National Steel Products

NATIONAL STEEL PRODUCTS National Steel Products and United Steelworkers of America, AFL-CIO. Cases 10-CA-14965, 10- CA-14595, 10-CA-13132, and 10-CA-13053 September 30, 1980 DECISION AND ORDER CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 30, 1980, Administrative Law Judge George Norman issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, National Steel Products, LaGrange, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his findings. 2 In accordance with his dissent in Olympic Medical Corporation, 250 NLRB No. 11 (1980), Member Jenkins would award interest on the back- pay due based on the formula set forth therein APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT threaten our employees that contrary to existing practices they would no longer be able to bring their grievances direct- ly to management if they select the Union as their collective-bargaining representative. WE WILL NOT solicit our employees to with- draw their union authorization cards. WE WILL NOT threaten our employees that we will withdraw all of their existing wages and benefits if they select the Union as their collective-bargaining representative by telling our employees that the Union would have to start with a blank sheet of paper and bargain from scratch. WE WILL NOT interrogate our employees re- garding their union membership, activities, and desires and the union membership, activities, and desires of other employees. WE WILL NOT engage in surveillance of the union activities of our employees by photo- graphing the union representative as he distrib- utes union literature. WE WILL NOT engage in surveillance of our employees' union activities by requiring our employees who distributed union literature outside the plant to sign in before being al- lowed to enter the plant. WE WILl. NOT create the impression of sur- veillance of our employees' union activities by informing them that we know who are for the Union and who had signed union authorization cards. WE WILL NOT threaten our employees with reduction of existing benefits by telling them that contrary to present practices, when work is unavailable before shift ending time, they would be sent home if they select the Union as their collective-bargaining representative. WE WILL NOT threaten our employees that their working hours would be reduced by tell- ing them that contrary to present practices, when their machines break down and they are not repaired within 1 hour, they would be sent home before shift ending time if they select the Union as their collective-bargaining repre- sentative. WE Wll.L NOT threaten our employees that we will impose more rigid or more demanding work schedules upon them if they select the Union as their collective-bargaining repre- sentative. WE WIll NOT threaten our employees with discharge because of their activities on behalf of the Union. WE WILL NOT threaten to interfere with future employment opportunities of our em- 252 NLRB No. 120 833 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees with other employers in the La- Grange, Georgia, area because of their activi- ties on behalf of the Union. WE WIl.l. NOT threaten our employees that we will withdraw their existing benefits by taking away their paid breaks and holidays if they select the Union as their collective-bar- gaining representative. WE WILL NOT threaten our employees with reprisals if they select the Union as their col- lective-bargaining representative. WE WILL NOT in any like or related manner interfere with, coerce, or restrain our employ- ees in the exercise of rights guaranteed in Sec- tion 7 of the Act. WE WiL. offer George Strozier immediate and full reinstatement to his former position (or, if such position no longer exists, to a sub- stantially equivalent job), without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suf- fered by him as a result of his suspension and termination, with interest. WE WI.LL offer Ben Stargell promotion to the Z-Line painter job (or, if such position no longer exists, to a substantially equivalent job), without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings suffered by him as a result of the failure to promote him to that position, with interest. Our employees are free to become and remain, or to refrain from becoming or remaining, members of United Steelworkers of America, AFL-CIO, or any labor organization, except to the extent that such a right may be affected by an agreement re- quiring union membership, as authorized by the proviso of Section 8(a)(3) of the Act. NATIONAL STEEL PRODUCTS DECISION STATEMENT OF THE CASE GEORGE NORMAN, Administrative Law Judge: This proceeding, held pursuant to Section 10(b) of the Nation- al Labor Relations Act, as amended, herein the Act, was heard at LaGrange, Georgia, on November 26-29, 1979. The issues raised by the pleadings' are, in substance, I The Charging Party, the United Steel Workers of America, AFL- CIO, won a representation election among Respondent's employees on June 20, 1979, and was certified as the collective-bargaining represcnta- tive for said employees by the Acting Regional Director on July 31, 1979, and affirmed by the Board on September 24, 1979. The Charging Party's original charge, Case 10-CA 13053, was filed on September 1, 1977. and the charge in Case 10-CA-13132 was iled by the Charging Party on September 30, 1977. Those charges were filed during an organizational campaign on the part of the Charging Party during the fall of 1977. That campaign resulted in an election defeat for the Petition- whether the Employer unlawfully discharged employee George Strozier in violation of Section 8(a)(3) of the Act; unlawfully discharged employee Mike Moore in violation of Section 8(a)(3) of the Act; violated employee Mike Moore's Weingarten rights in conducting his disci- plinary interview in violation of Section 8(a)(l) of the Act; unlawfully discriminated against employee Ben Stargell in violation of Section 8(a)(3) of the Act in fill- ing various temporary vacancies on the Z Line Painter" job: or violated Section 8(a)(1) of the Act in several in- stances during the 1977 and 1979 union organizational campaigns? Respondent has filed timely answers to all the allegations contained in the consolidated cases admit- ting jurisdictional facts and certain other allegations but denied the commission of any unfair labor practices within the meaning of the Act. During the hearing all parties were represented by counsel and given full and fair opportunity to present oral testimony and documen- tary evidence in support of their respective positions. Post-hearing briefs were filed by Respondent and the General Counsel which have been carefully considered. Upon the entire record in the case, including my ob- servation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation with an office and place of business located at LaGrange, Georgia, where it is engaged in the manufacture and sale of prefabricated metal buildings. During the past calendar year Respond- ent sold and shipped from its LaGrange, Georgia, facility finished products valued in excess of $50,000 directly to customers located outside the State of Georgia. Respond- er-Charging Party on November 10. 1977. On November 17, 1977, the Petitioner-Charging Party filed timely objections to that election which were subsequently consolidated by the Regional Director with the out- standing charges in Cases 10-CA-13053 and 10-CA-13132 in his order dated December 16, 1977. The hearing which was scheduled in his De- cember 16, 1977, order was subsequently enjoined by U.S. Federal Dis- trict Court Judge Charles Moye following the Board's refusal to turn over various witness affidavits pursuant to the then applicable Fifth Cir- cuit Court of Appeals decision i Robbins ire and Rubber Company v. N.L.R.B., 563 F.2d 724 (5th Cir. 1977), reversed by the Supreme Court on June 15, 1978, 437 U.S. 214. Following the Supreme Court's Robbins Lire decision, Judge Moye vacated his order and the hearing in these matters was rescheduled for February 5, 1979, pursuant to the Regional Director's order dated November 3, 1978. That hearing was subsequently indefinitely postponed and apparently mooted following the Petitioner's ,withdrawal of the petition in Case 10-RC-11211 on February 23, 1979, and the parties' voluntary settlement of all matters alleged in Cases 10 CA-13053 and 1(0CA-13132. That settlement was approved by the Re- gional Director on March 12, 1979. The Charging Party then filed charges in Case l0-CA-14595 on April 23, 1979. 2 days prior to filing a formal petition in Case 10-RC-11749 on April 25, 1979. Following an in- sestigation of that charge the Regional Director issued a formal com- plaint in Case 10-CA- 14595 and set aside the settlement agreement in Cases 10-CA-13132 and 10 CA- 13053 and ordered a consolidated hear- ing of all these matters in his order dated June 5, 1979 The charge in Case l0-CA-14965 was filed by the Charging Party on August 29, 1979, following its election victory on June 20 1979, but during the period the Employer's request for review was still pending before the Board in Washington. The new charge in Case 10-CA-14965 was consolidated with all previous matters set for hearing on November 26 1979, pursuant to the Regional Director's complaint, and order consolidating cases and notice of hearing dated October 16, 1979 834 NATIONAI. SEFiL PRODUCTS ent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. HEt I ABOR OR(,ANIZAIION United Steel Workers of America, AFL-CIO, herein the Charging Party or the Union. is a labor organization within the meaning of Section 2(5) of the Act. 111. Tl[ AL. EG(lI) UNFAIR I ABOR PRAC(I S A. The Discharge o George Strozier Employee George Strozier was hired by Respondent on June 1, 1978, and discharged on April 25, 1979. The complaint in Case 10-CA-14595 in paragraph 12 alleges, and the answer admits, that Respondent on or about April 25, 1979, discharged and thereafter failed to refuse to reinstate employee George Strozier. Paragraph 13 al- leges and the answer denies that George Strozier was discharged because of his membership in and activities on behalf of the Union. Respondent contends that Strozier was discharged for violation of company rule 18 following a whole series of disciplinary incidents involving both the harassment of, and altercations with, fellow employees. Respondent fur- ther contends that the culminating incident leading im- mediately to George Strozier's discharge was his behav- ior in threatening and harassing employee Warner As- berry on April 18, 1979. George Strozier testified that on April 18, 1979, he was having lunch with Warner Asberry, Walter Ellison, Bo Turner, and just about all the blacks that work for Respondent, "mostly the blacks that eat together." While they were on their way back, about 5 minutes before the end of the