as it alleges that the Respondent violated Section
8(a) (3) and (4) of the Act by discharging William E. Holton be-
cause of his union activities and because he gave testimony under the
Act.
'In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
affiliation or activities in a manner constituting interference, re-
straint, or coercion in violation of Section 8(a) (1) of the Act.
SOUTHEASTERN GALVANIZING CORPORATION, ETC. 127
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the 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 choosing, to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from
any and all such activities.
All our employees are free to become or remain or to refrain from
becoming or remaining members of United Steelworkers of America,
AFL-CIO, or any other labor organization.
SOUTHEASTERN GALVANIZING CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
FLORIDA WHOLESALE FENCE, INCORPORATED,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended , hereinafter called the Act.
Upon a charge filed on January .6, 1960 , by United Steelworkers of America,
AFL-CIO , and a first amended charge filed by the same Union on February 10, 1960,
the General Counsel of the National Labor Relations Board , on behalf of the
Board , by the Regional Director for the Twelfth Region , on February 12, 1960,
caused a complaint and notice of hearing against Southeastern Galvanizing Corpora-
tion and Florida Wholesale Fence , Incorporated , herein sometimes called the
Respondent , to be issued.
The original complaint filed herein sets forth that since on or about November 1,
1959 , and continuing to the date of the issuance of the complaint , the Respondent
(meaning Southeastern Galvanizing Corporation and Florida Wholesale Fence,
Incorporated , as an integrated enterprise ), has interfered with, restrained, and
coerced , and is interfering with, restraining , and coercing , its employees in the
exercise of rights guaranteed by Section 7 of the Act by engaging in the following
activities:
On or about November 11, 1959 , and on other dates during the months of
December 1959 and January and February 1960, the Respondent by certain of its
officers and agents interrogated employees concerning their membership in, activities
on behalf of, and their sympathy for the Union; on or about December 23, the
Respondent by its officer and agent , Leon Ponte , threatened to discharge an em-
ployee because of his membership in, activities on behalf of, and sympathy for the
Union; the Respondent by its officers and agents did on or about January 7, 1960,
terminate the employment of William E . Holton, an employee, and since the date
of such discharge has failed and refused to reemploy Holton in his former or sub-
stantially equivalent position. The original complaint further asserts that the
Respondent discharged and has failed to reemploy Holton because of the fact that
he joined or assisted the Union or engaged in other concerted activity for the purpose
of collective bargaining or other mutual aid or protection . It is said in the com-
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint that for these reasons the Respondent discriminated and is discriminating in
regard to the hire and tenure or terms and conditions of employment of Holton,
thereby discouraging membership in the Union , and that the Respondent "did engage
in and is now engaging in, unfair labor practices within the meaning of Section
8(a)(3) and Section 2(6) and (7) of the Act."
The Respondent filed timely answer to the original complaint . Thereafter counsel
for the Respondent filed a motion to dismiss, a motion to strike, and a motion for
more definite statement and bill of particulars , and counsel for the General Counsel
moved to make the answer of the Respondent and the defenses set up therein more
definite and certain . These motions were disposed of by Trial Examiner Wheatley
on March 2, 1960, before the opening of the hearing before this Trial Examiner. I
consider the bill of particulars and more definite statement of Respondent 's answer
furnished in accordance with the order of Trial Examiner Wheatley as a part of the
pleadings herein.
At the hearing, this Trial Examiner allowed an amendment to the complaint to
include allegations of contravention of Section 8(a) (4) of the Act to the following
effect:
Respondent did discharge and failed and refused , and continues to fail and
refuse to re-employ William F. Holton , because said William F. Holton gave
testimony under the Act. By the act described above Respondent did engage
in and is engaging in unfair labor practices within the meaning of Section
8(a)(4) and Section 2(6) and (7) of the Act.
