U V Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1973

204 N.L.R.B. 617 (N.L.R.B. 1973)

MUELLER BRASS CO.
Mueller Brass Co., a Subsidiary of U V Industries, Inc.
and United Steelworkers of America, AFL-CIO-
CLC. Case 26-CA-4495
June 28, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On March 28, 1973, Administrative Law Judge
Fannie M. Boyls issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Mueller Brass Co., a Subsid-
iary of U V Industries , Inc., Fulton , Mississippi, its
officers , agents , successors , and assigns, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS , Administrative Law Judge: This case,
initiated by a charge and amended charges filed on Septem-
ber 18 and 27 and November 1, 1972, and a complaint
issued on November I, 1972, was tried before me in Tupelo,
Mississippi, on January 3, 4, and 5, 1973. In issue is whether
Respondent's suspension on September 12 and discharge on
September 22, 1972, of employee George Blanton and its
discharge of employee Franklin D. Hamilton on September
18, 1972, were in violation of Section 8(a)(3) and (1) of the
Act and whether Respondent, by certain coercive interroga-
tions and threats to employees, independently violated Sec-
tion 8(a)(1) of the Act. Subsequent to the hearing briefs were
filed by the General Counsel and by counsel for Respon-
dent)
1 In attachments to their briefs both the General Counsel and Respondent
617
Upon the entire record in this case, my observation of the
demeanor of the witnesses, and after a careful consideration
of the briefs, I make the following:
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
Respondent is a corporation engaged at Fulton , Missis-
sippi, in the manufacture of copper tubing . During the 12
months preceding the issuance of the complaint Respon-
dent , in the course and conduct of its business, sold and
shipped goods valued in excess of $50 ,000 directly to points
located outside the State of Mississippi and, during the same
period , it received goods, products , and materials valued in
excess of $50,000 directly from points outside the State of
Mississippi . On the basis of these admitted facts , I find that
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO-CLC, herein
called the Union, is a labor organization within the meaning
of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES ALLEGED
A. Background Relevant to the Alleged
Section 8(a)(3) Violations
Respondent started constructing its Fulton, Mississippi,
plant in 1969 but did not start production until 1971. It
employes about 400 employees. During 1971 the Union
sought to organize Respondent's employees but lost a repre-
sentation election conducted on September 27, 1971 (Case
26-RC-4079). The Union, however, renewed its organiza-
tional attempts in the summer of 1972 and held a union
meeting for the employees in July, in August, and on Sep-
tember 12.
Plant Manager Charles Lymburner, who had the final
authority to decide for Respondent whether an employee
should be discharged, conceded that he made no secret of
the fact that he did not believe Respondent's employees
needed a union and that Respondent did not want a union
at the plant. Industrial Relations Manager Farris Gregory,
as demonstrated in section D, infra, went even further and
made coercive threats and statements to dissuade employ-
ees from supporting the Union.
It is in the light of this background that Respondent's
alleged discriminatory treatment of employees George
Blanton and Franklin D. Hamilton will be considered.
B. The Suspension and Discharge
of George Blanton
Respondent contends that it suspended employee Blan-
ton on September 12, 1972 , and thereafter discharged him
have made motions to correct the transcript of the record in a number of
respects These motions, being unopposed, and appearing appropriate, are
hereby granted
204 NLRB No. 105
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on September 22 because he had violated its no-solicitation
rule and because of Blanton 's conduct following the suspen-
sion . The no-solicitation rule alleged to have been violated
is No . 17 in a list of 42 rules contained in a rule book
distributed to the employees . It reads as follows:
No employee shall solicit or promote subscriptions,
pledges, memberships or other types of support for any
drives , campaigns, causes or organizations on company
property during working time without express written
permission from the Company.2
Prior to the purported application of this rule to Blanton,
no one had ever made any written request to General Fore-
man Paul Stamper for permission to solicit for anything and
no one had ever been discharged for violating the no-solici-
tation rule . Foreman Gray himself had taken up a collection
for flowers from employees as they were working but this
was apparently on instructions from Stamper . Other em-
ployees had sold and delivered cigarettes and knives shaped
like a penguin to a fellow employee at his work station
during working hours , but there is no evidence that any
management representative observed this conduct.
Blanton worked on the 11 p.m. to 7 a.m. shift. At a union
meeting which he and between 15 and 30 other employees
attended on the morning of September 12, it was decided to
bring their union campaign into the open by wearing union
buttons and other union insignia . Accordingly, when Blan-
ton reported to the plant that night , he was wearing a union
button and a pocket holder containing two pencils and a
clip displaying the name of the Union.