lunch break, Strozier said to As- berry, "Warner, you're not speaking to me today." Stro- zier told him that he usually spoke. Strozier asked, "Why are you not speaking to me today? Are you still mad with me and Walter Ellison because we didn't take you to get some lunch last week? You still mad about that? You ought to stop that, man-acting stuck-up and having your funny ways. You ought to just quit that, man, the way you do sometime."2 As they entered the plant, they continued talking "just shooting the bull," something they did every day. Strozier said that some- times Asberry is in a bad mood and sometimes in a good mood and that on April 18 he was in a bad mood "for some reason or other." Strozier then told him, "Man you ought to quit that stuff. I said, I could kick your ass for acting like that, you know." Asberry replied that he was not worried about Strozier and told him, "I'll fuck you up." Strozier started laughing and said, "You ain't going to do nothing. I ain't worried about you." ' Strozier further testified that as they were going back and having these words with each other Supervisor Strouier explained that Asherry did not have a cal then and that on that particular day. the week before Srozier and others ate at the plant although they usually go elss.here According to Strozier, AsherrN got mad because he fell hey cre lea.inlg and were not aking him along with them as usual ' As they entered the plant they '.ere about 15 to 20 feet apart from each other Charles Jennings \was seen by Strozier about I or 2 min- utes before the buzzer went off. Strozier said that Jen- nings got up and was running around excitedly as if he thought the two individuals were going to fight. Asberry proceeded to his work station and Strozier proceeded to his work station, Strozier then said to Asberry, "I ain't worried about you." Asberry replied, "I ain't worried about you either. You ain't going to do nothing." Stro- zier said, "Go on." And Asberry replied, "Go on." And about that time the buzzer rang. And that was the end of the conversation between Strozier and Asberry. 4 Asberry's version is slightly different from Strozier's. Asberry said that during the lunch break he was in the parking lot near his car when he was approached by Stroziers who asked him if he would take him for a ride in his car. Asberry said he did not respond but, when he was asked a second time, he told Strozier, "No, never." At that point Strozier told Asberry he would kick his ass. Asberry responded that he doubted it. As they start- ed toward the cafeteria, Strozier said to Asberry, "uncle tom, ass licker, honkey lover." Asberry corroborated Strozier's testimony that during the entire conversation they were 10 to 12 feet apart. Asberry said he was not worried and he told Strozier he was not worried about it and continued walking. Strozier then brought up the color of Asberry's car. He asked him, "why didn't you get black." (The color of the car was red.) Asberry said that he proceeded to his work station and that Strozier came behind him. Asberry said Strozier hollered to him to come back and Asberry told him he must be crazy. Strozier than told Asberry that he was going to slap him if he came back because he figured his brother slapped Asberry in the past and Asberry did nothing about it and that Strozier knew if he slapped him Asberry again was not going to do anything about it. Asberry then went back to his work station but Strozier did not follow him. Asberry next went to his foreman, Earl McClellan, he testified, "I told him that me and George had been in an argument and I wanted him to say something to him- say something about it, you know do something about it because George had been aggravating me all the time. So I was tired of it, and so I told him. And he asked me, he said, 'Do you want me to get involved?' I said, No, not really, 6 but say something to George. Just say some- thing to him, and he asked me, Earl said, 'you want me to get involved,' and I said, No, not necessarily-and I then started up the aisle towards the conrac crane run- ning my job." Asberry said that Strozier came to him and told him "What he was going to do to me. He said after work- after we get outside the gate, it's going to be different. You're going to have to show me different than now, you know what he was telling me he was going to whip my ass, I reckon, or something like that. And I ignored Supervisor Jennings, according to Strozier hlistened to them and henl w·ent hack Io the office Stro7ier surmised that Supervisor Jennings .,enl in to tell his superiors in the office that there was going to he a big fight rand that it bsas b uloi l up from that Asbrr5 had hought a n car recently assume Asherry nmeant hb his negative response that he did not sailt Foreman McClellan to take anll official actio including reportinlg it to lte front office X35 DECISIONS OF NATIONAL LABOR RELATIONS B()ARD him. I just said, uh-huh, just like that. And then I went on back down the aisle and he went on back to his sta- tion. He was hollering from his station at me some words but I couldn't quite hear him." Asberry said that at the time he was hollering Strozier must have been 15 or 20 feet from him. Asberry said he also spoke to Rance Sprayberry and Sam Oliver, the personnel director and manager of fac- tory operations, respectively, Asberry reported to them what occurred. He said that they called him in to their office. 7 According to Asberry, his relationship with Strozier started to sour when they were playing basketball to- gether. Asberry said that Strozier "just didn't have the attitude to play basketball," that he "didn't have the sense to play" and that he "just didn't have it in basket- ball, but he played anyway." And at the time they did not get along. Asberry told Oliver and Sprayberry about the basketball experience and why he quit. He said that Strozier's attitude which had an effect on all the players. He said that he also reported the plant incident to Plant Manager Roberts at Roberts' initiative. Asberry corroborated the testimony of Strozier that they were going to lunch together almost daily and that they would go in different cars and take turns driving. He said that he was the last one out on a particular day before the April 18 incident, that the others were already outside, and that he thought that maybe they were going to lunch as they did every other day. When Asberry came out they told him that they were not going to lunch. Asberry testified as follows, "So I just wondered why they changed their minds all of a sudden, you know, because I thought they were going in my car before then. So, things changed, so I got to ride with somebody else and went on." Asberry also stated that from that time on it appeared to him that Strozier started disliking him because Strozier told him in the cafeteria a couple of times after that not even to speak to him. As- berry said that is why he acted the way he did when Strozier asked him for a ride in his car. Asberry admitted that he held it against Strozier for not taking him to lunch with them but it was not all his fault. He said, "I figured they had to have something against me to dislike me being with them, you know. The way I seen it, I figured they had been saying some- thing-had been talking things over before I came out- side." Asberry was asked: Q. Didn't it really amount to a kind of game that you two were playing with each other about who struck John and who did this or whose responsible for this? Wasn't that sort of a game? A. You could put it like that because all of us was acting silly. At or about 3 p.m., Foreman McClellan came to Stro- zier and told him to go to Personnel Director Spray- berry's office. Sprayberry and Operations Manager Oliver were there. Sprayberry told Strozier that Asberry ? Significantly, Asberry did not go to them on his on. They called him in, probably after receiving a report from Foreman McClellan or Jennings, or both. had come and told them that Strozier had threatened him.' Strozier asked why Asberry was not there and Oliver told him that they had already talked to Asberry. Strozier asked them to talk to Asberry and get the straight of it. Oliver replied that Strozier should not worry about it. Strozier then told him that he knew that they had been trying to get rid of him for a long time and now had come up with this scheme. Strozier told them they were trying to make a big issue out of nothing and accused them of trying to get rid of him because of his union activities.9 Plant Manager Roberts testified that George Strozier spoke out aggressively during a company campaign meeting on or about April 10, 1979. The record further establishes that Strozier initiated a second, private meet- ing the following day with Roberts in which he repeated many of his complaints and criticisms of his job and em- ployees he worked with. Roberts denied that Strozier's discharge was related in any way to his demeanor or content of his statements during either of these meetings. Concerning the meeting that Strozier had with Rob- erts, Strozier said the following: Mr. Roberts, he got right in my face, you know, like he got right in my face. He was trying to con- fuse me, you know, trying to use some psychology on me saying, would you settle for a Volkswagon if you could afford a Cadillac? I said no, I said I wouldn't do that. He said well, that's what I'm trying to say. We're in a better position now, you know as far as the Union, we don't need a Union. I said, Mr. Roberts, the employee should make their decision, and you should let the-you're going to let the Company decide that. Then he got start- ed-he got mad, and he said, 'I'm through.' You know, he didn't want to discuss anything. I said Okay, thank you for your time." As noted above. Asberry as called in to Sprayberry's office by Sprayberry and Oliver Asberry did not voluntarily go to the office to report the incident. 9 As previously indicated, Strozier started working for Respondent in June 1978 and at the time of his discharge on April 25, 1979. had worked his way up to be production welder under the supervision of Foreman Clyde Jennings. Strozier signed a union card on December 18, 1978, and on April 10, 1979, the welding employees had a meeting concerning the Union with Plant Manager Roberts. During that meeting Strozier chal- lenged Roberts on what Roberts was telling them about the Union Rob- erts was annoyed and told Strozier that he did not think Strozier was happy with the Company. Strozier told Roberts "that was what Roberts wanted him to do. Quit, but he was not going to quit." The next day Foreman McClellan, who was also present at the April 10 meeting, threw a broom at Strozier and told him to sweep. Strozier went to see Roberts and told him of McClellan's actions and asked Roberts "why McClellan bypassed all the other welding tables that were not doing anything to get to him to sweep the floor." Roberts told Strozier that it was a racial thing that they were having since the Union had been there and that Strozier was upset about it. Strozier denied being upset and told Roberts that he had come there to discuss the Company's problems. Roberts re- plied that the Company was running smoothly until the Union came in Strozier said one of the problems was supervisory favoritism and, because of it, certain people did not get raises who deserved raises He again told Roberts that he knew Roberts was trying to get rid of him but he was not going to quit. Roberts again told Strozier that he was not happy there Strozier said that Roberts became angry and the conversation ended. 