Counsel for the Respondent objected to the allowance of this amendment to the
complaint . I assured him, should it appear that he needed time to prepare a defense
in connection with the new allegations to the complaint made at hearing , he would
be granted adequate time and opportunity so to prepare . After hearing the case, and
upon consideration of the record , I consider the amendment not to change in ma-
terial respect the factual situation confronting the Respondent at the inception of the
hearing.'
This case came on to be heard before Arthur E . Reyman , the duly designated
Trial Examiner, on April 18, 1960, and was concluded on the following day. At
the hearing each party was afforded an opportunity to call and examine witnesses,
to cross-examine , and to present testimony in support of its contentions.
After the close of hearing the Respondent filed a motion to dismiss the complaint
on stated grounds , which has been considered and is disposed of by the findings of
fact and conclusions set forth below.
Upon the record in whole part , and observation of the witnesses , and considera-
tion of proposed findings and the brief of the General Counsel filed herein, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT SOUTHEASTERN GALVANIZING CORPORATION AND
FLORIDA WHOLESALE FENCE, INCORPORATED
Southeastern Galvanizing Corporation and Florida Wholesale Fence, Incorpo-
rated, are and have been at all times material hereto, corporations duly organized
and existing by virtue of the laws of the State of Florida.
Southeastern Galvanizing Corporation and Florida Wholesale Fence, Incorpo-
rated, are and, at all times material hereto, have been affiliated businesses with com-
mon officers , ownership , directors , and operators , and constitute a single integrated
business enterprise . The directors and operators formulate and administer a com-
mon labor policy for these Companies affecting the employees of said Companies;
Southeastern Galvanizing Corporation and Florida Wholesale Fence, Incorporated,
are and, at all times material herein, have been a single integrated enterprise en-
gaged in the business of manufacture , sale, and distribution of galvanized wire fence
and related products , with principal offices and places of business at Falkenburg
Road and Florida State Road Number 574, Mango , county of Hillsborough, State
of Florida . These corporations constitute a single employer within the meaning of
Section 2(1) of the Act
During the year ending December 31, 1959, the Respondent (the two above-
mentioned corporations ) in the course and conduct of business operations , purchased
and received from points outside the State of Florida , coil wire and other goods and
materials valued in excess of $50,000 . During the same year , Respondent in the
i NLRB Rules and Regulations, Series 8 ; N L R B. v Fant Milling Company, 360 U S.
301, reversing 258 F . 2d 851 (CA. 5).
SOUTHEASTERN GALVANIZING CORPORATION , ETC. 129
course and conduct of business operations , manufactured , sold, and distributed
goods and products valued in excess of $50,000, which goods and products were
shipped in interstate commerce to points outside the State of Florida.
Respondent is now and has been, at all times material hereto, engaged in com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, is and has been , at all times mate-
rial hereto , a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The record herein shows that Southeastern and Florida Wholesale constitute a
single employer within the meaning of Section 2 ( 1) and ( 2) of the Act. These
Companies are located in the same building, at the same address , and are partially
separated by a partition , they have the same corporate officers; they utilize the same
clerical staff and bookkeeper ; they have the same holiday and vacation plan; and
both have the same general manager and plant manager . Although corporate en-
tities, it would appear that they constitute a single employer for the purposes and
within the meaning of Section 2 ( 2). At the hearing , Southeastern and Florida
Wholesale refused to concede jurisdiction over their joint operations , or its joint
operation , and put the General Counsel to proof with respect to the jurisdiction of
the Board.
Prior to the hearing herein, on November 9, 1959, United Steelworkers of Amer-
ica, AFL-CIO , hereinafter sometimes called the Union , filed a representation peti-
tion describing as an appropriate bargaining unit all production and maintenance
employees ; thereafter , on that petition a hearing was held on December 7, 1959
(Case No. 12-RC-770 , 127 NLRB 415.) On the question of jurisdiction the Re-
spondent refused to honor a subpena duly issued calling for the attendance of the
president of each corporation ( the Respondent herein ) and the production of books
and records with regard to interstate commerce information . At the hearing, the
Trial Examiner was asked to take official notice of the proceedings in Case No.