According to Blanton , after checking in about 10:45 p.m.
at the west end timeclock , he went to the coffee vending
machine about 30 or 40 feet away. While he was in the
vending machine area , employee Randy Reich came by
and, observing Blanton 's union button , asked where he got
it.' Blanton replied that he had received it at a union meet-
ing and asked if Reich wanted one. Reich said "yeah" and
Blanton gave him a button . As Blanton handed Reich the
button , he saw another employee , Roy Rogers , start up a
stairway leading to the men 's room and waved at Rogers.
After taking the button , Reich went eastward toward the
control panel in the press area , about 100 or 150 feet away,
where he , Blanton , and other employees under the supervi-
sion of Extrusion Department Foreman Larry Gray regu-
larly meet to await their work assignments . Blanton
followed Reich to the area about a minute later, arriving
there between 10:55 and 11 p.m.
Blanton further testified that while waiting for his work
assignment, he noticed that Reich was not wearing his
union button and asked Reich where his button was. Reich
then held it out in his hand and showed it to Blanton.
Blanton remarked that no one could see it if Reich did not
wear it . Reich , nevertheless , put the button back in his pock-
2 In a prefatory statement to the rules, it is stated*
It is sincerely hoped that these rules will be sufficient to alert all employ-
ees as to the conduct expected and that the exercise of self-discipline on
the part of employees will prevent any necessity for disciplinary actions
Any employee who fails to maintain , at all times , proper standards of
conduct or who violates any of the following rules shall subject himself
to disciplinary action including discharge
3 Reich 's name is variously spelled Rich , Wright, or Reich throughout the
transcript of the record In accordance with Respondent's motion , the tran-
script has been ordered corrected to reflect the correct spelling, Reich
et. Soon thereafter General Foreman Gray arrived and told
Reich, the group leader, and the other employees awaiting
their assignment that they would be pulling tubes from the
No. I block that day. Blanton did not hear Gray say any-
thing else to Reich. With Reich apparently in the lead the
group of employees under him started towards the No. 1
block. Blanton paused to ask Grey for some gloves and as
Gray handed out gloves he told Blanton that he thought
General Foreman Paul Stamper wanted to see him in the
office.
According to Blanton, he passed Reich on the way to the
office and when Reich asked where he was going, Blanton
merely replied that he was going to the office .4 Blanton
waited alone in the office for 10 or 15 minutes before Stamp-
er arrived.' Stamper read Respondent's no-solicitation rule
from the rule book and informed Blanton that Foreman
Gray had reported that Blanton had been soliciting on com-
pany time in a work area, that Gray had two witnesses to
the incident, and that Blanton was being suspended. Blan-
ton denied the accusation and stated that he had given
Reich the button in the vending machine area before work
and that Reich would confirm Blanton's account. Stamper
replied that he would have Foreman Gray talk to Reich and
Reich and Gray were then called into an adjoining office to
talk with Stamper. Stamper returned to his office where
Blanton was still waiting and told Blanton that Reich agreed
with Blanton's story but that he had to accept Gray's word
because Gray was his foreman. Stamper then told Blanton
to punch his timecard and go home.
Before leaving the office, Blanton told Stamper that Fore-
man Gray was "a damn liar." He then sought out Gray but
on the way stopped to inform Reich of his suspension and
to inquire about what Reich had told Gray and Stamper.
Reich informed Blanton that he had told Stamper and Gray
where he had received his button but that they had tried to
make him out a liar. On the way Blanton also told Roy
Rogers of his suspension for the alleged reason that he had
violated Respondent's no-solicitation rule. When he
reached Foreman Gray, he told the latter that he was a
"damn liar" and stated that if Gray did not like what Blan-
ton said, they could meet outside and settle the matter.6
Blanton then returned to Stamper's office and told Stamper
he wanted to be fired rather than suspended. Stamper told
Blanton that the rule book would not permit him to fire
4 James Roy Rogers testified, inconsistently with all the other testimony,
that Blanton also stopped by his work station on the way to the office and
said that he was going "to the office for soliciting union literature." It is
undisputed that Blanton was not told why he was being sent to the office
I believe that Rogers was confusing this account with what Blanton said to
him upon returning from the office
5 Gray and Stamper testified that Reich was in the office with Blanton until
Gray instructed Reich to go to his work station For reasons hereinafter
explained I do not find it necessary to resolve this conflict in the testimony.