836 NATIONAL STEEL PRODUCTS On the afternoon of April 18, following the Asberry "run-in," Foreman McClellan recommended to Plant Manager Roberts that Strozier be temporarily suspended pending a full investigation of the facts. Acting on McClellan's report Roberts instructed Personnel Man- ager Sprayberry to suspend Strozier pending his further investigation of the incident. Strozier was thereafter in- terviewed and suspended for 3 days by Personnel Man- ager Sprayberry on the afternoon of April 18, with instructions to contact Roberts the following Wednesday morning for a final decision concerning his job status. Roberts stated that he reviewed the entire personnel file of Strozier including the previous disciplinary repri- mands issued to Strozier contained therein prior to making his final decision to discharge Strozier. Roberts said he reached his decision to discharge Strozier on ap- proximately Monday, April 23, 1979, without talking to Strozier directly. He subsequently communicated this de- cision in a very brief telephone conversation 3 days later when Strozier called in pursuant to Sprayberry's earlier instructions. Employee Eddie B. Gholston testified concerning the Strozier-Asberry incident of April 18, 1979. He said that around 12:25, just before lunch, "the lunch bells wound for him to come in back to work." Asberry, Strozier, Turner, Williams, and he, while walking, heard Strozier say to Asberry, "Warner, you don't get mad anymore because I didn't take you to the store, because you have your own car." When Warner did not reply Strozier re- peated his statement. Gholston heard very little else of the conversation. But he testified that on April 23, his foreman came to him and told him that Plant Manager Roberts wanted to see him in his office. Upon entering Robert's office, Gholston was asked by Roberts what he had heard between Strozier and Asberry. Gholston told Roberts substantially the above. Gholston continued, "Roberts asked me: said, George is a pretty big fellow. I said, Yes, and he asked me; said, Do you think George is going to jump on Warner? I said No, if he wanted to jump on him, he would have and I also told Mr. Rob- erts; I said George is always talking but he never picked on nobody. Not as I knows of and Mr. Roberts said that George had had several run-ins with several people in the plant; and I told him I didn't know anything about that and that's all that was said about that." Strozier stated emphatically that during his conversa- tion with Asberry, Asberry was not operating the crane at the time. Strozier said he was standing still waiting for work and that he was standing still resting on the crane. About 2 hours after the incident between Strozier and Asberry, Strozier called Asberry. Strozier's testimony: You're still mad, man and he said no, man, don't worry about it. I said, well, man, you know how we carry on. I said, you know, you shouldn't be acting like that, man, because as long as we've been knowing each other, we shouldn't be acting like that-as many favors as I've done. It was shortly after that Strozier was called into the office and questioned about the incident. B. The "Run-in" With Foreman Jerry Short Strozier was asked on cross-examination about the problem he had with Foreman Jerry Short. Strozier said he spoke to Sam Oliver about it and told Oliver that Short was "putting too much work on him." He said Short gave him extra work that he was not supposed to be doing but he did it because Short knew Strozier was a good worker and would not decline. Strozier also stated that at the time he was afraid of his job so he did it. He did just what Short told him to do. He said Sam Oliver told him that he knew Strozier was a good employee and that he was glad that Strozier came to him and talked to him. Oliver told Strozier he was going to put him back on first shift to be a crane operator and that if he did a good job the first week he would get a raise and if he did a good job the second week he would get another raise. Strozier got both raises. Strozier said that he had asked Oliver to get off the second shift with Foreman Jerry Short also because he had personal problems at home. He said that he was glad to transfer from the second shift for both reasons. C. The "R un-in" With Pierce Stockham Strozier received a written warning for the "run-in" he had with Pierce Stockham. It appears that while Stro- zier was operating a crane Stockham brought some mate- rial to Strozier with the smaller crane Stockham was op- erating. Strozier was to pick up that material with his crane and deliver it to another point. The material in question was hot-stacked metal parts which had a tem- perature over 100 degrees Fahrenheit. It caused skin burns when touched. Strozier testified that Pierce had placed the steel stacks, which he transported one stack at a time, too close together "making it very difficult for Strozier to place the crane's chain up under the steel to pick it up without burning his arms. So, he asked Pierce if he would mind placing the steel stacks a little farther apart so he would not burn his arms as he had several times in the past. Stockham got upset, cursed, and said, "Don't you tell me how to run my damn job." Strozier replied, "I'm not trying to tell you how to run your job, Pierce. I just would like for you to move this steel a little bit farther apart because I won't burn my arms be- cause this stuff is hot." Strozier testified: And, so he got all mad and started getting hot and about that time he put his hand in his pocket and so I know Pierce carried a knife. I thought he was going in his pocket to get his knife. About that time, Charlie Johnson came by and asked what was the problem. I told Charlie Johnson that I asked Pierce to move the steel apart because I won't burn my arm and he said; Well let's go to the office. Let's go to the office and get it squared away. So we went to the office. We go to the office, Sam Oliver told me to have a seat and he said: he asked me if I'd ever been out with Ben Stargell. If I'd ever drunk beer with Ben Stargell. I said; No. Me and Ben Stargell we asso- ciate but, you know, I see him here and there but I hardly never drink, you know. And, he said; Well, 837 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anyway, Pierce was sitting there like he didkn't know what was going on. And, Ben said-Ask me what the problem-I said; Sam, you know, I'm running a crane. I'm doing a good job. He said; that's right. You're doing a hell of a good job. I know you're doing a good job. I said; Wait a minute; I asked Pierce would he mind moving his steel apart and I showed Sam my arm that was burnt already. I said; My arms already burned up from the steel. I asked Pierce would he mind moving the steel apart where I can fit my chain in. So anyway, I said; No, I hadn't drunk beer with Ben anyway. He said; Well, anyway, what's the problem out there with you and Stockham or Pierce. So I said; Sam, you know, I got a hard job out there. I work all the time back up and down through there. And I said-He said; You're doing your job. I'm proud of you. I appreciate what you're doing for me. I said; Well, all I asked Pierce to do was move-I said; the next time he stacks up would he mind just moving that stack a little bit farther apart because that stuff is hot. I mean, it would be burning hot too when it comes off that. He got all mad and told me I don't tell him how to run his damn job because he runs this machine. I said; I told Pierce I am not trying to tell you how to run your job. I just ask you would you mind moving the steel apart. He got mad and started talk- ing like he went in his pocket and, you know he carries a knife. He always got it popping out, you know, so I thought he was going in the pocket after his knife. That's when I got out on top of the steel. About that time, Charlie Johnson came down through there. Charlie said; What's the problem? I said; Charlie, I just asked Pierce would he mind moving the steel because I won't burn my arm. This stuff is hot, man. Charlie said; Well, let's go to the office. ' o Strozier testified further that this was the first time he ever had any problem with Pierce Stockham, that in fact, that was the first time he ever said anything to Stockham. He also stated that the other times when the stacks were too close and he had burned his arms Pierce Stockham had been the person who had stacked them. Strozier was asked whether after he told Oliver his story if Oliver asked Pierce Stockham to give his expla- nation of what had happened. Strozier said that Oliver did not ask Stockham. He told Stockham to leave and then turned to Strozier and said, "Strozier you got a rep- rimand." Strozier replied: The way you explained it to me like this regular procedure, you know, this ain't nothing just some- thing, you know, we do. Just go on and sign this. It's just a reprimand. I said-Okay. I went on and signed it and then I didn't know anything about it. I didn't know what it was. I thought it was just a regular procedure. I didn't know it was going to '' Charles Joh non was acting foreman in the abclnce of Earl McClel- lan damage me as far as my job by the way Sam ex- plained it to me. Then like it's just a regular proce- dure. Just go ahead and sign it. There ain't nothing to it. So,- went on and signed it. He didn't give Pierce one. D. The Carl Fowler "Run-in" The Fowler "run-in" occurred after the Stockham "run-in." On cross-examination George Strozier testified as follows concerning the Carl Fowler "run-in:" Q. Okay what happened between you and Mr. Fowler? A. Well, me-Carl Fowler-it was several people involved. Me, Carl Fowler, Walter Ellison, Donnie-I don't know Donnie's last name-Donnie the dude that was helping Carl. We didn't have anything to do. All of us were called up. We were standing around talking, shooting the bull and ev- erybody was talking about what they were going to do this and that day, you know. I said: Well-I said: Carl, you got it made now ain't you. I said: You're kissing Sam's ass now. I said: You got it now. You're going to get the Carl Fowler job since-I mean Paul Scrubs. He left that day, you know. There was a top position called the filler. Carl was in line next to get that job so I said: Carl, you're going to get top filler pay now since Paul Scrubs has done left. He said: "Aw, man, I might get it." I said-He said: " ain't sure." He said, "I don't know, you know." I said: Aw, man, you know you're going to get it and so about that time Walt came over and said I had to get some more steel. I went and got some more steel and about an hour later they called me to the office and Carl was already in the office. Q. Do you know how he got there? Did you see anybody from management come out and get him? A. No, I didn't pay any attention because I was working. Q. Was this the first time that you had said to Carl Fowler the phrase you had used, kissing Sam's ass, the first time you had said to Carl Fowler. A. No. That's the first time I said it to Carl Fowler. Q. The first time you used the phrase to him'? A. Right. Q. You had been-you hadn't been telling him that a couple of days, several times a day: saying that to him bugging him about that? A. No. This happened every day. We always tell each other we kiss and you know folks' ass, you know, just try to hold our jobs. I have been told that. I have told other people that. Q. So, the two of you were just kidding back and forth? A. Right. We were just bull shitting and he was just in a bad mood that day. I guess h was trying to get serious because he was trying to get that top pay job and he was trying to impress Sam, I guess. 