12-RC-770, and , as required , has so done.
Prior to the opening of the hearing herein, the Respondent again was served with
a subpoena duces tecum asking for the production of information to show the inter-
state activities of the Respondent to determine whether or not the Board would as-
sume jurisdiction . The information called for by the supena was not furnished.
Counsel for the General Counsel served a notice prior to hearing of the General
Counsel 's intent on to establish jurisdiction with secondary evidence , in the event
the subpoena duces tecum was not complied with by Respondent . The General
Counsel depended upon Tropicana Products , Inc., 122 NLRB 121.2
A. The discharge of William Holton
The General Counsel contends that Holton was discharged because of his efforts
in support of union activity in violation of Section 8 (a) (1) and ( 3) of the Act, and
says further that a cause of his discharge was because he gave testimony under the
Act in the prior representation proceeding mentioned above, such reason constitut-
ing a violation of Section 8(a) (4)
The Respondent says that Holton was discharged * because he falsified his produc-
tion record.
William Holton had been employed as a wire weaver by Florida Wholesale for
approximately 31/2 years up until the time of his discharge on January 6, 1960. So
far as the record shows, he was a good worker, instructed new operators on wire
machines , and generally was highly regarded as an employee . Early in November
1959, Holton signed a union authorization card and almost immediately the Union
filed a representation petition on November 9, 1959. Holton was questioned by
2 See Southeastern Galvanizing Corporation cC Florida Wholesale Fence, Incorporated,
Case No . 12-RC-770, 127 NLRB 415 I am convinced that in the face of the refusal of
the Respondent to furnish any financial data whatsoever in response to the subpena
issued by the General Counsel , that the General Counsel has effectively demonstrated,
that the standard of jurisdiction in this industry and with respect to this employer has
been fully shown according to the announcement of the National Labor Relations Board
concerning changes in the exercise of jurisdiction made October 2 , 1958 The testimony
of the plant manager alone here shows sufficient statutory jurisdiction of the Board See
also Plant City Welding and Tank Company, 118 NLRB 280
5 9 7 2 5 4-61-v of 130--10
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leon Ponte, plant manager of Southeastern and Florida Wholesale, as to whether
he had signed a union card. Holton said that he had, that the conversation took
place in the presence of John Meyer, a supervisor.3
On November 11 Holton called at the office of James Mellon, president of Florida
Wholesale and Southeastern, to pick up his paycheck. At this time the activities
of Holton in union affairs were discussed. The testimony given by Mellon and
Holton is not too far apart: It appears that Holton told Mellon that he was not too
much in favor of union activities because of his previous experience as a union
member when he was an employee of American Can Company. Mellon apparently
felt at that time that Holton was opposed to the Steelworkers' organization campaign.
During that week Ponte and Mellon called a meeting of employees, at which a
discussion ensued concerning the possibilities of employment or employment con-
ditions if the Union were to be accepted by the employees as bargaining representa-
tive. The Respondent through Mr. Mellon, pointed out to the employees then pres-
ent the disadvantages which might ensue should the Union "come in."
In .the representation proceeding, conducted on December 7, 1959, before a hear-
ing officer of the Board, Holton testified on behalf of the Union His testimony
in that case went mainly to the question of commerce in connection with the juris-
diction of the Board over the Companies.
Two days after Ponte had talked to Holton and the latter had admitted that he
had signed a union authorization card, Holton gave the apparent impression to Mel-
lon in their conversation (above mentioned) that he was opposed to the Union be-
cause of prior experience as a member of the Union when he was an employee of
American Can Company. If Holton did not use these direct words in this con-
versation, Mellon apparently accepted his statement as implicit as stating his opposi-
tion to the Union at Southeastern Galvanizing.
After the election Mellon is said to have remarked to Holton, "Boy you sure hate
the damn Steelworkers Union, don't you?"; and the General Counsel tends that after
that time, when Mellon realized that Holton was no longer a company man, Mellon
was not pleased.