The language attributed to Blanton by Gray at this point was stronger
and more offensive than that attributed by Blanton to himself Employee
Clark who witnessed the confrontation disagreed with both Blanton and
Gray in describing the offensive language purportedly used by Blanton.
While I believe that Blanton, in his anger and frustration , did probably use
language unbecoming a Sunday school teacher-which Blanton was-I do
not find it necessary to decide the precise words he uttered According to
Gray, after Blanton invited him outside the plant, Gray told him he "didn't
think it would accomplish anything by arguing about it" and requested
Blanton "to leave peaceably and go home ." Gray then returned to his work
area.
MUELLER BRASS CO.
Blanton. He instructed Blanton to go home and assured him
that there would be a hearing on the matter. Blanton asked
what would happen if he did not leave and Stamper replied
that Blanton would be carried out by a guard. Blanton then
left the plant in the company of a company supervisor.
On the following Friday, September 15, Blanton returned
to the plant to pick up his paycheck and upon that occasion
had a long talk with Industrial Relations Manager Farris
Gregory. Blanton asked how long his suspension was going
to last. Gregory replied that he did not know and that there
would have to be a hearing on the matter. Other matters
discussed at this conference are alleged in the complaint to
constitute unlawful interference with the employees' organi-
zational rights and are treated infra.
On September 22 Gregory telephoned Blanton that Re-
spondent had decided to terminate him. He advised Blanton
that he could come in and file charges on the following
Monday, September 25, if he wished. Blanton did not return
to the plant on Monday, however, because of his attendance
at funeral services for a neighbor. Several days or a week
later when Blanton came back to the plant to return his
uniform and equipment, Gregory informed him that a hear-
ing on his discharge had been had the preceding Monday
and that the discharge decision was final.
Foreman Gray's account of his part in the termination of
Blanton differs from that of Blanton in several respects. He
testified that as he approached the control panel where
some of the men were waiting for their work assignments
and was about 20 feet away, he saw Blanton extend his hand
and give Reich something, then turn and walk around the
toolbox; that Reich then looked at his watch (which he daily
sets by Respondent's timeclock and which would not be off
more than 1 minute either way) and ascertained that it was
11:02 p.m.; that Reich showed Gray the union pin, where-
upon Gray asked if Blanton "had just handed" him the pin
and Reich replied, "Yes." Reich did not say how long ago
or where Blanton gave him the pin. At the time he ap-
proached Reich and Blanton, according to Gray, he "was
preparing to send the Block crew [Reich, Blanton, Dunlap,
and Strode] to the Block area to start up their operation."
He had not yet given them their work instructions.
Gray further testified, among other things, that after giv-
ing out work instructions to Reich's four-man crew, he told
Blanton to report to General Foreman Stamper in the mill
office; that Gray then looked up Stamper and told him
about the incident; that Stamper asked if Gray had any
witnesses to the incident; that Gray named an employee,
Bobby Reeves, as having been nearby; that at Stamper's
suggestion, he then sought out Reeves and asked him if he
had seen Reich accept a pin from Blanton at the extrusion
press; and that Reeves had replied in the affirmative and
added that it "was after work time."
According to Gray, when he later brought Reich to the
foreman's office for further questioning about the incident,
Reich told him and Stamper that he had received the button
from Blanton at the west end locker room while he was
putting on his boots and denied having said that he received
it at the extrusion press. Still later that night, according to
Gray, when he again questioned Reich about where he re-
ceived the button, Reich said he received it at the west end
clock. (The west end lockerroom, the west end timeclock,
619
and the west end vending machine area are in somewhat
close proximity to each other and are quite a distance from
the press area and the mill and foreman's offices.)
Neither Reich nor Reeves was called as a witness. The
only employee called by Respondent who purported to wit-
ness the passing of the union button in the press area was
Charles Clark, a personal friend of General Foreman
Stamper. His job was to grease the manifold. He testified
that Respondent has no starting whistle to indicate a shift
starting time but that he and other employees were "stand-
ing around," just before starting work and waiting for their
work instructions from Foreman Gray when he saw Blan-
ton tender Reich a union button. He did not, however, see
Reich accept the button and did not hear what was said.
Clark then turned and walked away, as he stated, because
he "didn't want to get involved." Foreman Gray questioned
Clark about what he had observed and took a statement
from him about September 23, after Blanton's discharge.