838 NATIONAL STEEL PRODUCTS Q. Then I interrupted you. You went in the office and saw Carl Fowler there. What happened? Whose office are you talking about? A. Sam Oliver. Q. Who else was there? A. The only ones there was me, Carl Fowler, Sam Oliver. Q. How about Clyde Ginn. Was he there? A. I think Clyde-yeah, I think Clyde was up there with me. Q. Did Mr. Oliver give you a chance to explain what had happened? A. I told him exactly what happened. I told him that we was. Q. I am sure you did and, did you-did Mr. Fowler have a chance to explain what had hap- pened? A. He didn't say. Let me see. I can't recall what Carl said but I told Sam-I said: That me and Carl play all the time. We bull shit. He plays with Walt. The thing about it was all of us joked together. That day I don't know why he took what I said so seriously. He is, and told Sam and Sam said-told me that-asked me-he asked me what I told Carl or said to Carl. I just told him that he is in a bull manner, that he is kissing your ass and Sam said: "Well, Carl's not kissing my ass. Not in the sense you put it." I said: "Well, Sam, you know how we are. We're always bull shitting. He said: "Well, I know but still you shouldn't have told him that." I said: Well, Carl you know how we always joke around. He said: And Carl didn't-give no kind of comments. Strozier said he was shocked when he went in the office and he wondered why he was in there. He said that Carl Fowler had laughed off what he had said to him about the job and Sam Oliver. Strozier was given a written reprimand by Sam Oliver for that "run-in" with Carl Fowler. Strozier said it appeared funny to him that everything was written up when he got there; that this particular reprimand was already written up and handed to him by Oliver for him to sign. Following that episode Strozier and Carl Fowler got along well together and there were no hard feelings shown by either side, according to Strozier. There was another incident in which Strozier while doing welding work next to Mike Tucker, who according to Strozier was very bossy, probably because Tucker had a little more seniority than Strozier, went to Foreman Clyde and asked Clyde to move him and they were moved apart. Strozier was not reprimanded for that incident. " E. The Discharge of Michael Moore The complaint in Case 10-CA-14965 alleges in para- graphs 9 and 10, and the answer denies, that Respondent denied the request of employee Michael Moore for union representation during an interview which Moore had reasonable cause to believe would result in disciplinary II Without his knosledge. Stroile r rceied a xw arning for failuire to punch it otl leax ing the plani abhiut i x cek before his discharge action; and Respondent conducted the interview with Moore, notwithstanding the fact that Respondent had denied his request for representation. Paragraphs 11 and 12 of that complaint alleged that Respondent discharged Michael Moore because of his union activities. Moore started work for Respondent in August 1978 as a material handler and was promoted to assistant ma- chine operator. He signed a union card on April 4, 1979, and on June 20, 1979, the day of the Board-conducted election, Moore handed out union leaflets at the plant gate in the presence of Plant Manager Roberts. Moore testified that there was a notice posted above the timeclock in all the departments with the work schedule for the week of July 4, 1979. On July 2, Moore went to his foreman, Earl McClellan, and spoke to him about being off that following Saturday, July 7. Accord- ing to Moore, McClellan replied that in all probability they would not be working, "but he would arrange it where I could be off in the event they were. And I went ahead and made the assumption that I would be off and made plans." 2 Moore stated that on the morning of July 6, McClellan told him that the schedule had been changed and that they would be working Saturday and that Moore could not have off. Moore went to see Sam Oliver, the production man- ager, and requested time off. Moore showed the tickets in his possession for the drag races to Oliver. Oliver told Moore that he could not grant Moore time off because other employees had also asked for the same time off, and it was not fair to them or to Moore to let him off and not them. After lunch, he went back on the floor and talked to Ronnie Johnson, who was acting foreman at the time, and requested time off. Johnson said that if Moore would come in and work a half-day he would do his best to get Moore off the rest of the day. The following day, Satur- day, Moore did come in and worked a half-day. While at work that morning, Moore was approached by Acting Foreman Johnson and was told that Oliver would not go along with letting him have the afternoon off. Johnson then said, "I can't let you off." According to Moore, Johnson stated further, "In the event that you leave anyhow, you will probably be subject to a three-day sus- pension and a reprimand." Moore told him he had al- ready made a commitment and he had to go and at noon that day Moore clocked out. Moore reported back to work on Monday morning. He clocked in and at or about 9:50 a.m. Johnson came to Moore and told him that Oliver wanted to see him in his office. Moore asked Johnson if it was in regard to his leaving early Saturday and Johnson replied in the affirm- ative. 12 Moore had bought to sets of tickets to the funny car and national title series of the Atlanta International dragway races for July 7 and . Ihe) consisted of a general admission ticket and a pit pass for each day As explained hy Moore. the pit pass was necessary because a friend of his had entered a car in the race and Moore hd agreed to assist him in the pit during the race Apparently Moore was to spend his time in the pit and the friend ac.otlllpailrilng him was to urse the general admission pass 839 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moore testified that at that point, he requested that Larry Mallory, one of the temporary stewards,'a accom- pany him to the office "since it was disciplinary action." He said that Johnson said that the Company did not rec- ognize the Union and that Moore was not allowed a union steward. Moore said that he was going under pro- test. He then proceeded to Oliver's office, and in ap- proaching Oliver, Moore asked for a union steward. Oliver told him the company "doesn't recognize the Union. We can't allow you to have one." According to Moore, Oliver then showed him his ti- mecard from Saturday and asked him if that was a mis- take. Moore replied that it wasn't a mistake, but it was a mistake in his leaving. Oliver then handed Moore a "quit notice" which Moore had given Johnson on Friday. 24 Moore told Oliver he would not quit; that he would like to withdraw his quit notice; that he was willing to take the 3-day suspension and reprimand if necessary; and he would sign any type of reprimand Oliver wanted to write up. Oliver told Moore he no longer had a job there and to turn in the company property to the tool shed. He said that Oliver then said, "Get out of here! If you're not out by 10:00, I'll have the sheriff's department escort you out." Moore stated Johnson had granted him time off and told Oliver that he was aware of McClel- lan's conversation on July 2. Oliver told him that John- son did not have the authority to grant Moore time off. Acting Foreman Johnson testified that he was notified by Foreman McClellan that inasmuch as they would be off July 4 they would be working that Saturday and he informed all the individuals in the department of that fact including Moore. Johnson said that Moore asked him several times to get off Saturday. Johnson told Moore that he would not be able to be off Saturday be- cause there were other employees who were asking to be off Saturday and they could not be off. Johnson said he also told Moore that he did not have the authority to give him permission to be off. Johnson denied ever giving Moore permission to be off and he said that other employees asked to be off and he also denied their request. The other employees were Pierce Stockham, John Chelsey, and Warner Asberry. Johnson said he talked to Moore on Friday and Moore asked him what would happen if he did not come in the next day, Saturday, to work. Johnson testified that he told Moore that he would probably get a 3-day suspen- sion or he might lose his job if he did not show up Satur- day and work all day. Johnson further testified that Moore replied that he would come in, but he did not tell him he would leave at noon. Johnson said on that particular Saturday all the em- ployees in the department, including Moore, showed up at 7 a.m. On that morning Moore approached him and asked if Johnson would let him off, and Johnson replied, "No. Everybody has to work 10 hours today. That was the schedule. I said, if I'd let you off, everybody else " On June 26. 1979, the Union sent Respondent a telegram notifying it of the names of the temporary union stewards. 