Two things stand out clearly in the record: first, that Holton had been regarded
as a valuable 'employee, until his union activities` became-known; and second,'that
after his testimony on behalf of the Union he was discharged about 1 month later,
on pretext, as mentioned below.4
B. Activities subsequent to the discharge of Holton
Garth R. Meade, a wire weaver employed by Florida Wholesale Fence, testified
that his immediate supervisor, Manuel Capaz, about 3 o'clock in the afternoon after
the discharge of Holton, told him that Holton had been discharged because he had
claimed more production of wire than he actually produced. A week prior thereto,
Capaz had asked Meade if he was sure he had not claimed more wire than he had
made that week because "he was pretty sure there was going to be a shortage that
week," to which Meade replied "as nearly as he could count it" he had put down the
correct amount of wire he had made. Further, according to Meade, Capaz told him
that he and Ponte thought there was going to be a shortage of wire and that he was
led to believe that there was going to be "quite a large shortage of wire at that time."
Meade, testified' further cohcerning,a meeting held 1 or 2 days after'the discharge
of Holton in an office of the Respondent, about 3 or 3:30 in the afternoon, at which
all the wire weavers were present and also one of the truckdrivers. Mellon was
there as was Ponte. Mellon remarked to the group concerning the discharge of
s Ponte and Meyer, witnesses herein, denied having any such conversation. I credit
the testimony of Holton against the testimony of either Ponte or Meyer
* James F Mellon, president of Southeastern Galvanizing and Florida Wholesale Fence,
had been subpenaed to appear in this case by the General Conneel and asked to produce
certain books and records. The subpoena duces tecvm was not honored At the hearing
here President Mellon was called only for the purposes of refuting testimony given by
Holton during the week of November 11 or 12; Holton testified that during the course of
that conversation except for the fact that Holton told him he was opposed to the Steel-
workers Union, that there was no mention of Holton having signed a union card or being
engaged in union activities Principally because of the fact that Holton's memory was
precise with regard to the general tenor of his conversation with Mellon at this particular
time, that Mellon could not recall having discussed whether Holton signed a union card,
or whether he had asked whether Holton was a member of the Union, or whether anyone
had ei=er told him that Holton was a member of the Union, I give more weight and credit
to the testimony of Holton.
SOUTHEASTERN GALVANIZING CORPORATION, ETC. 131
Holton that he "hated to have to discharge Mr. Holton" because he had been with
the Company a long time, and he felt the longer an employee stayed with the
Company the more valuable he-should be to the Company, and "he wanted to say
that he had previously put Mr. Holton on the night shift and warned him that he
would have to do better, that if he didn't he would be discharged, and apparently
he didn't come up to his expectations, what he thought he should do for the Com-
pany, and he was forced to discharge him." According to Meade, no mention was
then made of Holton's prior production record.
Thomas J. Ferlita, a wire weaver employed by Florida Wholesale Fence, testified
that he had overheard a conversation, on the day of the representation hearing,
between Mellon and Holton in which Mellon had asked Holton "why did he do this
to us?" and that Holton
replied by saying that he heard that he was going to be fired, made supervisor
and- if he didn't accept it he was going to be fired, and if he did accept it he
was going to be fired. And Mr. Mellon replied, "well, who is going to fire you,
me?" He went on to ask Bill Holton, "didn't I do you any favors before?
I sold you my car and I didn't charge you any interest, I have loaned all the
boys over here money without charging any interest." And he turned to
Garth Meade and asked him if he was afraid that he was going to be fired, and
Garth Meade replied, he said, "I don't care whether you fire me or not." And
Mr. Mellon then turned away and walked off.
