Strong Steel

National Labor Relations Board - Board Decisions

Dec 20, 1977

233 N.L.R.B. 1348 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Strong Steel and Shopmen's Local Union No. 509 of
the International Association of Bridge, Structural
and Ornamental Iron Workers (AFL-CIO). Case
31-CA-6475
December 20, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On August 11, 1977, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except that the
remedy is modified so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Strong Steel,
Ventura, California, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Administrative Law Judge found that the Respondent discharged
George McGee in violation of Sec. 8(aX3) and (I) and engaged in conduct
independently violative of Sec. 8(aX)(I). He also found that the layoffs of
Donald Bailey, Donald Dorsey, John Morris, Mike Wallace, and John AIls
were not unlawful. No exceptions were taken to these findings.
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based on
a charge filed on September 28, 1976, by Shopmen's Local
Union No. 509 of the International Association of Bridge,
Structural and Ornamental Iron Workers (AFL-CIO),
hereinafter referred to as the Union, the original complaint
herein was issued on November 11, 1976. Based on an
amended charge filed by the Union on November 8, 1976,
an amendment to the complaint was issued on March 16,
1977. The complaint, as amended,' alleges that Strong
Steel, hereinafter referred to as Respondent or the
Company, violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended. Respondent, by its
answer, as amended, denies that it engaged in conduct
violative of the Act as alleged.
Pursuant to notice, a hearing was held before me in Los
Angeles, California, on March 24 and 25, 1977. Appear-
ances were entered on behalf of all parties and briefs were
timely filed by the General Counsel and Respondent.
Based on the entire record 2 in this proceeding and my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
Respondent is now, and has been at all times material
herein, a corporation duly organized under and existing by
virtue of the laws of the State of California, with an office
and principal place of business located in Ventura,
California, where it is engaged in the fabrication of metal
products. Respondent, in the course and conduct of its
business operations, annually sells and ships goods or
services valued in excess of $50,000 directly to customers
located outside the State of California. As is admitted by
Respondent, it is now, and has been at all times material
herein, an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent, the Union is now, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Background Information and Undisputed Facts
Strong Steel has been in business for over 20 years in
Ventura, California. On June 30, 1976, William Roberts
and Edgar "Sonny" Boynton purchased the Company and
The complaint was also amended during the course of the hearing.
2 On p. 23, 1. 23 of the transcript "Phil McMahon" was identified as "one
of the owners of the shop." This is a patent error, since it is apparent from
the record that he was an employee and owned no interest in Respondent.
233 NLRB No. 204
1348
STRONG STEEL
assumed full control over the operations at that time.
Roberts had previously been employed by Respondent as
general manager for a number of years and Boynton had
previously worked for Western Farm Service, Inc., d/b/a
Coastal Ag Chem, 3 which was, and is, a major customer of
Respondent. Respondent fabricated or manufactured farm
equipment for Coastal Ag which constituted approximately
one-third of its business in 1976.
During all times material herein and for the previous 9 or
10 years Respondent's shop was operated under the
supervision of Larry Taylor, who held the title of shop
foreman.
In the month of August 1976, Taylor announced at the
shop that the Company's insurance plan would cost
employees $14 per week per employee rather than the $10 a
week they had been paying. Employee Paul Bolo respond-
ed by telling Taylor that what the employees needed was a
"damned union" because employees had not had a wage
increase in 14 months and now they had to pay an increase
in their insurance rates. Bolo also asked Taylor if he
wanted to be shop steward. Taylor said no, that he worked
in the office.
On or about September 1, 1976, employee George
McGee contacted the Union and thereafter he spoke to
most of the employees before and after work, about their
interest in joining the Union. On September 13, 1976,
McGee held a meeting at his home and approximately 13
employees attended. All of said employees signed authori-
zation cards. At that time Respondent had about 18
production and maintenance employees.
On September 23, 1976, the Union sent Respondent a
demand for recognition and Respondent received said
letter on September 27, 1976.
On September 28, 1976, the Union filed a petition for
election with the National Labor Relations Board and on
November 29, 1976, the election was held in which the
Union was successful. On December 7, 1976, the Union
was certified as the collective-bargaining agent of Respon-
dent's employees.