14 Moore had given Johnson a written 2-week notice of resignation be- cause of, according to Moore, the constant harassment which he had re- ceived from Johnson that week That was the first and only indication of harrassment from Johnson in the record. would be wanting off. And Sam had already informed me that you would be working Saturday." He said that Moore's response was that he would be working Satur- day. He said that Moore's response was that he would just take his chances. He said that Moore left at noon but everyone else worked the full day that Saturday. Johnson also denied, emphatically, that Moore asked for a man named Larry Mallory to accompany him to the office. He said that Moore asked for no one. Johnson also denied that Moore asked for a union representative during the meeting with Sam Oliver. He said that he did not at any time hear Moore ask for a union representa- tive. Johnson was asked if, during the meeting with Oliver, Oliver told Moore to get out by 10 o'clock and if he did not he would call the guard and have him arrest- ed, or anything like that. Johnson replied that that was not said during the meeting. He said that Oliver's words were, after discussing the quit notices, "I think it would be better if you go ahead and quit now. You can go ahead and get your stuff and go ahead and leave." Then he and Moore walked out. Johnson further testified that the first time he saw the quit notice was on Friday, July 6. He said that, as he and Moore were walking down the bay that they worked in, Moore handed him a yellow piece of paper (the quit notice). Moore did not say anything at the time. Johnson said he asked Moore what it was and Moore replied, "it's a quit notice." Johnson said he made no effort to find out why he wanted to quit. Johnson denied that he told Moore to come in Saturday morning and that Johnson would try to get Moore off for the afternoon. He also denied asking Sam Oliver if Moore could take off on Saturday. Johnson further stated that Oliver had told him that nobody would be off Saturday. Johnson gave Oliver the quit notice on Saturday and then accompanied Moore to Oliver's office on Monday, upon Oliver's request. At the meeting Oliver told Moore that he had walked off the job Saturday and Oliver then showed him the "quit notice" and asked Moore if he had written it. Moore said he had and that it was a foolish thing that he had done, walking off the job. Oliver told Moore that inasmuch as he had written the quit notice he might as well go ahead and quit then. Oliver then told Moore to get his materials, turn them in, and leave. Moore got his things together, turned them in, and left. Johnson said that just before Moore left he shook hands with Johnson and said, "I know I done a foolish thing and I regret it." Moore told Johnson that he knew John- son had nothing to do with it and that it was his own fault. Sam Oliver testified that Moore had first spoken to him on Thursday about being off on Friday. He said that Moore received permission to talk to him; came to his office and told him that he had made plans to go to the races and would like to be off Saturday. Oliver told him that he had no backup people to move into the spot if he let Moore off and that he needed him. He said that Moore said, "Okay." He would be in to work. Oliver said that he and the entire crew were in Satur- day morning. He did not recall whether anybody had called in sick but he did not believe so. He said every- 840 NATIONAL STEEL PRODUCTS thing was going as he had set it up; that Moore was working that morning but not in the afternoon. Oliver further stated that after returning from lunch Saturday, and noticing that Moore was not there, he approached Acting Foreman Johnson, who told him that Moore had punched out and had left at noon. The next time Oliver talked to Moore was on Monday morning when he re- quested that Moore be brought into his office to find out why Moore had told him he was going to work and in- stead clocked out without telling anybody. Oliver said he asked Moore why he had clocked out at noon that Saturday. And Moore replied,"it was a pretty dumb thing I had done. I've really messed up." Oliver told him, "Well, you certainly have messed up. You left your job without being relieved. In fact you walked off the job." Oliver then told Moore, "You gave notice you're going to quit." Moore responded in the affirma- tive.'5 Oliver asked Moore if he wanted to make it effec- tive as of then and Moore said he did. Oliver then told Moore to clear the tool room and clock out. 16 Sam Oliver also denied that Moore had at any time made a request for a union steward or a union representative. F. The Alleged Refusal To Promote Ben Stargell Because of His Union Activities Ben Stargell started working for Respondent in Janu- ary 1976. He is a trim painter under the supervision of Foreman Charles Jennings. Stargell signed a union card on July 21, 1977. About a month later he was ap- proached by Industrial Engineer William Biggers at his work station who told Stargell that everybody upstairs thought that Stargell was a big union worker. Stargell responded, "No, man." Biggers volunteered that he did not think Stargell was a big union man. Stargell asked Biggers if he wanted to know if Stargell had signed a union card because, if he did want to know, the answer was "Yes." Biggers asked Stargell if he had ever worked in a union shop before. Stargell told him "No." Biggers then asked Stargell if he wanted to get his union card back he could write Estes Riffes' boss in North Carolina and request to get the card back. He asked Stargell if he wanted the address and Stargell told him he did. About an hour or so after that, Biggers slipped a piece of paper to Stargell with the Union's North Carolina address on it. In September 1977, Stargell approached Foreman Jen- nings and told him he would like the job of zee-line painter during the absence of regular zee line painter, Quinton Rice, who was then hospitalized. Jennings told Stargell that he planned on putting Jimmy Traylor back on the job because he was the only one with experience. Later, Stargell saw new employee David Traylor per- forming Rice's job. Stargell asked Jennings why they had given David Traylor the job after Stargell had asked for it. Jennings told Stargell that David Traylor was 1S Oliver testified that he swould have fired Moore een if he had not submitted a quit notice He said it was company policy to fire individuals who either alked off the job or refused to %work overtime He men- tioned the names iif four former employees who were fired under similar circumstances 16 Oliver denied telling Mcoore that he'd better clock out by 10 o'clock or he would have a police guard there to get him out hired for the job. Stargell told Jennings that he had more seniority and that he was looking for a better job. Jen- nings told Stargell that Stargell should not have signed a union card. Stargell told Jennings that he felt that Jen- nings was doing him wrong because he had signed the card and that he felt he should have gotten the job anyway. He also told Jennings that he felt he was being used because he had signed a union card. Jennings then went to the office and about a half hour later returned to where Stargell was working and told Stargell that he was sorry about what he said previously about the Union just1 7 and that he did not know what else to say. Jennings then told Stargell that he would train Stargell as a backup painter in Stargell's spare time. Foreman Jennings testified that David Traylor was not hired by him but was sent to him by Personnel Manager Rance Sprayberry. He said that Jimmy Traylor, who had been working on the zee-line painting job for 2 or 3 days, had to be sent back to the spray booth where he was needed. He said that David Traylor worked with Jimmy Traylor for the 2 or 3 days before David took on the zee-line painting job. Jimmy Traylor and David Traylor were cousins. Jennings testified that Ben Stargell had talked to him about the zee-line painter's job a couple of months before David Traylor was put on the job. He said that Stargell asked him that if the job ever came open, he thought maybe he would like to train for it, "like to try it out." When he was asked why he did not select Stargell for the job, Jennings responded that at the time he had nobody to back up Stargell and that he would also have had to train Stargell for the new job. Jennings said that the day after he put David Traylor on the zee-line painter job Jennings went to the flashing paint area where Stargell was working to make a routine check and that Stargell asked Jennings why David Tray- lor was put on the job. Jennings responded he had to have someone run the paint booth while Quinton Rice was in the hospital. When Stargell asked Jennings why he was not put on the job, Jennings told him that he did not have a backup man for Stargell. Stargell responded that he did not feel that that was the reason and then told Jennings that he had heard that Rice was not coming back to work. Jennings said that Rice was coming back to work and that everything was okay. Stargell said, "Us blacks around here just don't have a chance." Jennings then went to Sprayberry's office and told him about the conversation with Stargell and Sprayberry told Jennings to explain to Stargell that the job was tempo- rary: that Stargell would be put on the job if he wanted it; but when Rice returned from the hospital he would have to go back to his regular job. Jennings told Stargell and Stargell responded, "No, that's all right. Just forget it. I don't want it." David Traylor continued to perform the job until Rice returned from the hospital. David Traylor was on that job approximately 2 months. i1 The zee-.ine painting job was posted in 1978 At the time. Stargell told Foreman Jennings he Was going to bid on the Job and Jennings told him not to do, that because he would get Stargell a raise 841 DECISIONS OF NATIONAL. LAB()OR RELATIONS BOARD Jennings testified that after several months Quinton Rice had to return to the hospital for another operation. He said that before reassigning Jimmy Traylor to that job on a temporary basis he asked Ben Stargell if he would like to have the job on a temporary basis and Stargell refused it.' 8 Foreman Jennings was then asked whether in his conversations with Stargell the Union came up. Jennings said that it did not. On cross-examina- tion Foreman Jennings admitted that he knew that during the union campaign at the Respondent's place of business that Jimmy Traylor and David Traylor were against the Union and Ben Stargell was for the Union. IV. THE 8( A)( ) ALL.EGATIONS The complaint alleges that one of Respondent's super- visors threatened employees that they would no longer be able to bring their grievances directly to management if they selected the Union as their bargaining representa- tive. In that connection, the General Counsel offered the testimony of Press Operator Donnie Hinkle who stated that during a meeting called by Plant Manager William N. Roberts in August 1977, he was told along with other employees that if employees had problems on the floor they would not be able to go to their foremen or plant manager but would have to