Southwire Co.

National Labor Relations Board - Board Decisions

Nov 12, 1985

277 N.L.R.B. 377 (N.L.R.B. 1985)

SOUTHWIRE CO. 377
Southwire Company and United Steelworkers of
America, AFL-CIO. Cases 10-CA-19815-1, et
al. and 10-CA-19650
12 November 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 24 April 1985 Administrative Law Judge
Karl H. Buschmann issued the attached decision.
The Respondent and the General Counsel each
filed exceptions and a supporting brief; the Re-
spondent filed a reply brief.'
The National Labor Relations Board has delegat-
ed its authority in, this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,2 findings,2
and conclusions and to adopt the recommended
Order.
We agree with the judge's findings that the Re-
spondent violated the Act and with his dismissal of
certain allegations. We want, however, to clarify
two of his findings.
1. The judge found that the Respondent unlaw-
fully threatened employees in speeches and notices
stating that union authorization cards might be dis-
closed to it and admonishing employees not to sign
cards unless they knew what it would mean to
them, their families, and their fellow employees. In
adopting the judge's finding, we emphasize that the
violation flows from the context in which the Re-
spondent made the statements. The speeches and
notices were made against the general background
of the Respondent's history of violating the Act
and in the immediate context of the pervasive vio-
lations in this case, particularly those directed at
open union adherents,4 including coercive interro-
gations, unlawful threats, and unlawful discharges
and other retaliatory discipline. In context, the Re-
spondent's comments are a "rather pointed hint"
that it would, on learning their identity, similarly
retaliate against employees who signed cards. See
J R Stevens & Co. v. NLRB, 638 F.2d 676, 686 (4th
Cir. 1980), enfg. 245 NLRB 198, 216-217 (1979). In
these circumstances, the Respondent's explanation
that it was merely informing employees of the rele-
vant law is simply artifice.
2. The judge found that the Respondent did not
unlawfully issue Jackie Dennis a written warning.
The General Counsel filed exceptions. Although
Dennis was an open union adherent and although
the Respondent may have welcomed the chance to
discipline him, we agree with the judge that the
Respondent would have warned Dennis even in
the absence of union activity. Dennis had been
absent several times in the past year and had been
orally warned. Dennis was absent again on 13 Oc-
tober 1983. The next day the Respondent gave him
a written warning stating that he had been absent
11 times in the past 9 months and that additional
absence would result in suspension. The judge
found that the Respondent has shown that it would
have disciplined Dennis generally for excessive ab-
senteeism . We agree. Accordingly, the complaint
allegation should be dismissed. Wright Line, 251
NLRB 1083 (1980). The General Counsel has not
shown that Dennis was subject to disparate treat-
ment. To the contrary, the Respondent has shown
that the written warning was a reasonable step in
progressive discipline for Dennis' absenteeism.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Southwire
Company, Carrolton, Georgia, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
Walter Bowman and Ann Leslie Unger, Esqs ., for the Gen-
eral Counsel.
Walter O. Lambeth Jr. and Charles A. Perry, Esqs. (Elar-
bee, Thompson & Trapnell), of Atlanta , Georgia, for the
Respondent.
Robert S. Sarason, Esq . and Roger Bradley, Intl. Rep., of
Riverdale, Georgia, for the Charging Party.
i The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
2 The Respondent contends that the judge's conduct at the hearing and
his decision are tainted by the judge's bias and prejudice We reject the
contention as unsupported
3 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
4 Many of the violations were against employees who wore badges
supporting the Union
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge.
These cases were tried at Carrolton, Georgia, from I
May to 4 May 1984, and from 15 May to 17 May 1984.
The charges, as amended, were filed by the United Steel-
workers of America, AFL-CIO (the Union) on various
dates between 7 October and 8 December 1983. The
General Counsel issued a complaint on 29 November
1983, an amended consolidated complaint on 31 January
1984, and a second amended consolidated complaint on
277 NLRB No. 43
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
21 March 1984. The second amended complaint con-
tained fewer allegations than the amended complaint be-
cause of the General Counsel's decision to institute con-
tempt proceedings in the United States court of appeals.
A portion of the omitted allegations appeared in the
record in this proceeding only where necessary to indi-
cate relevant background information.
The primary issues are whether the Respondent,
Southwire Company, had violated Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act).
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Company, I
make the following
FINDINGS OF FACT
The Respondent, Southwire Company, is a Georgia
corporation with an office and place of business located
in Carrolton, Georgia, where it is engaged in the manu-
facture, sale, and distribution of wire, cable, and related
products. The Company, which employs a total of about
1500 production and maintenance employees, is admit-
tedly an employer within the meaning of Section 2(6)
and (7) of the Act.
Southwire has a history of past violations of the Act.
As outlined in the General Counsel's brief, the most
recent involvement was the discharge of Jerry L.
McColley Jr., who was also a witness in the present
case. See Southwire Co., 268 NLRB 726 (1984).1
The Union is a labor organization within the meaning
of Section 2(5) of the Act. It commenced an organiza-
tional campaign in the spring and summer of 1983. The
peak period of employees' involvement in the campaign
was September through December 1983, when employ-
ees wore union buttons and solicited fellow employees
for the Union.
During that period, the Respondent stands accused of
having engaged in unlawful interrogations of its employ-
ees, of threatening them with loss of jobs or other repris-
als because of their union activities, and surveillance of
their union activities, all in violation of Section 8(a)(1) of
the Act. In addition, the Respondent is alleged to have
engaged in discriminatory conduct toward its employees
when it discharged employees Danny Ray Rowell,
David Huckeba, Randall Hanson, and Arlice Smith and
when it suspended employees Phillip Bell, Michael
Runels, Clifford Herring, and Buford Amburgey. Certain
work restrictions and a warning to employee Jackie
Dennis are also challenged as discriminatory because of
the employees' union activities.
Independent 8(a)(1) Conduct
Surveillance. Former employee Jerry McColley testi-
fied that Rudy Pilney, director of corporate labor rela-
tions, observed several employees on 7 October 1983 as
they passed out union literature at the gate leading to the
plant. Pilney walked initially past the employees to one
of the plant's buildings and then stood behind a large
plate glass window conversing with someone. During a
time period of about 15 minutes Pilney watched the em-
ployees and their union activity.
In such circumstances as these, where the employees
are conducting their activities in the open and on or near
company premises, the Board has decided that surveil-
lance is not unlawful. Porta Systems Co., 238 NLRB 192
(1978). Any allegation of unlawful sureveillance in the
complaint should therefore be dismissed.
Interrogations. Plant Superintendent Carl Jones stopped
employee Tommy Jarrell as he was leaving his depart-
ment on his way to the laboratory in June 1983. Jones
asked him if it was true what he heard. Jarrell answered
that he did not know. Jones then asked, how strong the
Union was, and again Jarrell answered that he did not
know. Jones also approached Jarrell in late September in
the plant's T-wire department. Jones, upon seeing Jarrell
wearing the union "volunteer organizer" badge inquired,
"Just where do you think [the badge] is going to get
you." Jarrell answered, "maybe a little respect."2
In late September or early October, Jarrell was at his
work station in the T-wire department, when Operations
Manager John Norman approached him and said that he
did not want to agitate him but he could not understand
why he put on a union badge, that they had been
through some tough times before and he did not think
that management was all that bad. Similarly, employee
Gene Bass recalled that Norman walked up to him and
asked why he was wearing that button and further asked
what gripe he had against Southwire.
Jarrell had a discussion on 11 October with Plant
Manger Jim Blevins who had came to him at his ma-
chine. Blevin asked Jarrell whether he had seen the
other list of grievances. Jarrell did not know what Ble-
vins had referred to and answered in the negative. Ble-
vins then stated: "Well there is a few more names on it."
He then looked at Jarrell's union badge and asked, what
did he think his union badge would get him. Jarrell testi-
fied that the conversation continued as follows (Tr. 594):
He was getting angry. He tried to get me to tell
him, he said just name one thing, just one thing
what I thought the bagde was going to get me and
I told him maybe a little respect, and he told me, he
said, "Well, if you are not for me and Southwire,
you are on the other side of the fence." And then
he asked me again about the charges and I told him
I didn't know, and then he said, and now this is his
words as best as I can recall, he said, "Well, it
really doesn't matter. I don't give a damn if there is
22 or 110 charges."
' Other adjudicated cases included Southwire Co, 133 NLRB 83
(1961), enfd 313 F 2d 638 (5th Cir 1963), Southwere Co., 145 NLRB 1329
(1964), enfd as modified 352 F 2d 346 (5th Cir. 1965), Southwire Co., 159
NLRB 394 (1966), enfd in part 383 F 2d 235 (5th Cu 1967); Southwire
Co, 164 NLRB 1018 (1967), enfd. 393 F 2d 106 (5th Cu 1968); Southwtre
Co, 181 NLRB 549 (1970); NLRB v. Southwtre Co., 429 F 2d 1050 (5th
Cir. 1970), cert denied 401 U S 939
Then there were the conversations on 14 October be-
tween Jackie Dennis and his supervisor Larry Perkins.
2 I found Jarrell's testimony credible because of his earnest and forth-
right manner of testifying. Furthermore, he carefully kept a notebook and
recorded most of these incidents
SOUTHWIRE CO 379
Perkins had just denied Dennis' request for a vacation
day for the previous day when Dennis called in to report
car problems. At that time Perkins inquired what his
badge or the Union could do for him.