The only employee called by the General Counsel purport-
ing to witness the passing of the button from Blanton to
Reich in the vending machine area was James Roy Rogers,
a member of the Union's organizing committee, who testi-
fied in substantial corroboration of Blanton's testimony,
that he had observed Blanton give Reich a union button as
Rogers was starting up the stairway to the west end rest-
room. Rogers' testimony in some other respects does not
jibe with that of Blanton.
Other credibility issues arise out of slight inconsistencies
in the testimony of Blanton and Stamper as to precisely
what was said during the interview in Stamper's office. Al-
though, on the whole, I found Blanton a convincing witness,
I shall not resolve the credibility issues arising from these
inconsistencies for I am convinced that, even accepting the
testimony of Respondent's witnesses as to the events lead-
ing to Blanton's suspension, the suspension constituted an
unlawful interference with his Section 7 rights and discrimi-
nation against him within the meaning of Section 8(a)(3)
and (1) of the Act.
It has long been recognized, as the Supreme Court has
stated that "No restrictions may be placed on the employ-
ees' right to discuss self-organization amongst themselves
unless the employer can demonstrate that a restriction is
necessary to maintain production or discipline." 7 This is in
recognition of the fact that the employees right to self-
organization is a protected Section 7 right, but that the
exercise of that right must be weighed against the employ-
ers' exercise of their unquestioned right to carry on their
business without interference or interruption. In balancing
the rights of the employees against those of the employer,
the Board and courts have made clear that normally "work
time is for work" and that the employer, in the interest of
maintaining production or discipline, may make and en-
force no-solicitation rules designed to accomplish that pur-
pose.8 Such rules may not, however, by their language or
7
N L.R B v The Babcock and Wilcox Company, 351 U.S. 105, 113 (1956);
Republic Aviation Corp v N L R B, 324 U S. 793 (1945); N L.R.B. v. United
Steelworkers of America [Nutone, Inc & Avondale Mills], 357 U S 357, 361-
362, 1958
e Peyton Packing Co, 49 NLRB 828, The J L Hudson Company, 198
NLRB No 19
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
application be so broad as to prohibit solicitation during
breaks, lunch periods, or other nonworking time time even
when the employees are paid for such nonworking time .9 To
permit the application of a no-solicitation rule to such non-
working time would serve no legitimate end of the employer
and would unreasonably interfere with the exercise by em-
ployees of their rights to self-organization.
No attack has been made upon the wording of
Respondent's no-solicitation rule as promulgated and pub-
lished and I do not find the rule to be invalid on its face.
It is Respondent's application of the rule to the employees
during the time when they are not supposed to be working-
when they are standing around waiting for their work as-
signments-which I find to be unlawful. The Board has
heretofore decided, with court approval, that an employer
may not apply a no-solicitation rule, valid on its face, to
forbid employees standing in line to clock out a few minutes
before quitting time, as was customary at the plant, from
soliciting fellow employees in the line. Exide Alkaline Bat-
tery Division of ESB, Inc. v. N.L.R.B., 423 F.2d 663 (C.A.
4, 1970) enfg. 177 NLRB 778.
At least two of the nine employees working under Fore-
man Gray had duties which required them to take over and
continue particular work which their counterparts on the
previous shift had been performing. Others, however, such
as Reich and his four-man crew of which Blanton was a
member, did not know where they would be working until
Foreman Gray gave them their work instructions each
night. They were expected to wait in the area where Gray
allegedly saw Blanton pass a union button to Reich until
Gray arrived and gave them their work instructions for that
shift.10 Since Blanton and Reich were not expected to and
could not have been working prior to receiving their work
instructions, the time, 11:02 p.m., when Gray says he saw
something pass between them, cannot truly be regarded as
working time. Their situation would be analogous to and
governed by the same principles applied in the Exide case
where employees, a few minutes before quitting time, were
standing in line to clock out.
It is accordingly found that Respondent, by applying its
no-solicitation rule to the time before the employees had
started working and while they were waiting for their work
assignments, and suspending Blanton for engaging in union
solicitation at that time, unlawfully interfered with the orga-
nizational rights of its employees and discriminated against
Blanton within the meaning of Section 8(a)(1) and (3) of the
Act.