go through the Union. Hinkle testified that the then existing procedure in the plant was for the employees to go to their foremen. Plant Manager Roberts testified that he told the em- ployees that if the Union should come into the plant they would have to go through a grievance procedure and that they would no longer be able to come directly to him with a problem. He said they would have to go to their stewards, then to their supervisor, next to the oper- ations manager, and finally to the plant manager. Welder Jimmie Harper testified that during a meeting of plant employees in August 1977 Personnel Director Rance Sprayberry told the employees that if the Union came in the employees could no longer go to him with their grievances but would have to go to the steward or president of the Union. The complaint alleges that Respondent solicited its employees to withdraw their union authorization cards. Donnie Hinkle testified that during the August I meeting described above Plant Manager Roberts told the employ- ees that some employees had come to him expressing a wish that they had not signed cards and wanted to get the cards back. Roberts followed up that statement by telling the employees to write Union Organizer Riffe's boss and to go to Personnel Manager Sprayberry's office to obtain the address. Welder Jimmie Harper corroborat- ed Hinkle's testimony and Plant Manager Roberts ad- mitted the above. '" Jimmy Traylor was put back on the zee-line painter's job on a tcm- porary basis then he was removed from it and another employee was put on the job. That employee had absentee problems and another employee was transferred to that job. In no case did any employee gel an increase in pay when he went to the zee-line painter job on a temporary basis. Rice finally returned to the job after his second hospitalization, but Rice then requested, and was granted, a transfer to a lighter job The job was then put up for bid but Stargell apparently did not bid for it. The job went to one of three individuals who had bid for it. Forklift operator Timothy Moncus testified that in August 1977, during a plant meeting, Personnel Director Rance Sprayberry told the employees that certain em- ployees had come in requesting how to get their union cards back. Sprayberry told them that anyone who wanted the address could get it from him. Stargell also testified that during a conversation with Industrial Engi- neer Williams Biggers, Biggers asked him if he wanted his union card back and suggested he write to Estes Riffe's boss in North Carolina and request that it be sent back to him. Stargell said he wanted the address so Big- gers gave Stargell a slip of paper with the Union's North Carolina address on it. A. Threat of Loss of Benefits The complaint alleges that Respondent threatened its employees with the withdrawal of all their existing wages and benefits if they selected the Union as their representative, by telling them that the Union would have to start with a blank sheet of paper and bargain from scratch. To support that allegation the General Counsel offered the testimony of press operator Donnie Hinkle who stated that during the meeting in August 1977 Plant Manager Roberts displayed a blank sheet of paper while he told the employees that negotiations would start out with zero. Roberts testified as follows: I said, well, you start with a blank piece of paper. You start talking about benefits, wages, working conditions, and you may end up with more than you have now, or you may end up with less or any combination thereof. B. Interrogation The complaint alleges that Respondent's supervisor in- terrogated its employees regarding their union member- ship, activities, and desires, and the union membership, activities, and desires of other employees. To support that allegation the General Counsel offered the testimony of Alvin Perkins who testified that he was first employed with Respondent on August 22, 1977, and during his breaktime signed a union authorization card. On that day, Production Manager Sam Oliver called Perkins and two other employees into his office, who with Perkins had started work for Respondent that day, and told them that he wanted them to know how the Company felt about the Union. Oliver said that he un- derstood one or two of them had already been ap- proached by union representatives and that one or two of them had already signed a card.' Oliver told them that Respondent did not want a union. He said that during negotiations if the Union wanted a 10-cent-an- hour raise, Respondent would give them the raise but would take away a break, or if the Union wanted a break, Respondent would take away a paid holiday. The General Counsel also offered the testimony of forklift operator Timothy Moncus to support the allega- ," The complaint also alleges this statement to he creating the impres- sion of surveillance 842 NATIONAL STEEL PRODUCTS tion of interrogation contending that the invitation to them by Plant Manager Roberts during the August 1977 meeting to get information as to how they might get their union cards back was a technique or device which enabled Respondent to find out which employees were union sympathizers. Moncus also testified that during August 1977, in the presence of employee William Broom, while the employ- ees were looking for parts, Foreman Charles Jennings asked them what they thought about the Union. Jennings also told them that if they were under a union there would be no more standing around and it would be their job to find the parts without his help as he was then doing.20 In support of an allegation of a threat for loss of benefits the General Counsel offered the following: Moncus testified that Foreman Jennings pointed to a ma- chine that employee Eddie Gholston was running, stating that if the machine broke down and was not repaired within an hour, under a union contract that man would be sent home for the rest of the shift. Jennings also stated that the employees would be subjected to a job classifi- cation and if the work in a particular classification was completed, the employees would be sent home. Painter Ben Stargell testified that during August 1977 Industrial Engineer William Biggers came to him at his work station and told him that everybody upstairs thought that Stargell was a big union worker. 2 ' Stargell denied that. Biggers asked Stargell if he had ever worked in a union before and also asked him if he would like to get his union card back. C. Surveillance by Photography The complaint alleges that Respondent surveilled the union activities of its employees by photographing the union's representative as he distributed union literature. International Representative Estes Riffe testified that on August 30, 1977, he was standing in front of Re- spondent's plant distributing a union leaflet together with employees Eddie Gholston and Charles Spitner. Plant Manager William Roberts drove up next to Riffe, stopped his car, pulled a camera up in his hands, and took a picture of Riffe. Roberts later came back with Personnel Manager Rance Sprayberry and took some ad- ditional pictures. Roberts testified that the pictures he took turned out to be blank. D. Surveillance by Requiring Signing In The complaint alleges that Respondent's first-shift plant security guard surveilled its employees union activ- ities by requiring those employees who distributed union literature outside the plant entrance to sign in before being allowed to enter the plant. To support the allegation the General Counsel offered the testimony of metals applicator Charles Fetner who testified without contradiction that during August and September 1977 he handed union leaflets to employees as they entered the plant gate. After handing out the leaf- 21 This testimony is also offered by the General Counsel to support al allegation in the complaint of a threat of reprisal. 2: The complaint alleges this statement to he creating an impression ,of surveillance lets and as he entered the plant a guard required him and others who had been handing out union leaflets to sign in. Fetner testified that employees reporting for work during the week had not previously been required to sign in. This was the first time that he was required to sign in. E. Creating the Impression of Surveillance The complaint alleges that Respondent created an im- pression of surveillance of its employees' union activities by informing them that it knew who was for the Union and who had signed union authorization cards. In support of this allegation, the General Counsel of- fered the testimony of employee Alvin Perkins who stated that Production Manager Sam Oliver told him and two other employees that he understood one or two of them had already been approached by union representa- tives and that one or two of them had already signed union cards. The complaint alleges that Supervisor Earl McClellan created the impression of surveillance of its employees' union activities by telling employees that it knew the names of employees on the in-plant union organizing committee. In support of that allegation the General Counsel presented the testimony of structural fabricator Walter Ellison who testified that on April 25, 1979, Foreman Earl McClellan came to him and stated he be- lieved Ellison was messing up. Ellison asked McClellan what he meant by that and whether he meant the Stro- zier incident. McClellan replied in the negative and told Ellison that he knew Ellison was a member of the plant organizing committee. That testimony was also offered in support of the allegation of threat of reprisal. F. Threats of Discharge Because of the Employees' Union Activities The complaint alleges that Respondent Production Manager Sam Oliver threatened employees with dis- charge because of their activities on behalf of the Union. In support of that allegation, the General Counsel of- fered the testimony of employee Timothy Moncus who testified that in August 1977, during a shipping depart- ment meeting conducted by Production Manager Sam Oliver, Moncus asked Oliver if Respondent knew who was trying to bring the Union in and Oliver replied, "You bet we do." Oliver also said, "They" would not be around here if the Union did not come in, and "They" would not be able to get a job in this area. Also in support of that allegation the General Counsel presented the testimony of metal applicator Charles Fetner who testified that during the middle of August 1977 Oliver called Jimmie Harper, Donnie Hinkle, and him into Oliver's office. Oliver told them in the presence of Foreman Jennings and Personnel Director Sprayberry that there have been complaints on the floor that they had been harassing people and trying to get them to sign union cards on company time. Fetner and the others denied harassing employees and asked Oliver to produce names. Oliver declined, telling them the informers prefer to remain