On 13 October Supervisor Steve Murphy requested
Randall Hanson to see him. Murphy said, "What is this I
have been hearing about you being for the Union? . . . It
is all over the plant that you are for the Union, did you
sign a Union card?" When Murphy threatened that he
might have to inform his own boss, Pat Hannon, Hanson
became defensive and suggested to Murphy "Well, why
not tell him I am undecided?" The conversation contin-
ued during which Murphy interrogated Hanson with ad-
ditional questions such as: "Besides, what do you hope to
gain from a Union? .. . Besides, what makes you think
that this Company will deal with the Union?"
The record contains additional but less significant in-
stances of interrogations, the descriptions of which
would only be redundant. For the record shows that, in
at least some instances, the Respondent has stepped
beyond the lawful boundaries of lawful and casual ques-
tioning concerning union sympathies, and where the Re-
spondent interrogated its employees in a coercive and
threatening atmosphere. This occurred, for example,
during the conversation on 13 October between Supervi-
sor Murphy and Randall Hanson. It also occurred on 11
October 1984 when Plant Manager Blevins interrogated
employee Tommy Jarrell. These conversations were not
casual or conducted in a friendly atmosphere. To the
contrary, the record shows that Blevins' questioning was
associated with a show of anger, while Murphy's interro-
gation was accompanied by threats and expressions of
fear. Respondent, therefore, violated Section 8(a)(1) of
the Act. Rossmore House, 269 NLRB 1176 (1984).
Threats. In October 1983 employee Eddie Cantrell
talked about the Union with Supervisor Carl North.
North told him that Vice President Wayne McAmis and
Superintendent Danny Carden were looking through
Phillip Bell's records to see whether they could find a
reason for which to fire Bell, a known union supporter.
In another instance, on 12 October employee Randall
Hanson and Supervisor Jerry Stapler had a conversation
in the quality control laboratory. They discusssed a
newspaper article which dealt with the Union. Stapler,
discussing the consequences of a Union at Southwire,
said to the employees (Tr. 91): "Your wages would drop
to minimum wage, you have no benefits and no insur-
ance . . . everything would have to be negotiated in a
contract . . . . There is no guarantee that you will get
back what you already have."
During a conversation on 13 October between Super-
visor Murphy and employee Hanson, Murphy expressed
several threats. After telling Hanson that it was all over
the plant that Hanson was for the Union, and following a
discussion whether Southwire was financially able to
provide wage increases, Murphy said, inter alia (Tr. 94-
8): "Besides, what makes you think that this Company
will deal with a Union? . , . They may shut down, fire
everyone who goes on strike and hire new people."
During a followup conversation on the same day,
Murphy expressed fear for his own job if the Union
came to Southwire. He also stated his apprehension
about damage to his car or injury to his family if it came
to a strike and his obligation to cross a picket line. In
that context, Murphy said that if the plant were union-
ized, there would be some reorganizing and that Han-
son's job as a crew chief might be eliminated. During a
continuation of their conversation about an hour later,
Murphy said (Tr. 97): "Randy, you have nothing to gain
and everything to lose being for the Union . . . . Well,
you are a Crew Chief and you are in line for a supervi-
sor's job some day . . . . If you signed a union card and
it is all over the plant that you did, you will probably
never be promoted and you will have a long hard road
ahead of you."
About 15 November, Supervisor James Walker dis-
cussed the Union with employees Gilber Iverson and
Walter Allen in the lift ship. Allen did not recall how
the conversation began, but he recalled that Walker said,
"If you all get me in trouble with this damn union stuff,
if you ever came out to the club out yonder, your ass is
going to be raw meat ." Walker made reference to a club
not related to Respondent where he worked as a bounc-
er. Allen, however, indicated in his testimony that he did
not take this remark seriously and that the employees
laughed when Walker made this statement. Not all of the
above threats made by various supervisors were made in
jest or with a casual intent.
Numerous threats were intended to be taken seriously
and clearly intended to interfere with the employees'
rights to engage in protected activities. Threats made by
the Respondent that the employees would lose their jobs,
that the plant would close, that promotions would be
denied, or that benefits would be lost if the Union came
to Southwire are examples of unlawful threats. Respond-
ent thereby engaged in unlawful conduct in violation of
Section 8(a)(1) of the Act.
The allegation in the complaint that the Respondent
prohibited the employees from engaging in union activi-
ties in nonworking areas during their nonworking time is
supported by the record. However, the prohibition was
in effect for only a few hours until clarified by a higher
official. Respondent admits in its brief (p. 93) that Bobby
Jarrell mistakenly told William Riggins that handbilling
was prohibited in certain areas. However, Riggins ob-
tained a clarification of the restrictions from Jarrell's su-
pervisor, John Norman, who, in effect, told Riggins that
he could not do anything about the handbilhng by em-
ployees as along as it was done on their own time and in
a nonworking area. In view of the clarification, I would
dismiss this allegation in the complaint. Finally, the com-
plaint 's allegation that Respondent threatened its employ-
ees that their signatures on union cards would become
known to the Respondent is supported by a notice
posted on the Company's bulletin boards. (G.C. Exh. 17.)
For practical purposes, the notices state that union cards
may become public under certain circumstances and that
employees be careful when they signed these cards. The
subject matter of those posters was farther discussed in
speeches made by Supervisors Jim Blevins and R L.
Huey. (G.C. Exh. 3.) It must be recognized that even lit-
eral language taken from a court's decision, if quoted out
of context, may convey an erroneous message or even an
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawful threat . Specifically , the employees were in-
formed inter alia as follows (G.C. Exh. 7):
It is said that when you sign no one other than a
union Representative or a representative of the
NLRB will ever see this card. This is not the truth.
In many instances, the signed card is disclosed to
the company by the union, the NLRB, or both of
them. Be careful about what you sign. Don't sign
anything unless you know what you are signing,
and what it might mean to you, your family or your
fellow employees.
In the context of Respondent's other unlawful labor
practices, the statement carried the obvious implication
that harm or retaliation would result from disclosure of
the identity of the card signers to Respondent. As the
Fifth Circuit has stated: There is "no reason for inform-
ing employees that they might be required to testify in
open court other than to let them know that the names
of union adherents could be ascertained and appropriate
reprisals taken," NLRB v. Finesilver Mfg. Co., 400 F.2d
644, 646 (5th Cir. 1968); Lundy Packing Co., 223 NLRB
139 (1976). I must conclude that the Respondent thereby
violated Section 8(a)(1) of the Act.
The Discharges
David Huckeba. In late September during the height of
the union campaign , employee David Huckeba came to
work wearing a Steelworkers' "Volunteer Organizer"
badge. He had also attended several union meetings. Ap-
proximately 1 week later, on 22 September 1983, the Re-
spondent discharged Huckeba under circumstances
which indicate disparate treatment of the employees.
David Huckeba was assigned to the Cooper Refinery
Department. Huckeba had been employed for 3 years
and had been classified as a "tradesman B" electrician in
the last 1-1 /2 years of his employment . Approximately 3
weeks prior to his discharge, Huckeba had asked his su-
pervisor Henry Jaillet for a promotion to tradesman A
electrician. Jaillet's words: "He did very well on his
work." (Tr. 990.) On 20 September 1983, Huckeba asked
his supervisor Jaillet whether he would be promoted.
Jaillet told him that his request for a promotion had been
denied. When asked for the reason, Jaillet had no expla-
nation but only shrugged his shoulders and with his head
motioned towards the office of Department Manager
Tony Hyde. In spite of Jaillet's recommendation for a
raise, Hyde had made the decision not to promote Huck-
eba. This news upset Huckeba. He told Jaillet that he
had gone as far as he could with the Company, and that
he was clocking out to look for another job and did not
care if he put him down for being sick or leaving. Jaillet
asked him whether he would be back on Friday, his next
scheduled workday. Huckeba replied that he would be
back bright and early on his next workday. Huckeba re-
turned on Friday for his normal workday and was
promptly summoned to the office of Tony Hyde. He in-
formed Huckeba that he was terminated for having left
his assigned work station. Hyde added that Huckeba had
done well at his job and that he might be rehired after he
had established a good working record with another'
company.
The Respondent submits that it had no choice but to
terminate Huckeba for his second major rule infraction'
within 1 year. Huckeba was disciplined 9 months earlier
and received a week's suspension for damaging company
property in violation of a company rule and was warned
that a major rule violation would result in his discharge.
(R. Exh. 1.)
At first blush, the Respondent's position is plausible;
Huckeba was simply discharged for his infraction of a
company rule. However, the record contains several in-
stances which show that the Respondent had considered
an employee 's act of leaving his job considerably less se-
rious in comparable or worse situations and that, prior to
the union campaign , the Company had not discharged an
employee for such an offense. For example, the record
shows that several employees , including Keith Webb and
Tony Richardson, left their jobs without permission and
without telling anyone, and that they received no more
than an oral reprimand. There was also employee Terry
Wayne Daniel who testified that he left his job without
permission from Supervisor Carl North. On the follow-
ing day he received a verbal warning and was told that
only a repetition of such conduct would result in his ter-
mination. Two years earlier, employee Daniel Bowe left
his job without permission and received an oral repri-
mand . In short, the record contains no instance where an
employee had ever been terminated for having left his
work station without permission. To be sure, the record
does not show whether any of these employees had a
prior record of discipline which , as in the case of Huck-
eba, had warned that a future major infraction of compa-
ny policy would result in the termination of the employ-
ee. Considering , however, that the circumstances which
prompted Huckeba to leave to his work were attributa-
ble to the Respondent's refusal to follow through on its
earlier promise to promote him, it is clear that his con-
duct was not that of an irresponsible employee who
simply abandoned his work. Moreover, Huckeba may
not have received permission to leave, but he did notify
his employer of his intentions to leave which is consider-
ably less serious than simply abandoning his work station
without telling anyone. Moreover, considering the miti-
gating circumstances of his leaving, the Respondent was
unusually severe in its treatment of Huckeba. It showed
disparate treatment by the Respondent of a well-regard-
ed and highly skilled employee.