The Layoffs
Boynton credibly testified that through conversations
with executives of Costal Ag and by letter from that
company dated September 3, 1976, he was of the opinion
that Respondent's business would be considerably dimin-
ished in the last few months of the year and he communi-
cated his fears to Roberts. In the first part of September
they decided there would have to be some layoffs. It
appears that Boynton had very little to do with the day-to-
day operations of the shop. Its operations were supervised
by Taylor and Roberts, and mainly by the former. Taylor
credibly testified that in early September Roberts informed
him of the anticipated drop in business and that he should
start thinking of a layoff.
3 Referred to herein as Coastal Ag.
4 His testimony with regard thereto is set forth hereinbelow in the
discussion of the layoff of McGee.
5 By amendment to the complaint an allegation was added that Allen
Olsen was unlawfully discharged on October 12, but a motion was granted
during the course of the heanng permitting General Counsel to withdraw
said allegation. There is nothing in the record relating to said allegation.
It appears from the testimony of Taylor that Roberts and
he participated in the decision as to the selection of those
to be laid off. 4 It is noted that, although called as a witness
by Respondent, Roberts was not questioned as to the
selection of the men to be laid off.
It appears that on September 17, 1976, shortly before the
end of the workday (4:30 p.m.) Taylor informed Donald
Bailey, Donald Dorsey, John Morris, Mike Wallace, and
John Alls that they were being laid off.5 Also, about 6 p.m.
Roberts called McGee at the home of his mother-in-law
and informed him that he was laid off. It is alleged in the
complaint that on September 17 Respondent unlawfully
discharged Bailey, Dorsey, McGee, Morris, and Wallace
and since that date unlawfully refused and continues to
refuse to reinstate them.6 However, General Counsel
"concedes" in his brief that the allegation with respect to
the layoff or termination of Morris, Bailey, Wallace, and
Dorsey is not established by the evidence. I agree. There is
nothing in the record which would tend to establish that
Respondent had any knowledge of union activity prior to
4:30 p.m. on September 17, and it appears that there was
an economic basis for a reduction in force. The General
Counsel does contend, however, that Respondent unlaw-
fully failed to recall Dorsey. Thus, there remains the issue
of whether McGee was unlawfully discharged or laid off
and whether Dorsey was unlawfully denied reinstatement
or recall, in addition to the issues as to several allegations
of violations of Section 8(aX 1) of the Act.
The Discharge or Layoff of McGee
A determination of whether McGee was unlawfully
terminated or laid off requires principally a resolution of
the credibility of McGee as opposed to Taylor, in order to
conclude whether Respondent received information of
McGee's union activity and because of it notified him that
he was laid off.
McGee credibly testified that shortly after 4:30 p.m. he
told Phil McMahon, a welder, that he was trying to
organize a union at Respondent; that he solicited McMa-
hon to sign an authorization card; that McMahon
responded that he was not interested and, in any event, was
going to be quitting the following week. McMahon was not
called as a witness by any of the parties so the aforesaid
testimony was uncontradicted. As stated hereinabove,
about 6 p.m. McGee received a call at his mother-in-law's
home from Roberts. According to McGee's uncontradicted
testimony Roberts told him that he and Boynton "had
talked it over and decided they had let the wrong person
go,"7 that he was laid off, and that he could come in
Monday morning (September 17 is a Friday) and pick up
his check and tools.
It is undisputed that about 6:30 that evening McGee
went to Taylor's home and asked him about his layoff.
There are, however, categorical contradictions in the
testimony of McGee and Taylor as to their conversation.
6 There is no allegation in the complaint with respect to Ails and General
Counsel made no attempt to amend the complaint to add his name.
I There is nothing in the record which sheds any light on what Roberts
meant by said statement.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McGee testified that he asked Taylor why he was laid off,
"was it because of my work or because they found out I
was trying to organize the Union"; that Taylor told him "it
was because of union activities," and that there was
nothing wrong with his work; that he asked Taylor "how
he knew about it"; that Taylor told him he had overheard
McMahon come in and tell Boynton and Roberts that he
(McGee) "had just approached him and tried to organize a
union"; and that Boynton and Roberts "decided right then
and there" to lay him (McGee) off. McGee further testified
that he asked Taylor if he would give "this statement" to
the Board, "if it ever came to that," and that Taylor said he
would. McGee also testified that he called Taylor about a
week later, after the original charge was filed, and asked
him if he "would go to court and verify it" [i.e., what
McGee testified he had told him], and Taylor said he
would not.
Taylor testified as follows to his conversation with
McGee on the evening of September 17:
The first thing he wanted to know, what was going on
and at that time I didn't know exactly that he had been
laid off because Bill (Roberts) was the one that was
going to take care of this.