Ferlita testified regarding a conversation with Capaz the day after the discharge of
Holton in which he said that Capaz had asked him how he thought the Union stood
now and that he replied that with Holton gone he did not think there was much of
a chance of the Union coming in; that Capaz then said, "Well, that's the way we
have it figured." Ferlita testified to several conversations with Capaz, one at the
home of the latter about November 14 or 15. Ferlita had telephoned to Capaz to
report in on sick leave, and Capaz mentioned to him that Mellon had made a talk
to the employees that day and he would like to have Ferlita know what he (Mellon)
had said. That evening, Ferlita called at the house of Capaz and read the letter
that Mellon and Ponte had read during the meeting. According, to Ferlita Capaz
told him that they had read that in the meeting and he also went on to explain
how the Company felt about the Union-"that they didn't want a union in there
representing them, or rather the Company." As nearly as Ferlita could recall, he
,said that Capaz told him that "if everything was forgotten about now, nobody would
have to worry about their job, but if it went on, well then, no telling what would
happen." a Angel Alfonso, called by the Respondent, confirmed almost in its en-
tirety the testimony of Ferlita regarding his conversation with Capaz. He said
that Ferlita said he was worried about his job and that he and Capaz were talking
to Ferlita and told him he had nothing to worry about as long as he did his job
-right and made good production he had nothing to be worried about; that Capaz
-told Ferlita later the reason why Holton had been discharged was because he had
put more wire in his production records than he had made; that in that conversation
Capaz had asked Ferlita how he thought the Union was doing "or something to
That effect" and that Ferlita had answered in effect that with Holton gone he did
not think they (the Union) "have got much of a chance to get in" and that Capaz
answered by saying "Well, that's the way we figured it."
According to the testimony of witnesses called on behalf of the Respondent, on
December 14, 1959, management began to suspect that there was a shortage in
production Beginning on that day certain production records were kept for
December 14, 15, 16, 18, and 19, and a chart, in evidence here, prepared on the
basis of reports made to Ponte, covered the period December 28, 1959, through
January 2, 1960. These reports covered the production of wire fence operators on
both the day and night shifts.
John Meyer, a supervisor employed by Southeastern Galvanizing, testified that
in the preparation of the chart covering production for the dates above mentioned,
he counted the wire in what is called the common stock area and the daily pro-
6 At the hearing I excluded an offer by the General Counsel (marked General Counsel's
Exhibit No 7 for identification) in evidence because at the time I felt that the comment
contained therein purportedly made by James F Mellon, general manager, to the meeting
of "einpioyees of Reeve§ Fences, Inc " (which the Respondent says should have been
made a party hereto), was not material. Upon review of the whole record, I reverse rnv
ruling made at hearing and admit General Counsel's Exhibit No 7 for identification in
evidence At the time of the offer, I was not aware of the fact of the conversations in
connection with this document, particularly the one testified to by Ferlita as having
occurred at the home of Capaz
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction of operators; that "Each morning when I would come out I would go back
to the common stock area and count each roll from each pile, the different sizes."
After having made the notations on production figures as shown by the rolls of
galvanized wire in the common stock area according to foot and gauge , he would
note those figures and present them to Ponte who compiled his production chart
from these figures presented to him.
This method, never theretofore adopted on a check of production records of any
of the wire weavers or any other employee, was explained by Edgar McClamma,
who was in charge of galvanizing materials or wire for Southeastern Galvanizing.
Counsel for the Respondent at the hearing introduced evidence, oral and visual,
to show the layout of the operation in physical aspect. He also introduced testi-
mony to show that, upon suspicion of falsification of production records by indi-
viduals, a shortage was established according to current records, and therefore, on
or about December 14, 1959, these counts of production were arranged to check
against stock before production, stock in the common stockroom, and manufactured
materials sent to be galvanized. I have examined each exhibit quite carefully, and
have concluded that the method of checking stock was instituted by the Employer
as a rather devious method of proving violation of counting or production by em-
ployees and impliedly by supervisors, although it must be said that the Respondent
has not charged any of his supervisors with dereliction in count.
Respondent first became suspicious that production reports were inaccurate the
week following the representation hearing at which Holton appeared as a witness.