Huckeba was a prominent union supporter on 'his shift
in the Cooper Refinery Department who attended union
meetings and prominently wore a union badge. He began
wearing the union badge about 1 week prior to his dis-
charge. Although Jaillet,denied that the union badge had
anything to do with the Company's decision not to pro-
mote him, the timing of that decision suggests otherwise.
The General Counsel contends , therefore, that the
Company used Huckeba's conduct as a pretext to rid
itself of a prominent union adherent in that department.
To be sure, the record is not overwhelming as to any
direct nexus between the employee's union activity and
his discharge, but considering the Respondent's unex-
SOUTHWIRE CO. 381
plained denial of a promised promotion , the timing of the
discharge , and the disparate 1 reatment of Huckeba for his
unexcused leave , all point to the inference that his open
union support was the real reason for the Respondent's
action. Considering further that the record in this case
convincingly establishes other violations of Section
8(a)(3) and ( 1), it is clear that the Respondent 's union
animus, established by other evidence before me, is an
additional and crucial factor for consideration in this
context. Huckeba's wearing of the union button shortly
before the Company 's decision not to promote him set
into motion the sequence of events which ultimately lead
to his discharge. I find the Respondent 's explanation for
Huckeba's discharge difficult to accept , for Huckeba was
considered such a valued employee that Supervisor
Hyde even offered to reinstate him after a year. Had the
Respondent kept its promise to promote him, the inci-
dent would not have occurred . The General Counsel had
established that , without union consideration , the Re-
spondent would not have discharged Huckeba following
his unexcused leaving of his work station . Under ordi-
nary circumstances , the Respondent would have treated
this employee consistent with its treatment of the other
employees who had simply abandoned their work sta-
tions without any mitigating factors by issuing him no
more than a verbal warning . Considering the issue from
every corner , I must conclude that the Respondent un-
lawfully discriminated against this employee in violation
of Section 8(a)(3) and ( 1) of the Act.
Danny Ray Rowell . On 28 November 1983, the Re-
spondent discharged Danny Ray Rowell, a production
operator on the second shift assigned to the drawing and
stranding department . Rowell had attended union meet-
ings as early as May 1983 . In late September, he began
to wear a union "Volunteer Organizer" badge. When the
Respondent discharged this employee in November, 1
month after he had regularly worn that union button,
Rowell had worked for Southwire for 6 years and 8
months without having incurred any disciplinary warn-
ing. The circumstances of his discharge clearly show the
Respondent 's discrimination against this employee.
The events leading up to the discharge occurred on
the weekend of 26 and 27 November when Rowell was
scheduled to work 12 hours each day from 7 a.m. to 7
p.m. On Saturday , 26 November , Rowell asked Gerald
Rooks, his department manager whether he could leave
early. Rooks denied the request . Rowell subsequently
asked Duma Morris, his shift supervisor , for permission
to leave because his machine had become inoperable.
Morris denied his request. Rowell worked the entire
shift.
On Sunday , 27 November, Rowell asked for permis-
sion to leave at 3 p .m. in order for him to repair his
truck . Rowell first asked Duna Morris , his supervisor on
the 7 a.m . to 3 p .m. shift , and explained the reasons for
his request. Morris gave no response . Fellow employee
Kenneth Yates overheard Rowell 's request for leave and
corroborated Morris' failure to respond. Rowell com-
menced to clean up around his machine shortly prior to
3 p.m. Morris who came by to pick up the tags, ob-
served Rowell getting ready to leave. Prior to clocking
out at 3 p.m., Rowell also informed Carl North, the on-
coming shift supervisor , that he wanted to leave early
and explained the reasons for his request . Indeed, Morris
had already informed North of Rowell's leave request.
Yet Supervisor North had no reaction to Rowell's re-
marks.3 Morris proceeded to punch out and North ob-
served Rowell leaving the plant.4
When Rowell reported for work on Monday, 28 No-
vember , Gerald Rooks, department manger, called him
into his office, explained that he had to terminate Rowell
because he had left his job without permission.
The Respondent relies on a memorandum circulated to
the shift supervisors on 17 November 1983, which ad-
monished them that operators scheduled for the 12-hour
shift "have to work it unless one of the [the] supervisors
let them off' and that the employees "could be fired for
abandoning the job without being properly relieved." (R.
Exh. 4.) The Respondent argues that Rowell was proper-
ly discharged because he had left his job without getting
permission from his supervisors.
Because Rowell had been an active and highly visible
union supporter , the General Counsel argues that the Re-
spondent 's conduct toward Rowell was discriminatory
and motivated by union animus. A fair appraisal of the
record evidence supports the General Counsel's position.
Rowell had received no prior disciplinary warnings of'
any kind. Management regarded him as an excellent em-
ployee. His only violation , even assuming the Respond-
ent's version of the scenario , was to leave his job at the
conclusion of the 8-hour shift but prior to his scheduled
12-hour shift without obtaining express permission from
his supervisors . The warning , circulated to the employ-
ees on 17 November , did not mandate automatic dis-
charge when employees abandoned their work. The
record shows that under similar circumstances , Respond-
ent had never discharged an employee in the past.5 As
discussed supra, employees Keith Webb, Tony Richard-
son, Terry Wayne Daniel , and James McGee ! had left
their jobs without obtaining permission , indeed , without
informing their respective supervisors . Yet they received
no more than a verbal warning. Taking into consider-
ation the efforts which Rowell undertook to obtain per-
mission , not only from his shift supervisor Morris, but
also from his supervisor Carl North, it is clear that the
Respondent's conduct was discriminatory . Not only
should Rowell have safely assumed that he had permis-
sion , after he carefully explained the reasons for his re-
quest and had approached both of his immediate supervi-
sors, but he certainly would have had implied permission
under circumstances where both supervisors intentionally
or carelessly had avoided giving an express and clear re-
sponse . Significantly , Rowell had experienced no prob-
lem on the preceding day when he requested permission
to leave early . At that time the same supervisor had no
9 Rowell and fellow employee Yates testified that North acknowl-
edged Rowell 's request. But the General Counsel and the Respondent
agree that North said nothing.
4 Although North conceded that he saw Rowell leaving , he testified
that he assumed Rowell was merely going to the snackbar. Considering
that Rowell had just informed him that he was about to leave, North's
testimony is not persuasive on this point
s As already discussed , only Huckeba was terminated for similar con-
duct
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
difficulty expressing his unequivocal denial of Rowell's
request. And Rowell, like a responsible employee, had
complied with management's orders. The inference to be
drawn is clear, the Respondent either created this equiv-
ocal situation or used it as a pretext to retaliate against a
union supporter. The Respondent's explanation that
Rowell simply left his work without obtaining permis-
sion and therefore had to be discharged is not persuasive.
Rowell's union support began with his attendance of
union meetings in early May and in the first or second
week of September. In late September, Rowell started to
wear a union badge regularly until his discharge on 28
November. Moreover, one day in June after Rowell had
returned from a union meeting, he casually asked Super-
visor North about a pay raise. According to Rowell,
North replied: "Well, that just all depends on how
strong the Union is. Southwire has people at the Union.
They know the names of everyone who attends the
meetings."
The General Counsel has shown that Rowell was dis-
charged because of his open union support. Absent any
union consideration, the Respondent would have given
Rowell at most a verbal warning, even assuming that he
had left without permission.
Under these circumstances, including the Respondent's
proven union animus, I have no difficulty in finding that
the Respondent's discharge of Rowell was motivated by
pretextual reasons in violation of Section 8(a)(3) and (1)
of the Act.
Arlice Smith. Smith had worked as fleet attendant and
trailer repairman in the traffic department for 5 years.
His discharge on 28 September 1983 for violating a com-
pany rule which prohibited the employees from soliciting
in work areas during working time was the Company's
only example of enforcement of that rule. (R. Exh. 17, p.
66.) Violation of this rule was regarded as an "intoler-
able" offense. Intolerable offenses are those which "en-
dager life or limb, property or which severely interfere
with normal work flow." These violations "may justify
immediate discharge on the first offense." According to
the Respondent, the "work rules provided for a balanc-
ing test to determine the type of discipline." (R. Br. 54.)
The record shows that Smith had briefly solicited a
fellow employee, Travis George, for the Union.
According to the .Respondent, Smith violated this rule
on 27 September. But, according to his own testimony,
Smith was not sure how he had violated the rule. He tes-
tified that he had returned from a 2-week vacation on 26
September and reported for work at 6:45 a.m. and for
the first time wore a union badge to work. He had at-
tended the union meeting on the preceding Thursday. He
was the only employee in his department who wore the
union badge. He felt nervous and observed that his su-
pervisor, Tony Richardson, followed him everywhere to
see what he was doing. On the following day he had a
heated discussion with a fellow employee, Clarence Holi-
day, about the Union and about 1:30 p.m. he was told by
his foreman, Wilburn Smith, that he had complaints
about him. In Smith's office, Arlice Smith was told that
he had harassed other employees and held them up from
their work. After reciting the rule dealing with solicita-
tion on company premises, Smith was terminated. Super-
visor Smith refused to disclose to him the name of the
employee who was harassed or any other details. Smith
apparently thought that his supervisors made reference
to his discussion with employee Holliday.