And I said, what do you mean? And he said Bill had
laid him off.
I said, well, I guess that's it then.
Q. Did you say anything further to him and did he
say anything further to you?
A. We talked about other things.
Q. Did he ask for an explanation as to why he was
laid off?
A. Yeah, he asked me why I thought he had been
laid off, and I said, well, because of the way you work.
Q. What did you say?
A. What I have just been saying, some of the
qualities of the work that he had been doing.
Q. Was the subject - do you recall anything else
that was said?
A. There were other things said, yes.
Q. What?
A. Mac made the statement that he thought he was
fired or laid off, whichever, because of his union
activities.
Q. Did you respond to that? Did you give an
answer?
A. I told him I don't know anything about that.
Further, he denied that he told McGee "he was laid off
because of his union activity," and he also denied that he
told McGee he would sign a statement "to that effect."
However, he admitted that McGee did subsequently call
him and ask him for such a statement, but he testified that
he "told him no way." He also testified that he had no
knowledge of McMahon telling Roberts and Boynton
"that McGee was involved with the Union."
I credit the above-outlined testimony of McGee, not only
because he was a more convincing witness than Taylor, but
also because a combination of certain surrounding circum-
B McGee did testify that Roberts discussed with him a debt he owed the
Company which would be deducted out of money due to McGee from a
profit-sharing plan.
stances tends to corroborate the truth of the statement
which McGee testified Taylor made to him. Also, it seems
rather unlikely that McGee would have made the call to
Taylor to get verification that his union activity was the
reason for his discharge, had Taylor not given him a basis
for making such a request.
As to the aforesaid surrounding circumstances, one
relates to the selection and notification of those to be laid
off. Taylor testified that "a couple of days before the actual
layoff" Roberts came to him with a list of four names (Alls,
Morris, Wallace, and Dorsey) and stated that they were the
employees he thought about laying off; that Roberts asked
him for his opinion; that he told Roberts that they were the
"ones I would recommend also"; that early Friday
morning (September 17) they definitely decided on the
above-mentioned four for layoff; that early in the after-
noon of that day Roberts came to him and said there had
to be further cuts and for his recommendations; that he
recommended Bailey and McGee; and that after "he
thought about it" Roberts agreed. Taylor further testified
that later that afternoon he notified Alls, Morris, Wallace,
Dorsey, and Bailey that they were laid off. He further
testified that he did not notify McGee because Roberts
said he wanted to do it himself, but that Roberts did not
give him any reason therefor. It appears that the five men
were notified by Taylor shortly before 4:30 p.m., the end of
the workday. Since Respondent did not question Roberts
with respect to the selection and notification of those to be
laid off there is no explanation by Roberts of why he
wanted to notify McGee himself s or why he did not notify
him before the end of the workday (as the others had been),
instead of waiting to call him at his mother-in-law's home
at 6 p.m.
Janet Bell, Respondent's bookkeeper, testified that she
normally finished her workday at 4 p.m., but that she was
notified of the layoffs including that of McGee before she
left on Friday, September 17.9 She also testified that she
normally made up the payroll sheets for the following week
on Friday, but it appears from her testimony that of the
employees who were laid off on September 17, including
Bailey, only the name of McGee appears on the payroll for
the following week. It appears that the pay periods started
on Friday, and she testified that she made out the
paychecks for those who were laid off on September 17 but
she had no "present recollection" whether she made out a
check for McGee on that day. Her testimony, particularly
the inclusion of only McGee's name (of those laid off) on
the payroll for the following week, tends to support my
opinion that the decision to lay off McGee was not made at
the time Taylor testified to, but rather sometime after 4:30
p.m. on September 17. This is further supported by the
credited and uncontradicted testimony of Morris and
Bailey that when Taylor notified them of their layoff he
named the others who were also being laid off but did not
mention McGee.
Taylor, Boynton, and Roberts testified that they had no
knowledge of any union activity on September 17, that the
9 However, she admitted that she could possibly have been notified
about McGee on the following Monday.
1350
STRONG STEEL
first knowledge they had was when they received the
aforementioned letter from the Union on September 27.
Boynton testified that McMahon did come into the
office after the end of the workday on September 17, that
he talked to Roberts, but that he did not overhear what was
said.