Next to be decided is whether Respondent's discharge of
Blanton about 10 days after his suspension was in further
violation of Section 8(a)(3) and (1) of the Act. Blanton's
9 N L R B. v. Monarch Machine Tool Co, 210 F 2d 183, 187 (C.A 6, 1954),
cert denied 347 U.S. 967; N.L R B v. Essex Corporation of California, 245
F 2d 589 , 593 (C.A 9, 1957)
10 All parties appear to assume that the mere passing of a union button
from one employee to another would constitute solicitation of union mem-
bership within the meaning of Respondent 's rule 17 and, for purposes of this
case , I shall accept that interpretation . Arguably, moreover, the rule insofar
as it forbids an employee to "promote" union membership on company
property during working time might be considered too broad, but since the
validity of the rule on its face was not litigated , I make no decision herein
on that question
suspension was for an indefinite period pending an investi-
gation by Respondent of its charge that he had violated its
no-solicitation rule. The decision to discharge him, accord-
ing to Douglas Milander , Respondent's manager of indus-
trial relations at Port Huron , Michigan , was made after
Milander had talked to both Gray and Stamper and it was
based upon three factors : ( 1) Respondent 's belief that Blan-
ton had violated its no-solicitation rule; (2 ) the fact that
Blanton had used vulgar language in calling Gray a liar and
had invited Gray outside the plant to settle their dispute
after Blanton had been suspended ; and (3 ) Blanton's re-
quest of General Foreman Stamper that he be fired rather
than indefinitely suspended . Charles Lymburner,
Respondent's local plant manager, who reviewed with
Stamper the circumstances of Respondent 's suspension and
subsequent discharge of Blanton , could have overruled
Milander 's discharge decision but did not choose to do so.
Blanton's conduct following his unlawful suspension can-
not be considered in isolation . He was obviously angry and
emotionally upset over what he considered unjust and un-
fair treatment . His emotional outburst against Foreman
Gray and his angry demand of General Foreman Stamper
that he be discharged rather than indefinitely suspended,
though not to be condoned , was an understandable expres-
sion of his frustration and anger under the circumstances
and did not , in my view, render him unfit to continue serv-
ing as an employee . Since such conduct was triggered and
provoked by his unlawful suspension and also because the
decision to discharge him was admittedly based in part
upon Respondent's belief that he had violated its no-solici-
tation rule , the discharge, like the suspension , must be held
a violation of Section 8(a)(3) and ( 1) of the Act . Blue Jeans
Corporation, 170 NLRB 1425 ; N.L.R.B. v. M & B Headwear
Co., Inc., 349 F .2d 170, 174 (C.A. 4, 1965). I am convinced,
moreover , that but for Respondent's strong opposition to
the Union already mentioned , Respondent would not have
applied its no-solicitation rule so broadly as to prohibit an
employee from transmitting a union button to a fellow em-
ployee at a time when neither employee was supposed to be
working.
C. The Termination of Franklin D. Hamilton
Hamilton was hired by Respondent on June 6, 1972, and
was terminated on September 18, 1972, during his 90 "work
days" probationary period. Hamilton's first attendance at a
union meeting was on September 12 when it was decided
that employees should come out in the open and indicate
their support for the Union by wearing union buttons.
Hamilton signed a union card at that meeting and wore a
union button on his shirt pocket at work that night and each
night thereafter until terminated. The General Counsel con-
tends that Respondent was motivated in its decision to ter-
minate Hamilton by the fact that he was openly supporting
the Union by wearing a union button.
Hamilton worked on the 11 p.m. to 7 a.m. shift as a coil
packer on the bench line. Just before the end of his shift on
September 18, he was summoned to Foreman Edward
"Bud" Gunter's office and terminated. In explaining the
reason for his termination, Gunter told him that he had a
"bad attitude," was not interested in his job and "didn't
MUELLER BRASS CO. 621
qualify."
Foreman Gunter at the hearing conceded that he knew
that Hamilton was among the employees who wore union
buttons but contends that his display of union sympathy
had nothing to do with the decision to terminate Hamilton.
His decision to terminate Hamilton during his 90-day pro-
bationary period, according to Gunter, was based on the
factors mentioned to Hamilton at the time of his termina-
tion . He explained that although Hamilton's work perfor-
mance was "fair" and he was a "steady" employee, he did
not appear interested in any of the jobs to which he was
assigned , even though he was offered , but turned down, one
job which would have paid him a higher rate of pay, and
that he had stated that he would not work with women after
Respondent had announced that women would be assigned
to the type of work he was doing. The incident precipitating
Gunter's decision to terminate him occurred on the night
preceding his termination when Gunter called him aside to
inquire whether he liked his work. (This was in accordance
with Gunter 's practice to interview employees during their
probationary period and try to fit them into work which
they like and for which they are best fitted.) Gunter pointed
out to Hamilton that he had been tried out in three different
jobs and was offered a fourth one and was still not satisfied.