But the Respondent produced employee Travis
George as a witness who testified about an encounter
with Smith on 27 September about 10 a.m. George, a
truckdriver, had just finished a trip and walked by
Smith's truck to get further instructions. Smith, who was
standing on top of a ladder working on his truck, asked
George to come closer. At that point Smith showed
George his union badge and said "that he was joining
forces with the union, and he wanted to know if
[George] was interested." Smith also told him to sign a
union card if he were interested. George went to Byron
Spruill, his dispatcher, to report the conversation. He
subsequently reported the matter to Wilburn Smith, his
supervisor, who told him to report it to Frank Jones,
vice president and director of transportation. George re-
peated his story in the presence of Jones and Rudy
Pilney, the Respondent's industrial relations manager.
George prepared a written report which carefully and in
great detail summarized the incident. (R. Exh. 18.) At
the behest of Jones, Supervisor Smith then discharged
Arlice Smith about 3 p.m.
According to the Respondent, the termination of
Arlice Smith was simply based on his "intolerable" of-
fense of "Company Rule Nine." The General Counsel,
on the other hand, submits that the Respondent had
failed to enforce its no-solicitation rule in the past and
the Company's sudden and strict enforcement of, the
rules as applied to employee Smith was discriminatory
and based on union considerations. In this regard the
General Counsel points to numerous instances in the
record where employees engaged in soliciting activities
without receiving any discipline.
For example, employee Jerry Ragsdale testified that he
had bought several raffle tickets for a Remington rifle on
7 November 1983 in the machine shop from a fellow em-
ployee. Although he bought the ticket during his break-
time, the employee who solicited his purchase had ap-
proached him during their working times. In October
1983, an employee solicited Ragsdale during working
time to purchase a raffle ticket for a chainsaw. On an-
other occasion, also during working time, another em-
ployee solicited him for the purchase of a color televi-
sion set. In November, Ragsdale was solicited and pur-
chased a raffle ticket in the welding room during work-
ing time to raise money for a high school homecoming
queen. In each of these instances, Ragsdale produced,
and the record contains, the actual raffle tickets which
he had purchased.
Ragsdale further testified about an employee named
Keith, widely known as the "knifeman," who during
working time solicited fellow employees and sold and
traded knives. The knifeman worked directly for Rudy
Pilney, the Respondent's director of corporate labor rela-
tions.
Another employee, Phillip King, testified that he had
observed employee Gary Walker selling Girl Scout
cookies to the employees during working time in early
SOUTHWIRE CO. 383
1984. He testified that supervisors were aware of this ac-
tivity and that Lonnie Laminack, a supervisor in quality
control, was approached by Walker and purchased cook-
ies during his working time.6 King also observed em-
ployee Stanley Almand selling raffle tickets for a bag of
groceries during work time,
Employee Daniel Bowe testified about a meeting
called by Supervisor Buster Hale during working time to
discuss what the employees would bring to a Christmas
party. Several days thereafter, the employees took up a
collection among themselves during working time to
purchase presents intended for their supervisors. In addi-
tion, employee Eddie Bonner solicited employees to pur-
chase raffle tickets for the church. Arlice Smith recalled
that employee Chester Mitchell solicited money during
working time for Supervisor Tab Richardson when his
house had burned and that other collections of money
took place for the burials of former employees, including
Chester Pinkerton.
In none of these instances of solicitation were the em-
ployees disciplined in any way. The record also contains
the testimony of several employees, including Supervisor
Donald Terrill, that the employees, were not restricted
from conversing among each other during working time.
No one was ever disciplined-except for the instances
specifically described herein-for having engaged in idle
conversation during working time.
The Respondent dismisses these examples of rule nine
violations as charitable collections which were innocuous
or noninterfering and which were largely unknown to
management. The Respondent may be correct to a
degree that management had not been aware of the
extent of that activity or that many of those cited inci-
dents had a salutary purpose. What is striking, however,
is that the record reveals that the Respondent had made
no effort to enforce rule nine in any way, even though
management knew of it and participated in it. The record
is devoid of any examples where the Respondent ever
disciplined an employee for rule nine infractions in spite
of an apparent widespread practice of solicitation for the
sale of raffle tickets and other items. Moreover, the Re-
spondent freely permitted employees to converse with
each other during working time. The Respondent's
sudden concern with Smith's union solicitation demon-
strates a discriminatory attitude towards an employee
who had been a valued worker for 5 years with an un-
blemished record until, on 26 September, he appeared
with a union badge. During the 2 days when he, as the
only employee in his department, openly displayed his
union insignia, he felt watched and observed. The record
clearly shows that Smith's discharge was the direct result
of his union activity, including his display of the union
badge and his solicitation of a fellow employee for the
Union. Resorting to rule nine in its discipline of Smith in
the face of a general failure to enforce that rule in other
violations was discriminatory and pretextual. Having
considered all of the surrounding circumstanecs in this
6 Lammack's testimony that he was on his lunchbreak when he made
the purchase does not dispute the evidence that supervisors, including
Laminack, were aware that employees solicited during working time
incident, it is clear that the Respondent's discharge of
Smith violated Section 8(a)(3) of the Act.
Randall Hanson. On 20 October 1983, the Respondent
terminated the employment of Randall Keith Hanson,
who had been employed for 7 years. I-le had been a crew
chief in the insulation department for approximately 2-
1/2 years. Tired of being harassed and upset about being
reassigned to another job as a result of his support for
the Union, Hanson gave his supervisor 2 weeks' notice of
his resignation during the morning of 17 October 1983.
In the evening of the same day, Hanson changed his
mind and decided to withdraw it. However, the Compa-
ny denied his request and permitted him to work for
only 3 days before separating him from employment.
The events leading up to Hanson's employment sever-
ance began on 12 October with a conversation between
him and Jerry Stapler, quality control supervisor, at 4:30
a.m. in the quality control lab where Hanson orally de-
fended the Union. Several employees and Jerry Stapler
discussed a newspaper article about the Union. As re-
called by Hanson,? Stapler told him to read the newspa-
per article and then said: "Do you know what would
happen if the Union were to come in'? ... Your wages
would drop to minimum wage, you have no benefits and
no insurance . . . . Everything would have to be negoti-
ated in a contract . . . . There is no guarantee that you
will get back what you already have." Hanson replied,
"Well, I don't believe that the United Steelworkers of
America would negotiate a contract that settles for less
than the employees already had." There was further dis-
cussion about the advantages and disadvantages of a
union at Southwire and another remark by Hanson in de-
fense of the Union.
On the following day, 13 October, Supervisor Steve
Murphy engaged Hanson in a conversation about the
Union. According to Hanson, Murphy stated: "What is
this I have been hearing about you being for the Union?
.. . It is all over the plant that you are for the Union,
did you sign a Union card?" When Hanson replied that
he did not have to answer such a question, Murphy con-
tinued, "Well it is all over the plant that you did sign
one and that is what I will have to tell my boss Pat
Hannon . . . . Besides, what do you hope to gain from a
union?" Hanson replied, "More money, better benefits,
retirement and job security." Murphy, after discussing
the economics of selling wire in the market place, con-
cluded the conversation stating: "Besides what makes
you think that this company will deal with the Union?
. .. They may shut down, fire everyone who goes on
strike and hire new people."
Murphy approached Hanson about 30 minutes later to
resume his conversation about the Union. He expressed
fear of losing his job if the Union came into Southwire
and his reluctance to cross a picket line for fear of
damage to his car on injury to his family. Murphy said
further that a Union at Southwire would mean reorga-
7 Hanson's testimony, which was only partially disputed! by other wit-
nesses, was credible, forthright, and clear It was also supported by his
detailed, written notes which were produced during the trial. I have
credited his testimony in its entirety
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nizing and the possibility of doing away with the job of
crew chief.
Early the next day, Murphy again began a discussion
about the Union, telling Hanson that he had nothing to
gain from a Union, that he would risk a promition to a
supervisor's position and that he would have a difficult
future at Southwire. Operations Manager John Norman
who passed by Hanson at the close of the shift remarked:
"I guess I am the only one here that hasn 't signed a
Union card."
On the following day, 15 October, Murphy contacted
Hanson several times to tell him that supervisors intend-
ed to meet with him. Those meetings, however, did not
occur. Instead , Hanson was assigned to operating a ma-
chine which he, as a crew chief, would normally only
have operated on a temporary basis.
Murphy also stated that certain supervisors had lost
confidence in him and thought of him as a union organiz-
er. Hanson was assigned to the machine operation also
on the second day. Again Murphy told him several times
that certain supervisors wanted to talk to him. Finally,
after certain remarks were made by supervisors that an
area under Hanson's machine was not properly cleaned,
Hanson, during his testimony, recalled the following (Tr.
108):
At this point, I was upset because I had been
thinking about what was going on, what was going
on to me. I had been taken off my job, placed in
somebody else's job and told that if I had signed a
Union card that I would probably never be promot-
ed and that I would have a hard road ahead of me,
and at this point, rather than talk to Pat Hannon I
clocked out and told Steve Murphy who was stand-
ing at the time clock that he had my two weeks
notice.