On direct examination Roberts denied that he had a
conversation with McMahon in which McMahon told him
about McGee's union activity. On cross-examination
Roberts testified that he had conversations with McMahon
on September 17, the first "in front of the main entrance to
our plant: in which they discussed McMahon's personal
problems; a second "outside the main entrance to the
shop" in which McMahon asked to borrow $300 because
of his son's illness to which he replied that he would lend
him the money personally; and a third by telephone "later
that night" when McMahon telephoned to say that his
mother let him have the money and would not need a loan.
Roberts' testimony on cross-examination then continues as
follows:
Q. Did you have a conversation with Mr. McMa-
hon in your office that evening or that afternoon?
A. In my office?
Q. Yeah, in your own office.
A. The 17th?
Q. Right.
A. Yes, I believe I did.
Q. What time was that conversation?
A. It would be after working hours, I would say
between 4:30 and 5:00 o'clock p.m.
Q. And who was present during that conversation?
A. Just he and 1, to my knowledge, just the two of
us in my office.
Q. What did he say and what did you say during
that conversation?
A. He explained to me that he was having prob-
lems at home, and he may have to leave me, go back to
Oregon.
Q. What did you say?
A. I said, well, you just got started, I hate to see
you leave, but I will hold your job open until you get
back.
Q. What position did he have?
A. He was a welder.
Boynton was not a convincing witness as to his testimony
that he did not hear McMahon's conversation with
Roberts in the office and Roberts was not a convincing
witness as to the contents of his said conversation. It
appears he was less than candid in his testimony about his
conversations with McMahon in omitting the one in the
office until he was reminded of it and then he appeared
reluctant to testify to it.
There is nothing in the record to indicate how McGee
knew that McMahon had a conversation in the office after
working hours except his testimony as to what Taylor had
reported to him. It appears to me that, if McGee had
fabricated his testimony about Taylor's report to him, to
i0 I do not believe that he could have anticipated the inference I draw
from the fact that there is no showing he had knowledge of McMahon's visit
to the office after working hours other than from Taylor.
bolster it he would also have fabricated testimony placing
McMahon in the office, such as that he had seen
McMahon going into it.lo
In all the circumstances, I credit McGee's testimony with
regard to Taylor's report to him of McMahon's conversa-
tion and the ensuing decision to lay him (McGee) off and I
find that said report was true. Consequently, I find that the
decision to lay off McGee was not made until around 5
p.m. on September 17 and that it was precipitated by
McMahon's report of McGee's union activity. I further
conclude that Taylor's report to McGee that his layoff was
based on his union activity was violative of Section 8(aXl)
of the Act and that McGee was discharged in violation of
Section 8 (aX3) and (1) of the Act. Tracor Marine, Inc., 229
NLRB 1016 (1977).
There was a considerable amount of testimony as to the
quality or lack of quality of McGee's work performance,
particularly on Coastal Ag's work which, however, I find of
no materiality in view of the above findings and conclu-
sions. It might be noted in passing that, despite said
testimony, even according to Taylor's testimony McGee
was not among the first four selected for layoff. It is further
noted that, although Boynton testified that he recommend-
ed McGee be discharged a month or two prior to
September 17, apparently Taylor and Roberts paid no
attention to it. In addition, Boynton testified that he asked
why McGee was not considered for layoff when he was
told on September 17 of the contemplated layoffs; but
according to Taylor's testimony it appears that he had no
input on that day as to Boynton's attitude with regard to
McGee. While I am not prepared to find that there was no
dissatisfaction with McGee's work performance, I am also
not prepared to find that the record would support a
finding that it was the sole or a substantial factor in the
decision to terminate or lay off McGee. It is noted, at this
point, that on several occasions McGee was designated as
acting foreman of the shop in Taylor's absences, which
would tend to indicate that he was a well-regarded
employee. Taylor was not a convincing witness in testifying
that he used McGee as acting foreman because no one else
would assume the responsibilities and his said testimony is
not credited.
Additional 8(aXl) Violations
It appears from uncontradicted testimony that, shortly
after receiving the Union's letter requesting recognition,
Roberts approached employee Abraham Brand in his work
area and asked him "what is that business about that
Union." Brand's uncontradicted and credited testimony
continues as follows:
I told him I don't know what you are talking about,
Bill.
So he said, oh, you know what I am talking about, I
just received a letter from the Union; it is on my desk.
He asked me if I voted for the Union so I said no, I
didn't vote for the Union. I was at the Union meeting,
but I didn't vote for the Union.
Q. Do you recall if anything else was said?
1351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. He said if the Union - before the Union will
come to the shop, he would shut down the place.