Alfonso, McClamma, and Meade on the day shift apparently were exonerated from
any miscount which left only Holton and Ferlita on the night shift as potential
suspects.
Each employee had a so-called "production area" in relation to where he put his
manufactured material from the machine on which he was working, and there was
a common pile which seems to have been a pile of manufactured materials ready
to go into galvanizing. Ferlita, a credible witness, testified that it was common
practice for him to move some of the wire. It is entirely possible and logical that
one of these men or each of them moved wire to the so-called common pile during
the week of December 14 and possibly thereafter. It appears clear that any count
made of night production would by the very nature of the operation prove inaccurate.
In order to avoid the double handling of wire after leaving the machine. produc-
tion normally was moved from the production areas directly to the galvanizing
process . Wire would be removed from the common pile when there was not suffi-
cient wire in the production area. On December 28, a total of 414 rows were gal-
vanized that day and on the same day 190 rolls were produced by the wire weavers.
That was the only day during that week that the galvanizing operation was con-
ducted. Some of the wire was moved directly to the galvanizing side from the
production area. Thus, the man counting the number of rolls moved directly
from the galvanizing side of the building (Capaz) had the added duty to keep a
careful account of the number of rolls moving directly from the production area
to the galvanizing side of the building so that he did not only have to count the
rolls but also had to be sure which operators had produced the manufactured prod-
uct. An analysis of the records produced at the hearing in regard to the work of
the various wire weavers, according to "count," McClamma produced a total of 248
rolls, Meade produced a total of 144 rolls, Ferlita produced a total of 129 rolls,
Alfonso produced a total of 126 rolls, Capaz (a supervisor ) produced a total of
90 rolls, and'folton, ad-experienced wire weaver, Ferlita's instructor, and gener-
ally depended upon by the manufacturer for production, produced only 57 rolls.
Holton claimed he produced a total of 103 rolls while instructing and doing other
work within the shop.
A curious situation in connection with the counting of production of the men
arose through the operation of the varied method itself. Na physical count of the
wire daily was made with respect to any operator It was explained by the Respond-
ent that by saying the weekly report allowed the men to average out their total
day's work to avoid "downtime." 6
On this system of production record keeping, initiated at the time it was, I cannot
believe that it has been proven that Holton was submitting false reports with respect
to his own production.
6 "Downtime" was explained as being under -average time in respect to production which
could be made up by either prior or subsequent daily production by the individual. On the
basis of the record , the Respondent would claim that It was more important to avoid
paying a standard rate of hourly pay in downtime than to avoid the submission of an
inaccurate daily record of production.
SOUTHEASTERN GALVANIZING CORPORATION, ETC. 133
First of all , the Respondent had not adopted the method of check described by
Ponte and Meyer until after it had been discovered that Holton was a union sympa-
thizer. Ponte said in effect that he invented this scheme of record checking without
any consultation with higher authority ; that he simply thought that someone was
stealing from the Company and, without notifying a superior , he undertook to set
his scheme in motion . This is unbelievable.
Finally, the president of Respondent , on the basis of clear, uncontradicted testi-
mony herein, advised others of his employees that Holton had been discharged for
loafing.
I have no difficulty in supporting the contention of the General Counsel that the
obvious animosity toward Holton because of his union affiliation , the timing of
Holton's discharge , the conflicting reasons given for the discharge , and the obvious
pretext of a "production check" establishes that Respondent was illegally motivated
in the discharge of Holton and that the General Counsel has established by the
preponderance of the evidence herein that a violation of Section 8(a)(3), (4), and
( 1) of the Act has been and is being engaged in by the Respondent.
C. Final rulings and concluding findings
1. Final rulings
The sudden turn of feeling against Holton by officials of Respondent when it
became known of his support of the Union, together with the close interest displayed
by agents of the Respondent in union organizational activities , leads me to find the
allegations of the complaint herein well supported by fact.
The defense tactics herein adopted do not impress me-they show obstruction by
way of trial tactics and by formal motion.