Hanson, however, returned to work for his evening
shift on the same day and informed Supervisor Murphy
that he had been upset and that he intended to withdraw
his resignation. Murphy suggested that he so inform De-
partment Head Pat Hannon. Murphy also said that they
had put him on a machine to immobilize him and to keep
him from moving around the building. At the end of his
shift, Hanson saw Hannon to tell him that he had with-
drawn his resignation . Hannon replied : "We didn't put
you on the machine to punish you for being for the
Union ... . We put you on the machine so that we
could train a reserve of operators . ... Now then, if
you have a religious belief or if you are for the Union,
you should back that one hundred percent . . . . There
is no middle ground here . . . . I expect my employees
to be loyal to me and to Southwire one hundred percent
.... As for as your resignation is concerned, we have
already accepted it."
Hanson was given until the following day to leave the
Company. Hanson made a last effort to see higher-up of-
ficials to explain that he wanted to withdraw his resigna-
tion, but Plant Manager Blevins denied the request and
stated that his only option at this point would be to fill
out an application for employment.
On his last day of employment Hanson wore a volun-
teer union organizer badge . As Supervisor Murphy es-
corted Hanson out of the plant, Murphy stated that "the
worst thing that [Hanson] could have done was to wear
a Union badge in .. . that it destroyed all of the confi-
dence that he had in [him]."
In short, the record shows that Hanson, a well-regard-
ed employee for 7 years with a possibility of a future as a
supervisor, was not allowed to withdrawn his oral notice
to quit made on the same day. The Respondent simply
stated that Hanson's notice had been accepted and his
position filled by someone else. The Respondent's treat-
ment of Hanson in this regard is not in accord with the
Employer's past practice. The record shows that South-
wire in the past had permitted other employees, who had
given notice and actually left the employ to return. For
example, employee Keith Webb resigned his job and left
the employ of the Respondent. After several days, Webb
was permitted to return to work because, in the words of
Plant Superintendent Danny Carden, "We told him that
we would take him back because we do prefer or do
need experienced operators ." (Tr. 1149.) Similarly, em-
ployee Keith Johnson had given notice of resigning to
move to Florida, yet he was permitted to change his
mind and remained in the Respondent 's employ. Another
example was employee Charles Perry who gave notice in
the spring of 1983 that he would be leaving Southwire
after 2 weeks. When Perry changed his mind, his job had
already been filled. Nevertheless, Perry was merely
transferred to a different shift and was able to continue
his employment with the Respondent. The Respondent's
policy was explained by Inspection Manager Lonnie La-
minack, who explained that even though an employee's
job may have been filled by someone else, that employee
would be given an opening elsewhere in the same de-
partment.
The Respondent was unable to show why it refused
Hanson's attempt to withdraw his rash decision to resign.
Indeed, the record is undisputed that machine operators
with Hanson's skills were in demand and that the Re-
spondent had difficulty filling those jobs. The Respond-
ent's explanation was simply that Hanson had resigned
and his job had been filled. This explanation is at odds
with the Respondent's past practice and rational business
judgment. It can be explained only by the Respondent's
desire to be rid of another union supporter.
This episode is buttressed by and consistent with the
testimony of another crew chief, Larry Harper. He care-
fully explained in his testimony that he had worn a union
badge and served as a witness for another union support-
er. Consequently, he, like Hanson, was promptly reas-
signed from the duties of a crew chief to those of a ma-
chine operator. While the Respondent attempted to show
that the normal duties of a crew chief included the oper-
ation of a machine and that in at least one case a crew
chief operated a machine for as long as 2 weeks, the
record nevertheless clearly established that such assign-
ments were unusual and rarely, if ever, made. In the
present situation, the evidence shows that Hanson's as-
signment to the machine was not prompted by an emer-
gency or other compelling reasons. As already stated,
SOUTHWIRE CO
the Respondent intended to restrict -him from moving
around making contact with fellow employees.
On the basis of the foregoing, the Respondent commit-
ted several independent violations of Section 8(a)(1) of
the Act and, by its discriminatory reassignment of
Hanson and his discharge, the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act. Hanson's conversation
with Steve Murphy on 13 October involved Murphy's
initial accusation that it was all over the plant that
Hanson was for the Union. Murphy interrogated Hanson
whether he had signed a union card and what he thought
he would gain from the Union. Contrary to the Re-
spondent's suggestion, this was not a casual remark, but a
thorough and deliberate conversation in which Murphy
unlawfully interrogated this employee in violation of
Section 8(a)(l) of the Act. During the same conversa-
tion, Murphy threatened that the Company may decide
not to deal with the Union but shut down, fire everyone
who goes on strike, and hire new people. Murphy there-
by in a deliberate and calculated fashion threatened the
employee with the loss of his job in violation of Section
8(a)(1) of the Act. Similarly, Supervisor Jerry Stapler's
conversation with Hanson on the preceding day, where
Stapler indicated that a union at Southwire would mean
that wages would drop to minimum, and that employees
would have no benefits and no insurance, was a threat of
loss of benefits in violation of Section 8(a)(1) of the Act.
Murphy's several conversations with Hanson on 13
October involved threats that the Company may shut
down, fire everybody who goes on strike, and hire new
people;, that there would be reorganizing and possibly
doing away with the crew chief's job; and that Hanson,
as a crew chief, who was known to have signed a union
card, would never be promoted and would have a long
hard road ahead of him. These statements can hardly be
characterized as unofficial and uncoercive remarks made
in a warm and friendly tone in a casual setting. Rather,
these were serious conversations in which the employees
and supervisors discussed the Union and in which man-
agement, in a coercive and intimidating fashion attempt-
ed to influence the employees. Consistent with an atmos-
phere of fear and violence was Murphy's reference to
people in Carroll County who would blow someone's
head off for $500 and his statement, "Randy, I am scared
for my job." Surely, if a supervisor expresses serious
concern about his own job, his contempraneous remarks
about the job of his employees have an even greater
effect on his employees. Accordingly, I find that the Re-
spondent thereby violated Section 8(a)(1) of the Act.
As already stated earlier, I further find that the Re-
spondent's reassignment of Hanson to an operator's job
and the discharge of Hanson were motivated by union
animus. Such conduct violated Section 8(a)(3) and (1) of
the Act.
Suspensions and Other Discriminatory Conduct
Phillip Bell. On 27 October 1983 the Respondent penal-
ized Phillip Bell, an employee in the drawing depart-
ment, by suspending him from work for 5 days with the
explanation that he had violated company rule eight,
which prohibits the falsification of company records. In
substance, Bell was accused of failing on his timecards to
385
subtract from his total reported production of wire for
incentive pay purposes those bobbins of wire produced
by the machine during its repair or testing stage, known
in the trade as "downtime." Bell admitted that he had
engaged in that practice and had failed to separately
record the wire produced during the machine's down-
time. But the record generally shows that this was a
common practice which the Respondent specifically pro-
hibited only 1 week after the suspension of Bell.
Bell was an early union supporter who attended meet-
ings and regularly wore the volunteei organizer union
badge to work as of 22 September 1983. Bell testified
that his supervisor reacted to his wearing of the badge as
follows (Tr. 682):
He just kind of watched me. He would stick
around my machine. Anybody that would come
over there to talk to me, he would run them off. He
would let them come to other people's machines
and wouldn't say nothing to them.
Witness Eddie Cantrell, also a machine operator in the
drawing department, testified about a conversation on 4
November with Supervisor Carl Noith about Phillip
Bell. According to Cantrell, North told him that Vice
President McAmis wanted to know why Bell had not
been fired, that he wanted Bell fired for any reason at
all. Cantrell further testified that North told him that he,
North, and Danny Carden "went through Bell's records
trying to come up with something to fire him for and
they couldn't."8
The Respondent's industrial engineering group con-
ducted an examination of Bell's production records and
discovered certain discrepancies in Bell's production
records when compared to the chart iecorder attached
to his machine. The same group thereafter made an even
more thorough examination of the records over a period
of 30 days and discovered additional errors in Bell's time
reports. As a result, on 27 October Bell was confronted
by Supervisors North and Gerald Rooks and shown
those discrepancies. They pointed out to Bell that his re-
ports had included the production of wire during a ma-
chine's downtime and also die changes made during
downtime. Bell did not deny these practices but ex-
plained that other operators had routinely done the same.
Nevertheless, Bell was suspended. The only other em-
ployee who had a similar interview following an exten-
sive investigation of his timecards was another union
supporter, John Clack. Supervisor Gerald Rooks also ac-
cused Clack of falsifying his timecards and threatened
that he would be suspended for a week, because he, like
Bell, had made the die changes while the machine was
inoperative. Clack, however, was able to convince man-
agement that the discipline intended for him be reduced
to a written warning without the suspension.
The records supports Bell's statement that other em-
ployees had engaged in the same practice of including
8 Eddie Cantrell impressed me as a credible and worthy witness whose
testimony was supported by his own contemporary notes of this conver-
sation Moreover, Cantrell, a 29-year employee with the Respondent, had
nothing to gain by his appearance in this case
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the wire produced during a machine's downtime under
the incentive pay system. Employee William A. Shirey
testified that he and other operators had always counted
production during a machine's downtime. Similarly, Mi-
chael Thompson testified that he had included in his reg-
ular production the wire produced during the machine's
downtime. Crew Chief Larry Harper stated unequivocal-
ly in his testimony that he was unaware that this practice
was even against company policy. He stated that for 7 or
8 years he had followed the same practice of including
the wire produced during a mechanical breakdown of
the machine.