Q. Do you recall if anything else was said?
A. Oh, he said I should think about my family
before I signed the Union.
JUDGE: Before you what?
THE WITNESS: Before I joined the Union, I should
think about my family.
It is found, based on the above-credited testimony, that
Respondent violated Section 8(a)(1) of the Act by unlaw-
fully interrogating Brand, by threatening to close the plant
if the union organizational efforts were successful, and by
impliedly threatening Brand with loss of his job if he
supported the Union.
Robert Newell, an employee, testified without contradic-
tion that "around the Ist of October" Roberts stated to him
"that if the Union came in, he would close the doors."
Based on this testimony which is credited, it is concluded
that by such conduct Respondent threatened an employee
with plant closure if the Union were successful, in violation
of Section 8(a)(1) of the Act.
Newell also testified to a conversation he had with
Boynton "in the early part of October." It appears from his
credited testimony that Boynton asked him (Newell) to
step outside for a minute; that Boynton asked him what he
thought caused "all this business going on at the time"
(obviously referring to union activity); and that he told
Boynton that he thought it was "the fact the insurance rate
went up and everybody was disturbed about that." Newell
further testified that Boynton "asked" him "if the Compa-
ny picked up part of the tab on the insurance . . . maybe
that might ease the situation a little bit." The above-
summarized testimony of Newell is credited and, based on
said testimony, it is found that Respondent violated
Section 8(a)(1) of the Act by unlawful interrogation and by
an implied promise of a benefit to lessen employees'
interest in having union representation.I
Richard Freel, an employee, and Boynton testified to a
conversation they had in the "first week of October." It
appears from their testimony that they talked about the
union scale and benefits and that Boynton made a
statement to the effect that the Company could not survive
financially if it "had to pay Union scale and benefits." The
record does not disclose that Boynton related any facts to
Freel which supported his statement. In the circumstances,
it is found that said statement constituted a threat of
closure in violation of Section 8(a)(1) of the Act. Starkville,
Inc., et al., 219 NLRB 595 (1975); Parts, Jobbers, Ware-
house, Inc., 216 NLRB 1093, 1096 (1975); James Hoomaian
d/b/a Chicago Master Mattress and Furniture Company, 196
NLRB 579, 583 (1972).
Respondent's Failure To Recall Dorsey
Although General Counsel concedes in his brief that the
record will not support a finding that Dorsey was
discriminatorily discharged, he contends therein that
Respondent violated Section 8(a)(3) and (1) of the Act by
It Newell credibly testified that during the conversation Boynton made a
statement that "if the Union came in that he would have the Union out
within a year." Although this statement is not alleged to be violative of the
failing to recall him because of his known or suspected
union adherence. By its answer, Respondent admits the
allegation to the complaint that it discharged Dorsey on or
about September 17, 1976, and denies that it discharged
Bailey and Morris on that date but admits it laid them off
temporarily. It appears from the record, however, as well as
from Taylor's testimony, that the decision was to "lay off"
the employees on September 17 and that Taylor told the
five he notified, including Dorsey, the same thing, that they
were being "laid off."
Morris credibly testified without contradiction that in the
week following the layoffs he had a conversation with
Roberts in which Roberts said he was going to call back
him (Morris) and Dorsey "because he liked us two the
best." Bailey credibly testified without contradiction that at
the same time he had a conversation with Roberts in which
Roberts said "he might call me and Morris back to work."
Respondent did, on October 13, ask Morris and Bailey to
return to work. Bailey accepted the offer and was
reinstated to a position in the forming department on
October 15. Morris declined the offer. Dorsey was never
asked to work although Respondent had jobs open in
Dorsey's classification.
The General Counsel argues that Morris and Bailey were
recalled because they were "personally" informed that they
would be, but failed to offer any reason why it did not
recall Dorsey although Roberts had informed Morris
(according to the above-credited testimony) that Dorsey
would also be recalled. He further argues that no reason
was given for not recalling Dorsey except the same reasons
given for his selection for layoff. It is noted, however, that
Dorsey was among the first four selected for layoff which
would indicate that he was considered a less desirable
employee than Bailey or McGee who were subsequently
selected. As to his reason for recalling Morris, according to
Taylor's testimony, Morris had "lots of potential." As to
not recalling any others laid off, Taylor credibly testified
that when there is a layoff "it is a good time to weed out the
good ones from the bad ones," and that he did not recall
Dorsey because he didn't want "his particular problems
back" ("attendance and attitude"). Apparently he did not
regard Dorsey as highly as Roberts did.