1. I have before me at the moment a motion to dismiss the complaint, grounded
on some ( first) 11 grounds , all sham and frivolous, and long since disposed of by
the Board and the courts; (second) 2 grounds on the amendment to the complaint
allowed at hearing, said by the Respondent to unduly and prejudicially to enlarge
the complaint; and (third) 3 technical grounds to dismiss, based on the validity
of the original charge and a claimed enlargement of the complaint. The motion
to dismiss the complaint on the grounds stated, as those previously made at hearing,
are hereby denied. Fant Milling Company v. N L.R.B., 360 US. 301, and cases
cited.
11. 1 have before me a written motion made on behalf of the Respondent to amend
the answers and defenses to read: "The Respondents deny the allegations of para-
graph 9(a)." That motion as made at hearing was granted. If necessary now, it
is granted
III. I have before me now another written motion filed on behalf of Respondent,
after close of hearing, to strike the complaint (as amended, I assume) and the bill
of particulars This motion says, first, that the General Counsel "failed to establish
the proper identity of the Respondent in the Reeves Fence, Inc., is not named
as a party herein, although said corporation was named in the Decision and Order
of the Board in Case No. 12-RC-770." This is not a representation case-I shall
not assume to tell the General Counsel what should be included in a complaint.
This ground of motion should have been long since asserted pursuant to proper
rule. Grounds 2, 3, 4, 5, 6, 7, 8, and 9 set forth in this motion to strike, are
untimely, have been timely presented heretofore, and have been passed upon at
hearing and prior to hearing. There, the motion is denied in its entirety.
2. Concluding findings
Were there something here to indict Holton for poor work, or disloyalty to his
employer (except for his union activity), it might be possible to find that there was
some color to the claim of the Employer that it has reasonable cause to believe
Holton falsified his (or other employees') production records. The counting of
production by wire weavers, at the time, turns out to be fictitious, poorly conceived,
and poorly reported. I find that Holton was interrogated by Ponte, and Ferlita by
Capaz, concerning their interest in or activities on behalf of the Union, in violation
of Section 8 (a) (1) of the Act.
I find Holton was discriminated against by reason of his interest in and activities
on behalf of the Union. Motive on the part of the employer, as to his discharge,
can be found on the basis of the facts herein found.
While motive is often a helpful factor in the determination of state of mind or
intent, and especially so where the issue is whether one is guilty of an unfair labor
practice, it is permissible to find motive as a result of inference "where the encour-
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agement or discouragement can be reasonably inferred from the nature of the dis-
crimination." (The Radio Officers' Union etc. (A. H. Bull Steamship Company) v.
N.L.R.B., 347 U.S. 17, 51, 55-56; see N.L.R.B. v. Business Machine Board, 228
F. 2d 553, 561 (CA. 2) (concurring opinion ); see also N.L.R.B. v. Insurance
Agents' International Union, AFL-CIO (Prudential Ins. Co.), 361 U.S. 477, 503-506
(concurring opinion); Universal Camera Corporation v. N.L.R.B., 340 U S. 474, 477-
491 ) If then it may reasonably be inferred from the alleged discriminatory practice
in this proceeding that a reasonable expected result would be either encouragement
or discouragement of union membership, motive, and intent may likewise be in-
ferred. "This recognition that specific proof of intent is unnecessary where .
conduct inherently encourages or discourages union membership is but an applica-
tion of the common-law rule that a man is held to intend the foreseeable conse-
quences of his conduct . . . [and] protestation that he did not intend to encourage
or discourage must be unavailing where a consequence of his action was such en-
couragement or discouragement." (Radio Officers' Union etc. v. N.L.R.B., supra,
347 U.S. at 45.)
I find that Respondent discharged William Holton on January 6, 1960, because of
his activities on behalf of the Union and because he gave testimony at a hearing
before an agent of the National Labor Relations Board, thereby violating Section
8(a) (1), (3), and (4) of the Act. This case is in line with Walton Manufacturing
Company, 125 NLRB 485. In the Walton case, as pointed out by the Board, the
discharge was also in violation of Section 8(a)(3), for it is quite clear that a dis-
charge for testifying on behalf of a union in a Board proceeding "operates to dis-
courage membership in the union." A discharge for testifying in behalf of a union
in a Board proceeding "operates to discourage membership in the Union." N.L.R.B.