anonymous. Oliver also stated to them that if it 843 DECISIONS OF NATIONAL LABOR RELATIONS BOARD happened again he would "zap" them. Employee Hinkle corroborated Fetner's testimony. The above testimony was also offered to support the allegations of the complaint that Production Manager Sam Oliver threatened to interfere with the future em- ployment opportunities of employees with other employ- ers in the LeGrange, Georgia, area because of activities on behalf of the Union. In support of an allegation that Respondent threatened its employees with discharge if they joined or engaged in activities on behalf of the Union, the General Counsel of- fered the testimony of employee Walter Ellison, who tes- tified that on April 2, 1979, Foreman McClellan came to his work area and talked to him and employee Donnie Gay. McClellan told them that if the Union came in he could get more work out of the employees and that with the rate of production of some of them they would not make it under the Union. McClellan also stated that if the Union came in Respondent would be priced off the market at the high wages the Union was asking the Company to pay the employees. That testimony was also offered to support the allegations in the complaint that the statement by McClellan is a threat to close the plant. The General Counsel offered the testimony of loader- checker William Phillips to support the allegation of the complaint that Respondent's supervisors threatened em- ployees with reprisals if the employees joined or engaged in activities on behalf of the Union. Phillips testified that on June 20, 1979, the day of the Board-conducted elec- tion, Foreman Cleary asked if Phillips liked the Union and told him that if the employees voted for the Union to come in it would be harder on the employees. Also in support of that allegation, the General Counsel offered the testimony of assistant machine operator Michael Moore who testified that on June 20, 1979, he passed out union leaflets at the plant gate. Foreman McClellan came to him later that morning while Moore was working and asked Moore if Moore had strong enough feelings to support the Union to really publicly acknowledge this support.22 Moore replied that he just had by handing out leaflets. McClellan told Moore that in the event the Union came in the employee-employer relationship would change drastically. He told Moore that before, employees could come in and talk individually one-on- one to their supervisors to work out problems, but after- wards, he would be limited in his discussions with fore- men and would have to go through the steward in the event the employee had a problem. McClellan told Moore that McClellan would in turn become much like a security agent and would have to police the employees to make sure they were not loafing during the course of the day. V. DISCUSSION AND CONCLUSIONS A. The Discharge of George Strozier As previously indicated, Respondent contends that Strozier was discharged for violating company rule 18, following a whole series of disciplinary incidents involv- z The complaint alleges this statement by McClellan to be interroga- tion. ing both the harassment of and altercations with fellow employees. Respondent further contends that the culmi- nating incident leading immediately to George Strozier's discharge was his behavior in threatening and harassing employee Warner Asberry on April 18, 1979. 1 reject Respondent's contention. I believe that the reasons given for the discharge of George Strozier are pretextual and that George Strozier's discharge, as con- tended by the General Counsel, was because of his mem- bership in and activities on behalf of the Union. I base that conclusion on the following. With respect to the Warner Asberry incident the record reveals that Warner Asberry, Walter Ellison, Bo Turner, and George Stro- zier, all black employees, formed a sort of social group of employees within the plant who ate lunch together and engaged in other social activities. Asberry himself admitted that their actions were child- ish and silly. Asberry stated that during the entire inci- dent they were no more than 10 to 12 feet apart. There was no immediate threat of any fisticuffs or body con- tact. Asberry said he went to Foreman Earl McClellan and asked his foreman to talk to Strozier. His foreman asked Asberry if he wanted the foreman to get involved. Asberry replied, "No, not really but say something to George, Just say something to him." McClellan asked again, "Do you want me to get involved?" Asberry re- plied, "No. Not necessarily." It appears to me that McClellan's actions following that, contrary to Asberry's wishes, in reporting the matter to his superiors and the action of the superiors in calling in Strozier and, in effect, using that incident as a basis for discharging him, albeit there are other incidents none of which standing alone would justify the discharge of Strozier, would seem to indicate that a case was being built that Strozier could not get along with people. However, the case against Strozier collapses when the other incidents are analyzed such as the Stockham inci- dent in which Strozier alone was blamed even though he had a legitimate complaint concerning the stacking of hot metals by Stockham, resulting in Strozier burning his arms. When Strozier mentioned it to Stockham he over- reacted to the point where Strozier thought Stockham was going to pull a knife on him. Concerning the Carl Fowler incident I believe Stro- zier's testimony. Fowler, Ellison, Strozier, and others en- gaged in kidding or banter with each other and they did not mean anything by it. Strozier, according to his testi- mony, in the past had been on the receiving end of such kidding from his fellow employees as well as the "giving end." He alone was reprimanded for that conduct but I do not believe and certainly Respondent did not believe that that conduct, standing alone, merited the punish- ment of discharge. As for the Jerry Short incident I do not place any blame on Strozier for that inasmuch as Strozier was being overworked and that apparently such was ac- knowledged by Sam Oliver who used Strozier's com- plaint as a reason for transferring him to the second shift. The actions of Respondent towards Strozier when considered in the context of Plant Manager Roberts' atti- tude towards Strozier, as evidenced by Roberts own tes- 844 NATIONAL STEEL PRODUCTS timony, convinces me that Respondent was out to get Strozier.23 Roberts testified that Strozier spoke out ag- gressively during the company campaign meeting on April 10, 1979, and later at a private meeting with Rob- erts, Strozier repeated the complaints about his job and working conditions. Roberts' attitude during that meet- ing, as related by Strozier, revealed that Roberts was anxious to get rid of Strozier, a strong union adherent who apparently annoyed Roberts. I credit Strozier's ver- sion of the events in each instance where there is any conflict between his version and that of Roberts. Roberts was not candid or straightforward in his testimony. I therefore conclude that Respondent violated Section 8(a)(1) and (3) in discharging George Strozier, B. The Michael Moore Discharge Even though employee Michael Moore signed the union card and handed out union leaflets at the plant in the presence of Plant Manager Roberts, I do not believe that his discharge was pretextual or because he was a union adherent engaging in union activities with the knowledge of Respondent. Michael Moore received ample notice along with other employees that they would be required to work overtime on the Saturday in question. Even though he and his foreman made several efforts to get him excused so that he could attend "funny races," respondent refused to excuse him. Respondent also refused to excuse others who had requested time off on that day. Moore went so far as to write out a "quit notice" stating that he did so because he was being har- assed by his foreman. I do not believe him. I believe he wrote out the "quit notice" because he realized he would be fired for his walking off the job and therefore chose to resign rather than to be fired. Michael Moore was not a credible witness. I believe Acting Foreman Johnson, McClellan, and Oliver concerning that incident. I do not believe that Moore asked that he be accompanied by the temporary steward on the occasion of his interview where he could reasonably anticipate disciplinary action would be taken. I believe Respondent's witnesses that they did not receive a request from Moore for such rep- resentation. I shall recommend dismissal of the allega- tions of the complaint relating to the alleged unlawful conduct involving Michael Moore. Alpers' Jobbing Com- pany, Inc., 231 NLRB 449 (1977); Bankers Dispatch Corp., 233 NLRB 300 (1977); T. F;: E. Industries (a Division of Dayca Inc), 231 NLRB 612 (1977). C. The Ben Stargell Incident Foreman Charles Jennings, when approached by Ben Stargell concerning a promotion to the zee-line painter job, albeit on a temporary basis at the time, which even- tually turned out to be a permanent opening, told Star- gell that Stargell should not have signed a union card. Even though a half hour later Jennings, stated to Stargell that he was sorry about what he had said about the Union, I find Respondent refused to promote employee Ben Stargell because of his membership and activities on :' Employee Gholston, who witnessed much of what went on between Asberry and Strozier, testified that he did not believe that Strozier would have "jumped on" Ashberry behalf of the Union and because he engaged in concerted activities with other employees for the purpose of collec- tive bargaining or other mutual aid and protection in vio- lation of Section 8(a)(l) and (3) of the Act. VI. THE AI.IEGEI) 8 (A(1) CONDUCT I find that Respondent's conduct referred to in section IV, above, to be violative of Section 8(a)(1) of the Act. For the most part the testimony of the General Counsel's witnesses was not contradicted. Moreover, to the extent that the testimony was contradicted by the witnesses of Respondent, I credit the witnesses of the General Coun- sel who in each instance were straightforward, unhesi- tant, and, in certain instances, were corroborated by their fellow employees. Accordingly I find that Respondent's threats to its em- ployees that contrary to present practices, they would no longer be able to bring their grievances directly to man- agement if they select the Union as their bargaining rep- resentative; solicitation of its employees to withdraw their union authorization cards; threats to its employees that Respondent will withdraw all of the existing wages and benefits if they select the Union as their collective- bargaining representative, by telling its employees that the Union would have to start with a blank sheet of paper and bargain from scratch; interrogation