While Respondent offered no reasons additional to the
reasons for layoff for not recalling Dorsey, there is nothing
in the record which would support a finding that anything
occurred subsequent to his layoff which would support an
inference that Respondent had some discriminatory reason
for suspecting Dorsey's adherence to the Union other than
it had with respect to employees it retained and with
respect to those it laid off including Morris and Bailey.
Taylor was a convincing witness in his testimony with
respect to reasons for recalling and not recalling employees
who were laid off. In the circumstances, therefore, I do not
believe I am justified in finding that General Counsel has
proved by a preponderance of the evidence that Respon-
Act and the General Counsel does not argue in his brief that it is, said
statement demonstrates Respondent's union animus.
1352
STRONG STEEL
dent had any unlawful reason for failing to recall Dorsey or
any other of the employees it laid off and failed to recall. 12
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent set forth in
section III, above, occurring in connection with its
operations set forth in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
It will be recommended that Respondent be ordered to
cease and desist from engaging in the unfair labor practices
found herein and take certain affirmative action, as
provided in the recommended Order below, designed to
effectuate the policies of the Act.
It having been found that George McGee was unlawfully
discharged on September 17, 1976, it will be recommended
that Respondent be ordered to offer him immediate and
full reinstatement to his former job or, if his job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges. It
will be further recommended that Respondent be ordered
to reimburse him for any loss of pay he may have suffered
as a result of its unlawful action against him in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289, 291-
293 (1950), together with 6 percent interest thereon in
accordance with Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the
Act by discriminatorily discharging George McGee on
September 17, 1976.
4. Respondent violated Section 8(a)(1) of the Act by
the following conduct:
(a) On September 17, 1976, Taylor's telling McGee that
he was laid off because of his union activity;
(b) On September 27, 1976, Roberts' unlawful interroga-
tion of Brand, threatening him with plant closure and
impliedly threatening him with loss ofjob;
(c) Around the first of October, Roberts' threatening
Newell with plant closure;
12 Other than McGee, of course, since I found him hereinabove to have
been unlawfully discharged.
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(d) In the early part of October, Boynton's unlawful
interrogation of Newell and implied promise of benefit;
and
(e) In the first week of October, Boynton's threatening
Freel with plant closure.
5. General Counsel has failed to prove by a preponder-
ance of the evidence any discriminatory action against any
employee other than McGee.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 13
The Respondent, Strong Steel, Ventura, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, Shopmen's Local Union No. 509 of the International
Association of Bridge, Structural and Ornamental Iron
Workers (AFL-CIO), or any other labor organization, by
discriminating against any employee in regard to his hire or
tenure of employment or any term or condition thereof.
(b) Unlawfully interrogating employees about said
Union, or any other labor organization.
(c) Threatening plant closure if the Union, or any other
labor organization, becomes its employees' bargaining
representative.
(d) Promising benefits to discourage adherence to said
Union, or any other labor organization.
(e) Stating that it discriminated against an employee
because of his adherence to or activity on behalf of the
Union, or any other labor organization.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer George McGee immediate and full reinstate-
ment to his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay suffered by him by reason of his
unlawful discharge in the manner set forth in the section
hereinabove entitled "The Remedy."
(b) Preserve, and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its place of business in Ventura, California,
copies of the attached notice marked "Appendix."14
Copies of said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by an
14 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
1353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized representative of Respondent, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
Allegations of violations of Section 8(a)(3) of the Act
against employees other than McGee have not been proved
by a preponderance of the evidence and they are hereby
dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in, or activities
on behalf of, Shopmen's Local Union No. 509 of the
International Association of Bridge, Structural and
Ornamental Iron Workers (AFL-CIO), or any other
labor organization, by discriminating against any
employee in regard to his hire or tenure of employment
or any term or condition thereof.
WE WILL NOT unlawfully interrogate any employee
about said Union or any other labor organization.
WE WILL NOT threaten plant closure if said Union, or
any other labor organization, should become our
employees' bargaining representative.
WE WILL NOT promise benefits to discourage adher-
ence to said Union or any other labor organization.
WE WILL NOT state that we discriminated against an
employee because of his adherence to or activity on
behalf of said Union or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed under Section 7 of the Act.
WE WILL offer George McGee immediate and full
reinstatement to his former job or, if his job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay suffered by
him by reason of his unlawful discharge.
STRONG STEEL
1354