The record further shows that approximately a week
or two after Bell's suspension, the Respondent held meet-
ings with the machine operators to instruct them that
wire produced during a machine's testing period was to
be recorded in a separate report. As testified by Harper,
Danny Carden instructed the operators as follows (Tr.
746):
That if you were starting on mechanic or electri-
cian downtime that you were suppose to start keep-
ing it on a separate time card and not on an incen-
tive time card.
In summary, the record shows that only two employ-
ees were singled out for discipline, Phillip Bell and John
Clack. Both were union supporters. Clack was able to
extricate himself with a mere written warning but with-
out a suspension. This left Bell as the only employee to
be suspended for a practice-conceivably unfair under
the incentive pay system-which was commonly used by
the machine operators. While I am certainly mindful of
an employer's right to make its own business decisions
and to correct a practice which unfairly takes advantage
of its incentive pay system, I cannot ignore an employ-
er's disparate treatment of one of its employees.
In 1982 Bell incurred a similar problem when he erro-
neously reported a stringup on his machine. He had
claimed both a "dancer" and "anealer" stringup when he
should only have counted the "anealer" stringup. At that
time, Supervisor Rooks sent him a written note and Bell
immediately corrected that practice. There is no evi-
dence that Bell, then or now, had intentionally engaged
in this practice to unfairly take advantage of the incen-
tive system or consciously to enhance his pay. Nor is
there any suggestion that the practice of reporting the
downtime production of wire was somehow a scheme to
defraud the Company; to the contrary, the financial ad-
vantages to the employee would have been too insignifi-
cant. Although the Respondent had a legitimate purpose
in changing or halting the practice, the inquiry here only
reaches the narrow issue of whether Bell was disciplined
because of his union support or his falsification of the
production records or whether the Respondent had a
dual motive Considering that the practice was wide-
spread among the employees, that an investigation was
conducted of the two union activists, and that Bell was
singled out for the suspension, the record is clear that
the Respondent had engaged in discriminatory conduct.
The General Counsel has further shown that manage-
ment had attempted to find any excuse to discipline this
employee whose union support was open and highly visi-
ble. I find that the Respondent failed to show that Bell
would have been disciplined in the absence of any union
consideration . I find, instead , that under ordinary circum-
stances Bell would have been treated like the other oper-
ators, and informed to correct their reporting methods
along with everyone else in the meetings conducted by
Supervisor Carden. Accordingly , I find the Respondent
violated Section 8(a)(3) and (1) of the Act.
Clifford Herring. Clifford Herring, a forklift operator,
who had been employed for about 6 years, was suspend-
ed for 4 days when he reported 30 minutes late for work
on 16 October 1983. Southwire 's work rule one provides
for progressive discipline in the event of an employee's
absenteeism or tardiness . Herring has a history of absen-
teeism and tardiness . He received a written warning on
23 May 1983 , which indicated that he had accumulated
three unexcused absences and four instances of tardiness
within a 5-month period. He was warned that another of-
fense of a similar nature would result in a "written warn-
ing and one week 's suspension ." (R. Exh. 23.) Thereafter,
Herring's attendance record showed no marked improve-
ment. His suspension notice of 16 October reported that
since the 23 May warning he had been tardy 9 times and
absent 3 days. There is no dispute that Herring's attend-
ance record had been excessively lax.
The General Counsel submits, however , that the Re-
spondent has shown much tolerance over a period of
years for Herring's habitual attendance problems until
this employee commenced to wear the union badge in
late September . His very next infraction , the 30-minute
tardiness, was promptly used by the Respondent to
impose a 4-day suspension on this employee . The Re-
spondent 's conduct in this regard , according to the Gen-
eral Counsel , showed disparate treatment of a union sup-
porter. The record shows that Herring attended union
meetings and regularly wore a union badge.
The record also contains the attendance record of
James Stephens , an employee who was not a visible
union supporter and whose attendance record was about
as poor as that of Herring . Stephens had not been disci-
plined for his infractions of company rule one. The Re-
spondent explained , however, that Stephens ' attendance
record showed improvement following a memorandum
dated 24 March 1983 from Plant Superintendent Carden
to Southwire 's department heads reminding them to dis-
cipline employees who were frequently absent.
On the basis of the foregoing summary of the record
dealing with employee Herring's suspension, I cannot
detect any substantial disparate treatment of Clifford
Herring. Herring was a prominent and visible union sup-
porter, but the record does not show a nexus between his
union activity and the suspension . To be sure, the Re-
spondent did show tolerance for Herrings attendance
problems over a period of time . Nevertheless, he re-
ceived a written warning prior to his union activity. His
attendance did not improve and at some point the Com-
pany reached that point in October . The fact that it fol-
lowed, by several weeks, Herring's wearing of the union
badge may have been purely coincidental . Even consid-
ering the Respondent 's union animus , the record certain-
SOUTHWIRE CO.
ly established that Herring would have been disciplined
because of his attendance record, even in the absence of
any union considerations . I, accordingly, find that this al-
legation of the complaint should be dismissed.
Michael Runels. On 4 October 1983 the Respondent
disciplined its employee Mike Runels, by suspending him
for 1 week with the explanation that he violated rule six,
"Carry Out Verbal Orders & Instructions in a Coopera-
tive Manner" and the following explanation (R. Exh. 8):
Mike was instructed to change his machine over
from #14 to #12. He didn't change the machine
over correctly. When asked why, he didn't he
stated machine would not run production speed and
it would run that way.
When told by his Supervisor it was no[t] going to
be run that way, he became offensive and made re-
marks to the fact he was being discriminated against
and harassed.
The General Counsel, emphasizing Runels' prominent
union support , argues that the discipline was motivated
by union consideration , not the alleged violation of com-
pany rule six . In this regard the record shows that
Runels had worn the union badge, attended union meet-
ings, and solicited on behalf ' of the Union . The General
Counsel also points to several instances of background
information9 relevant to show motivation or union
animus.
The first instance was a conversation in late August
between Runels and Supervisor Donald Terrill . Runels
was asked how he felt about the Union and told that the
plant may close and that he could lose his job if the
Union came in. The second conversation occurred be-
tween Runels and Supervisor Randy Robinson in Sep-
tember . Robinson commented about Runels' wearing of
the union badge and said that "the Union wasn't going to
do [them] any good and that he thought that if the
Union came in, the plant would eventually close." The
third instance occurred in December when Plant Manger
John Norman removed a union sticker from Runel's
locker and threatened him with disciplinary action for
defacing company property.
The events leading up to the suspension occurred on 4
October after Runels had reported for work about 3 p.m.
His instructions were to change the dies in the machine
from the 14-gauge production of wire to production of
12-gauge wire. Instead of following standard procedure
which required a change of all 12 dies, Runels used a
shortcut stringup by changing only two dies, namely, the
last two dies and reducing the total number of dies to an
11 die stringup. At that point, his supervisor appeared at
the machine and rebuked him for the incorrect stringup.
Runels angrily retored by saying that he had run the
wire in this fashion before and accused him of mistreat-
ing him and harassing him. Runels was taken by Robin-
son to the office of Plant Manager Blevins. The matter
was discussed and Runels received his suspension with a
comment by Robinson: "Mike, this Union business has
9 The episodes were not alleged as violations of the Act , but are rele-
vant in considering the legality of the suspension
387
built up pressure on me and I am going to have to give
you some time off." 10
The record goes into great detail about the correctness
of the proper die change. It shows, in substance, that
Runels and other employees had used the shortcut string-
up before but that the standard stringup was the more
correct procedure. In any case, Robinson had certainly
every right to instruct Runels about the procedure which
the Company preferred. The narrow issue is whether the
suspension under these circumstances was motivated by
the Respondent 's union animus.
The record demonstrates that the Respondent had fo-
cused its union animus directly on Runels because of his
prominent union support. The various comments made
by members of the Respondent's supervisory hierarchy,
Donald Terrill, Randy Robinson, and John Norman, to
Runels about his union involvement, as well as Robin-
son's explanation that his "time off" was due to the pres-
sure of the union business, are clear and convincing evi-
dence that Runels was disciplined because of his union
support. The General Counsel has thereby met his
burden of a prima facie case of an 8(a)(3) and (1) viola-
tion of the Act. The further inquiry is. whether Runels
would have been disciplined even in the absence of the
union consideration. In this regard, the record shows
that, although Runels changed the die as he was directed
to do, nevertheless he overreacted to Robinson's direc-
tive. Robinson testified that Runels "was kind of loud
and red in his face, kind of hot and bothered" and that
Runels accused him of harassing him and talking sarcasti-
cally. Robinson said that Runels "kind of jumped out at
him." Runels admitted that he was upset with Robinson's
manner of speaking to him, that he was bothered by the
fact that he was interfering with him when he was trying
to do his job, and that he spoke to Runels in a loud
voice accusing him of being unfair, always mistreating
him, and talking to him sarcastically. Blevins had ob-
served this episode and, at Robinson's motion, the three
men went into Blevins' office where Runels was repri-
manded and received his suspension.