of its em- ployees regarding their union membership activities and desires and the union membership activities and desires of other employees; surveillance of the union activities of its employees by photographing the union representative in the presence of employees as he distributed union lit- erature; surveillance of its employees union activities by requiring those employees who distributed union litera- ture outside the plant entrance to sign in before being al- lowed to enter the plant; creating an impression of sur- veillance of its employees' union activities by informing them that it knew who was for the Union and who had signed union authorization cards; threatening its employ- ees with the reduction of existing benefits by telling them that contrary to present practices when work is unavail- able before shift ending time they will be sent home if they select the Union as their collective-bargaining rep- resentative; threatening its employees that their working hours would be reduced by telling them that contrary to existing practices when their machines breakdown and are not repaired within I hour, they will be sent home before shift ending time if they select the Union as their collective-bargaining representative; threatening its em- ployees that it would impose more rigid and more de- manding work schedules upon them if they select the Union as their collective-bargaining representative; threatening its employees with discharge because of their activities on behalf of the Union; threatening to interfere with the future employment opportunities of its employ- ees with other employers in LaGrange, Georgia, area be- cause of their activities on behalf of the Union; threaten- ing its employees that it will withdraw their existing benefits by taking away their paid breaks and holidays if they select the Union as their collective-bargaining rep- resentative; and threatening its employees with reprisals if they select the Union as their collective-bargaining 845 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD representative, to be violations of Section 8(a)(1) of the Act, and I shall recommend that Respondent be ordered to cease and desist that and like conduct. 7'he Kerie Company, a Subsidiary of Harvey Hubbell, Inc., 236 NLRB 1084 (1978); Tufts Brothers. Incorporated, 235 NLRB 808 (1978); General Electric Wiring Device. Inc., 182 NLRB 876 (1970). CONCI.USIONS OF LAW 1. National Steel Products Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has engaged in unfair labor practices in violation of Section 8(a)(I) of the Act by threatening its employees that contrary to existing practices they would no longer be able to bring their grievances directly to management if they select the Union as their bargaining representative; threatening its employees that it will withdraw all of their existing wages and benefits if they selected the Union as their collective-bargaining repre- sentative, by telling its employees the Union would have to start with a blank sheet of paper and bargain from scratch; interrogating its employees regarding their union membership, activities, and desires, and the union mem- bership, activities, and desires of other employees; sur- veillance of the union activities of its employees by pho- tographing the union representative as he distributed union literature; surveillance of its employees' union ac- tivities by requiring those employees that distributed union literature outside the plant entrance to sign in before being allowed to enter the plant; creating an im- pression of surveillance of its employees' union activities by informing them that it knew who was for the Union and who signed union authorization cards; threatening its employees with reduction of existing benefits by telling them that contrary to existing practices when work is unavailable before shift-ending time they will be sent home if they select the Union as their collective-bargain- ing representative; threatening its employees that their working hours would be reduced by telling them that contrary to present practices when their machines break- down, and they are not repaired within I hour, they will be sent home before shift-ending time if they select the Union as their collective-bargaining representative; threatening its employees that it will impose more rigid and more demanding work schedules upon them if they selected the Union as their collective-bargaining repre- sentative; threatening its employees with discharge be- cause of their activities on behalf of the Union; threaten- ing to interfere with the future employment opportunities of its emloyees or other employers in LaGrange, Geor- gia, area because of their activities on behalf of the Union; threatening its employees that it would withdraw their existing benefits by taking away their paid breaks and holidays if they selected the Union as their collec- tive-bargaining representative; and by threatening its em- ployees with reprisal if they selected the Union as their collective-bargaining representative. 4. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, by sus- pending then discharging, and failing and refusing to re- instate its employee George Strozier because of his mem- bership in, and activities on behalf of, the Union and be- cause he engaged in concerted activities with other em- ployees for the purpose of collective bargaining and other mutual aid and protection; refusing to promote its employee Ben Stargell because of his membership in, and activities on behalf of, the Union and because he engaged in concerted activities with other employees for the pur- pose of collective bargaining and other mutual aid and protection. 5. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act with respect to those allegations in the complaint specifi- cally involving employee Michael Moore. THI REMI:I)Y Inasmuch as it has been found that Respondent has committed unfair labor practices, it will be recommended that Respondent be ordered to cease and desist there- from and to take certain actions necessary to effectuate the purposes of the Act. I have found that Respondent discharged George Strozier and refused to promote Ben Stargell for reasons which offended the provisions of Section 8(a)(3) and (1) of the Act. I shall therefore rec- ommend that the Respondent make them whole for any loss of pay which they may have suffered as a result of the discrimination practiced against them. The backpay provided herein with interest thereon to be computed in the manner prescribed in F. HW. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977)24 Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record, and in accordance with Section 10(c) of the Act, I hereby issue the follow- ing recommended: ORDER 2 5 The Respondent, National Steel Products Company, La Grange, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees that contrary to existing practices they would no longer be able to bring their grievances directly to management if they select the Union as their bargaining representative. (b) Soliciting its employees to withdraw their union authorization cards. (c) Threatening its employees that it will withdraw all of their existing wages and benefits if they selected the Union as their collective-bargaining representative, by 24 See, generally, Isis Plumbing & Heaing Co., 131) NL RB 716 (1962). 25 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 Regulatons, be adopted hy the Board and become its finings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 846 NATIONAL STEEL PRODUCTS telling its employees that the Union would have to start with a blank sheet of paper and bargain from scratch. (d) Interrogating its employees regarding their union membership, activities, and desires, and the union mem- bership, activities, and desires of other employees. (e) Engaging in surveillance of the union activities of its employees by photographing the union representative as he distributes union literature. (f) Engaging in surveillance of its employees' union ac- tivities and requiring those employees who distributed union literature outside the plant entrance to sign in before being allowed to enter the plant. (g) Creating an impression of surveillance of its em- ployees' union activities by informing them that it knows who was for the Union and who had signed union au- thorization cards. (h) Threatening its employees with the reduction of existing benefits by telling them that contrary to present practices, when work is unavailable before shift-ending time, they will be sent home if they select the Union as their collective-bargaining representative. (i) Threatening its employees that their working hours would be reduced by telling them that contrary to exist- ing practices, when their machines breakdown, and are not repaired within 1 hour, they will be sent home before shift-ending time if they select the Union as their collective-bargaining representative. (j) Threatening its employees that it will impose more rigid and demanding work schedules upon them if they select the Union as their collective-bargaining representa- tive. (k) Threatening its employees with discharge because of their activities on behalf of the Union. (I) Threatening to interfere with future employment opportunities of its employees with other employers in the LaGrange, Georgia, area because of their activities on behalf of the Union. (m) Threatening its employees that it will withdraw their existing benefits and take away their paid breaks and holidays if they select the Union as their collective- bargaining representative. (n) Threatening its employees with reprisals if they select the Union as their collective-bargaining representa- tive. (o) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer George Strozier immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings suffered by him as a result of his suspension and termina- tion in the manner set forth in the section herein entitled "The Remedy." (b) Offer Ben Stargell promotion to the zee-line paint- er job or, if such position no longer exists to a substan- tially equivalent job, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings suffered by him as a result of the failure to promote him to that position, in the manner set forth in the section herein entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its offices and places of business in La- Grange, Georgia, copies of the attached notice marked "Appendix." 2 6 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized representatives, shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Respondent shall take reasonable steps to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing, within 20 days of this Order, what steps Re- spondent has taken to comply herewith. 26 In the event that this Order is inforced 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 847