Hamilton replied that it did not matter what job he per-
formed, and that if he got tired of the job, he would walk
off and find another one on the outside . Hamilton then
turned and walked away although Gunter had not finished
his interview with Hamilton . It was at this moment , accord-
ing to Gunter, that he decided to terminate Hamilton. Be-
fore doing so, however , he consulted with Plant
Superintendent Don Crowell and told the latter that he did
not believe Hamilton was a sufficiently flexible employee to
warrant Respondent 's expenditure of time and money in
training him. Crowell apparently concurred in Gunter's de-
cision.
There is little dispute as to the basic facts regarding
Hamilton 's employment . He conceded that he had spoken
to Industrial Relations Manager Gregory about transferring
to another shift, that he had turned down an offer of a
higher paying job on his own shift , at the same time con-
tending that his own job should carry the same rate of pay
as the one he turned down, and that he had made the
statements attributed to him about quitting and getting an-
other job when he got tired of performing the one he then
had. Hamilton also conceded that he had told Gunter and
several of the employees that he would refuse to work with
women but testified that he had in fact worked with a wom-
an when a woman was assigned to work with him. He ex-
plained that his expressed unwillingness to work with
women was based upon his belief that he would be expected
to do all the heavy lifting. As it turned out the women, who
were only recently being assigned to coil packing work,
performed the same work that Hamilton performed regard-
less of the weight of the coils to be lifted.
Foreman Gunter impressed me as a straightforward, hon-
est witness . On the basis of all the evidence I am persuaded
and find that Gunter terminated Hamilton because, while
he was still a probationary employee , he was not working
out to Gunter's satisfaction as an employee and that
Hamilton's display of the union button on the pocket of his
shirt had nothing to do with Gunter's decision.I I The allega-
tions of the complaint as to Hamilton will therefore be
dismissed.
D. Coercive Statements Attributed to
Industrial Relations
Manager Gregory
The General Counsel contends that Respondent's indus-
trial relations manager, Farris Gregory, upon two occasions
made coercive statements to employees which interfered
with, restrained, and coerced them in the exercise of their
organizational rights.
1. Gregory's interview with
George Blanton
The first of these occasions was during Gregory's lengthy
interview on September 15, already referred to, with em-
ployee George Blanton, after Blanton had been suspended
but before he was discharged. When Blanton dropped into
Gregory's office on that day to inquire about how long his
suspension would last, he was wearing his union button and
other union insignia. According to Blanton, when Gregory
observed the display, he asked if Blanton was for the Union
or commented that he assumed Blanton was for the Union.
Blanton replied that he was not for the Union when first
hired but later became interested, and told Gregory about
some grievances he had over not getting an "upgrade" and
a shift transfer he had requested, which had caused him to
feel that he needed a union. Gregory then told him: "You
don't need a union. That's what I'm here for." Also, during
the conversation Gregory asked him if he knew James Roy
Rogers. Blanton replied that he knew a Roy Rogers. Grego-
ry responded, "That's the one" and proceeded to tell Blan-
ton that Rogers' name was on the desk of every employer
in the area as a "union pusher," and that Rogers would be
unable to get a job in the area if he quit his present job or
was fired.
Gregory admitted that the subject of the Union was dis-
cussed during this interview and stated that Blanton's wear-
ing of a union button and other insignia prompted Gregory
to remark that he looked like a Christmas tree. He categori-
cally denied on direct examination that the name of James
Roy Rogers was mentioned during the interview but on
cross-examination hedged somewhat by stating that he
could not "recall" whether that name was mentioned and,
upon being pressed for a more definite answer, responded,
"I would say, no." 12 A credibility issue is thus presented. I
believe, as Gregory testified, that he was prompted to men-
tion the Union and remark that Blanton looked like a
Christmas tree because of the prominent display of union
11 The termination of an employee during his probationary period was not
an unusual occurrence at Respondent 's plant There had been about 70 such
terminations during the approximately 2-year period of Respondent's opera-
tions
12 In a number of places in the transcript of the record , the names James
Earl Rogers appears instead of James Roy Rogers. I have granted the Gener-
al Counsel 's motion to correct the transcript by changing Earl to Roy, the
motion being unopposed and also consistent with my recollection of the
name involved
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insignia which Blanton was wearing, and that any comment
or question about Blanton's being for the Union was not
under the circumstances coercive.