v. Lamar Creamery Company, 246 F. 2d 8, 10 (C.A. 5); Southern Bleachery and
Print Works, Inc., 118 NLRB 299, enfd. F. 2d 235 (C.A. 4); N.L.R.B. v. Sandy
Hill Iron & Brass Works, 165 F. 2d 660, 661 (C.A. 2), enfg. 69 NLRB 355, 378.
Moreover, when a discharge is evaluated in light of past activity of an employee on
behalf of a union , it is clear that this union activity was the "underlying" cause for
discharge, and is in violation of Section 8(a) (4) and (1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Finding that the Respondent, Southeastern Galvanizing Corporation and Florida
Wholesale Fence, Incorporated, as an integrated enterprise, discharged William Hol-
ton on or about January 6, 1959, to discourage membership in the Union and because
he had given testimony under the Act, I shall recommend that the Respondent above-
named cease and desist from such conduct and take certain affirmative action de-
signed to effectuate the policy of the Act. I shall recommend that Respondent
restore all employment rights and privileges formerly enjoyed by William Holton
and make him whole for any loss of pay suffered by reason of discrimination against
him by the payment of a sum of money equal to the amount he normally would have
earned as wages from the date of his discharge to the date on which he could be
returned to work at Respondent's plant in Tampa, Florida, less his net earnings, to be
computed on a quarterly basis in the manner set forth in F. W. Woolworth Com-
pany, 90 NLRB 289, and N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc.,
344 U.S. 344. See Crossett Lumber Company, 8 NLRB 497-498. Earnings in one
particular quarter shall have no effect upon the backpay liability for any such other
period.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Southeastern Galvanizing Corporation and Florida Wholesale Fence, Incorpo-
rated, are and, at times material hereto, have been affiliated businesses with common
officers, ownership, directors, and operators, and constitute a single integrated busi-
ness enterprise and such enterprise is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
C. F. WILLIAMS LUMBER CO. AND WINDSOR CORP. 135
2. United Steelworkers of America, AFL-CIO, is and has been , at all times ma-
terial hereto, a labor organization within the meaning of Section 2(5) of the Act.
3. By discharging and otherwise discriminating in regard to the hire or tenure of
employment of William Holton to discourage membership in the Union and because
he has given testimony under the Act, thereby interfering with, restraining and,
coercing employees in the exercise of the rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a)(1), (3), and (4) of the Act.
4. By interrogating and otherwise interfering with the activities of other of its
employees , the Employer, the Respondent herein , has interfered with, coerced, and
restrained other employees in the exercise of their rights guaranteed by Section 7 of
the Act, in violation of Section 8 (a)( I) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
C. F. Williams Lumber Company and Windsor Corporation'
and Chattahoochee Valley District Council , United Brother-
hood of Carpenters and Joiners of America , AFL-CIO,
Petitioner
C. F. Williams Lumber Company , Petitioner and Millmen 's Local
2768, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Cases Nos. 10-RC-4771 and 10-RM-298.
February 10, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
James P. Swann, Jr., hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
Upon the entire record in this case, the Board finds:
1. C. F. Williams Lumber Company, hereinafter called the Em-
ployer, is engaged in commerce within the meaning of the Act.
2. Chattahoochee Valley District Council, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, herein called the Pe-
titioner, claims to represent certain employees of the Employer.
3. Millmen's Local 2768 was certified in March 1959 as bargaining
agent for a production and maintenance unit covering the mill and
yard employees of the Employer and, between June 1959 and June
1 The names of the parties in the caption appear as amended at the hearing.
130 NLRB No. 13.