The record does not disclose how the Respondent had
treated its employees in comparable situations. But con-
sidering that Runels had received an earlier reprimand
for absenteeism and warned that a future violation of
company policy would result in a suspension and also
considering a prior verbal warning by Supervisor Per-
kins, it is entirely plausible that Runels would have been
disciplined for his intemperate response even in the ab-
sence'of any protected conduct. I, accordingly, find that
this portion of the allegation in the complaint be dis-
missed. Wright Line, 251 NLRB 1083 (1980).
Buford Amburgey. On 30 September 1983 the Respond-
ent issued a "Record of Work Rule Violation" to Buford
Amburgey for his violation of rule five: "Obey published
Rules for Safety, Security and Job Performance," with
the explanation : "Buford was swinging on hoist controls,
(with voltage of 550 volts) on machine #0646--l. This is
10 Robinson denied making that comment , But because Runels ' testi-
mony impressed me as firm and candid , contrary to Robinson 's testimony
which seemed hesitant, I have credited Runels' version
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extremely hazardous and a safety violation . [Horseplay]"
(R. Exh. 37. ) He was suspended for 1 week.
The General Counsel contends that the suspension was
totally unjustified and motivated by union animus . First,
according to the General Counsel, Amburgey may have
engaged in some practical joking but not in any safety
violations and, second , Amburgey and fellow employee
Nelson Dowdy were the only visible union supporters
on the second shift in the drawing and stranding depart-
ment.
The Respondent 's principal witness to this incident
was Kenneth Hall, the second -shift superintendent, who
testified that on 30 September following a production
meeting, he observed Amburgey "swinging on a control
cable to the hoist." He explained it as follows (Tr. 1217):
"Well, it was the control cable coming down from the
hoist, a safety chain, and he had his hands up above his
head, both hands he had a hold of the chain, and the
control cable, swinging back and forth on it . . . . He
put his feet down and kicked back, put his feet down and
kicked back, and I saw him approximately three or four
times." Hall motioned Amburgey off the control cable
and reported the incident to Sam Roberts , department
manager.
Amburgey 's testimony indicated that he had just used
his hoist to move several bobbins of wire on his machine,
when Superintendent Kenneth Hall was conversing with
Leonard Simpson , the department manager within view
of the machine . At that point Amburgey began to act as
follows (Tr. 514-515). "I went through the motion like I
was climbing a horse, that I was going to climb it .. .
the cable was hanging down this way and I took my
hands like that [indicating ] and went up like a monkey
climbing a tree you see , I was playing like I was going
up fast. I have done it several times before and Hall was
standing over there at them steps , standing over there
and this other guy, laughing and Kenneth Hall pointed
his finger at me like that [indicating] and started laugh-
ing." Amburgey denied that he had ever swung on the
hoist.
Fellow employee William Riggins, who had worked
with Amburgey and stood only about 10 feet away from
him during the afternoon of 30 September, testified that
he did not see Amburgey swinging on the hoist. He testi-
fied that Amburgey had his hands a little over his head
and that he was touching the hoist. Riggins testified that
he did not observe Amburgey engaging in any dangerous
or improper activity. Riggins' testimony disputes Hall's
testimony that Amburgey was actually swinging on the
hoist with his feet off the ground , but he also did not see
when Amburgey simulated a monkey's climbing motion.
Amburgey had developed a reputation of drawing the
attention of others , his coworkers and supervisors, to his
antics and practical jokes. It would be within his general
demeanor occasionally to engage in practical joking. But,
as an experienced operator in the drawing department, it
is unlikely that Amburgey would decide to swing on the
electrical cable attached to the hoist. Indeed , his supervi-
sor described in his testimony that in the past , Amburgey
played little pranks but he had "never seen him do any-
thing dangerous like that before." Considering Ambur-
gey's admission to making the motions of a climbing will be discussed in that context.
monkey and in view of Riggins' testimony who was only
10 feet from the scene that Amburgey had not been
swinging on the hoist, I will credit Hall's observations
only to the extent that Amburgey had engaged in some
light "horseplay" and not that he had been swinging
freely on the hoist with his hands on the electrical cable.
The record reflects the Respondent's motivation to
discipline this employee for his protected activity. Am-
burgey had worked for the Company for more than 5
years without incurring any written warnings or other
disciplinary action. In late September, Amburgey com-
menced the wearing of a union volunteer organizer
badge. He had signed a union card and had attended
union meetings . He and another employee, Nelson
Dowdy, were the only employees on his shift who had
worn union buttons in that department. Thereafter, the
Respondent's attitude towards Amburgey shifted. He
was instructed by his supervisor Terrill that he had to
remain at his machine and not converse with the other
employees in his department . Terrill said that these in-
structions applied initially only to him and Dowdy.
When Amburgey asked the reason for these instructions,
Terrill nodded his head towards his badge stating "that
is why." (Tr. 507.) Theretofore, employees had been per-
mitted to leave their work area. While the operators
were responsible for the continued operation of the ma-
chines, they did not require constant attention. The em-
ployees were permitted to leave the immediate vicinity
of their machines during short intervals. After the two
union supporters, Amburgey and Dowdy, had received
those instructions, they remained at their machines while
other employees were able to move about as before. i i
The record is accordingly clear that the Respondent
had exhibited hostility towards Amburgey's protected
activity. He engaged in the brief episode of clowning,
but the Respondent disciplined him far out of proportion
for such an offense, particularly when it is considered
that other employees and supervisors would occasionally
engaged in similar conduct. For the record shows that
other employees and supervisors would also engage in
some form of practical joking from time to time without
incurring any form of discipline. It is clear therefore that
the Respondent's discipline of Amburgey was primarily
because of his protected activity. Moreover, the Re-
spondent has failed to show that, in the absence of such
union motivation, Amburgey would have been penalized.
The record does not convincingly show that Amburgey
had engaged in any safety violation or any activity
which endangered his own safety or the safety of other
employees. I accordingly find that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
Jackie Dennis. In Respondent's employ for about 6
years, Jackie Dennis had never received a written warn-
ing until 14 October 1983 shortly after his union activity,
when the Respondent issued him a written warning, for
excessive absenteeism . Dennis' union activity consisted of
attending union meetings , the handbilling of union litera-
11 The Respondent 's conduct in this regard is a separate allegation and
SOUTHWIRE CO
ture, and the wearing of the union badge beginning in
late September.
The facts leading up to the written warning occurred
on 13 October 1983 when Dennis discovered prior to re-
porting for his 7 a.m. shift in the T-wire department that
he had problems with his car. In accordance with cus-
tomary procedure he attempted to inform his supervisor
Larry Perkins. Since he was not available, Dennis re-
ported to Bobby Hubbard, the third-shift supervisor, that
he was unable to be at work that day. He also requested
that Hubbard put him down for a day of vacation. Hub-
bard agreed and notified Supervisor Perkins that Dennis
would not be at work that day and that he had put him
down for a vacation day.
On the following day, 14 October, Perkins called
Dennis into his office about 2 p.m. and issued a written
warning. According to Dennis, Perkins told him as fol-
lows (Tr. 334):
He told me that he couldn't give me a day's va-
cation that day because he was going to have to
write me an unexcused absence, that we are sup-
posed to give a 24-hour notice on any vacation,
which I ain't never been told that before . . . . He
asked me about my badge, he asked me what could
my badge get me, or the Union get me, and I told
him it might get us a little bit better treatment.
The General Counsel has questioned the existence of
the "24 hour rule" stating that such a rule had not been
in existence before and that the Respondent used it as a
pretext to discipline Dennis for his protected activity.
The Respondent argues that the discipline was for exces-
sive absenteeism , including Dennis' prior attendance
record and not necessarily based upon his request for the
one vacation day. The written warning (R. Exh. 7) re-
cites that Dennis has been absent 11 times during the last
9 months and warns that additional absences will result
in his suspension.
My analysis of the record indicates that the Respond-
ent was motivated by union animus in arriving at its de-
cision to discipline Dennis, but that the Respondent has
shown Dennis would have been disciplined generally for
excessive absenteeism. Dennis' absenteeism may have
been of concern to the Respondent, but the record is
clear that Dennis' one absence on 13 October precipitat-
ed the controversy. Supervisor Perkins was unable to be
specific; about the 24-hour rule or even able to explain
why prior to this episode employees were able to take
vacation days without complying with the 24-hour rule.
For example, as recently as September 1983, Dennis was
able to convert two absences into vacation days. Em-
ployee Randall Vance testified unequivocally that he had
not heard of the rule requiring 24 hours' advance notice
and that it was a common practice to request a vacation
day for a day an employee was unable to report for
work. Moreover, Perkins admitted that Dennis followed
correct procedure by calling in advance of his shift to
inform management that he could not be at work, yet
Perkins also was unable to "explain why he marked
Dennis absence on October 13 with an `X,' meaning `did
389
not call in."' (R. Exh. 42.) Moreover, ]Dennis z 2 testified
that he was told during the meeting of 14 October that
his discipline was based upon his absence on 13 October,
and that Perkins made a passing reference to his union
badge . In short, Respondent acted because of its hostility
towards Dennis' protected activities. On the other hand,
Dennis had accumulated a record of frequent absences.
He had received a verbal warning before. Respondent
has shown that even in the absence of any union consid-
eration , Dennis would have received a written warning
for his absenteeism. Accordingly, I dismiss this aspect of
the allegation in the complaint.
Work Restrictions. The final allegations in the com-
plaint involving discriminatory practices, involve Re-
spondent's imposition of restrictions upon four employees
who were prominent union supporters.