Blanton's account of Gregory's remarks about Rogers'
name being on the desk of every employer in the area as a
"union pusher" and the consequent inability of Rogers to
get a job elsewhere had a ring of truth , and I credit it. The
remark constituted a threat that an employee's support of
the Union at Respondent's plant would be a definite liabili-
ty if, by reason of quitting or being discharged, he should
seek employment elsewhere in the area. It manifestly tended
to cause employees to refrain from supporting the Union for
fear of losing job opportunities. The remark therefore con-
stituted interference, restraint, and coercion within the
meaning of Section 8(a)(1) of the Act.
2. Gregory's interview with
Jerald Rogers
The second occasion upon which Gregory is alleged to
have made coercive statements occurred about mid-Sep-
tember when employee Jerald Rogers (who, Gregory under-
stood, was a brother of James Roy Rogers) went into
Gregory's office to talk to him about transferring to a better
paying job. During the interview, according to Rogers,
Gregory brought up the subject of unions and showed Rog-
ers some newspaper clippings. Rogers did not read the clip-
pings and Gregory did not purport to tell him the contents
of each clipping but described them as reports about other
businesses that had to go out of business on account of
being organized by unions. Gregory also showed him some
union cards, told Rogers that the Company had people
going to the union meetings and reporting back what was
happening. He told Rogers, "We're not as stupid as you
think we are" and that "He knew what was going on." He
added that Respondent gets the union cards or a list of
names of union supporters and transfers them to different
plants and makes it hard for employees to get another job.
The interview with Gregory lasted about an hour and a half
and most of the time was spent talking about unions.
Gregory conceded that he keeps blank union cards which
he obtains from various sources, as well as newspaper clip-
pings about unionized plants, in a desk drawer in his office
and that he shows them to employees. He testified that he
could not recall but could have shown them to Rogers when
the latter came to see him about a transfer to a different
shift. He also could not remember what he told Rogers upon
that occasion but denied that he told Rogers or anyone else
that Respondent sent people to union meetings and that
they reported to Respondent who was present. He also de-
nied telling Rogers or anyone else that Respondent gets a
list of employees who signed union cards and sends this list
to all plants in the area.
Here again, there is a conflict in testimony on material
issues . Although Jerald Rogers appeared to be an honest
witness , I believe that some of his testimony referred to
impressions or interpretations of the actual words spoken by
Gregory. These interpretations would, however, appear to
have been justified. Rogers testified, for instance, that when
Gregory held out the newspaper clippings which he de-
scribed as items about other plants going out of business on
account of being organized by unions, Gregory "was kind
of inferring" that Respondent would go out of business if
unionized. I am satisfied that Gregory meant for Rogers to
draw that inference and that the inference was a reasonable
one under the circumstances. Gregory's statements there-
fore constituted a veiled threat that Respondent might go
out of business if unionized and constituted an unlawful
interference with the employees' organizational rights in
violation of Section 8(a)(l) of the Act.
I doubt that Gregory made the bald statement to Rogers
that Respondent was sending people to union meetings to
report back on what was happening at the meetings. This,
I am convinced, is a conclusion which Rogers drew in part
from Gregory's display of a bunch of union cards and the
statement that Respondent was not stupid and knew what
was going on. This was a reasonable conclusion for Rogers
to draw and I find that Gregory intended for him to draw
that conclusion. I am also convinced that although Gregory
may not have told Rogers in so many words that Respon-
dent was furnishing a list of union supporters to other em-
ployers in the area, he did tell Rogers, similarly to what I
have found he told Blanton, that Respondent's employees
who were supporting the Union would have a hard time
obtainingjobs with other employers in the area. I am satis-
fied that Gregory meant for Rogers to infer from Gregory's
statements on this subject that Respondent was furnishing
the other employers with information about union support-
ers at Respondent's plant.
It is accordingly found that Respondent created the im-
pression of surveillance of the employees' union activities
and made a veiled threat that Respondent would make it
difficult for its employees to obtain jobs with other employ-
ers in the area by distributing to those employers a list of
its employees who supported the Union. This conduct clear-
ly constituted an interference with the employees' organiza-
tional rights, in violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. By suspending, then discharging employee George
Blanton for engaging in a protected concerted activity in
behalf of United Steelworkers of America, AFL-CIO-CLC,
Respondent has violated Section 8(a)(3) and (1) of the Act.
2. By applying its no-solicitation rule in such a way as to
prohibit employees from engaging in union solicitations at
the commencement of shifts when they are unable to work
because they have not yet received their work assignments,
Respondent has interfered with, restrained, and coerced its
employees in the exercise of their Section 7 rights, in viola-
tion of Section 8(a)(I) of the Act.
3. Respondent has further interfered with, restrained,
and coerced its employees in violation of Section 8(a)(1) of
the Act by the following:
(a) Making veiled threats that Respondent would go out
of business if it was organized by the Union.
(b) Making statements designed to create the impression
that Respondent is engaging in surveillance of its employ-
ees' union activities and supplying information to other em-
ployers in the area as to the identity of union supporters.
(c) Threatening that one of the leading union advocates
and other union supporters would have difficulty in obtain-
MUELLER BRASS CO. 623
ing employment at any other plant in the area because of
their known support of the Union.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. A preponderance of the evidence does not support the
allegations of the complaint that Respondent engaged in
other unfair labor practices not specifically found herein.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act, my recommended Order will require that it cease
and desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
suspended employee George Blanton on September 12 and
discriminatorily discharged him on September 22, 1972, Re-
spondent will be required to offer him immediate and full
reinstatement , without prejudice to his seniority and other
rights and privileges and make him whole for any loss of
earnings he may have suffered by reason of his unlawful
suspension and discharge , with backpay computed on a
quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716, from
September 12, 1972, to the date he is offered reinstatement.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act, there is hereby issued the following recommend-
ed:
ORDER 13
Mueller Brass Co ., a Subsidiary of U. V. Industries, Inc.,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Suspending , discharging , or otherwise discriminating
against any employee because he has engaged in a protected
concerted activity on behalf of United Steelworkers of
America, AFL-CIO-CLC, or any other labor organization.
(b) Applying its no-solicitation rule so as to prohibit em-
ployees from engaging in union solicitations at the com-
mencement of their shifts when they are unable to work
because they have not yet received their work assignments.
(c) Making veiled threats to go out of business if its plant
is organized by a union.
(d) Making statements designed to create the impression
that Respondent is engaging in surveillance of its employ-
ees' union activities and supplying information to other em-
ployers in the area as to the identity of union supporters.
(e) Threatening that a leading union advocate and other
union supporters would haye difficulty obtaining employ-
ment at other plants in the area because of their known
support of the Union.
(f) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights guaranteed
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer George Blanton reinstatement to his formerjob
or, if the job no longer exists , to a substantially equivalent
position , without prejudice to his seniority and other rights
and privileges , and make him whole in the manner set forth
in the section of this Decision 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 , person-
nel 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 Fulton , Mississippi , plant copies of the
attached notice marked "Appendix." I Copies of the no-
tice , on forms provided by the Regional Director for Region
26, after being duly signed by an authorized representative
of Respondent , shall be posted by Respondent immediately
upon receipt thereof , and be maintained for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted . Reason-
able steps shall be taken by Respondent to insure that the
notices are not altered , defaced , or covered by any other
material.
(d) Notify the Regional Director for Region 26, in writ-
ing, within 20 days from the date of this Order , what steps
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed insofar
as it alleges unfair labor practices not herein found.
13 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Section
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
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 be changed to 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
WE WILL offer to George Blanton full reinstatement,
and pay him for the earnings he lost as a result of his
suspension and discharge, plus 6 percent interest.
WE WILL NOT suspend , discharge , or otherwise dis-
criminate against any employee because he has en-
gaged in a protected concerted activity on behalf of
United Steelworkers of America, AFL-CIO-CLC, or
any other labor organization.
WE WILL NOT apply our no- solicitation rule so as to
prohibit employees from engaging in union solicita-
tions at the commencement of their shifts when they
are unable to work because they have not yet received
their work assignments.
WE WILL NOT make veiled threats to go out of business
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if our plant is organized by a union.
WE WILL NOT make statements designed to create the
impression that we are engaging in surveillance of our
employees' union activities and supplying information
to other employers in the area as to the identity of Dated By
union supporters.
WE WILL NOT threaten that a leading union advocate
or any other union supporter will have difficulty ob-
taining employment at other plants in the area because
of their known support of a union.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce our employees in the exercise of their
rights guaranteed under Section 7 of the National La-
bor Relations Act.
All of our employees are free to become and remain
members of the above-named Union, or any other labor
organization , or to refrain from doing so.
(Representative) (Title)
MUELLER BRASS CO, A SUBSID-
IARY OF U. V. INDUSTRIES, INC
(Employer)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Clifford
Davis Federal Building, Room 746, 167 North Main Street,
Memphis, Tennessee 38103, Telephone 901-534-3161.