The record shows that four employees, Buford Am-
burgey, Nelson Dowdy, Randall Vance, and Tommy
Jarrell were told by their respective supervisors that they
were to remain at their immediate work area and not to
converse with anyone. Supervisor Donald Terrill called
Dowdy and Amburgey into his office on separate occa-
sions in late September and told them to stay at their
working area and their machines and not to talk to
others. Amburgey asked Terrill why he gave these
orders. Terrill nodded his head toward Amburgey's
union badge saying, "that is why . . . you already
know." The evidence further shows that Amburgey and
Dowdy were the only employees in the drawing and
stranding department on the second shift who were so
restricted. Such restrictions had not been imposed upon
these employees prior to their union activity nor upon
the other employees at any time. Although the record
contains Respondent's work rule (number three) which
require employees to "stay at the assigned work station
except for occasional brief absences for personal breaks
or with prior permission from your supervisor," they
were generally not followed by machine operators. Their
testimony was that while the machines were running,
they did not need constant attention. Employees were
able to and did occasionally converse or visit each other
while remaining responsible for their machines.
Similarly in the case of employees Vance and Jarrell,
they were instructed by their supervisor Larry Perkins in
the T-wire department to stay by their machines. Vance
testified that Supervisor Larry Perkins called him over
to his desk after he had worn his union badge for about
1 week. Perkins told him that he "needed to stay right at
[his] machine" and that he "didn't need to be talking to
other people around that area and if people came to [his]
work area talking to [him], he was going to run their
butts off." When Vance showed him other employees
standing in little groups talking , Perkins said that "it was
all right for them to do that and it wasn't all right for"
him. Vance appealed these newly imposed restrictions to
Shift Superintendent Sanders pointing out to him that
12 Although he appeared unsophisticated and was often confused about
dat1s, Dennis made an honest effort to testify correctly and truthfully
Perkins , even though much more skilled and articulate, was unable to ex-
plain obvious inconsistencies I have therefore credited the testimony of
Dennis.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees were able to move about freely while
he was restricted. Sanders merely told him to worry
about himself, not about others.
Perkins told Jarrell on 20 September to stay by his ma-
chine and that he talked too much to other employees.
Terrill explained that he had never received such instruc-
tions during the 13 years of employment at Southwire.
He testified (Tr. 591): "We usually, whenever we got
our machines running and it was taken care of, we could
talk to other employees in the department as long as we
kept an eye on our machine." In late September, around
the same time Superintendent Jones approached him on
one occasion and asked him what the union badge would
get him.
Although Vance and Jarrell were vague in their testi-
mony about whether they were positive that their fellow
workers had received similar restrictions, the record gen-
erally shows that other employees had not been similarly
instructed. To be sure, the Respondent had work rules to
that effect and, without doubt, had the authority to en-
force them. But the record reflects that these four em-
ployees had been singled out for specific instructions to
that effect. Since the record shows that the reasons for
this was the employees' protected activity, Respondent
violated Section 8(a)(3) and (1) of the Act.
The Judge's Disqualification
Among several motions filed by the Respondent was a
motion for my disqualification. The motion was made at
the conclusion of the trial. I denied the motion. Respond-
ent appealed to the Board which denied the motion
without prejudice to Respondent's right to renew its
motion . Respondent has renewed its motion before me
and states in its brief (p. 97):
The inordinate disparity created by the Adminis-
trative Law Judge's cross-examining almost 70% of
Respondent' s witnesses and less than 7% of General
Counsel's witnesses, in and of itself, destroys the ap-
pearance of impartiality expected of an impartial
trier of fact. When coupled with the Administrative
Law Judge's efforts at rehabilitating General Coun-
sel's witnesses, the harsh tone and purposeful
manner of questioning of Respondent's witnesses,
demeaning remarks to Respondent's counsel, and
consistent denial of Respondent counsel's requests
and motions, the Administrative Law Judge, in
effect, abandoned his impartial role and assumed the
role of a prosecutor supporting the position taken
by General Counsel.
Respondent's motion is without merit. First, with the
judge's power "to call, examine, and cross-examine wit-
nesses," it is, according to Sec. 102 35 of the Board's
Rules, "the duty of the administrative law judge to in-
quire fully into the facts as to whether the respondent
has engaged in or is engaging in an unfair labor practice
. .." Second, disproportionate ruling for one side or the
other are not indicative of judicial bias. NLRB v. Pitts-
burgh Steamship Co., 337 U S. 656, 659 (1949); Southern
Pacific Communications v. A. T. & T., 740 F.2d 980, 995
(D.C. Cir. 1984). For example, the court of appeals held:
"We conclude that the statistical one-sidedness of the
trial court's evidentiary, factual and legal rulings simply
cannot be used to support an inference of judicial bias."
Id. at 995.
CONCLUSIONS OF LAW
1. Respondent, Southwire Company, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, United Steelworkers of America, AFL-
CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By coercively interrogating its employees about
their union activities or those of others, Respondent vio-
lated Section 8(a)(1) of the Act.
4. By threatening its employees with economic or
other reprisals because they engage in union activities,
Respondent violated Section 8(a)(1) of the Act.
5. By threatening its employees that Respondent
would know which employees had signed union cards,
Respondent violated Section 8(a)(1) of the Act.
6. By discriminatorily discharging its employees, Ran-
dall Hanson, David Huckeba, Danny Rowell, and Arlice
Smith, because of their union activities, Respondent vio-
lated Section 8(a)(1) of the Act.
7. By discriminatorily suspending or disciplining its
employees Buford Amburgey and Phillip Bell because of
their activities on behalf of the Union, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
8. By discriminatorily imposing restrictions at work
upon the movements and the talking of its employees
Buford Amburgey, Nelson Dowdy, Tommy Jarrell and
Randall Vance, because of their activities on behalf of
the Union, Respondent violated Section 8(a)(3) and (1) of
the Act.
All other allegations in the complaint have not been
substantiated.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having discriminatorily discharged
employees Randall Hanson, David Huckeba, Danny
Rowell, and Arlice Smith it must offer them reinstate-
ment and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from date
of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977). Having discriminator-
ily suspended employees Buford Amburgey and Phillip
Bell, Respondent must make them whole for any loss of
earnings or other benefits for the period of suspension in
accordance with applicable law. Further, having im-
posed discriminatory work restrictions upon its employ-
ees Buford Amburgey, Nelson Dowdy, Tommy Jarrell,
and Randall Vance, Respondent will be required to
cancel its discriminatory work restrictions and so inform
the employees in writing that such work restrictions are
SOUTHWIRE CO.
no longer valid. Respondent must remove from its files
warnings, suspensions , or any other reference to the dis-
criminatory terminations and suspensions and so inform
the affected employees in writing that this has been done
and that the discipline will not be used against any of
them.
Because the Respondent has a proclivity for violating
the Act and because of Respondent' s egregious miscon-
duct demonstrating a general disregard for the employ-
ees' fundamental rights, I find it necessary to issue a
broad Order, requiring the Respondent to cease and
desist from infringing in any other manner on rights
guaranteed employees by Section 7 of the Act. Hickmott
Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed13
ORDER
The Respondent, South wire Company, Carrollton,
Georgia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, imposing suspensions or work restric-
tions, or otherwise discriminating against any employee
for supporting United Steelworkers of America, AFL-
CIO or any other union.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Threatening employees with the loss of jobs or
benefits, plant closure, or other reprisals if they support
the Union.
(d) Threatening employees with disclosure of their
union cards.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Randall Hanson, David Huckeba, Danny
Rowell, and Arlice Smith immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed, and make them and employees
Buford Amburgey and Phillip Bell whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the
remedy section of this decision.
(b) Remove from its records and files any warning no-
tices, suspensions, or other notations dealings with the
termination of the employees found to have been dis-
criminated against herein. In addition, remove from its
files the suspensions and written warnings issued to
Buford Amburgey and Phillip Bell. Respondent shall
inform in writing the affected employees that this has
been done.
13 If no exceptions are filed as provided by Sec 102 46 of the Board's
R ules and Regulations, the findings, conclusions, and recommended
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 pur-
poses
391
(c) Cancel the discriminatory work restrictions im-
posed upon its employees Buford Amburgey, Nelson
Dowdy, Tommy Jarrell, and Randall Vance and inform
them in writing that such work restrictions are no longer
valid.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its facility in Carrollton, Georgia, copies of
the attached notice marked "Appendix,"14 Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint is
dismissed insofar as it alleges violations of the Act not
specifically found.
14 If this Order is enforced by a judgment of a United Slates court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting United Steelworkers of
America, AFL--CIO or any other union.
WE WILL NOT coercively question you about your
union support or activities.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten you with the disclosure of
your union cards.
WE WILL NOT threaten you with loss of jobs or bene-
fits, plant closure, or other reprisals for supporting the
Union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Randall Hanson, David Huckeba,
Danny Rowell, and Arlice Smith immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist , to substantially equivalent positions , without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings , plus inter-
est.
WE WILL notify each of them that we have removed
from our files any reference to his discharge and that the
discharge will not be used against him in any way.
WE WILL remove from our files any written warnings
issued to Buford Amburgey and Phillip Bell and inform
them by letter that this has been done.
WE WILL cancel the discriminatory work restrictions
imposed upon Buford Amburgey, Nelson Dowdy,
Tommy Jarrell, and Randall Vance and inform them that
they are no longer valid.
SOUTHWIRE COMPANY